#### THE EASTERN CHEROKEES v. THE UNITED STATES.

[No. 23214.

Decided January 17, 1910.]

*On the Proofs.*

This is a branch of the case *The Cherolcee Nation*v. *The Unites States*reported in 40 O. Cls. R., 252. The decree awarded to the Eastern Cherokees $1,111,284.70, “ *less swell counsel fees as may he chargeable against the same under the provisions of the contract with the Cherolcee Nation of January 16, 1903, and sueh other counsel fees and expenses as may be hereafter allowed by this court.”*The decree also directs that the remainder “ *be distributed directly to the Eastern and Western Cherokees who were parties either to the treaty of New Echota or the treaty of Washington as individuals or to the legal representatives of such individuals.”*The Supreme Court affirms the decree, although the present claimants assigned as error “ *The court erred in charging the said fund of $1,111,284.70 with the fees of the attorneys for the Cherolcee Nation.”*Of this the Supreme Court said: *“We are not disposed to interfere with the Court of Claims in the allowance of fees and costs.”*The Eastern Cherokees now ask the court to so construe its decree that the Secretary of the Interior shall not be authorized to deduct from the fund awarded to them the costs and fees awarded to the counsel of the Cherokee Nation.

I. The Cherokee Nation by the terms of its agreement with the United States of December 19, 1891, for the sale of the Cherokee Outlet was acting for all Cherokees who might be entitled to share in any fund. The accounting agreed upon was not limited to the claim for expenses incurred in the removal of Eastern Cherokees, but was to embrace “ *a complete account of moneys due the Cherolcee Nation "*under any treaty or statute.

*105II. The contract between the Cherokee Nation and its attorneys was confined to the item for the removal of the Eastern Cherokees known as the Slade-Bender award.

III. The suit instituted by the Cherokee Nation under the *Act 1st July, 1902*(32 Stat. L., p. 726), was for the benefit of all ■Cherokees. The individuals known as the Eastern Cherokees were allowed to come in and be represented by their own attorneys by the *Act Set March, 1903*(32 Id., p. 996). But it was not the purpose of the act to supersede the suit already brought by the Cherokee Nation.

IY. The Cherokee Nation, having prosecuted the action and having obtained judgment in its name, which on appeal was affirmed by the Supreme Court, should not be denied the right of having its attorneys compensated out of the fund in controversy, because the court directed that the fund be distributed directly to individual Cherokees *per capita*instead of being paid to the Cherokee Nation for distribution.

V. A fund which is the stake in controversy in a suit should bear the expenses of the suit.

YI. Inasmuch as the moving parties applied in another court for a mandamus which was refused and they did not appeal, and where they did not apply to this court for an amendment of the decree until after the United States had paid the money to the attorneys pursuant to the decree, they are guilty of laches.

VII. This court can not change a decree after it has been affirmed by the Supreme Court and after the contention here was presented there and decided. The principle is that whatever was before the appellate court and disposed of must be deemed finally settled.

*The Reporters'*statement of the case:

The following are the facts of the case as found by the court:

I. The original petition in case No. 23199 was filed in this court by the Cherokee Nation on February 20, 1903, by its attorneys, Finkelnburg, Nagel & Kirby and Edgar Smith, under a certain contract bearing date January 16, 1903, as follows:

“ Know all men by these presents, that this contract, executed and approved in the manner prescribed in sections 2103 to 2106, both inclusive, of the Revised Statutes of the United States, and in the pursuance of the provisions of section 68 of an act of Congress entitled ‘An act to provide for the *106allotment of lands in the Cherokee Nation and the disposition of town sites therein, and for other purposes,’ approved by the President of the United States July 1st, 1902, and ratified by the Cherokee people at a popular election held August 7th, 1902, is made by and between the Cherokee Nation, acting through its principal chief, Thomas M. Buffing-ton, whose occupation is that of the principal chief of the Cherokee Nation, and whose residence is in the town of Vinita, in the Indian Territory, party of the first part, and the firm of Finkelnburg, Nagel & Kirby, composed of Gustav A. Finkelnburg, Charles Nagel, Daniel N. Kirby, Gustav F. Decker, Allen C. Orrick, and Arthur B. Shepley, whose residences are in the city- of St. Louis, State of Missouri, the occupation of each of whom is that of attorney at law, and which firm is party of the second part; and Edgar Smith, whose residence is in the town of Vinita, Indian Territory, and whose occupation is that of attorney at law, and who is party of the third part.

“ The purpose for which this contract is made is to secure the services of the parties of the second and third part as attorneys and counsellors as law for the Cherokee Nation. The special thing to be done under this contract by the parties of the second and third part is to represent said nation as attorneys in the Court of Claims of the United States and in the Supreme Court of the United States (if any appeal is taken) in the case hereinafter mentioned — that is to say, in the prosecution of the claim of the Cherokee Nation against the United States, which claim is commonly known as the £ Slade-Bender award,’ and grew out of and described in the agreement between the Cherokee Nation and the United States for the purchase of what is known as the Cherokee Outlet.

“ This contract is to run from the 16th day of January, 1903, until the 1st day of January, 1907, or until said claim is prosecuted to a final determination and the judgments obtained thereunder (if any) are paid, as provided in said act of Congress.

“ The rate per centum of fee to be paid to the parties of the second and third part in full for their services under this contract shall be as follows:

“Five per centum upon the first million dollars, or part thereof, collected, and two and one-half per centum upon the amount collected over and above the said first million dollars. *The disposition to be made of the money when collected under this contract shall be as provided in section 68 of the act of Congress aforesaid;*the compensation aforesaid to be paid to the said parties of the second and third part by *107the proper officers of the United- States shall be deducted *from the amoxmt recovered*and by the said officers paid direct to the said parties of the second and third part.

“ The scope and authority for the execution of this contract are set forth in section 68 of the said act of Congress, approved by the President and ratified by the Cherokee Nation as aforesaid, and no contingent matter or condition, except as herein set forth, constitute any part of this contract; and by virtue of and under the authority of said act of Congress the party of the first part has employed, and by these presents doth employ, the parties of the second and third part to represent said Cherokee Nation, in said courts in the city of Washington, District of Columbia, as attorneys of said' nation in the prosecution to a final determination and payment of the said claim, for and during the time aforesaid, and for the compensation aforesaid, hereby giving to said attorneys full power and authority in the premises to do and perform all things whatsoever that may be necessary and lawful in the prosecuting of the said claim, *and for the securing payment hy the United States of any judgment that may he recovered hy the said nation against the United*States, as provided in said act of Congress, to sign and execute all papers that may be required on behalf of said nation, hereby ratifying and confirming .all the lawful acts of said attorneys done in pursuance of the authority of this contract.

“The parties of the second and third part hereby accept the employment herein set forth and provided for upon the terms and conditions herein set forth, and they will, to the best of their ability, do and perform the services stipulated and required by this contract.

“Witness our hands and seals this 16th day of January, 1903, and executed in triplicate.

“ Thomas M. Buffington, [seal.]

*’■'■Principal Ghief of the Gherohee Nation.*

“ Finkelnburg, Nagel & Kirbt, [seal.]

*“Attorneys at Law.*

“ Edgar Smith, [seal.]

*“Attorney at Law.”*

Which contract, having been duly acknowledged before Chief Justice Bingham, of the supreme court of the District of Columbia, was on January 16, 1903, approved by the Commissioner of Indian Affairs and by E. A. Hitchcock, Secretary of the Interior.

The original petition in case No. 23212 was filed in this court on March 10, 1903, by certain individual Eastern and *108Emigrant Cherokees by Belva A. Lockwood, as their attorney; and the original petition in case No. 23214 was filed in this court by the Eastern Cherokees by Robert L. .Owen and others, as their attorneys, said petition being filed under the provisions of section 68 of the act of Congress approved July 1, 1902, as construed by section 13 of the act of Congress approved March 3, 1903. Said three cases were by an order of this court consolidated and heard as one case.

II. On February 14, 1905, the Cherokee Nation filed its replication to the petition of the Eastern Cherokees, which is as follows:

“Now comes the Cherokee Nation and for replication to so much of the intervening petition of the Eastern Cherokees as it is advised should be ansxvered, says:

“ 1. It denies that the Cherokee Nation in securing the accounting under the agreement of December 19, 1891, did so on behalf of the Eastern Cherokees referred to and for their exclusive use and benefit, and further denies that if it had collected or hereafter shall collect such money the same would have been or will be in its hands an implied trust for the benefit of the Eastern Cherokees, exclusively or otherwise.

