#### IN THE MATTER OF THE EASTERN CHEROKEES.

[Original.

Decided March 20, 1911.]

[220 U. S. R., 83.]

Under the authority of acts of Congress the Eastern Cherokees brought suit against the United States for certain sums alleged to be due under treaties. The Court of Claims enters a decree for $1,111,284.70 with interest. The decision is affirmed with some modification.

On the coming down of the mandate of the Supreme Court, the Court of Claims enters a decree distributing the fund *per capita.*The claimant maintains that the mandate required a *per stirpes*distribution and after a hearing the court adheres to its decision. The petitioners move in the Supreme Court for a mandamus directing the Court of Claims to order a distribution *per stirpes.*

Without further considering the allegations on both sides the Supreme Court denies the motion on the ground of laches shown on the part of the petitioner.

*The Reporter's*statement of the case:

The following is the record presented by the claimant to the Supreme Court, the response of the Court of Claims to *659tbe rule to sbow cause, and the opinion of thé Supreme Court denying the motion for a mandamus:

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS.

*To the honorable the Chief Justice and Associate Justices of the Súfreme Court of the United States:*

Come now the Eastern Cherokees residing west of the Mississippi River, by Joseph D. Sullivan, as attorney in fact, and John B. Daish, as attorney (each acting under and by virtue of certain powers of attorney, hereto annexed as Exhibits A and B, same being dated at Moody Springs the 16th day of May, 1910), and pray that the court will grant leave to file the petition for a writ of mandamus hereto annexed, and that in the meantime the court will make such order as will protect the rights of the petitioners in the premises until the court can hear and determine the matters in said petition.

Joseph D. SuluivaN,

*Attorney in fact.*

JohN B. Daxsi-i,

*Attorney.*

PETITION FOR WRIT OF MANDAMUS.

*To the honorable the Chief Justice and Associate Justices of the Súfreme Court of the United States:*

Come now the Eastern Cherokees residing west of the Mississippi River, by their attorney in fact, Joseph D. Sullivan, acting in accordance with and pursuant to a certain power of attorney dated at Moody Springs the 16th day of May, 1910, a copy of which is hereto attached as Exhibit No. 1, and it is prayed may be taken and read as a part hereof, and respectfully shows unto your honors:

1. That there was lately pending in this honorable court, to wit, October term, 1905, three cases with captions as follows:

*The United*States, affellant, v. *The Cherokee Nation*(No. 346) ; *The Eastern*Cherokees, affellant, v. *The Cherokee*
      *660
      *Nation and the United States*(No. 347); *The Cherokee Nation, appellant,*v. *The United States*(No. 348).

2. That the petitioners herein, the Eastern Cherokees residing west of the Mississippi River, appear through their head captain, John McIntosh; second captain, Jim Hildebrand; William H. Foreman; John Hicks; Eli Snell; Sam Boney; and Thomas Tucker, secretary, who represent themselves as individuals and also the Eastern Cherokees as a whole residing west of the Mississippi River, petitioners herein; that at a duly called convention held on the 16th day of May, 1910, the petitioners authorized such proceedings as their said counsel might be advised in connection with or relation to the correction, modification, or reversal of a certain decree entered by the Court of Claims in a cause entitled “ *The Eastern Cherokees*v. *The United*States,” said cause being No. 23214 in the said Court of Claims and being the case mentioned in paragraph 1 hereof, *The Eastern Cherokees, appellant,*v. *The Cherokee Nation and The United States,*No. 347, October term, 1905.

That the Eastern Cherokees residing west of the Mississippi River are too numerous to individually appear as parties to a proceeding; that in accordance with custom they act through their duly authorized representatives above mentioned, who are empowered to represent the Eastern Cherokees as a whole residing west of the Mississippi River.

3. That it was determined by this honorable court on April '30, 1906, in the cases mentioned' in paragraph 1 of this petition that a certain decree of the Court of Claims should be affirmed with a certain modification, as appears from the mandate from this honorable court filed in the said Court of Claims on May 15, 1906, a copy of which is attached hereto as Exhibit No. 2, and it is prayed may be taken and read as a part hereof.

4. That the decree of May 18, 1905, of the said the Court of Claims provided in the fourth paragraph thereof, among other things, as follows:

“ The sum of $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, *6611903, 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 coste 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.”

