#### THE CHEROKEE NATION v. THE UNITED STATES1

[No 34449.

Decided June 23, 1924]

*On the Proofs*

*Jurisdiction; res judicata; special act of Congress; right to reopen case.*— Where a case has been decided by the Court oí Claims and affirmed by the Supreme Court on the same grounds, and Congress passes a special act giving the Court of Claims jurisdiction to reopen the case and reconsider the same questions, the case is *res judicata*and the court will dismiss the petition.

*The Reporters*statement of the case :

*Messrs. Frank K.*Nebeker, *Frank J. Boudinot*and *Leslie C. Garnett*for the plaintiff. *Messrs. C. C.*Calhoun, *Wilfred*Hearn, *Fred G. Coldren*and *B. A. McGinn*were on the briefs.

*Mr. George T.*Stormont, with whom was *Mr. Assistant Attorney General Robert H. I^ovett,*for the defendant.

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

I. In pursuance of the act of March 3,1919, 40 Stat. 1316, entitled “An act conferring jurisdiction upon the Court of Claims to hear, consider, and determine certain claims of the Cherokee Nation against the United States,” the plain*863tiff, on February 5, 1920, filed a petition in said court, and on March. 12, 1923, filed an amended petition therein. The said act reads:

“ That jurisdiction is hereby conferred upon the Court of Claims to hear, consider, and determine the claim of the Cherokee Nation against the United States for interest, in addition to all other interest heretofore allowed and paid, alleged to be owing from the United States to the Cherokee Nation on the funds arising from the judgment of the Court of Claims of May eighteenth, nineteen hundred and five (Fortieth Court of Claims Eeports, page two hundred and fifty-two) in favor of the Cherokee Nation. The said court is authorized, empowered, and directed to carefully examine all laws, treaties, or agreements, and especially the agreement between the United States and the Cherokee Nation of December nineteenth, eighteen hundred and ninety-one, ratified by the United States March third, eighteen hundred and ninety-three (Twenty-seventh Statutes at Large, page six hundred and forty, section ten), in any manner affecting or relating to the question of interest on said funds, as the same shall be brought to the attention of the court by the Cherokee Nation under this act. And if it shall be found that under any of the said treaties, laws or agreements interest on one or more of the said funds, either in whole or in part, has not been paid and is rightfully owing from the United States to the Cherokee Nation, the court shall render final judgment therefor against the United States and in favor of the Cherokee Nation, either party to have the right to appeal to the Supreme Court of the United States as in other cases. The said claim shall be presented within one year after the passage of this act by petition in the Court of Claims by the Cherokee Nation as plaintiff against the United States as defendant, and the petition, shall be verified by the attorney employed to prosecute said claim by the Cherokee Nation acting through its principal chief. A copy of the petition shall be served upon the Attorney General of the United States, and he, or some attorney from the Department of Justice to be designated by him, is hereby directed to appear and defend the interests of the United States in said cause. The law and practice and rules of procedure in said courts shall be the practice and law in this case.

“ The attorney for the Cherokee Nation shall be paid such fee as the Court of Claims may find reasonable, the same to be approved by the Secretary of the Interior: Provided, That in no case shall the fee decreed by said Court of Claims *864be in excess of tlie amount stipulated in his contract of employment, nor amount to- more than ten per centum of the sum, if any, to which the Cherokee Nation shall be found entitled. The amount recovered, if any, for the Cherokee Nation shall be disbursed under the supervision of the Secretary of the Interior to- the parties entitled thereto in the manner prescribed by the Court of Claims.”

II. The right to bring this suit is claimed under the following contract entered into between W. C. Rogers, principal chief of the Cherokee Nation, and Frank J. Boudinot, attorney at law:

“Know all men by these presents, That this contract made and entered into this the 20th day of November, 1916, is made by and between the Cherokee Nation, acting through its principal chief, W. C. Rogers, whose occupation is that of principal chief of the Cherokee Nation, and whose residence is in the town of Skiatook, in the State of Oklahoma, party of the first part, and Frank J. Boudinot, whose occupation is-that of attorney at law, and whose residence is in the town of Fort Gibson, in the 'State of Oklahoma, party of the sec- and part.