“2. The Cherokee Nation denies that any such act of the Cherokee national council as is referred to and described in said intervening petition ever was enacted into law, but, on the contrary, says that the resolution of the Cherokee national council referred to was expressly disapproved by the President of the United States in the exercise of his supervisory powers under the law in such respect provided, and hence never had any validity:”

III. On May 18, 1905, this court passed its decree as follows:

The above causes, on motion and by consent, of the parties, having heretofore been consolidated for purposes both of hearing and judgment by appropriate order of this court, came on to be heard upon the pleadings, orders, and proofs, and were argued by Messrs. Charles Nagel, Edgar Smith, and Frederic D. McKenney on behalf of the Cherokee Nation; Messrs. Robert L. Owen and William H. Robeson on behalf of the Eastern Cherokees; Mrs. Belva A. Lockwood on behalf of certain individual claimants, styled Eastern and Emigrant Cherokees, and Mr. Assistant Attorney-General *109Pradt on behalf of the United States; and the court being-now sufficiently advised in the premises, it is, this 18th day of May, A. D. 1905, adjudged, ordered, and decreed that the plaintiff, the Cherokee Nation, do have and recover of and from the United States as follows:

Item 1. The sum of_ $2,125. 00

With interest thereon at the rate of 5 per cent from February 27, 1819, to date of payment.

Item 2. The sum of_ 1,111,284.70

With interest thereon at the rate of 5 per cent from June 12, 1838, to date of payment.

Item 3. The sum of_ 432.28

With interest thereon at the rate of 5 per cent from January 1, 1874, to date of payment.

Item 4. The sum of._ 20,406.25

With interest thereon from July 1, 1893, to date of payment.

the proceeds of said several items, however, to be paid and distributed as follows:

The sum of $2,125, with interest thereon at the rate of 5 per cent from February 27, 1819, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Secretary of the Interior in trust for the Cherokee Nation and shall be credited on the proper books of account to the principal of the “ Cherokee school fund ” now in the possession of the United States and held by them as trustees.

The sum of $432.28, with interest thereon at the rate of 5 per cent from January 1,1874, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Cherokee Nation to be received and receipted for by the treasurer or other proper agent of said nation entitled to receive it.

The sum of $20,406.25, with interest thereon at the rate of .5 per cent per annum from July 1, 1893, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Secretary of the Interior and credited on the proper books of account to the principal of the “ Cherokee national fund,” now in the possession of the United States and held by them as trustees.

*110The sum oí $1,111,284.70, with interest thereon from June 12,1838, to date of payment, less such counsel fees as may be chargeable against the same under the provisions of the contract with the Cherokee Nation of January 16,1903, and such other counsel fees and expenses as may be hereafter allowed by this court under the provisions of the act of March 3, 1903 (32 Stat., 996), shall be paid to the Secretary of the Interior, to be by him received and held for the uses and purposes following:

First. To pay the costs and expenses incident to ascertaining and identifying the persons entitled to participate in the distribution thereof and the costs of making such distribution.

Second. The remainder to be distributed directly to the Eastern and Western Cherokees, who were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi River, or to the legal representatives of such individuals.

So much of any of the above-mentioned items or amounts as the Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of sections 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item No. 2 as this court hereafter by appropriate order or decree shall allow for counsel fees and expenses under the provisions of the act of March 3, 1903, above referred to, shall be paid by the Secretary of the Treasury to the persons entitled to receive the same upon the making of an appropriation by Congress to pay this judgment.

The allowance of fees and expenses by this court under said act of March 3, 1903, is reserved until the coining in of the mandate of the Supreme Court of the United States.

IV. Bjr act approved June 30, 1906 (34 Stat., 664), Congress appropriated the money for the payment of the said judgment of this court of May 18, 1905, the direction being to pay as set forth in the judgment.

V. While the court was considering the question of the amount to be allowed in its decree to the attorneys for fees the attorneys representing all the claimants were present, *111including the attorneys of the Cherokee Nation, and no application was made to the court for the allowance of compensation to the attorneys of the Cherokee Nation out of the sum of $1,111,284.70, being item 2 of the judgment of this court, and the court made no allowance to the attorneys of said Cherokee Nation out of said item. Said attorneys of the Cherokee Nation stated at the time that they relied upon their contract under the act of 1902, which was approved by the Secretary of the Interior, and that they would apply to him for the payment of their fees thereunder.

YI. On July 16, 1906, Finkelnburg, Nagel & Kirby and Edgar Smith presented a claim to the Secretary of the Interior for an allowance of fees under their contract with the Cherokee Nation of January 16, 1903, out of the sum provided by item 2 of the judgment of this court. On July 17 their claim was approved and allowed by Charles F. Larra-bee, Acting Commissioner of Indian Affairs, and Thomas Ryan, Acting Secretary of the Interior, under the terms of section 2104 of the Revised Statutes of the United States. On July 18, 1906, Frank J. Boudinot, an Eastern Cherokee, exhibited in the supreme court of the District of Columbia a bill of complaint in his own behalf and in behalf of such other Eastern Cherokees as might elect to join him therein against Ethan A. Hitchcock, Secretary of the Interior, and Charles A. Treat, Treasurer of the United States, praying for an order restraining the defendants from allowing and paying said fee out of said item 2. On the same day, upon application of the plaintiff, the court issued a rule upon the defendants to show cause why a temporary injunction should not be granted against them. On the 19th of July, 1906, C. F. Larrabee, acting commissioner, at the request of the Secreta^ of the Interior, withdrew from the Auditor of the Treasury temporarily the claim of said Finkelnburg, Nagel & Kirby and Edgar Smith, together with the indorsement of its allowance, and on July 23, 1906, the papers in said claim for fees were again sent to the Auditor of the Treasury for the Interior Department by Charles F. Larra-bee, acting commissioner. On July 30, 1906, each defendant filed his separate answer to the bill of complaint of *112Frank J. Boudinot, praying that it be taken also as an answer to the said rule. The defendant Treat denied generally any knowledge of the averment of fact contained in the bill. The defendant Hitchcock by his answer set up, among other matters, that under the requirements and provisions of section 2104 of the Revised Statutes of the United States the Hon. Thomas Ryan, Acting Secretary of the Interior, and the Hon. Charles F. Larrabee, Acting Commissioner of Indian Affairs, on July *11,*1906, certified to the proper accounting officer that said contract had been fully complied with and fulfilled on the part of said Finkeln-burg, Nagel & Kirby and Edgar Smith, and also set up that by the terms of the aforesaid judgment and decrees of this, court the money provided for as said item 2 was chargeable with the fees of said Finkelnburg, Nagel & Kirby and Edgar Smith. Thereafter the said cause was submitted to the court upon the plaintiff’s motion for the writ of injunction, after argument of counsel, and on September 21, 1906, the court denied the said motion and directed a decree to be prepared discharging said rule. On the same day Charles Poe and Samuel A. Putnam, solicitors for the Eastern Cherokees, addressed a letter to Charles A. Treat, Treasurer of the United States, as follows:

“ 1416 F Street,

“ Washington, *D. 0., September . 1906.*

“Hon. ChaRles H. Treat,

“ *Treasurer of the United States.*

“ Sir : Mr. Justice Gould, of the supreme court of the District of Columbia, to-day passed an order in the cause entitled Frank J. Boudinot against Ethan A. Hitchcock, Secretary of the Interior, and Charles PI. Treat, Treasurer of the IJnited States, equity No. 26436, discharging the rule to show cause why a preliminary injunction should not now be granted restraining the present payment of a sum, amounting to about one hundred and fifty thousand dollars, claimed to be due by Messrs. Finkelnburg, Nagel & Kirby, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian Territory, under a contract which they claim to have had with the Cherokee Nation for the payment to them of certain fees.

“While one of the objects of this proceeding was to obtain a preliminary injunction enjoining the payment by you of this fund, that was far from its sole object, and the refusal by Mr. Justice Gould at this time to issue the high preroga-

*113tive writ of injunction by no means determines the rights of the parties claiming to be interested in the fund in controversy, as the hearing of the application for the preliminary writ was had only upon the papers on file and not upon bill, answer, and proof. It is our intention to proceed at once, or as soon as your answer and that of the Secretary of the Interior to the bill of complaint have been filed, to establish the allegations of our bill of complaint by proof, and we shall be as expeditious about this as possible. Under our practice in such cases we have had no opportunity up to this point in the cause to offer our proof, but we can assure you that we will cooperate with the Government’s attorneys to speed the cause.

