#### THE OTOE AND MISSOURIA TRIBES OF INDIANS v. THE UNITED STATES.

[No. 31003.

Decided May 21, 1917.]

*On Defendants' Demurrer.*

*Jurisdiction; Indian treaties and funds.-*— The jurisdictional act of June 22, 1910, 36 Stat., 580, empowers the court to render judgment in favor of plaintiffs for any sum which may be due them under existing treaties or the laws of Congress or any misappropriation of funds belonging to them, but does not comprehend in its grant of jurisdiction the right to inquire into the inequity or impropriety of any of these treaties between the Indians and the United States and does not authorize the court to relieve plaintiffs of the terms of said treaties.

*425
      *The Reporter’s*statement of the case:

The allegations of the petition, to which defendants demur, will be found fully set forth in the opinion of the court.

*Mr. George M.*Anderson, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the demurrer.

*Mr. G. G. Daniels*opposed.

The act of Congress confers jurisdiction on this court in language plain and explicit, and means just what it says.

It is -obvious that Congress intended by this act to provide a forum in which plaintiffs could be heard, and their claims against the defendant of “ whatsoever nature ” examined and adjudicated. ,

It is difficult to conceive how it would be possible to use language which would make plainer the jurisdiction conferred.

Without an act by Congress conferring jurisdiction on this court or some other tribunal, plaintiffs could not have brought this action. Not only are the “ wards of the Nation” not permitted to sue the sovereign, but neither are any of its citizens, except when the sovereign expressly waives the immunity of sovereignty, and, by act of Congress, provides a forum in which the claims of the citizens and “wards of the Nation” may be inquired into and the justice or injustice of the claims ascertained.

It is not the purpose of the Nation to do injustice. Our Government is founded on equal and exact justice, and whenever injustice is done by a representative of the Government to even the weakest and most helpless, to that extent has the foundation upon which the Nation rests been assailed. The jurisdiction conferred on this court to hear and determine claims against the Government, and the fact that its work is largely devoted to such claims as are involved in this action, under authority of similar acts of Congress authorizing the bringing of actions of this character, refutes the suggestion that it is the policy of the Government to withhold from its citizens or its wards full inquiry into “claims of whatsoever” character against it.

*426‘‘The Court of Claims shall have jurisdiction of ‘all claims (except pensions) upon any contract, expressed or implied, with the Government of the United States, or for damages liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were sue-able.”’ *U. S. Rev.*iStat., 1916 (sec. 1136, p. 1135).

“ The court was established to relieve Congress, to protect the Government by regular investigation, and to benefit claimants by affording them a certain mode of examining and adjudicating their claims, and the court must hear and determine claims founded on any law of Congress, on any regulation of an executive department, or on any contract, expressed or implied, with the Government.” *United States*v. Klein, 13 Wall., 128.

When this court has ascertained and determined what valid claims plaintiffs have against the defendant, its function and power is ended. It can issue no execution to enforce the payment of the amount so ascertained. Plaintiffs must then appeal to the Sovereign for an appropriation to pay the claim ascertained by the court to be due. This appeal must be made to the legislative department of the Government. It rests with the legislative branch of the Government, and if Congress refuses to appropriate the money to pay the judicially ascertained claim the power does not reside in any court to enforce the payment thereof, and there is no other forum in which the plaintiffs can seek redress.

The courts have uniformly held that the relationship existing between the United States and the various Indian tribes over which they exercise control and direction is analogous to that of guardian and ward. *United States*v. *Ka-*gama, 118 U. S., 375.

“ The Indians ‘ are in a state of tutelage; their relations to the United States resemble that of a guardian to his ward. They look to our Government for protection, rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their Great Father.’ ” *Cherokee Nation*v. Georgia, 5 Pet., 1; *Worcester*v. Georgia, 6 Pet., 515.

The defendant has assumed and undertaken to manage, control, and administer the person, property, and rights of *427tlie Indians; restraining and restricting them from the independent management and control, disposition or sale of their lands or other property; making void their deeds and contracts ; prohibiting them from employing counsel to represent them and protect their interests, except by the consent and with the approval of a department of the defendant.

It is inconceivable that these restrictions were placed on the Indians so as to make them helpless, while their lands and other property may be taken from them and “ benevolently assimilated ” by citizens of the defendant who have the power of the ballot and the intelligence and superior culture of Christian civilization.

Plaintiffs contend that the rules of equity governing trustee and *cestui que trust*and guardian and ward are applicable to this case, and that the court will apply them; that since the defendant assumed and undertook to exercise the authority and control of guardian over them and to manage and administer their property as trustee for their benefit, defendant is chargeable with the exercise of that care and diligence which an ordinary prudent man would exercise in the management of his own affairs. “ An ordinarily prudent man ” would secure for land that he sold the “ reasonable market value ” thereof.