“ The purpose for which this contract is made is to secure the services of the party of the second part as attorney and counselor at law for the Cherokee Nation. The special thing' to be done under this contract by the party of the second part is to represent said nation as attorney before the authorities of the United States Government (the committees of Congress, the executive departments, and the courts) in the matter hereinafter mentioned; that is to say, in the prosecution of the claim of the Cherokee Nation against the United States which grew out of the agreement between the Cherokee Nation and the United States for the purchase of what is known as the Cherokee Outlet, the judgment of the Court of Claims of May 18, 1905, on said agreement and acts of Congress, laws of the United States applicable thereto.

“ This contract is to run from the 20th day of November, 1916, until the 4th clay of March, 1920: Provided-, *however,*That if the questions and matters involved shall be then pending in the courts or other tribunal for final determination, then and in that event this contract shall be and remain in full force and effect until final determination of the same.

“ The rate per centum of fee to be paid to party of the second part in full for his services under this contract shall be fifteen per centum upon the amount collected, the disposition to be made of the money when collected under this *865contract shall be as provided by existing law or as may be hereafter directed by Congress or by the court having jurisdiction of same, except the fee above provided; the compensation aforesaid to be paid to the said party of the second part by the proper officers of the United States shall be deducted from the amount recovered, and by the said officers paid direct to the said party of the second part.

“ No contingent matter or condition, except as herein set forth, constitutes any part of this contract; and by virtue' of and under the authority of said Cherokee Nation, acting through its principal chief, W. C. Eogers, the party of the first part has employed, and by these presents doth employ, the party of the second part, to represent said Cherokee Nation before the authorities of the United States Government (the committee of Congress, the executive departments, and the courts) in the city of Washington, District of Columbia, as attorney 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 attorney full power and authority in the premises to do and perform all things whatsoever that may be necessary and lawful in the prosecution of the said claim and for the securing payment thereof by the United States; 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 attorney done in pursuance of the authority of this contract.

“ The party of the second part hereby accepts the employment herein set forth and provided for upon the terms and conditions specified, and he will, to the best of his ability, do and perform the services stipulated and required by this contract.

“ Witness our hands and seals this the 20th day of November, 1916, and executed in triplicate.”

On the same day, November 20, 1916, the above contract Avas duly executed by the parties thereto before Conn Linn, judge of the district court of Tulsa County, Oklahoma.

W. C. Eogers died on October 1, 1917, and the President filled the A7acancy caused by his death on November 8, 1919, by the appointment of Andrew B. Cunningham as principal chief for a term expiring on November 25,1919. Since then the office has remained vacant. The contract between W. C. Eogers and Frank J. Boudinot was not approved by the President.

*866III. By section 14 of the act of March 2, 1889, 25 Stat. 1005, the President was authorized to appoint three commissioners to negotiate with the Indian tribes owning or claiming lands west of the 96th degree of west longitude in the Indian Territory for the cession of all their title, claim, or interest of every kind and character in and to said land to the United States. The President under said act appointed three such commissioners. The Cherokee Nation, by virtue of the act of the national council of November 16, 1891, appointed seven commissioners to negotiate with the three commissioners appointed by the President “ for the cession of the lands of the Cherokee Nation west of the ninety-sixth degree of west longitude and for the final adjustment of all questions of interest between the United States and the'Cherokee Nation which are now unsettled.” It was the duty of the commission appointed by the President to report to him the result of their negotiations for transmittal to Congress and of the commission appointed by the Cherokee Nation to report their proceedings in full for its approval and ratification to the Cherokee national council.