“ Our object in writing to you is to protest most respectfully upon the behalf of the Eastern Cherokees, all of whom we represent and who are citizens of the United States, against the payment by you of the fund claimed under this pretended contract for services which never were rendered, and to notify you that if it should be paid while this litigation is pending, in our humble judgment the Government of the United States can be compelled by appropriate proceedings to pay it a second time. *(Pam-To-Pee*v. *United,*States, 187 U. S., 371.) The course of practice in this jurisdiction is such that at this stage of the cause we are not permitted to file a bond of indemnity therein to protect persons in interest from any slight damage which may be caused by a short delay in the payment by you of this fund. The interests of clients, as well as of the United States Government, unite in making it both proper and prudent to postpone the payment of this fund until the case can be investigated fully and determined upon its merits, and it is with that view and in that spirit we write to you, and we trust that you will consider it to be your duty and for the protection of the Government of the United States to withhold, for the present, the payment of this claim.

“ Very respectfully, yours,

“ Chas. Poe,

“Saml. A. Putnam,

*“Solrs. for Eastern*Gherolcees.”

“ Treasury Department,

“ Oeeice oe the Treasurer oe the United States,

*“Washington, September*&$, *1906.*

*“*Chas. Poe and Same. A. Putnam,

*“Solicitors for Eastern*Gherohees,

*“11¡.16 F*Street, Washington, *D. O.*

*“*Sirs : Your letter of the 21st instant, in which you protest against payment of claim made by persons named for services *114claimed to have been rendered Eastern Cherokees under contract, has been referred for attention to the Solicitor of the Treasury.

“ Should you have occasion to write again on this or a similar subject, please address that officer.

“ Respectfully,

“ Citas. H. Teeat,

“ *Treasurer of the United*States.”

Thereafter, on October 8, 1906, the court entered an order dismissing said bill as follows:

“ This cause having come on to be heard on complainant’s motion for writs of injunction to be directed to the defendants, and each of them, as specified in complainant’s bill of complaint, was argued by counsel for the respective parties and submitted to the court upon the bill of complaint and affidavits filed in support thereof, the pleas, answers, and accompanying exhibits of defendants, the rule to show cause heretofore issued by the court and the return of the defendants thereto, and the court being now sufficiently advised in the premises,

“ It is this 8th day of October, A. D. 1906, adjudged and ordered that said rule to show cause be, and the same is hereby, discharged and held for naught; and it further appearing to the court that because said bill of complaint is defective for want of indispensable parties, and also fails to disclose any equity which would require or justify the granting of the relief prayed,

“ It is further adjudged, ordered, and decreed that said bill of complaint be, and the same is hereby, dismissed, at complainants’ costs.

“Ashley M. Gould,

*“Associate*Justice,

“Supreme■ *Court of the District of Col/u/rrdbiaP*

From which order of dismissal an appeal was prayed, with an approved appeal bond for costs. The money was paid before the appeal was filed in the appellate court.

VII. On November 3, 1906, while said appeal was pending, the officers of the Treasury Department paid to said Finkelnburg, Nagel *&*Kirby and Edgar Smith, upon the aforesaid certificate of the Secretary of the Interior and the Commissioner of Indian Affairs, the sum of $149,324.80, and have deducted $147,527.01 of said sum from that portion of the appropriation of June 30, 1906, which was by *115the judgment and decrees of this court directed to be paid as item 2 to the Secretary of the Interior for distribution to the Eastern Cherokees as individuals.

*Mr. Gharles Poe*and *Mr. Samuel Putnam*for the petitioners, the Eastern Cherokees:

Before going into the question of the propriety or impropriety of this payment to the attorneys of the Cherokee Nation, let us first inquire into the jurisdiction of the court to rectify an error committed in the execution of its judgment, granting for the moment that an error has been committed. In the case of *Pam-To-Pee*v. *The United States*(187 U. S., 871) the court uses the following language:

“But even if the language of the prior opinions of the Court of Claims and this court can be tortured into a different construction, still there can be no question of the jurisdiction of the Court of Claims over the present action. The jurisdiction of a court is not exhausted by the mere entry of a judgment. It always has power to inquire whether that judgment has been executed, and the contention here is — ■ and it is the basis of this suit — that the judgment which was rendered in the prior suit has not been executed. It would be an anomaly to hold that a court having jurisdiction of a controversy, and which renders a judgment in favor of A against B, had no power to inquire whether that judgment has been rightly executed by a payment from B to C. If the Court of Claims had no authority to inquire into the execution of its judgment, it was shown of a part of the ordinary jurisdiction of a court. The question what is essential in order to confer jurisdiction in this court over the judgments of the Court of Claims was exhaustively examined by Chief Justice Taney in *Gordan*v. *United States,*reported in 117 U. S-, 697, and that judgment has been more than once referred to by this court as conclusive of the question therein considered.” *(District of Columbia*v. Eslin, 183 IT. S., 62, 64; L. Ed., 85; 22 Sup. Ct. Bep., 17; *District of Columbia*v. Barnes, 187 U. S., 637; *post,*344; 23 Sup. Ct. Bep., 846.)

In that opinion he said:

“The inferior court, therefore, from which the appeal is taken must be a judicial tribunal authorized to render a judgment, which will bind the rights of the parties litigating before it unless appealed from, and upon which the appropriate process of execution may be issued by the court to *116carry it into effect. And Congress can not extend the appellate power of this court beyond the limits prescribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a commissioner or auditor, or any other tribunal exercising only special powers under an act of Congress; nor can Congress authorize or require this court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties and process of execution awarded to carry it into effect.

“ The award of execution is a jsart, and an essential part, of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter and without any operation upon the rights of the parties, unless Congress should at some future time sanction it and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court in the exercise of its appellate jurisdiction, yet it is the whole power that the court is allowed to exercise under this act of Congress.

*“*It follows from these considerations that the Court of Claims not only had jurisdiction to find the amount due from the United States to the Pottawatomie Indians of Michigan and Indiana and render judgment therefor, but also to inquire into the question whether that judgment had been duly and properly executed.”

We submit that this decision is conclusive, and that there can be no further question as to the power of this court to protect its judgments and enforce their proper execution.

The court will see that these gentlemen were to receive as a fee a per centum upon the amount collected for the Cherokee Nation and their compensation was to be awarded to them not by this court but by the Secretary of Interior and Commissioner of Indian Affairs, out of moneys collected for the Cherokee Nation, in accordance with the provisions of sections 2103 to 2106, inclusive, of the Revised Statutes of the United States, but the court will look in vain for any authority vested in it to award fees or compensation to these gentlemen, nor will it be possible to discover any authority for the allowance of compensation to them by the Secretary *117of the Interior and. the Commissioner of Indian Affairs to pay them fees or compensation out of moneys not collected for the Cherokee Nation, but expressely awarded to the Eastern Cherokees as individuáis, no matter what their place of residence and whether they were members of the Cherokee Nation or not.

The court recognized completely its want of jurisdiction to award fees to these gentlemen, as well as it recognized the difference between the sums which it awarded to the Cherokee Nation in items 1, 3, and 4 of its judgment from that awarded to the Eastern Cherokees in item 2. The court does use the language “ less such counsel fees as may be chargeable against the same under the provisions of the contract with the Cherokee Nation of January 16,1903,” but it nowhere says that any sum is chargeable against said item, and it is respectfully submitted that it had no jurisdiction, general, or under the provisions of section 68 of the act of July 1, 1902, to award any' fees to the attorneys for the Cherokee Nation.

This contention is made more apparent by the language of the act of March 3, 1903 (32 Stat. L., 996), by which jurisdiction is expressely conferred upon the court to award fees to attorneys for the Eastern Cherokees.

This court'recognized its right and power to award fees and compensation to the attorneys for the Eastern Cherokees in its judgment and decree of May 18, 1905, and exercised them in its decree of May 28, 1906, when it awarded 15 per cent of the amount due and payable to the Eastern Cherokees as compensation to its attorneys, amounting to about $750,000; nor is it out of place here to state that when this latter award was made the gentlemen representing the Cherokee Nation were present in court and did not claim that it had jurisdiction to award them any fees, nor did they intimate to the court that they expected to receive any compensation out of the fund mentioned in item No. 2.