The defendant is, therefore, chargeable for the “reasonable market value ” of the land of its *cestui que trust*at the time the land was taken over and title secured by defendant by means of the various treaties cited in the petition.

The lands secured by the defendant from the plaintiffs by treaty were taken from the Indians by reason of the. power of the defendant and the weakness and helplessness of the Indians. There was no “ coming together of two minds.” There was simply the terms imposed on the weak by the strong, and such gifts made by the conquerer to the conquered as the conquerer saw fit to make.

BaeNex, Judge,

delivered the opinion of the court:

This case comes to this court under a jurisdictional act of Congress as follows:

> “ Jurisdiction is hereby conferred upon said Court of Claims to hear and determine all claims of the Otoe and *428Missouria Indians of whatsoever nature which either or both of said tribes of Indians may have or claim to have against the United States, with the right of appeal to the Supreme Court of the United States by either party, for the determination of the amount, if any, due either of said tribes from the United States under any treaties or laws of Congress or the unexecuted stipulations of any treaties or for the misappropriation of any of the funds of either of said tribes for purposes not for their material benefit or for the failure of the United States to pay either of said tribes any money due.”

The question now before the court for decision arises upon the demurrer of the defendants to the plaintiffs’ petition. A careful examination of the petition discloses the fact that it contains substantially three claims: (1) A claim that the plaintiffs have been defrauded, or perhaps it would be more nearly correct to say cheated, by the defendants in the making of several treaties; that is, that these treaties provided for payment to the plaintiffs of a much smaller amount than the land ceded was worth; (2) a claim that an agreement which was entered into between the plaintiffs and defendants and ratified by act of Congress, whereby there were remitted to delinquent purchasers certain amounts which they had contracted to pay for lands obtained from the plaintiffs by cession and which were payable to the plaintiffs under treaties made with them; (8) claim that the plaintiffs have never been paid sums which were agreed to be paid to them by the terms of certain treaties.

It seems almost unnecessary to say that the jurisdictional act gives this court no jurisdiction to grant any relief under either of the first two claims enumerated. That act gives tl-iig court jurisdiction “ to hear and determine all claims of the Otoe and Missouria Indians * * * due either of said tribes from the United States under any treaties or laws of Congress or unexecuted stipulations of any treaties or for the misappropriation of any funds of either of said tribes for purposes not for their material benefit or for the failure of the United States to pay either of said tribes any money due.”

Epitomized, said act gives this court jurisdiction to give the plaintiffs judgment for any sum which may be due them or either of them under existing treaties or the laws of *429Congress or any misappropriation of funds belonging to them or either of them. That this does not give this court jurisdiction to inquire into the inequity or impropriety of any of these treaties between these Indians and the United States is so obvious as to hardly need citation of authorities. *United States*v. *Old Settlers,*148 U. S., 427, 468; *United States*v. *Choctaw, etc., Nations,*179 U. S., 494, 534.

The *Old Settlers case, supra,*was before this court (27 C. Cls., 1) under a special jurisdictional act which by its terms gave a broader jurisdiction to this court than the one in the present case. The Supreme Court in referring to that case in its opinion in the *Choctaw, etc., case, supra,*said:

> “ The same principle was announced in *United States*v. *Old Settlers,*148 U. S. 427, 468. That suit was brought under an act of Congress authorizing the Court of Claims to pass upon a claim preferred by an Indian tribe, the intention of Congress, as stated in the act, being £to allow the said Court of Claims unrestricted latitude in adjusting and determining the said claim, so that the rights, legal and equitable, both of the United States and of said Indians, may be fully considered and determined.’ In that case it was sought to have the claimants relieved of certain provisions of a treaty, because of fraud and duress alleged to have been practiced by the United States. But this court said: ‘ There is nothing in the jurisdictional act of February 25, 1889, inconsistent with the treaty of 1846 (or any other), and nothing to indicate that Congress attempted by that act to authorize the courts to proceed in disregard thereof. Unquestionably a treaty may be modified or abrogated by an act of Congress, but the power to make and unmake is essentially political and not judicial, and the presumption is wholly inadmissible that Congress sought in this instance to submit the good faith of its own action or the action of the Government to judicial decision, by authorizing the stipulations in question to be overthrown upon an inquiry of the character suggested, and the act does not in the least degree justify any such inference.’ ”

It is hardly necessary to say that acts of Congress regulating the relations between the Government and Indian tribes are the same in legal effect as treaties, and this would make the same rule applicable to the second claim mentioned as to the first.

*430We feel constrained to say that the last claim heretofore mentioned is somewhat indefinitely stated but, giving this statement a liberal construction, it appears to state a claim against the United States for moneys due the plaintiffs under and in accordance with certain treaties. If the plaintiffs have any such claims this court is very plainly given jurisdiction to consider them under the jurisdictional act.

It is therefore ordered by the court that said demurrer be and the same is hereby sustained in part and overruled in part and an order to that effect will be entered herein.

All the judges concur.