5. That pursuant to said mandate of this honorable court the said the Court of Claims modified its original decree in said cases on May 28, 1906, in the language following:

“ These consolidated causes came on to be further heard upon the motion of the attorneys for the Eastern Cherokees for the modification of the original decree of May 18, 1905, in accordance with the mandate of the Supreme Court of the United States heretofore presented; and it appearing to the court that by the said mandate it is provided that the second subdivision of the fourth paragraph of the said decree be modified so as to direct the distribution of the fund described in item two of the said decree to be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi River, parties to the treaties of 1835-6 and 1846, exclusive of the Old Settlers, it is therefore so ordered and decreed this 28th day of May, 1906.”

6. That hereafter, by order entered April 28, 1907, the said Court of Claims further modified its final decree of May 18, 1905, as modified May 28,1906, as follows:

“ It further appearing to the court that the lands disposed of by the Eastern Cherokees under the treaties of 1835-6 and 1846 were owned by them as a community, and the rights arising under said treaties, as established by the decree of May 28,1906, accrued to the said Eastern Cherokees as communal owners of said land, and it further appearing from the report of Special Agent Guión Miller, accompanying the reference of the Secretary of the Interior of February 20, 1907, above referred to, that a *per stirpes*distribution to the Eastern Cherokees who were parties to the treaties of 1835-6 and 1846 is impracticable, it is therefore further ordered that *662the commissioner hereinafter named shall enroll, as entitled to share in the fund arising from said decree of May 28, 1906, all such individual Eastern Cherokee Indians, by blood, living on May 28, 1906, as shall establish the fact that they were members of the Eastern Cherokee Tribe of Indians at the date of the treaty of 1835-6 and 1846, or are descendants of such persons, and who shall further establish the fact that they have not been affiliated with any tribe of Indians other than the Eastern Cherokees or the Cherokee Nation; provided further, that said persons, pursuant to the notices of the Commissioner of Indian Affairs, bearing dates of August 20, 1906, and February 1, 1907, have filed applications for a share of such fund with the Commissioner or Indian Affairs, or shall file such applications with the commissioner hereinafter named on or before the 31st day of August, 1907.”

7. That it was also determined by this honorable court on April 30, Í906, as appears from the opinion in said cases (202 U. S., 101, 130), that the judgment in favor of the Cherokees should be “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.”

That in accordance with said limitation the said the Court of Claims, on May 28, 1906, directed the Secretary of the Interior to prepare or to have prepared a list or roll of Cherokees entitled to share in the amount of the said judgment.

That thereafter, contrary to said limitation, the said the Court of Claims, by order entered the 29th day of April, 1907, provided “ that [the] direction of the decree of the court ” (Court of Claims) “ of May 28, 1906, which provides that the Secretary of the Interior shall prepare, or cause to be prepared, a list or roll of all persons entitled to share in the fund arising from said decree, and to make distribution of said fund, be, and the same is hereby, vacated.”

That thereafter, on the 29th day of April, 1907, the said the Court of Claims, by order, appointed a special commissioner to prepare a roll of persons entitled under the' terms and conditions of the decrees and orders of the Court of Claims to share in the fund arising under said judgment.

That thereafter, on the 29th day of April, 1907, the said the Court of Claims, by decree, provided as follows:

“ It is further ordered that all the expenses incurred in carrying into effect the provisions of this decree, together *663with the expenses already incurred in making publication of said order of March 5, 1907, shall, upon the proper certificate made under oath by said commissioner and duly approved by the court, be paid by the Secretary of the Treasury out of the appropriation made by the act of Congress of june 30, 1906, to pay said judgment in favor of the Eastern Cherokee Indians as aforesaid.”

8. That thereafter, to wit, on March '7, 1910, the said the Court of Claims denied certain exceptions to enrollment made for and on behalf of certain Eastern Cherokees; that said exceptions included, with respect to certain applicants, whether or not said applicants were entitled to participate in the fund arising from said judgment upon the ground that such parties would not be included in a *per stirpes*distribution; that is to say, said exceptions raised the question whether or not certain persons on said roll. “ 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 ” [decree, of Court of Claims, May 18,1905] and “ exclusive of the Old Settlers ” [modification of this honorable court of April 30, 1906].