On December 19, 1891, the said’ commissioners entered into an agreement by article 1 of which the Cherokee Nation agreed to cede 8,144,682.91 acres, between the 96th and 100th degrees of west longitude south of the Kansas line commonly known as the “ Cherokee outlet.” The pertinent parts of said agreement read:

“Article II. For and in consideration of the above cession and relinquishment the United States agrees:

íjí íjí *i'fi %*SjC íji

“ £ Fourth: 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 T817, 1819, 1825, 1828, 1833, 1835, 1836, 1846, 1866, and 1868, and any laws passed by Congress of the United States for the purpose of dairying said treaties, or any of them, into effect; and upon such accounting should the Cherokee Nation, by its national council, conclude and *867determine that such accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve (12) 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 s'aid 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 p’ay 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.

$ $ ‡ ‡ ‡

“‘Sixth. That in addition to the foregoing enumerated considerations for the cession and relinquishment of title to the lands hereinbefore provided the United States shall pay to the Cherokee Nation, 'at such time and in such manner as the Cherokee National Council shall determine, the sum of eight million five hundred and ninety-five thousand seven hundred and thirty-six and twelve one-hundredths ($8,595,-736.12) dollars in excess of the sum of seven hundred and twenty-eight thousand three hundred and eighty-nine and forty-six one-hundredths ($728,389.46) dollars, the aggregate of 'amounts heretofore appropriated by Congress and charged against the lands of the Cherokees west of the Arkansas River, and also in excess of the amount heretofore paid by the Osage Indians for their reservation. So long as the money or any p'art of it shall remain in the Treasury of the United States after this agreement shall have become effective, such sum so left in the Treasury of the United States shall bear interest at the rate of five per centum per annum, payable semiannually: *Provided,*That the United States may at any time pay to said Cherokee Nation the whole or any part of said sum and thereupon terminate the obligation of the United States in respect to so much thereof as shall be so paid and in respect to any further interest upon the same: *Provided further,*That should the *868Cherokee Nation determine to distribute said money or any part thereof, principal or interest, to any of its citizens, per capita, 'and should the classes of persons provided for in the ninth and fifteenth articles of the treaty of July 19,1866, claim that in such distribution they have been unjustly or illegally discriminated against, then on complaint made by such persons Congress shall by law 'authorize a suit in the proper court by and between such classes of persons and the United States and the Cherokee Nation, to determine that question, giving to any party thereto the right of appeal to the Supreme Court of the United States, and providing that such suit or suits m'ay in proper manner be advanced upon the dockets of such court to secure a speedy hearing of the same, and the United States shall retain a sufficient sum of such money under its control to adjust and relieve such discrimination, should it be adjudged that such discrimination has been made. It is expressly understood th'at this agreement, ceding and relinquishing the title to the lands herein described, shall not be effective for any purpose whatever until it shall in its entirety be ratified by Congress and the amount of money herein agreed to be paid to the Cherokee Nation for such cession and relinquishment shall have been appropriated by Congress and placed in the Treasury of the United States subject to the order of the Cherokee National Council: *Provided*further, That nothing contained in this agreement shall have the effect to limit or impair any rights whatever the Cherokee Nation has in or to or over the lands herein ceded until it shall be so ratified by Congress: *And provided*further, That if this agreement shall not be ratified by Congress, and the appropriation of money, 'as herein provided for, made on or before March 4, 1893, it shall be \itterly void.’ ”

On January 4, 1892, the agreement of 1891 was approved by the Cherokee National Council. The said agreement was Ratified by Congress by section 10 of the act of March 3, 1893, 27 Stat. 612, 640, which appropriated of the cash consideration for the cession of the Cherokee Outlet, $8,595,-736.12, set out in paragraph six of Article 2 of the agreement of December 19, 1891, the sum of $295,736 to be “ immediately available and the remaining sum of eight million three hundred thousand dollars or so much thereof as is required to carry out the provisions of said agreement as amended, and according to this act to be payable in five *869equal installments, commencing on the fourth day of March, eighteen hundred and ninety-five, 'and ending on the fourth day of March, eighteen hundred and ninety-nine, said deferred payments to bear interest at the rate of four per centum per annum, to be paid annually, and the amount required for the payment of interest 'as aforesaid is hereby appropriated.”