The general deficiency bill, approved June 30, 1906, made appropriation for the payment of the judgment of this court. The provisions of the act of May 3, 1903 (32 Stat. L., 996), provided that this court should determine to whom the funds Wholly or in part should equitably belong, and both this court *118and the Supreme Court of the United States on appeal, determined that the entire fund equitably belonged to the Eastern Cherokees as individuals. The issue made up in the case, by the replication interposed by the Cherokee Nation, as late as February 14, 1905, was sharply and distinctly drawn, and it is a mere quibble to say that the judgment was in favor of the Cherokee Nation. If the Cherokee Nation could claim this fund at all, it could claim it only as trustee and therefore the fund was determined “ wholly to belong equitably to the Eastern Cherokees as individuals,” and in the same breath with which the court declared the Cherokee Nation to be a trustee, it declared it to be a moribund trustee, stripped it of its powers as such, and substituted the Secretary of the Interior for it, refusing to it the right ever even to touch a single penny of the alleged trust money.

Nor was it the courts alone which gave consideration to this question of the compensation of attorneys for their services in this litigation. Section 68 of the act of July 1, 1902, provides for the employment of attorneys by the Cherokee Nation or by any band thereof, showing how their contracts were to be made and providing how compensation was to be awarded under such contracts to the attorneys employed by the Cherokee Nation. Some doubt appears to have arisen as to the true construction of this section, and Congress by the act of March 3, 1903, explained exactly what it did mean by section 68 of the act of July 1,1902, and conferred jurisdiction upon this court to fix the compensation of the attorneys of the Eastern Cherokees, rendered in relation to such claim.

This section, as well as section 68 of the act of 1902, shows that Congress knew that some question might arise as to the ownership of this fund, and that it knew that, in order to protect the interests of all the Indians as well as to secure to the United States Government a complete release from all its obligations under treaties or otherwise, it was necessary that all the claimants to the fund should be brought before the court; and it is manifest that when it provided that this court should have jurisdiction to award compensation to the attorneys for the Eastern Cherokees for their services, and *119further provided that the court should have power to declare who was the true owner of the fund, it did not intend that two sets of attorneys, the one the attorneys of the successful and the other the attorneys of the unsuccessful parties, should both be paid out of the same fund. Congress meant to say, and did say, the Government of the United States has a fund arising out of a treaty which it made with the Cherokee Nation, but the treaty also says that the fund shall be payable to the Eastern Cherokees. Now, we will allow you to sue us and to sue among yourselves in our Court of Claims, and if one of you wins, that is, the Cherokee Nation, the compensation to its lawyers shall be fixed by the Secretary of the Interior and the Commissioner of Indian Affairs in accordance with the provisions of sections 2103 to 2106 of the Eevised Statutes, but if the Eastern Cherokees win the Court of Claims and not the Secretary of the Interior and the Commissioner of Indian Affairs shall fix the fees payable out of the fund collected. The Court of Claims decided and the Supreme Court affirmed the decision, that the fund equitably belonged to the Eastern Cherokees individually, no matter where they resided, so the Cherokee Nation lost its case, and its attorneys collected nothing out of this fund for it. Manifestly it was not the intention of Congress that there should be two payments to two sets of lawyers out of the one fund.

It will thus be seen, we submit, that the gentlemen representing the Cherokee Nation should not have received any compensation out of the fund in question; that they did not collect this fund for the Cherokee Nation; that this court had no power to, and, in fact, never did claim that it had any power to award them any fee; and that the Secretary of the Interior and the Commissioner of Indian Affairs had no power under -the provisions of the Revised Statutes of the United States, upon which their contract is based, to award them any fee out of the money so appropriated to pay the judgment of this court. Whether the payment which is admitted to have been made to these gentlemen is claimed to have been made by virtue of the provisions of sections 2103 to 2106 of the Revised Statutes *120of the United States, or to have been made under the judgment of this court, is immaterial, for a payment attempted to be justified on either ground was improper and illegal.

The only lawful way in which money can be paid out of the Treasury of the United States is by payment made in strict conformity with the pro visions of some act of the Congress. No other mode of payment is legal. This court rendered a judgment and Congress, by the general deficiency bill, approved June 30, 1906, made appropriation for its payment out of any money in the Treasury of the United States not otherwise appropriated. If our contention is correct as to the true meaning of the judgment of this court, no money was due to Messrs. Finkelnburg, Nagel & Kirby and Edgar Smith out of item 2, and therefore the fund appropriated for the payment of the judgment to the Eastern Cherokees remains as if no such payment had ever been made to these gentlemen. No matter whether the bookkeeping of the Treasury Department charges this fund with this payment or not. To hold otherwise would be to decide that the judgments of this court are subject to revision and correction, if not to the defiance of the various departments. It can make no difference to the rights of the petitioners here whether this unlawful payment be charged to the gold reserve, or even to the conscience fund. If Congress did not direct it to be jjaid out of their money, they are not concerned with the methods of the Treasury Department, nor is this court concerned with them, and it is clear to us that the court has ample jurisdiction to direct the payment of this money to be made in accordance with the true meaning of its judgment,- particularly as that is the way in which Congress ordered that it should be paid. If the court, however, should be of opinion that this fund has in point of fact been impaired by this payment to Messrs. Finkelnburg, Nagel & Kirby and Edgar Smith, there still remain in the court not only the power but the duty to award a judgment in favor of these petitioners for the amount by which it has been so impaired, and Congress undoubtedly will make appropriation to pay any such judgment rendered by this court.

*121Some allusion was made to certain proceedings instituted by Frank J. Boudinot, on bis own behalf and on the behalf of such other Eastern Cherokees as might elect to unite with him in that proceeding in the Supreme Court of the District of Columbia seeking to restrain the payment of this fee to Messrs. Finkelnburg; Nagel & Kirby and Edgar Smith by the Secretary of the Interior and the Treasurer of the United States. Whether it is intended by these allusions to invoke the doctrine of *laches*or the doctrine of *res judi-*cata., we are at a loss to know. If the doctrine of *laches*be sought to be invoked, we reply that these gentlemen presented a claim for the allowance of their fees out of this fund to the Secretary of the Interior on July 16, 1906, which was allowed on July 17, 1906, and transmitted to the Auditor of the Treasury for the Interior Department some time on July 18, 1906, and that Boudinot’s bill was exhibited in the Supreme Court of the District of Columbia on July 18, 1906, but whether before or after the transmittal of the allowance of these fees by the Secretary of the Interior and the Commissioner of Indian affairs we are unable to state. So much for *laches.*

As to *res judicata:*Boudinot’s bill prayed for a perpetual injunction to restrain the payment of money. Under our practice in chancery a rule to show cause why a temporary injunction should not be granted was at once issued by the court and made returnable on the 30th of July ensuing. While this rule was pending it operated as an injunction. On the return day of the rule the Treasurer of the United States and the Secretary of the Interior filed their answers. For convenience they made them answers to the bill of complaint as well as reasons why the temporary injunction should not be granted. On that day the case was argued merely on the question as to whether a temporary injunction should be issued restraining the payment of the money until the allegations of the bill or the denials of the answer could be sustained or rebutted, as the case may be, by proof taken in the ordinary way according to the practice in courts of chancery. The court took the matter under advisement and on September 21, 1906, rendered an opinion discharging the *122rule to show cause. Until this time the payment of the money had been practically enjoined. On the 8th of October, 1906, the justice presiding sent for the counsel for the respective parties and passed an order dismissing Boudinot’s bill; in other words, denied him his prayer for a temporary injunction and also denied him an opportunity to prove his case, although his case had never been submitted to the court. Pie had no writ of injunction and he had no opportunity of establishing his right to one; if the court had granted the temporary injunction he would have been compelled,.and, in fact, was ready and able to furnish an undertaking or bond, as it is more familiarly called, conditioned to pay all damages which might arise from the issuing of the writ of injunction; but, as the court had denied him the writ of injunction, there was no condition of affairs from which any loss could be occasioned to anybody, and he could, therefore, give no injunction bond. Pie prayed an appeal within the time allowed by the rules of court from the order of the court, dismissing his bill of complaint, but the granting of an appeal did not give him an injunction, because the court had already refused him his injunction, and to say that taking an appeal from an order refusing to grant an injunction is sufficient to restrain the payment of money is equivalent to saying that any man who loses his case can, by the mere act of taking an appeal, reverse the judgment of the court until he tries his appeal in the appellate court. Boudinot did file his prayer for appeal and his approved appeal bond for costs, which was all he could do, and prior to doing that his solicitors wrote to the Treasurer of the United States a letter telling him the exact condition of affairs and protesting against the payment of the money until the appeal could be heard. This letter is printed on page 46 of Senate Document No. 227, Fifty-ninth Congress, second session, on file in this cause. On the 3d of November, the Secretary of the Treasury made the payment to the attorneys for the Cherokee Nation which Boudinot was seeking to restrain, and it would have been useless for him to proceed any further with his appeal. His bill of complaint prayed for an injunction to restrain the payment of this money. The prayer of his bill *123was denied and his bill of complaint dismissed. That was the only relief prayed for by him, and if he had prosecuted his appeal further he would have been told in the appellate court that the court did not sit to hear moot questions and could not pass an order to restrain the payment of money after the money had been paid.

