#### S. W. PEEL v. THE CHOCTAW NATION AND THE UNITED STATES.

[No. 30018.

Decided January 31, 1910.]

*On the Proofs.*

The claimant is appointed “ *general attorney for the Choctaw ’Nation for a term of four years at a salary of $2,000 per cmrvum."*Subsequently, while still acting as general attorney, he is directed by the principal chief to go to Washington and appear as attorney for the nation in a suit instituted against the nation until an attorney be employed. The general council subsequently insist that the service is within the scope of his employment as general attorney.

I. The general council of the Choctaw Nation alone possessed authority in 1893 to employ attorneys to represent the nation.

II. Where the council authorized the appointment of a general attorney at a fixed salary of $2,000 per annum the appointment contemplated all legal matters in which the nation might thereafter be concerned during the period of employment; and a request from the principal chief to the attorney to go to Washington and appear in certain litigation requiring professional services did not constitute a contract or entitle the attorney to additional compensation.

*155
      *The Reporters'*statement of the case:

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

I. This suit is brought under the provisions of a special . act of Congress set out in full in claimant’s petition, to which reference is here made.

II. By an act of the general council of the Choctaw Nation, approved October 19, 1893, the office of Delegate to the Congress of the United States was created, which, after fixing the compensation of the said Delegate, provided as follows:

“ Sec. 5. That said Delegate is authorized and empowered to employ such attorneys as he may deem advisable, and by and with the advice and consent of the principal chief, on requisition drawn by said Delegate and countersigned by the principal chief of the Choctaw Nation, on the national treasurer of the Choctaw Nation, to disburse and expend not more than two thousand dollars per annum in payment of such attorney or attorneys so employed by said Delegate.”

Under the above act of the Choctaw national council, Samuel W. Peel, the claimant, was appointed in the fall of 1893, by Green McCurtain,- then Delegate of the Choctaw Nation to Congress, as general attorney for the Choctaw Nation for a term'of four years, at a salary of $2,000 per annum. The appointment, which was in writing and in the possession of the claimant, has been lost. The claimant served as such general counsel of the Choctaw Nation until the fall of 1896, when he resigned his office as such attorney.

The claimant during the first year of his service as general counsel of the Choctaw Nation received a salary of $2,500, $2,000 of which Avas paid by the Choctaw Nation and $500 of which was paid by Green McCurtain out of his own salary as Delegate; for the second and third years he received $2,000 each; receiving in all up to the time of his resignation in the fall of 1894 the sum of $6,500.

III. In the summer or fall of 1894 the claimant was also employed as general attorney for the Chickasaw Nation for four years, at a salary of $2,500 per year, and served as such for two years, during which time he received an annual salary of $2,500, amounting in all to $5,000. During that *156period of time the Chickasaw Nation had no litigation in which the claimant represented them.

IY. On August 13, 1895, Yvon Pike, Lillian Pike, and Yvon Pike, as administrators of the estate of Luther Ii. Pike, deceased, brought suit in the Court of Claims against the Choctaw Nation, under a special act of Congress, approved March 2, 1895 (28 Stat., 901), for the sum of $200,000 for legal services alleged to have been rendered by Albert Pike, deceased, to the Choctaw Nation in the prosecution of the “Net-proceeds claim” before Congress, in which he was associated with James W. Denver, which claim was after-wards referred by Congress, under a special act, to the Court of Claims, and on March 3, 1881, judgment was rendered in favor of the Choctaw Nation. The case was appealed to the Supreme Court, which court, on October 15, 1886, affirmed the decision of the Court of Claims in favor of the Choctaw Nation for the sum of $2,858,798.62.

While still acting as general counsel of the Choctaw Nation under his employment by Green McCurtain, Delegate of the Choctaw Nation to Congress, the claimant on February 10, 1896, filed a motion in the Court of Claims in the case of *Yvon Piles et al.*v. *The Choctaw Nation*(No. 19384) for an extension of the time in which to answer the petition of the claimants.

On February 14,1896, the claimant filed the printed answer of the Choctaw Nation to the claimant’s petition, in which he set up as a defense to said suit a letter furnished to him by the secretary of the Choctaw Nation, dated February 13, 1888, written by John J. Weed, one of the attorneys in the “Net-proceeds” case, to Campbell Leflore, Delegate of the Choctaw Nation to Congress, making a proposition for the payment of 30 per cent of the amount of the judgment in the “ Net-proceeds ” case to Henry E. McKee, for distribution among the attorneys entitled to compensation, which was assented to by James W. Denver on behalf of himself, and Albert Pike as shown by his indorsement thereon. The proposition was presented to the Choctaw Nation which appropriated the amount requested, and the same was after-wards paid to the said McKee.