That thereafter, to wit, on March 7, 1910, the said the Court of Claims approved a certain roll, being a list of persons entitled to distribution of the fund arising under said judgment; that said roll was prepared by the direction of said court so that a *per capita*distribution of said fund as of May 28, 1906, shall be made.

9. The petitioners are advised that the mandate of this honorable court, the same being filed in the Court of Claims on the 15th day of May, 1906, is final, and the effect thereof is to make all matters and things within the scope of said mandate *res adjudicata.*

Petitioners are further advised that it was the duty of the said the Court of Claims to obey the said mandate in each and every respect; and that when the said the Court of Claims, subsequent to said mandate provided by order for a *per capita*distribution of the fund arising from the judgment awarded, said order was in violation and disobedience of *664said mandate; and further, that when the said the Court of Claims appointed a special commissioner to prepare a roll of persons entitled to participate in the distribution of said fund, the said Court of Claims acted in disobedience of said mandate which provided that said roll should be prepared by the Secretary of the Interior or by him caused to be prepared ; and in respect to the parties preparing said roll, your petitioners aver that had said roll been prepared by the Secretary of the Interior or under his authority and direction in accordance with the mandate of this honorable court, there would have accrued to your petitioners far less costs, charges, fees, and expenses for preparing said roll, and your petitioners aver that from said fund there has already been paid-as and for costs, fees, charges, and expenses for and in connection with said roll a large sum of money; and petitioners are advised that said costs, fees, charges, and expenses for said purpose in accordance with the' orders of the said the Court of Claims is without authority of law and is in disobedience of the mandate of this honorable court.

Petitioners are informed that the said roll prepared in accordance with the orders of the said Court of Claims now contains the names of numerous persons not entitled under the mandate aforesaid to participate in said fund, with the result that the shares of your petitioners, the Eastern Cherokees residing west of the Mississippi Eiver, are much lessened; that petitioners are advised that the rights of the Eastern Cherokees to the fund ($1,111,284.70) accrued by them, as individuals, parties to the treaties of 1835-36 and 1846 at said time; and that said rights vested in certain Eastern Cherokees, including those whose names are set out above, on March 14, 1903, in accordance with the mandate of this honorable court; and that by reason of the disobedience of said mandate, as hereinbefore set forth, and the roll prepared and approved as stated, the said vested rights of said parties are now denied.

Wherefore, the premises considered, your petitioners pray:

1. For a rule on the said the Court of Claims and the judges thereof to show causé why a writ of mandamus should not issue compelling them to obey the mandate aforesaid:

*6652. And for a writ of mandamus directed to the said the Court of Claims and the judges thereof commanding them to obey the mandate aforesaid;

3. And for such other and further relief as the court may deem proper in the premises.

The EasteeN Cherokees, , By Joseph D. Sullivan,

*Attorney in Foot.*

MANDATE OF THE SUPREME COURT.

United States oe America, ss :

[seal.]

*The President of the United States of America to the honorable the fudges of the Court of*Claims, *greeting:*

Whereas lately, in the Court of Claims, before you or some of you, in causes between the Cherokee Nation and the United States, No. 23199; the Eastern Cherokees and the United States and the Cherokee Nation, No. 23214; and the Eastern and Emigrant Cherokees and the United States, No. 23212, wherein the decree of the said Court of Claims entered in said causes on the 18th day of May, A. D. 1905, is in the following words, viz:

“ 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 Frederick 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 Pradt, 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 the date of payment.

*666“ 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, 1903, 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.

“ The sum of $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, *1908,*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 *667the 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 numbered two (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.

“ By the Court.”

as by the inspection of the transcript of the record of the said Court of Claims, which was brought into the Supreme Court of the United States by virtue of separate appeals taken by the United States, the Eastern Cherokees, and the Cherokee Nation, respectively, agreeably to the act of Congress, in such case made and provided, fully and at large appears.

And whereas in the present term of October, in the year of our Lord one thousand nine hundred and five, the said cause came on to be heard before the said Supreme Court, on the said transcript of record on separate appeals, and was argued by counsel:

On consideration whereof, it is now here ordered and adjudged by this court that the second subdivision of the fourth paragraph of the decree of the said Court of Claims in this cause be modified so as to direct the distribution to be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi River, parties to the treaties of 1835-36 and 1846; and exclusive of the Old Settlers and, as so modified, be, and the same is hereby, affirmed.