With this explanation of the Boudinot case, even if it had been a suit brought by the Eastern Cherokees as a body, it would not have concluded them. They therefore certainly are not concluded-by the action of one of their number.

Still further: Boudinot’s bill was not for the collection of money, nor the presentation of a claim for the payment of money. It was merely a bill filed to stay payment of money until appropriate proceedings could be instituted to ascertain to whom the money belonged. The present claim before your honors is a claim for the payment of money. The distinction seems very plain to us.

We have gone thus fully into the discussion of this Bou-dinot case for two reasons, first, to show that it really has no bearing upon the question involved, upon the theory of *res*judicata, but secondly, and more especially, to show to your honors how diligent and vigilant the Eastern Cherokees have been not only to protect themselves from this illegal action on the part of the departments, but also to save the Government from a possible double payment of this money. How simple a matter it would have been, and how becoming-in the departments, as showing the respect which is due to this high court, if they had availed themselves of the provisions of law before making this payment and applied to your honors for advice and guidance. The Eastern Cherokees are certainly not to blame because the departments did not do this.

This supplemental petition is but the application of *ees-tuis que-trustents*to the court having jurisdiction over them, as well as over their trustee, to give them relief from the misconception of their trustee of his plain duty and to award to them reparation for the injury which has been caused them by his mistake.

*124*Mr. Edgar Smith*and *Mr. Frederick D. McKenney*for the Cherokee Nation in opposition.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the United States in opposition. *Mr. Chapman W. Maupin*was on the brief.

Peelle, Ch. J.,

delivered the opinion of the court:

The court is asked to construe its decree herein respecting the right and authority of the Secretary of the Interior or of the Treasury Department to apply any part of the money appropriated to pay said decree to the payment of fees to the attorneys of the Cherokee Nation after the Supreme Court had affirmed the decree in the name of the Cherokee Nation, though directing that the money arising thereunder be paid to the Eastern Cherokees.

By section 68 of the act of July 1, 1902 (32 Stat. L., 726), jurisdiction was conferred on the Court of Claims to consider and adjudge “ any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act; * * * through attorneys employed and to be compensated in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes of the United States.”

Under that act a contract was entered into January 16, 1903 — before the passage of the second jurisdictional act hereafter referred to — between the Cherokee Nation, through its principal chief, and Finkelnburg, Nagel & Kirby and Edgar Smith in accordance with the sections of the Revised Statutes referred to in said jurisdictional act, which contract was, as required by said sections, approved by the Secretary of the Interior.

The purpose of the contract, as therein expressed, was to secure the services of the attorneys “ in the prosecution of the claim of the Cherokee Nation against the United States, which claim is commonly known as-the ‘Slade-Bender’ award, and grew out of and described in the agreement be*125tween the Cherokee Nation and the United States for the purchase of what is known as the Cherokee Outlet.” No mention is made therein of any other claim; nor was the contract made contingent upon the nation receiving the benefit of the amount recovered. The validity of said contract and the authority of said attorneys to represent the Cherokee Nation thereunder was not, and is not, controverted.

The attorneys so employed brought suit in the name of the *Cherokee Nation*v. *The United States*(No. 23199), within the time prescribed in the jurisdictional act; but the Eastern Cherokees — that is to say, those who had sold their lands in North Carolina under the treaty of 1835-36 and who had been forced to remove to the Indian Territory (the expense of whose removal was involved in the suit) and certain other Eastern Cherokees who had refused or evaded removal or who had emigrated elsewhere (and are, therefore, contra-distinguished from the Cherokees called “Old Settlers,” who were removed West prior to said treaty) — were dissatisfied with the suit in the name of the Cherokee Nation, which explains the purpose of the act of March 3, 1903 (32 Stat. L., 996), whereby the jurisdictional section was construed to give “the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi River, acting together or as two bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the Court of Claims upon the termination of such suit.”

The act further provided that said section 68 should be so construed “ as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section.”

Following this act petitions were filed on behalf of the Eastern Cherokees, No. 23214, and the Eastern and Emigrant Cherokees, No. 23212, all which cases were subsequently con-*126solidatecl and tried as one case. In the cases so consolidated the court filed elaborate findings of fact, with conclusions of law thereon, which are set forth in 40 Court of Claims Reports, 252, and by reference made a part hereof.

Thereafter, on May 18, 1905, the court entered its decree herein as set forth in Finding III.

Therein it was, among other things, provided that “so much of any of the above-mentioned items or amounts as the Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of sections 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item No. 2 as this court hereafter by appropriate order or decree' shall allow for counsel fees and expenses under the provisions of the act of March 3, 1903, above referred to, shall be paid by the Secretary of the Treasury to the persons entitled to receive the same upon the making of an appropriation by Congress to pay this judgment. The allowance of fees and expenses by this court under said act of March 3, 1903, is reserved until the coming in of the mandate of the Supreme Court of the United States.”

From the decree thus rendered the United States appealed, as did the Cherokee Nation and the Eastern Cherokees. *United States*v. *Cherokee Nation*(102 U. S., 101-130). On behalf of the Eastern Cherokees errors were assigned, among others, as follows: “The court erred in charging the said fund of $1,111,284 and interest, to be realized from its said judgment or decree, with the fees of the attorneys for the Cherokee Nation.”

In support of the error thus assigned, counsel for the Eastern Cherokees, among other things, contended that said amount was a trust fund held by the Government for the exclusive use and benefit of the Eastern Cherokees, and that the attorneys representing the Cherokee Nation should not be paid therefrom; that the Eastern Cherokees being rightfully in court and having established their right to said fund, it should not be chargeable with attorneys’ fees to the Cherokee Nation. In response to that contention the Cherokee Nation, through its counsel, insisted that in the prosecution *127of the action it was representing all of its members, which included the Eastern Cherokees as component members of the nation; that the right asserted by the Eastern Cherokees was based on the act of March 3, 1903, to which neither the nation nor its citizens did consent.

The Supreme Court, in affirming the decree in the name of the Cherokee Nation, as well as disposing of the issue thus raised, said:

> “We concur wdth the Court of Claims in the wisdom of rendering judgment in favor of the Cherokee Nation, subject to the limitation that the amount thereof should be paid to the Secretary of the Interior to be distributed directly to the parties entitled to it, but we think that the terms of the second subdivision of the fourth paragraph of the decree, in directing that the distribution be made to ‘the Eastern and Western Cherokees,’ are perhaps liable to misconstruction, although limited to those ‘who were parties either to the treaty of New Echota as proclaimed May 23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi River.’ This should be modified so as to direct the distribution to be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi, parties to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers.

> “ In view of the language of the jurisdictional acts of 1902 and 1903 in respect to the Cherokee Nation, we are not disposed to interfere with the Court of Claims in the allowance of fees and costs.”

And after referring to the several acts discontinuing the tribal government of the Cherokee Nation and the subsequent joint resolution continuing the tribal government “for all' purposes under existing laws until all property of such tribes, or the proceeds thereof, shall be distributed,” the court said:

> “ Nevertheless, taking the entire record together, the various treaties, and acts of Congress, and of the Cherokee council, and the language of the jurisdictional acts of 1902 and 1903, we leave the decree as it is in respect to counsel fees and costs.”

In concluding the opinion the court said:

> “The result is that with the modification of the second subdivision of the fourth paragraph of the decree, relating to the $1,111,284.70 with interest,, above indicated, the decree of the Court of Claims is affirmed.”