The said act further provides:

“And the provisions of said agreements so amended shall be fully performed and carried out on the part of the United States. * * * The acceptance by the Cherokee Nation of Indians of any of the money appropriated as herein set forth shall be considered and taken and shall operate as a ratification by said Cherokee Nation of Indians or said agreement as it is hereby proposed to be amended, and as a full and complete relinquishment, and extinguishment of all their title, claim, and interest in and to said lands. * * *

“ The sum of $5,000, or so much thereof as may be necessary, the same to be immediately available, is hereby appropriated, out of any money in the Treasury not otherwise appropriated, to enable the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, to employ such expert person or persons to properly render a complete account to the Cherokee Nation of moneys due said Nation, as required in the fourth subdivision of Article II of said agreement.”

On May 17, 1893, a deed of cession was executed and delivered by the proper authorities of the Cherokee Nation to the United States and the first installment of the purchase money was paid to and accepted by the Cherokee Nation and the United States thereupon took possession of said lands, and thereafter disposed of the same as public lands.

In pursuance of the last paragraph of section 10 of the act of March 3, 1893, 27 Stat. 643, the Secretary of the Interior promptly employed two expert accountants, Messrs. James A. Slade and Joseph T. Bender, to prepare an account between the United States and the Cherokee Nation, and on *870April 28, 1894, the said experts filed their account with the Secretary of the Interior, which reads as follows:

Under tlie treaty of 1819:

Value of three tracts of land containing 1,700 acres, at $1.25 per acre, to be added to the principal of the “school” fund_ $2,125.00 (With interest from Feb. 27, 1819, to date of payment. )

Under treaty of 1835:

Amount paid for removal of Eastern Oherokees to the Indian Territory, improperly charged to treaty fund_1, 111, 284. 70 (With interest from .Tune 12, 1S3S, to the date of payment.)

Under treaty of 1860: Amount received by receiver of public moneys at Independence, Ivans., never credited to Cherokee Nation_ 432. 2S (With interest from Jan. 1, 1874, to date of payment.)

Under act of Congress, March 3, 1893: Interest on $15,000 of Choctaw funds applied in ' 1863 to relief of indigent Cherokees, said interest being improperly charged to Cherokee national fund_ 20,406. 25

(With interest from July 1,1893, to date of restoration of the principal of the Cherokee funds, held in trust in lieu of investments.)

The said account was transmitted by the Secretary of the Interior to the proper authorities of the Cherokee Nation and it was accepted by act of the National Council approved December 1, 1894. The account was transmitted by the Secretary to Congress on January 7, 1895. Congress, then in session, failed to make an appropriation to pay the amounts found due by said accountants, and adjourned *sine die*on March 4, 1895. ■ The principal due on said account on March 4, 1895, was $1,134,248.23 and the interest was $3,162,279.34, and the principal and interest amounted to $4,296,527.57.

No action ivas taken by Congress for the settlement of the amounts due the Cherokee Nation under the Slade and Bender account until July 1, 1902.

*871IY. Congress, by section 68 of the act of July 1, 1902, 32 Stat. 726, referred the claim arising out of the Slade and Bender award to the Court of Claims, as follows :

“ Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with the 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 the said tribe, or any band thereof * *

The act of March 3, 1903, 32 Stat. 996, amended section 68 as follows:

“ Section sixty-eight * * * 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 as two bodies, as they may be advised, the status of. a band or bands, as the case may be, for all purposes: * * * 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 House of Representatives Executive Document Numbered Three hundred and nine 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, etc.”