April 30, 1906.

You, therefore, are hereby commanded that such proceedings be had in said cause, as according to right and justice, *668and the laws of the United States, ought to be had, the said appeals notwithstanding.

Witness the honorable Melville W. Fuller, Chief Justice of the United States, the 14th day of May, in the year of our Lord one thousand nine hundred and six.

' James H. McKenNex,

*Glerlc of the Supreme Court of the United States.*

RESPONSE OF THE COURT OF CLAIMS AND THE JUDGES THEREOF TO THE RULE TO SHOW CAUSE WHY THE PRAYER OF THE PETITIONERS FOR A MANDATE AGAINST SAID COURT SHOULD NOT- BE GRANTED.

On May 31, 1910, a motion asking leave to file a petition for a writ of mandamus against the Court of Claims was allowed by the Supreme Court to be filed, and thereafter, on October 17, 1910, the petition herein, as appears from the notice to show cause, was filed and on October 20, 1910, was served by counsel representing the petitioners in open court.

Therefore, in response to said notice to show cause why a writ of mandamus should not issue to compel the Court of Claims to obey the mandate of the Supreme Court, said court and the judges thereof say that they deny each and every paragraph of the petition wherein the averments may be material to the questions involved, except as hereinafter stated, that is to say:

(1) They deny that the petitioners represent the Eastern Cherokees residing west of the Mississippi River or elsewhere, or that they had any authority to employ counsel for such purpose. -

(2) They deny having disobeyed the mandate of said court in respeet to the persons to whom the distribution of the money arising from the judgment of the court in the case of *United States*v. *The Cherohee*Nation, appellant, No. 346; *The Eastern*Cherohees, *apellante*v. *Cherohee Nation and the United States,*No. 347; *The Cherohee Nation*v. *The United States,*No. 348, appealed from the Court of *669Claims, should be made, which decree, with certain modifications hereinafter referred to, was affirmed by the Supreme Court (202 U. S., 101, 130). Upon the contrary the modification directed by the Supreme Court was incorporated in the decree as directed, as admitted by the petitioners for said mandate to show cause as aforesaid.

(3) The court and judges further deny that the subsequent so-called modification of the decree referred to in said petition in any way changed the decree contrary to its original intention or did otherwise than construe the decree for the guidance of the Secretary of the Interior and the special agent appointed by him to make the roll of those entitled to share in said judgment; and to the construction thus given no exceptions were taken by anyone until the filing of the petition for mandate herein to show cause.

(4) The court and judges admit that subsequently to the mandate of the Supreme Court and at the written request of the Secretary of the Interior and sundry other persons who petitioned therefor, as well as at the request of the counsel engaged in said causes, they vacated the order — not directly involved in the appeal — directing the Secretary of the Interior to prepare a roll of those entitled to share in the proceeds of the judgment and employed Guión Miller, Esq., who had theretofore been in the employ of said Secretary for the same purpose, to prepare the roll under the supervision of the court; and the roll was prepared accordingly and approved by the court, and the money arising from said judgment was long prior to October 17, 1910, the date of the filing of said petition for said mandate to show cause, distributed and paid to practically all of those on said roll, so that of the 30,827 enrolled only 313 remained unpaid, as we are advised by said commissioner, who was also intrusted, under the order of the court, with the delivery of the warrants issued by the Treasury Department to the parties so enrolled, respectively. Since which time 44 additional payments have been made, leaving 269 unpaid on October 28, 1910.

To be more specific in response to the rule to show cause, the attention of the court is called to their language by the *670late Chief Justice Fuller in 202 United States, 101, 120, where, in the beginning, it is said:

“ Of the four items of the account to be allowed, only one, that for $1,111,284.70, need be considered here.

“ 1. The correctness of the account is conceded, and the question is whether the United States were properly held liable therefor,” etc.

The only other questions involved were as to whether or not interest should be allowed on said sum and as to whom the same should be paid.

The material portion of the decree of the court from which the appeal was taken, as set forth in the petition for said mandate, is as follows:

“ The sum of $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 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 Eiver, or to the legal representatives of such individuals.” .