*128It must not be overlooked that the jurisdictional acts under which these cases were brought were founded upon the agreement between the United States and the Cherokee Nation of December 19,1891, for the sale of the Cherokee Outlet, which agreement was approved by the Cherokee council January 4, 1892, and ratified by Congress March 3, 1893 (27 Stat. L., 640, sec. 10).

That part of the agreement material to the present issue is as follows:

> “The United States shall, without delay, render to the Cherokee Nation, through any agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1835-36, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect; and upon such accounting, should the Cherokee Nation, by its national council, conclude and determine that such accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve months to enter suit against the United States in the Court of Claims, with the right of appeal to the Supreme Court of the United States by either party, for any alleged or declared amount of money promised but withheld by the United States from the Cherokee Nation, under any of said treaties or laws, which may be claimed to be omitted from, or improperly or unjustly or illegally adjusted in said accounting; and the Congress of the United States shall, at its next session, after such case shall be finally decided and certified to Congress according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee Nation, should judgment be rendered in her favor; or, if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly appropriated by Congress, payable to the Cherokee Nation, upon the order of its national council, such appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting.”

It will thus be noted that the Cherokee Nation, by the terms of that agreement, was acting for all the Cherokees entitled to share in any fund which might be due under any of the treaties there named, including the treaties of 1835-36 and 1846. The agreement was not limited to any fund which might be found due for removal of the Eastern Cherokees to *129the Indian Territory; but the accounting was to embrace “ a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the years ” there named, “ and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect.”

Notwithstanding this agreement, the contract with the attorneys for the Cherokee Nation was confined to the claim for the removal expenses of the Eastern Cherokees, known, as recited in the contract, as the “ Slade-Bender ” award.

The first jurisdictional act (section 68, July 1, 1902, 32 Stat. L., 126) gave “ the Cherokee tribe, or any band thereof,” the right to maintain an action to determine what claim, if any, arising under treaty stipulations, said tribe or band thereof may have against the United States. The court was further given “ authority, by proper orders and process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy.”

The act was perhaps sufficiently broad and definite for the court to have determined the controversy between all the parties, but as there were no bands in the Cherokee tribe or nation, some doubt arose in the minds of those representing the Eastern Cherokees as to how or whether they could be made separate parties under that act, and so to put the matter at rest the jurisdictional section was by the act of March 3, 1903 (32 Stat. L., 996), so construed as to give the Eastern Cherokees, including those -in the Cherokee Nation, as well as those east of the Mississippi Elver acting together or as two bodies, the status of a band with the right to prosecute such suit through their attorneys. But it was not the purpose of the act to supercede the action commenced by the Cherokee Nation. On the contrary, the later act in express terms further provided that the first act should be “ so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section.”

The court was also given authority “to render a judgment in favor of the rightful claimant and also to determine as *130between the different claimants, to whom the judgment so rendered equitably belongs either wholly or in part.” The court was also “ required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi River constitute a part of the Cherokee Nation, or of the Eastern Cherokees, so called, as the case may be.”

From the foregoing agreement and jurisdictional acts it is apparent that the Cherokee Nation was authorized and required to prosecute the action it did; and having obtained judgment in its name in the Court of Claims, which, on appeal, was affirmed, shall it be denied the right of compensation to its attorneys out of the fund in controversy because the money so recovered was directed by the Supreme Court to be paid to 'the Secretary of the Interior for distribution “to the Eastern Cherokees as individuals, whether east or west of the Mississippi, parties to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers ? ”

The litigation was over a fund arising from treaty stipulations supposed to be in the Treasury in trust for the parties entitled thereto. Surely the fund which was the stake in controversy should bear the expense, and such was the conclusion of this court. And in respect to attorneys’ fees the Supreme Court ruled that, “ taking the entire record together the various treaties, and acts of Congress, and of the Cherokee councils,' and the language of the jurisdictional acts of 1902 and 1903, we leave the decree as it is in respect to counsel fees and costs.”

The court, in view of the whole record and the jurisdictional acts of 1902 and 1903, having left the “ decree as it is in respect, to counsel fees and costs,” no further action Avas contemplated by or required of the court in respect to attorneys’ fees under the act of 1902.

The decree clearly recognized the distinction between the fees authorized by the separate acts. That is to say, the fees to be paid to the attorneys for the Cherokee Nation under the first act Avere to be governed by the contract made in accordance therewith, while under the second act the court was authorized to fix the fees of the attorneys for the Eastern *131Cherokees, which it did at 15 per cent of the amount recovered, as they had agreed, to be apportioned among the many attorneys employed for many years in their behalf.

To prevent any portion of the money due the Eastern Cherokees being applied to the payment of fees and expenses of the attorneys of the Cherokee Nation, the Eastern Cherokees, through their attorneys, commenced an injunction proceeding in the courts of the District of Columbia; but they were denied any relief, and their petition was dismissed, from which no appeal was prosecuted; and thereafter the Secretary of the Treasury, on the certification of the Secretary of the Interior and the advice of the Assistant Solicitor of .the Treasury, paid to the attorneys of the Cherokee Nation, in pursuance of their contract, as directed by the decree, the fees due thereunder.

It was not until after the payment of the money under said contract that the Eastern Cherokees filed their supplemental petition herein praying the court to so construe its decree as to provide that the sum of $1,111,284.10 should not be chargeable with the fees of the attorneys of the Cherokee Nation. But independent of their delay, such construction would not only be contrary to the language of the decree, but would, in effect, be changing the decree after its affirmance by the Supreme Court, and, too, after the con-., tention here was presented there and denied. *(Ex parte Union Steamboat Co.*(178 U. S., 317, 318); *Gaines*v. *Rugg*(148 U. S., 228, 237) and the numerous authorities therein cited; *In re Sanford Fork and Tool Co.*(160 U. S., 247, 255); *In re*Potts, *petitioner*(166 U. S., 263, 265), the sub-' stance of all which is that whatever was before the court and disposed of is considered as finally settled, and the inferior court is bound by the decree as the law of the case, and can not vary or examine it other than for the purpose of exe- ■ cution.

The Cherokee Nation was the proper party to the suit under both jurisdictional acts, and it had contracted to pay its attorneys, with the approval of the Secretary of the Interior, in strict accordance with the law, all of which was recognized by the court and sanctioned and provided for in *132its decree; and the decree, in respect to the payment of said fees, having been affirmed and executed, the court is not at liberty to modify the decree or to construe it contrary to the clear import of the language used, and therefore the prayer of the petitioners is denied.'

For the reasons we have given the supplemental petition must be dismissed, which is accordingly done.

Howry, J.,

dissenting:

Agreeable as it would be to unite in the result, not only because of the nature of this case, but likewise because of the high character of the counsel claiming fees from the individuals decreed to be entitled to the fund, but under employment from others decreed not to be entitled, I am constrained to state different conclusions, whatever the outcome.

The questions presented relate to the right of the executive officers named in the findings to make the payments set forth. First, to pay under the original decree of this court, as affirmed, from the fund decreed to be paid to the Eastern Cherokees as individuals. Secondly, as to the power and authority of these executive officers to take $147,527.01 from the amount appropriated directly to the Eastern Cherokees as individuals under the two acts of Congress (set forth in the marginα) in discharge of a contract for counsel fees made by the Cherokee Nation, prosecuting its action for the *133recovery of the money — from which said payment was made — but losing their claim of right to have judgment for itself or to distribute any part of the sum decreed to be paid to the Eastern Cherokees, who were also prosecuting a similar action for themselves at the same time, by and through counsel of their own selection, authorized under an auxiliary act to be employed and to be paid directly by them as individuals under the order of this court.

*134It is fair to say that if this were a controversy between an aggregation of persons only, each claiming the same fund from a receiver in possession of money due to one or the other litigating body, payment of fees to the attorneys of the losing side (which is essentially payment to the losing side itself) ■would hardly be preferred.

(1) As to the decree. If, from anything said by the appellate court in affirming our decree, this court be precluded from passing upon the action of these executive officers in the matter at issue, then the payment must stand without reference to the efforts of the Eastern Cherokees to have the full sum appropriated applied to their use and in discharge of their contract only. This phase of the matter can be settled only by looking to what this court first decided and then to what the court of last resort affirmed, within its jurisdiction and power to affirm.

The Cherokee Nation obtained judgment for sums which, with interest, aggregated $46,209.63. The Eastern Cherokees as individuals were decreed to be entitled to $1,111,284.70, which, with interest, aggregated $4,892,365.43.