V. Under the act of July 1, 1902, the Cherokee Nation brought suit against the United States, claiming the whole amount with interest found due .by the Slade and Bender account. Thereafter the Eastern Cherokees and the Eastern and Emigrant Cherokees each brought suit under the act of July 1, 1902, as amended by the act of March 3, 1903, against the United States, each claiming the fund of $1,111,-284.70 used for the removal of the Eastern Cherokees to the Indian Territory with interest, and improperly charged by the Government against the treaty fund provided by *872the treaty of December 29, 1835, known as the “ Treaty of New Echota.” The three suits were consolidated by order of the court and were heard, considered, and decided together. The decree of the Court of Claims, in conformity with its opinion and conclusion of law entered March 20, 1905, was in part as follows:

“ 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. JO With interest thereon at the rate of 5 per cent from Feb. 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 Jan. 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.

Then followed directions as to the payment and distribution of the different items of the judgment. 40 C. Cls 252, 363, 364.

VI. The case having gone up to the Supreme Court on appeal, the judgment was affirmed on April 30, 1906, with a modification, consisting of a direction that item two, $1,111,284.70 with interest at 5 per cent from June 12, 1838, to 'date of payment, should be distributed amoiig “the Eastern Cherokees as individuals, whether east or ivest of the Mississippi, parties to the treaties of 1835-36 and 1846, and exclusive of Old Settlers.” 202 U. S. 101, 130, 131. On May 28, 1906, the Court of Claims entered a decree modifying its original decree to conform to the mandate of the Supreme Court and fixing the compensation of the attorneys representing the parties plaintiff.

VII. By the act of June 30, 1906, 34 Stat. 634, 664, Congress made appropriation for payment of the judg*873ment of tlie Court of Claims, principal and interest, as follows:

“ To pay the judgment rendered by the Court of Claims on May eighteenth, nineteen hundred and five, in consolidated causes numbered tweihy-three thousand one hundred and ninety-nine, The Cherokee Nation versus The United States; numbered twenty-three thousand two hundred and fourteen, The Eastern Cherokees versus The United States; and numbered tAventy-three thousand two hundred and twelve, The Eastern and Emigrant1 Cherokees versus The United States, aggregating a principal sum of one million one hundred and thirty-four thousand two hundred and forty-eight dollars and twenty-three cents, as therein set forth, with interest upon the several items of judgment at five per centum, one million one hundred and thirty-four thousand two hundred and forty-eight dollars and twenty-three cents, together with such additional sum as may be necessary to pay interest, as authorized by law.”

The act of June 30, 1906, *siopra,*was amended by the act of March 4,1909, 35 Stat. 907, 938, 939, as follows:

“ That the general deficiency appropriation act of June thirteith, nineteen hundred and six, so far as the same provides for the payment of item 2 of the judgment of the Court of Claims of May eighteenth, nineteen hundred and five, in favor of the Eastern Cherokees, shall be so construed as to carry interest on said item 2 up to such time as the roll of the individual beneficiaries entitled to share in said judgment shall be finally approved by the Court of Claims, and for the payment of said interest a sufficient sum is hereby appropriated.”

On March 15, 1910, the Court of Claims entered an order approving the roll of individuals entitled to share in the distribution of item 2 of the judgment. By section 18 of the act of June 30, 1919, 41 Stat. 3, 21, Congress provided for the payment of certain interest on items 1 and 4 of the judgment, as follows:

“For payment of interest upon certain interest-bearing trust funds belonging to the Cherokee Nation, which funds arose from the judgment of the Court of Claims of May 18, 1905, in favor of said Nation, and were paid into and retained in the Treasury of the United States, as follows, to wit: *874On the amount of the fund which arose from item 1 of said judgment as such amount Avas determined and paid to the Secretary of the Interior on July 2, 1906, to be by him credited to the principal of the Cherokee school fund, interest at 5 per centum per annum from July 2, 1906, to and including May 26, 1910; on the amount of the fund which arose from item 4 of said judgment, as such amount was. determined and paid to the Secretary of the Interior on July 2, 1906, to be by him credited to the principal of the Cherokee national fund, interest at 5 per centum per annum from July 2, 1906, to and including May-26, 1910; on the original principal sum of item 4 of said judgment, interest at 5 per centum per annum from July 1,1893, to July 1,1903, and on the amount of the interest thus accruing interest at 4 per centum per annum from December 29,1905, to May 14,1906; and on the aggregate of the sums of the interest for the last two periods hereinabove mentioned, interest at 5 per centum per annum • from July 2,1906, to the date of the passage of this act; and the sum of $27,500, or so much thereof as may be necessary to pay the interest above allowed, is hereby appropriated and authorized to be paid to the Cherokee Nation: *Provided,*That the Secretary of the Treasury is hereby authorized and directed to pay the amount arising from item 4 of said judgment, with interest thereon as hereinabove provided for, to the agent appointed by the Cherokee Nation acting through its principal chief to receive the same, said payment to be made immediately upon the approval of this act.”

VIII. In full satisfaction of the judgment of the Court of Claims, and in pursuance of the directions contained in its decree, there was paid by the United States, out of appropriations carried by the several acts of Congress set out in Findings VII, the sum of $5,158,005.54, Avhich was arrived at as follows:

*Item i*

Principal_ $2,125. 00

Interest at 5 per cent from Feb. 27, 1819, to Dec. 29, 1905 (date of filing of transcript of judgment Avitli Secretary of Treasury)— $9,226.28

Interest on $11,351.58 (the sum of abOA'e principal and interest), at 4 per cent from Dee. • 30, 1905, to May 14, 1906 (date when mandate of Supreme Court issued) - 169.18

Total interest 9,395.46

*875Interest under act of June 30, 1919:

At 5 per cent on $11,520.46 (sum of principal and total interest) from July 2,1906, to Nov. 3, 1906 _ $197.27

At 5 per cent on $11,174.53 ($11,520.46 less $345.93, attorney's fee) from Nov. 4, 1906, to May 26, 1910_ 1,988.45

Total interest under act of June 30, 1919_ $2,185.72

Total paid under item 1_ 13,706.18

*Item*g

Principal_ 1,111,284.70

Interest at 5 per cent from June 12, 1838, to Dec. 29, 1905_ $3,753,249.90

Interest on $4,864,534.60 (sum of principal and interest) from Dee. 30, 1905, to May 14, 1906, at 4 per cent_ 72,501.56

Total interest - 3,825,751.46

Additional interest under act of Mar. 4, 1909_ 161,324.92

Total paid under item 2_ 5,098,361.08

*Item 3*

Principal_ 432. 28

Interest at 5 per cent from Jan. 1, 1874, to Dec. 29, 1905_$691.46

Interest at 4 per cent on $1,123.24 (sum of principal and interest) from Dec. SO, 1905, to May 14, 1906_ 16. 75

Total interest_ 708. 21

Total paid under item 3_•_ 1,140. 49

*Item 4*

Principal_ 20, 406. 25

Interest at 5 per cent from July 1, 1903, to Dec. 29, 1905_$2, 546. 58

Interest on $22,952.83 (sum of principal and interest!) from Dec. 30, 1905, to May 14, 1906_ 342.10

Total interest. 2, S88. 68

*876Interest under act of June 30, 1919:

At 6 per centón $23,294.93 (sum of principal and total interest) from July 2, 1906, to Nov. 3, 1906_ $398. 89

At 5 per cent on $22,595.46 ($23,294.93 less $699.47 attorney’s fee) from Nov. 4, 1906, to May 26, 1910_ 4, 020. 75