By article 15, treaty of 1835 (7 Stat. L., 478, 485), it was expressly provided that, after deducting the amounts actually expended as therein set forth, “the balance, whatever the same may be shall be equally divided between all the people belonging to the Cherokee Nation east, according to the census just completed,” etc., while by article 9, treaty of 1846 (9 Stat. L., 871, 875), it was provided that “ the United States agree to make a fair and just settlement of all moneys due to the Cherokees, and subject to the per capita division *671under the treaty of 29th December, 1835.” Furthermore, by the act of September 30,1850 (9 Stat. L., 544, 556), Congress, in making an appropriation to pay the amount of a like fund found due by the Senate as umpire under article 2 of the supplemental treaty of 1836 (7 Stat. L., 488), added this proviso: “ That in no case shall any money hereby appropriated be paid to any agent of said Indians, or to any other person or persons than the Indian or Indians to whom it is due per capita.” The amount appropriated by that act and by the act of February 27, 1851 (9 Stat. L., 570, 572), amounting in the aggregate to a million dollars, was, as set forth in Finding XLI of the original cases in this court (40 C. Cls., 252, 281), paid to the Cherokees per capita. The question of how the payment was to be made was also referred to the Attorney General, and that officer held that the distribution should be made per capita (5 Opins. Atty. Gen., 320, 329), and we may add that such has been the uniform ruling of the courts respecting communal property, and, in the recent case of *Fleming*v. *MeOurtain*(215 U. S., 56), wherein letters patent had issued pursuant to the treaty of Dancing Eabbit Creek of September 27, 1830 (7 Stat. L., 333), conveying certain lands to the Choctaw Indians in fee simple to them and their descendants to inure to them while they should exist as a nation and live thereon, was by the court held to be a grant to the Choctaw Nation, to be administered by it as such, and that such conveyance did not create a trust for the individuals then comprising the nation.

In giving force to the treaties, acts of Congress, and opinion of the Attorney General this court, in its opinion (40 C. Cls., 330, 331, 332), referring to the persons to whom distribution should be made, said:

“ The persons to whom distribution of this fund of $1,111,284.70, with accrued interest, would be made if they were now living would be the communal owners of the Cherokee lands east of the Mississippi. By the tripartite treaty of 1846 the Western and Eastern Cherokees were placed on the same footing with regard to all lands east of the Mississippi and with regard to the funds derived from them. It follows necessarily that each and all of the present communal owners, whether on the east or the west of the Mississippi, and whether the descendants of Eastern or *672Western Cherokees, have the same individual interest in the fund and will be entitled to like amount *per capita.*

^ ❖

“ That the amount of $1,111,284.70, together with interest thereon from June 12, 1838, to a day when the Secretary of the Interior shall be ready to make payments, as hereinafter provided, nevertheless be paid directly to communal owners, being Cherokees by blood, whether on the eastern or western side of the Mississippi River, and to that end the Secretary of the Interior is authorized to appoint one or more commissioners to proceed to the Cherokee country and to the country of the Cherokees residing east of the Mississippi to ascertain and report to the Secretary the facts necessary for the formation of rolls of all Cherokees by blood, the expenses of making out and preparing such rolls to be a charge upon and paid out of the fund awarded by the decree.

“ The decree will also provide for the payment of the fund to the parties *per*capita, the charge of distribution likewise to be a charge upon the fund.”

On appeal, the Supreme Court, at page 130, said:

“We concur with 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.”

It will be observed that in the modification so directed to be made the words “ or to the legal representatives of such individuals ” (in the original decree) were omitted, clearly showing, we think, that the Supreme Court had in view the distribution *per capita*and not *per*stirpes, and this is made clearer by the language of the court in next to the last paragraph of its opinion where, in response to the contention that the Eastern and Emigrant Cherokees, numbering about *6734,500, residing mostly east, should have set apart to them one-fourth of the whole sum recovered as their distributive share, said: “ We think they are only entitled to receive the *per capita*payment with the Eastern Cherokees and should obtain that payment accordingly.”

May 28, 1906, the Court of Claims modified its decree as ordered in the mandate of the Supreme Court providing that “ the distribution of the fund described in item *two*of the said decree to be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi Biver, parties to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers.”.