The decree bears date May 18,1905. For the want of jurisdiction there was no allowance by this court of fees to the counsel representing the Cherokee Nation; and because an appeal was being taken the court reserved the allowance of fees and expenses to the counsel of the Eastern Cherokees until the coming in of the mandate of the Supreme Court. The amount decreed to be paid to the Eastern Cherokees as individuals was to be diminished, according to the decree, by such counsel fees “ as may be *chargeable*against the same under the provisions of the contract with the Cherokee Nation of January 16,1903,” with such other counsel fees as the court should thereafter allow under the provisions of the act of March 3,1903, to the counsel for the Eastern Cherokees. The fifth finding shows that while the court was considering the question of the amount to be allowed in this decree to the attorneys for fees the attorneys representing all the claimants were present, including the attorneys of the Cherokee Nation; and no application was made to the court for the allowance of compensation to the attorneys for the Cherokee Nation out *135of the sum decreed to be paid to the Eastern Cherokees as individuals. At the same time the attorneys for the Eastern Cherokees protested against any allowance out of item 2 to attorneys of the Cherokee Nation. When we turn to the contract of January 16, 1903, we find that Finkelnburg, Nagel & Kirby and Edgar Smith agreed to represent said nation in the litigation at such a per cent on such amount as should be collected for their clients. Compensation was to be awarded to the nation’s counsel out of moneys *collected for the nation.*

That contract could have no other meaning. On its face the scope and authority for the payment of fees by the Cherokee Nation is shown to be “ *for the securing payment by the United States of any ¡judgment that may be recovered by the said nation against the United*States,” necessarily excluding payment from a fund not recovered by the Cherokee Nation.

True, there was incorporated in the decree the statement that so much of the above-mentioned items or amounts as the Cherokee Nation had contracted to pay as counsel fees, *under and in accordance witK the provisions of sections MOS to*0106, *both*inclusive, of the Revised Statutes, should be left with the Secretary of the Interior to pay. But that statement was not a designation of any fund from which the allowance shoiild be made. Nor was it a direction to pay the' amount named in the contract. Nor was it an approval in advance of such action as the Secretary might take. It was not a direction certainly that the Secretary should invade the fund which, according to the contract, the counsel for the Cherokee Nation had neither collected nor earned. The amount subsequently paid by the executive officers was not a sum chargeable under the provisions of the contract with the Cherokee Nation. It was a direction to the Secretary of the Interior to pay according to the sum *collected for the nation*(pursuant to the terms of their contract) and not for the sum collected by the attorneys representing an antagonistic interest to the nation.

The Supreme Court, in affirming the case against the United States, left the decree as it was in respect to counsel *136fees and costs. There being nothing in the decree directing the executive officers to pay from any particular fund nor any specific amount, the appellate court did not undertake to do more than leave the decree where the trial court placed it, because the court of last resort is “ always and only an appellate court except in the limited class of cases where the court has original jurisdiction.” *(United States*v. Perrin, 131 U. S., 58; *B. & O. R. R.*v. *Interstate Commerce*Comm., 215 U. S.)

The supplemental petition does not now seek to open the original decree, but does complain of proceedings subsequent to the affirmance; that is, that too much has been paid and from the wrong fund. Upon any appeal to be taken from what the court now decides such appeal must take up for examination only the proceedings subsequent to the mandate. *(Stewart*v. Saloman, 97 U. S., 362.)

Believing that the mandate has not been properly interpreted, and that full scope and effect has not been given to it, because the appellate court did not intend to approve a payment that had not been made or to direct that the executive officers could invade the funds of the successful litigant to discharge the contract of the unsuccessful party in full, the question is open for this court now to say that the Secretary of the Interior exceeded his authority in directing payment for all the Cherokee Nation agreed to pay to its counsel from the funds decreed to be paid to the Eastern Cherokees.

The contract of the Cherokee Nation with its counsel inured neither to the benefit of the Eastern Cherokees nor yet redounded to the advantage of the Cherokee Nation, except as to that small part of the fund awarded by the original decree to be paid to the nation.

When the mandate of the appellate court came down this court, on May 28, 1906, passed a further decree in which it awarded to the attorneys of the Eastern Cherokees “ a sum equal to 15 per cent of the amount due and payable under the terms of this modified decree to the Eastern Cherokees, to wit, $1,111,284.70, with interest from June 12, 1838, to date of payment ” as reasonable compensation. The amount allowed was $740,555.41, calculated upon the appropriation. *137Of such sum it was provided that there should first be deducted $18,000, to be paid to Belva A. Lockwood as a reasonable fee for her services rendered in such behalf, and that the remainder for the gross recovery should be distributed among and paid to the attorneys for said Eastern Cherokees (less certain small sums), as follows: To John Vail, 3 per cent, $144,511.08; to Robert W. Belt, 1| per cent, $80,283.92; to Scarritt & Cox, 2 per cent, $96,340.72; to James K. Jones, 1 per cent, $48,170.36; to Matthew C. Butler, 1^ per cent, $72,255.55; to William TI. Robeson, 1-)- per cent, $72,255.55; to Robert L. Owen, 4-J- per cent, $208,738.23.

The sums allowed were not extraordinary or unusual. The court felt justified in carrying out a contract between the Eastern Cherokees and their counsel for the sums allowed, inasmuch as the payment of anything to the counsel engaged was contingent upon recovery, and years had been given to the prosecution of the just demand of the successful parties, not only in this court but in the Supreme Court of the United States as well as in other departments of the Government. The Eastern Cherokees as a body were not only civilized, but contained among them people as intelligent and capable of contracting as anybody, and they were content with the allowance.

But the allowance of 15 per cent was ample, and allowed on the theory that no claim had been made or could be made for any more fees from the funds decreed by the court to belong to the Eastern Cherokees.

Too much was allowed to the attorneys of the Eastern Cherokees if the recitals of the decree justified another payment from the same funds to attorneys representing different parties.

But in fixing the fees the court had a right to assume, and did assume, that the Secretary of the Interior could only fix fees under the authority granted to him under the other contract from such funds as the court had decreed to be payable for the benefit of the nation — reducing the amount of the compensation proportionately to the amount recovered for it.

(2) As to the power and authority of the executive officers to make the payment under the two jurisdictional acts: *138Under the first act the Eastern Cherokees *as a band*had the right to contract for the payment of such fees as the Secretary of the Interior might approve payable from the funds recovered, and that right existed without any addition to the provision for the payment of the counsel of the Cherokee Nation. So, the counsel employed by the Cherokee Nation Avould not have been entitled to an allowance by the Secretary of the Interior from the fund recovered, except for such funds as the nation might have been decreed to be entitled to collect exclusive of the subordinate band. The doubts existing as to the meaning of section 68 of the act of July 1, 1902, were completely removed by the act of March 3, 1903, in the provision carefully providing for the payment of such counsel as the Eastern Cherokees should employ. It was not intended by the second act to have fees duplicated by permitting attorneys representing different interests to have compensation from the same fund, but only according to the ■interest of each litigant in the amount recovered.

There is a manifest and irreconcilable repugnancy in' the later statute as to the right of the executive officers to take from the funds of the one party in discharge of the contract of the other party for counsel fees, because the court was directed to enter judgment for “the rightful claimant” by the proviso to the later act. This later act was intended as a substitute for sections 2103 to 2106 of the Revised Statutes as to certain conditions which might arise under the later act. A rule was intended for the payment of counsel different from the rule prescribed by those sections for the use of the real parties in interest whenever they could show that they were the real beneficiaries; and those sections of the first law became inoperative in the event the recovery provided for by the later act ensued. This matter was not called to the attention of either this or the appellate court, and is yet open for consideration in both courts upon the well-settled principle that nothing not called to the attention of the court will operate to prevent further consideration because a point neither made nor discussed nor directly decided can be called binding. *(U. S.*v. Miller, 208 U. S., 37.) In *United States*v. *Tynen*(11 Wall., 88) it was said that when a later act *139plainly shows that it was a substitute for a former act the later act will operate as a repeal. In *King*v. *Cornell*(106 U. S., 395) it was said: “ It is well settled that when two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last act was intended as a substitute for the first, it will operate as a repeal.” By the later act mentioned in this case the new law was intended to exclude the antecedent provision respecting counsel fees provided for in the first act, as the more natural if not the necessary inference is that Congress intended the new law to be auxiliary to and in aid of tlie purposes of the old law. *(Wood*v. *United*States, 16 Pet., 342; *Aldridge*v. Williams, 3 How., 9; *The Distilled*Spirits, 11 Wall., 356; 95 U. S., 191; *United States*v. Crawford, 41 Fed. Rep., 561; *Pana*v. Bowler, 107 U. S., 538.)