*157In addition to filing the above answer, the claimant took the deposition in Washington, D. C., of the national secretary of the Choctaw Nation, who produced and identified the Weed letter, and the deposition of John J. Weed to identify the signatures of himself and J ames W. Denver to said letter. He afterwards took the deposition of Wesley Anderson, a member of the Choctaw council, in order to show that the Weed letter was presented to and induced the council to appropriate for said McKee 30 per cent of the judgment in the “Net-proceeds” case. He afterwards attended the cross-examination of said Anderson on another occasion, and was also present and cross-examined seven witnesses produced on behalf of the claimants. All of which testimony was filed in the Court of Claims on or before November 27,1896, at which time the case was ready for trial upon its merits. Nothing, however, was done in said case by the attorney for the Pike heirs, James Coleman, or Samuel W. Peel, the attorney for the Choctaw Nation; but the said case continued on the docket of the Court of Claims as a live suit until it was finally dismissed upon motion of the United States on October 16, 1906, for nonprosecution.

V. Prior to the institution of the Pike suit in the Court of Claims, a claim had been presented to Congress on behalf of the Choctaw Nation for compensation for what was known as the “ Leased district.” A part of the claim had been paid by Congress, and the question of the liability for the balance was referred to the Court of Claims, where the question was decided in favor of the nation, and from which judgment an appeal was granted to the Supreme Court. While the “Leased district” claim was pending, the claimant, Samuel W. Peel, was employed by Mr. Stanley, Delegate of the Choctaw Nation to Congress, who was also attorney for the nation in this matter, to assist in the prosecution of said claim in the courts and before Congress.

YI. That subsequent to the filing of the petition in the Pike case the senate of the Choctaw Nation passed a bill directing the principal chief of the nation to employ claimant, at a compensation of $5,000, as an attorney to defend said suit, but said bill failed to pass the lower house of said council, and *158consequently did not become a law. Thereafter Jefferson Gardner, principal chief of said nation, in a communication dated the 16th day of December, 1895, requested claimant to proceed from his residence in Bentonville, Ark., to Washington, D. C., and enter an appearance in said suit for the nation. Said communication reads as follows:

“Executive Oeeice Choctaw Natioh, Jefe GaedNee, PeiNcipal Chief.

“ EagletowN, INd. T., *Dec. 16, 1895.*

“ Hon. S. W. Peel, Bentonville, Ark.

“Deae Sie AND FeieNd: Mr. Stanley has informed this office that there is a motion by the attorney of the Pike heirs, Mr. James Coleman, in the Court of Claims for an order to take testimony. You will please go to Washington, D. C., as early as you can and appear as attorney for the nation and ask for time until one can be employed by the nation for that purpose.

“ Mr. Dyer will go to Washington, D. C., before long.

“ Yours, respectfully,

“ Jeff GaedNeb, *P. G. G. N.*

“ S. G. Battiest,

*“Private*Secretary.”

The general council of the Choctaw Nation, on December 18, 1902, and November 5, 1903, refused to concur in said apparent employment, claiming that the employment of claimant as general counsel of the nation included and covered all services to be rendered by him for the nation during his term of employment as such general counsel.

VII. While the suit of the Pike heirs was pending in the Court of Claims and the suit of the Choctaw Nation for compensation for the “Leased district” was pending in the Supreme Court, the Pike heirs presented a claim to Congress for $100,000 for the services of Albert Pike in the prosecution of the “net proceeds claim” before Congress, the same claim that was then pending in the Court of Claims in the suit of Yvon Pike and others, the only difference being in the amount of money claimed.

While the affairs of the Choctaw Nation were in this situation, the claimant, Samuel W. Peel, although he had frequently stated to the officers of the nation that he had a good defense against the claim of the Pike heirs then pending in *159the Court of Claims against the Choctaw Nation, advised the nation to compromise said suit by consenting to the appropriation by Congress of $75,000 for the Pike heirs, upon the ground that it would enlist the assistance of the friends of the Pike heirs in Congress in favor of the claim of the Choctaw Nation for compensation for the “ Leased district,” which was then pending in the Supreme Court. The said case, however, was decided adversely to the Choctaw Nation and never came up again in Congress; but the sum of $75,000 was appropriated and paid to the Pike heirs as a compromise of their suit against the Choctaw Nation.

While the claimant was acting as its general counsel it appears that but two suits were brought against the Choctaw Nation, one in the United States court at South McAlester, brought by one Tebo against the principal chief and the treasurer of the nation. The claimant appeared and defended the suit on behalf of the nation at McAlester, Ind. T., and afterwards on appeal to the United States Circuit Court at St. Paul, Minn. The Choctaw Nation refused to pay the claimant any extra compensation in addition to his salary of $2,000 per year as general counsel of the nation for the defense of said suit, but he was paid by the individual officers of the Choctaw Nation against whom the suit had been brought.

The other suit was that of the Pike heirs in the Court of Claims, for which he also brought in a bill for extra compensation, which was refused by the Choctaw national council twice, by resolutions approved December 18, 1902, and November 5, 1903, upon the ground that his service came within his employment as general counsel of the Choctaw Nation and his compensation as such had already been paid.

*Mr. Henry M. Foote*for the claimant.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendant.