As before stated, the words “ or to the legal representatives of such individuals ” in the original decree were omitted by the Supreme Court and also by this court in its modification; and ‘following said modification the court “ ordered and de- • creed that the Secretary of the Interior prepare, or cause to be prepared, a list or roll of all persons coming within the said description entitled to share in the distribution of said fund; and in preparing the said list or roll of such persons, the Secretary of the Interior shall accept as a basis for the distribution of said fund the rolls of 1851, upon which the *per capita*payment to the Eastern Cherokees was made, and make such distribution in pursuance of article 9 of the treaty of 1846,” to which reference was heretofore made.

Thereafter, in February, 1907, the special agent, Guión Miller, appointed by the Secretary to prepare said roll under his supervision, reported to the Commissioner of Indian Affairs the difficulties which he encountered in making the roll upon a *per stirpes*basis and otherwise, and asked that the Court of Claims be requested to give further instructions in the matter, which was done by the Secretary under date of February 20, 1907.

In response to the letter of the Secretary of the Interior calling attention to the difficulties which the special agent had encountered in making said roll and the report of said special agent pointing out the difficulties, to wit — “ First. Shall the rolls of 1851 be used as the exclusive basis for the present distribution? Second. Shall the distribution be *per stirpes*or *per capita?*Third. If *per stirpes,,*what disposi*674tion shall be made of those portions for which there have been no applications? ” — the court by way of construing its decree so modified by the mandate of the Supreme Court ordered that the commissioner hereinafter named “ shall enroll, as entitled to share in the fund arising from said decree of May 28,1906, all such individual Eastern Cherokee Indians, by blood, living on May 28, 1906, as shall further establish the fact that they were members of the Eastern Cherokee Tribe of Indians at the date of the treaty of 1835-86 and 1846, or are descendants of such persons, and who shall establish the fact that they have not been affiliated with any tribe of Indians other than the Eastern Cherokees or the Cherokee Nation.”

The purpose and intent of the decree, as shown from the language used both in the opinion of the court'and the decree as modified in accordance with said mandate, were that as those entitled to share were communal owners they should be enrolled and paid *per capita.*

Thereafter the Secretary, of the Interior, by letter under date of April 10, 1907, requested the court to assume the supervision of the making of said roll; and petitions to the same effect being filed by Henry C. Meigs and others, and counsel on both sides consenting thereto, the court thereafter, on April 29, 1907, vacated its order directing the roll to be made under the supervision of said Secretary and assumed the supervision thereof itself, and for that purpose appointed Guión Miller, Esq., special commissioner, who had theretofore been employed by the Secretary of the Interior as special agent for the same purpose; and said commissioner, under the direction of the court, and in strict compliance with its decree as aforesaid, did prepare the roll of those entitled to share under and in accordance with the decree, to which roll sundry exceptions were filed, which in the main were overruled by the court; and thereafter, on March 7, 1910, the roll so made as corrected was approved by the court, at which time an opinion was rendered setting forth the basis of the enrollment and the reasons why the payment had to be made per capita, copy of which opinion is attached hereto.

*675At the time of the approval of said roll and to secure full payment of the amount due to each one so enrolled without having to pass through some intermediary, said Guión Miller was also designated by the court as special commissioner to receive from the Treasury Department all the warrants for the persons so enrolled, respectively, and to visit the various localities where the Indians resided, as he had done in preparing the roll, and to deliver said warrants to the persons entitled thereto, respectively, which was done, as hereinbe-fore stated, prior to the filing of the petition herein for the mandate.

The court further says, on the authority of the special report of said Guión Miller (made for the information of court) that persons of the same name as those signing the power of attorney authorizing the filing of said petition were enrolled, as were those whom they claim to represent, and have been paid their respective shares, for which they receipted in full.

In conclusion, the court and judges say that the roll of those entitled to share was made in strict compliance with the decree as modified by the mandate of the Supreme Court | that the action of the court in the so-called modification of the decree complained of was intended as a construction of the decree as modified by the mandate of the Supreme Court and to effectuate its purpose; that by reason thereof the persons entitled to share under the decree were enrolled and have been paid *per capita*in strict compliance therewith, as hereinbefore stated. Therefore, the decree so modified by the Supreme Court has performed its office, and the petition for a mandate should be dismissed, which in the prayer of your respondents.