Different methods of compensation being provided for by the two acts, it seems to me clear that if the Eastern Cherokees had not succeeded in establishing their right to the fund, the counsel employed by the Eastern Cherokees could not have been compensated from funds awarded to the Cherokee Nation. So, conversely, as the Cherokee Nation were not decreed to be entitled, either for themselves or as trustee, to make distribution, their counsel can not in common justice make distribution, their counsel can not in common justice be compensated from the funds decreed to the Eastern Cherokees.

The pleading in the consolidated cases under the two acts shows the reason for the enactment of the two statutes. From the beginning the Cherokee Nation *denied the right of th-e Eastern Cherohees to anything.*The nation was asserting the unjust claim of the Old Settlers, and had the suit proceeded in the name of the Cherokee Nation only and judgment had been awarded to it generally, not only the Old Settlers, but likewise the Shawnees, Delawares, and freedmen would have had the whole distribution or- at least would have participated in the distribution made by the Cherokee Nation; and the Eastern Cherokees would have been at the mercy of the nation.

• According to an official enrollment in 1902 there were 197 Delawares, 288 Cherokees by intermarriage, and nearly 5,000 *140black freedmen. An official enrollment, dated May 28, 1906, discloses 27,051 Eastern Cherokees. True, some of tírese Eastern Cherokees had emigrated west, and the Cherokee Nation proposed to give them a share in such distribution as the nation intended to make. But the nation’s method of distribution would have been most unjust, even to such Eastern Cherokees as had come among them. The amended act carefully provided for the Eastern Cherokees — no matter whether they were east or west — that this court should determine to whom the funds should belong. When the issue came to be made the Cherokees, by the replication interposed against the claim of the Eastern Cherokees, denied any accounting on behalf of the Eastern Cherokees at all, with the statement that the nation “ further denies that if it had collected or hereafter shall collect such moneys the same would have been or will be in its hands an implied trust for the benefit of the Eastern Cherokees, exclusively *or otherwise.”*The denial embraced every Eastern Cherokee for the benefit of the Old Settlers.

The issue between the parties discloses the unfair and unlawful claim of the Cherokee Nation against every Eastern Cherokee in interest. The passage of the subsequent jurisdictional act carried to the courts the positive indication that the Cherokee Nation was a hostile trustee unfit to have anything to do with the distribution of the moneys in dispute. In the entry of the decree the court still further discredited the nominal and moribund trustee by providing for payment wholly different from that contemplated by the first jurisdictional act.

By the act of June 30, 1906 (34 Stats., 664), Congress made an appropriation to pay the amount decreed to the Eastern Cherokees. Later, July 17, 1906, there was certified by the Secretary of the Interior to the accounting officers the statement that the attorneys for the Cherokee Nation were entitled “to receive compensation under their contract, although there was no direction in the act appropriating the money for the amount appropriated to be diminished by the payment of anything under the contract of the Cherokee Nation with Messrs. Finkelnburg, Nagel *&**141Kirby and Edgar Smith. We are therefore remitted to the unauthorized action taken by the Secretary occurring subsequent to the decree, inasmuch as nothing can be taken from an appropriation except in strict conformity with some provision of law. No other mode of payment is legal.

If anything was lawfully paid from the funds of the Eastern Cherokees to the counsel representing the Cherokee Nation, such payment must rest upon professional services actually rendered to the Eastern Cherokees, and not to the Cherokee Nation, and upon the necessity for such services. An examination of the record discloses that all the counsel made the claim that the United States were lawfully indebted under what was alleged to be the Slade and Bender award under certain treaties. And while it goes without saying that counsel should be paid for services properly rendered from the funds of their own clients, it should also go without saying that they should not be paid from funds decreed to belong to somebody else under an act which authorized others to employ their own counsel without providing for division of fees earned by the counsel last employed. Especially is this so, as the pleadings show a denial of the right of any Eastern Cherokee to share in the distribution.

There remains the matter set forth in the findings relating to the application of one Boudinot seeking to restrain the payment of the fee to Messrs. Finkelnburg, Nagel & Kirby and Edgar Smith. July 16, 1906, the claim was first presented for the allowance of fees out of the funds of the Eastern Cherokees; July 17 it was allowed and transmitted to the Treasury Department next day. Boudinot exhibited a bill on that day, but whether before or after the allowance had been transmitted does not appear. The bill prayed for a perpetual injunction. A rule to show cause why a temporary injunction should not be granted was at once issued in the supreme court of the District of Columbia. While this rule was pending, it operated as an injunction. The case was then argued solely on the question as to whether a temporary injunction should be issued restraining the payment of the money until the allegations of the bill or the denials of the *142answer could be sustained or rebutted by proof taken in the ordinary way according to the practice in chancery. The court discharged the rule and dismissed Boudinot’s bill, thereby denying the prayer for a temporary injunction and the opportunity of complainant to prove his case, although the case had not been submitted to the court on the merits. Complainant was denied the writ and had no opportunity of establishing his right to one, inasmuch as the court had granted the temporary injunction, and complainant would' have been obliged to furnish a bond to pay damages which might arise from the issuance of the permanent writ. As the court had denied the writ there was no loss and consequently no requirement or occasion for an injunction bond. Complainant prayed an appeal within the time allowed by the rules of court from the order dismissing the bill, but the granting of an appeal did not give him an injunction because the court had already refused the injunction. Boudinot prayed an appeal with an approved appeal bond for costs, which was all that was necessary. Meantime the Treasurer of the United States received a protest against the payment of the money until the appeal could be heard, but payment was made about the first of the following month. Had the appeal been prosecuted further the appellate court would have had nothing to pass upon. It does not appear that more than one person undertook to restrain the payment of the money out of the thousands of Eastern Cherokees. And being neither a bill for the collection of money nor the presentation óf a claim for the payment of money, the bill asking for the injunction and the denial of the prayer have no bearing upon the theory of *res*judicata,, especially as no proof had been taken and the cause had not been submitted on the merits on bill and answer.

The whole question comes back to the right of -this court, with its jurisdiction still existing, to inquire into the rightfulness of the payment. There can be no question, it seems to me, of the jurisdiction of the court to make the inquiry. As said in *Pam-To-Pee*v. *United States*(187 U. S., 371), “The jurisdiction of a court is not exhausted by the mere entry of judgment. It always has power to inquire whether that *143judgment has been executed. * * * It would be an anomaly to bold a court having jurisdiction of a controversy, and which renders a judgment in favor of A against B, had no power to inquire whether that judgment has been rightly executed by a payment from B to 0.” The supplemental petition merely seeks relief from the mistake of the trustee in making a payment alleged to be wrongful. This court yet having jurisdiction should inquire into it and decide the matter subject to review by the Supreme Court of the United States.

I am authorized to state that Booth, J., concurs in this dissent.

α

 Jurisdiction is hereby conferred upon the Court of Claims to consider, examine, and adjudicate, with a right of appeal to the Supreme Court of the United States by any party in interest feeling aggrieved at the decision of the Court of Claims, any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act; and also to examine, consider, and adjudicate any claim which the United States may have against said tribe or any band thereof. The institution, prosecution, or defense, as the case may be, on the part of the tribe or any band of any such suit shall be through attorneys employed and to be compensated in the manner prescribed in sections 2103 to 2106, both inclusive, of the Revised Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, *133and the band acting through a committee recognized by the Secretary of the Interior. The Court of Claims shall have full authority, by proper orders and process, to make parties to any such suit all persons whose presence in the litigation it many deem necessary or proper to the final determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time. (Sec. 68, act July 1, 1902, 32 Stats., 726.)

Section 68 of the act of Congress entitled “An -act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes,” approved July 1,1902, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi River, acting together or as .two bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: *Provided,*That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claims to be fixed by the Court of Claims upon the termination of such suit, and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned in the House of Representatives Executive Document No. 309 of the second session of the Fifty-seventh Congress; and if said claim shall be sustained in whole or in part the Court of Claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi River constitute a part of the Cherokee Nation or of the Eastern Cherokees, so called, as the case may be. (Act Mar. 3, 1903, 32 Stats., 996.)