AtkiNSON, J.,

delivered the opinion of the court:

This suit, which involves facts only, was brought under the following special act of Congress:

> “ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That *160the claim of S. W. Peel, of Bentonville, Arkansas, for legal services rendered and expenditures had for the Choctaw Nation of Indians of the Indian Territory, in an action in said Court of Claims wherein Yvon Pike and Lillian Pike, and Yvon Pike as the administrator of the estate of Luther S. Pike, deceased, were plaintiffs, and said nation was defendant, be, and the same is hereby, referred to the Court of Claims with full jurisdiction, equitable and legal, to render judgment or decree therein as to the very right of the matter; and in case the said court finds any sum or amount due the claimant for his services and disbursements as aforesaid, it shall thereupon direct the same to be paid with interest from the funds of said nation now in the Treasury of the United States, and a transcript of such decree or judgment shall be authority for the Secretary of the Interior to make the payment therewith, and to make the proper charge against the funds of said nation; and sufficient of the funds of said nation shall be retained in the Treasury of the United States to meet any judgment or decree for pajnnent to said S. W. Peel that may finally be rendered. The suit herein provided for shall be entitled ‘ S. W. Peel versus The Choctaw Nation and the United States; ’ the petition and other proceedings therein shall be in accordance with the ordinary rules and requirements of said court, with the right of appeal to the Supreme Court by either party: Provided, That no suit shall be brought under the provisions of this act after six months from the date of the passage thereof: *And frovided*further, That such suit shall be advanced and promptly tried in any court where it may be pending.”

Approved, February 18, 1907.

The plaintiff was employed in the fall of 1893 by the authority of the general council of the Choctaw Nation as its general counsel for the term of four years at a salary of $2,000 per annum. The plaintiff avers, however, that his employment contemplated legal services to be rendered in the nation’s interests before the Congress at Washington and the departments only, and therefore did not embrace professional services for the nation in any controversies which might thereafter arise in the courts of the country. Nevertheless, the findings show that the council of the nation intended his employment to be general, and consequently payment for a greater sum than $2,000 per year was accordingly refused.

*161Plaintiff, bases his cause of action mainly upon a letter addressed to him by Jeff Gardner, principal chief of the Choctaw Nation, which is in the following language:

> “Executive Oeeice Choctaw NatioN, Jefe GakdNER, PeiNCIpal Chief.

> “ Eagletown, IND. T., *Dec. 16,1896.*

> “ Hon. S. W. Peel, *Bentonville, Arh.*

> “Dear Sir AND Friend: Mr. Stanley has informed this office that there is a motion by the attorney of the Pike heirs, Mr. James Coleman, in the Court of Claims for an order to take testimony. You will please go to Washington, D. C., as early as you can and appear as attorney for the nation and ask for time until one can be employed by the nation for that purpose.

> “Mr. Dyer will go to Washington, D. C., before long.

> “ Yours, respectfully,

> “Jeff Gardner, *P. O. G. N.*

> “ S. G. Battiest,

> *“Private Secretary.”*

Plaintiff, in response to the above letter, appeared at Washington before this court in the suit mentioned in said letter, filed an answer in the Pike case, and took the testimony of certain witnesses bearing upon the case, which testimony was duly filed. Upon this letter and the action of the senate of the Choctaw council set out in Finding VI he contends that, notwithstanding the fact he was then em-ploj^ed as the general counsel of the Choctaw Nation, an implied contract was created for additional compensation, and thereupon he brings this suit for $5,000 and attendant expenses upon quantum meruit for services rendered to the Choctaw .Nation.

Although it is not shown that Principal Chief Gardner possessed legal authority to contract for the nation, the court might infer that an implied contract was created by the Gardner letter and the action of the senate of the council referred to were it not for the fact, as shown in Finding VII, that plaintiff had previously appeared as counsel for the nation in a suit pending in the United States courts at McAlester, Ind. T., and at St. Paul, Minn., without special directions so to do, and for which he charged a fee *162of $1,000 and expenses, and which fee the Choctaw Nation refused to pay, because it was claimed he was at that time regularly employed as its general counsel, and such service was, therefore, a part of the duties for which he had been employed. From this and other attendant facts we can not otherwise conclude than that the general council of the Choctaw Nation alone possessed the rightful authority to employ its attorneys; and, furthermore, that it, as such council, considered plaintiff’s employment as its general counsel was intended to embrace all legal matters in which the nation might thereafter be concerned during the period of his said employment.

From what we have said it must be held that the service rendered in the Pike case, for which compensation is sought, was embraced in plaintiff’s employment as general counsel for the Choctaw Nation, for which he has been paid; that there was no contract, express or implied, between the plaintiff and the Choctaw Nation or any officer authorized so to contract with said plaintiff for any other or additional compensation than that provided for his services as general counsel; nor can we hold that the claim is either a legal or equitable one entitling the claimant to compensation upon the basis of quantum meruit. For these reasons it is the opinion of the court that the petition be dismissed.