The Court of Claims,

By StaNtoN J. Peelle,

*Chief Justice.*

Charles B. IIowrt,

FeNTON )Y. Booth,

Samuel S. BarNey,

George W- AtkihsoN,

*Judges.*

*676OPINION *OF*THE SUPREME COURT.

Petition for mandamus to the Court of. Claims to require it to conform to a decree of this court modifying a decree of that court in the case of the *United States*v. *Oherohee Indians*(202 U. S., 101).

A rule to show cause was issued, to which a response has been made by the Court of Claims.

A recitation of the facts of the litigation between the Eastern Cherokees and the United States need not be made. They are set out in 202 U. S., 201. We are only concerned with the decree and what took place in accordance with it in the Court of Claims. It is enough to say that the Eastern Cherokees under the authority of acts of Congress brought suit against the United States for certain sums alleged to be' due under treaties with the United States, and the Court of Claims decreed May 18, 1905, that, after deducting counsel fees, costs, and expenses, the sum of $1,111,284.70, among other sums, with interest, should be paid to the Secretary of the Interior, to be by him received and held for the use and purpose of paying costs and expenses as stated, and the remainder to be distributed “ directly to the Eastern and Western Cherokees, who were parties to the treaty of New Echóla, as proclaimed May 23,1836, or to 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.”

We held that the decree, “ in directing that the distribution be made to ‘the Eastern and Western Cherokees ’ ” was “ perhaps liable to misconstruction,” though limited by a reference to the treaties, and decided that the decree 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, exclusive of the Old Settlers.” As modified, the decree was affirmed.

We also decided that the amount of the decree “ should be paid to the Secretary of the Interior, to be distributed directly to the parties entitled to it.”

Upon the going down of the mandate the Court of Claims modified its decree as directed bjr explicitly excluding the *677Old Settlers in terms from its operation and distributing the fund “ to the Eastern Cherokees as individuals,” omitting the words “ or to the legal representatives of such individuals.” And the court directed the Secretary of the Interior to prepare or have prepared a roll of the Cherokees entitled to share in the amount of the decree and to “ accept as a basis for the distribution of said fund the rolls of 1851, upon which the *per capita*payment to the Eastern Cherokees was made, and make such distribution in pursuance of article 9 of the treaty of 1846.”

It is stated in the response of the Court of Claims to the rule to show cause that the special agent appointed by the Secretary encountered difficulties in making up the roll “ upon a *per capita*basis and otherwise,” and that the Secretary of the Interior called the attention of the court to the difficulties and asked the following questions: “ First. Shall the rolls of 1851 be used as the exclusive basis for the present distribution? Second. Shall the distribution be *per stirpes*or *per capita?*Third. If *per*capita, what disposition shall be made of those portions for which there have been no applications? ”

The court, considering that its decree, as modified by our mandate, directed a *per capita*distribution, ordered the com-misisoner named for the purpose to “ enroll as entitled to share in the fund arising from said decree of May 28, 1906, all such individual Eastern Cherokee Indians by blood, living on May 28,1906, as shall establish the fact that they were members of the Eastern Cherokee Tribe of Indians at the date of the treaties of 1835-86 and 1846, or are decendants of such persons, and who shall further establish the fact that they have not been affiliated with any tribe of Indians other than the Eastern Cherokees or the Cherokee Nation.”

The court subsequently (as appears from its response to the rule to show cause), “ at the written request of the Secretary of the Interior and sundry other persons who petitioned therefor, as well as at the request of counsel engaged in said cause,” vacated the order which directed the Secretary of the Interior to prepare the roll, and employed Guión Miller, who had theretofore been employed by the Secretary, to prepare the roll under its supervision. The roll was pre*678pared as directed, to which exceptions were filed, most of which were overruled, and on March 7,1910, it was approved.

Miller was also designated as a special commissioner to receive from the Treasury Department all the warrants for the persons enrolled, and to visit the various localities where the Indians-resided, as he had done in preparing the roll, and to deliver the warrants, which he did prior to the filing of the petition herein for mandamus, the response of the court •stating as follows:

“ The money arising from said judgment was long prior to October 17, 1910, the date of the filing of said petition for said mandate to show cause, distributed and paid to practically all of those- on said roll, so that of the 30,827 enrolled only 313 remained unpaid, as we are advised by said commissioner, who was also intrusted, under the order of the court, with the delivery of the warrants issued by the Treasury Department to the parties so enrolled, respectively. Since which time 44 additional payments have been made, leaving 269 unpaid on October 28,1910.”

The court further states that on the authority of the special report of Miller, made for its information, persons of the same name as those signing the power of attorney authorizing the filing of the petition for mandamus were enrolled, as were those whom they claimed to represent, and have been paid their respective shares, for which they receipted in full.

It is contended by petitioners that the treaties of 1835-36 and 1846 required the Court of Claims to make a distribution *per*stirpes, and that in its original decree of May 18, 1905, it was so provided. And it is further contended that the mandate of this court so required, and that such interpretation was put upon it by the Court of Claims and the commissioner appointed by the Secretary of the Interior. It is insisted that, in consequence of the error of the court, the roll prepared in accordance with its orders contains the names of numerous persons not entitled under the mandate of this court to participate in the fund.

The’ respondent opposes these contentions and makes the counter one that petitioners have been guilty of laches, which, if it be justified, makes a notice of other contentions unnecessary. A summary of the proceedings shows that the contention is justified. The first decree of the court, as we have *679seen, distributed the fund to the Eastern and Western Cherokees *as -individuals,- or to the legal representatives of such individuals.*The decree, as modified by this court, limited the distribution to the Eastern Cherokees, and omitted the words “ or to the legal representatives of such individuals.” A question arose as to whether the mandate of this court directed a *per capita*or *per stirpes*distribution, and, on March 5, 1907, the Court of Claims gave notice that it would hear the parties on the question.

The matter came on for hearing April 8, 1907, all parties being represented, and a *per capita*distribution of the judgment was ordered and a commissioner appointed to prepare the roll of those entitled to share under the decree.

This was done, and a report made to the court, to which exceptions were filed, which “ in the main ” were overruled. On March 10,1910, the report as corrected was approved, and the amount of the decree distributed, as we have seen, to the persons entitled thereto.

This summary demonstrates the laches of petitioners. If it be conceded that the mandate of this court and the decree of the Court of Claims as modified in accordance with it were ambiguous, the Court of Claims decided, as early as April 28,1907, that it required a *per capita*distribution. The petitioners took no action against the decision nor the order of distribution based on it. They permitted the distribution to be made. And they might have taken action. *(In re Sanford Fork c& Tool Go.,*petitioner, 160 U. S., 247, 259.) Mandamus was available then, as now, and the circumstances condemn the delay. The amount of the judgment was to be distributed among many thousands of persons. Such persons were to be ascertained, their names, enrolled, and payment made to them. Every step involved expense, and the fund, once disbursed, could not be recovered, and the United States might be required to pay a second time.

In explanation of these circumstances, which, on their face, make a clear demonstration of negligence on the part of petitioners, they urge that after the modification on April 28, 1907, of the final decree there were other proceedings, instancing as such the ruling, on March 7, 1910, on exceptions *680to the roll, and urge that “ within 85 days thereafter ” they “ secured counsel and invoked the jurisdiction of this court for the protection of their rights.” They further urge that “ until the roll had been approved there was uncertainty what the Court of Claims might do,” and that “ when the final order had been» taken the petitioners were then only at liberty to institute the present proceeding.”

This overlooks that they attack the principle upon which distribution was decreed by the Court of Claims; in other words, their contention is that a *per capita,*instead of a *per stirpes*distribution of the fund was directed by the decree of April 28,1907, the consequence of which was that “ numerous persons not entitled under the mandate of this court ”' were made participants in the fund and their (petitioners’) shares thereby “ much lessened.” Petitioners are mistaken, therefore, when they say that they were “ only at liberty to institute the present proceeding ” when the roll was approved. The decree constituted their grievance, if they had any, and if it did not execute the mandate of this court the action of the Court of Claims in rendering it could have been reviewed and corrected by appeal or mandamus. *{In re Sanford Forlc c& Tool*Oo., *supra.)*

Pule discharged and petition dismissed.

Mr. Justice McKenna

delivered the opinion of the Supreme Court, March 20, 1911.