At 5 per cent on $20,406.25 from July 1, 1893, to July 1, 1903_ 10,203.12

At 4 per cent on $10,203.12 from Dec. 30, 1905, to May 14, 1906_ 152. 07

At 5 per cent on $10,355.19 (sum of last two items) from July 2, 1906, to June 30, 1919_ 6,728.03

Total interest under act June 30, 1919_ $21, 502. 86

Total paid under item 4_ 44, 797. 79

Total paid under—

Item 1_ 13, 706. IS

Item 2_ 5, 098, 361. 08

Item 3-1,140. 49

Item 4_ 44, 797. 79

Grand total_ 5,158, 005. 54

IX. Tlie sum of $5,158,005.54, computed as set out in Finding VIII, ivas paid in various amounts on the following dates for the purposes described below:

On July 2, 1906, to the Secretary of tlie Interior on account of said item 3_ $11, 520. 46

On the same date on account of item 3_ 1,140. 49

On the same date on account of item 4_ 23, 294. 93

On July 14, 1906, to the attorneys for the Eastern Cherokees and the Eastern Emigrant Cherokees, fees amounting- to- 740, 550. 42

On Nov. 3, 1906, to the attorneys for the Cherokee Nation on account of item 2, fees amounting to- 148,245.15

On various dates after July 2, 1906, and before final distribution of the fund arising from item 2, to Guión Miller for fees and expenses the sum of- 103, 749. 74

On and after Mar. 15, 1910, to Guión Miller for per capita distribution among the Cherokees entitled to share in the fund the sum of- 4, 3.05, 810. 77

*877■On or about Aug. 7, 1919, additional interest ou item 4, pursuant to the act of June 30, 1919_ $21, 502. 80

On or about Aug. 7, 1919, to tlie Secretary of the Interior as additional interest on item 1, pursuant to the saicl act of June 30, 1919_ 2,185. 72

Making- a total sum, principals and Interest, of— 5,158, 005. 54

X. If tlie plaintiff is entitled to recover tlie amount found due by the Slade and Bender report, with interest at five per centum to March 4, 1895, $4,296,527.57, principal and interest, and interest thereon as anew principal, at five per centum per annum to March 15, 1910, less payment of tlie judgment, principal and interest, of the Court of Claims, it would leave a balance due the plaintiff of $2,216,091.76, with interest at 5 per centum thereon until paid, less $23,688.18 (interest payments August 7, 1919, under act of June 30, 1919), with interest to date of payment of said balance. This balance is arrived at as follows:

*Item 1*

Principal_ $2,125. 00 Interest from Feb. 27, 1819, to Mar. 4, 1S95, at 5 per cent_j._ 8, 077. 06 10, 202. 06

*Item %*

Principal_1, 111, 284. 70 Interest from June 12, 1838, to Mar. 4, 1895, at 5 per cent_ 3,152, 035. 58 4, 263,320. 28

*Item 3*

Principal_ 432. 28 Interest from Jan. 1, 1874, to Mar. 4, 1895 at 5 per cent_ 457. 08 889. 9(3

*Item J/*

Principal_20, 406. 25

Interest from July 1, 1893, to Mar. 4, 1895, at 5 per cent_ 1,709. 02

22,115. 27

Item 1_ $10,202.06

Item 2_ 4,263,320.28

Item 3_ 889.96

Item 4_ 22,115.27

- 4,296,527.57

*878DEBITS

Principal and interest to Mar. 4, 1895_$4, 296, 527. 57

Interest on same, Mar. 4, 1895, to Mar. 15, 1910, in-clusive_ 3, 228, 959. 82

7, 525,487. 39

CREDITS

Tlie sum of item 1, $11,520.46; item 3, $1,140.49; item 4, $23,294.93, paid July 2, 1906_1_ $35, 955. SS

Interest from July 2, 1906, to Mar. 15, 1910, at 5 per cent per annum- 6, 656. S3 Paid to attorneys for Eastern and Eastern Immigrant Cherokees, July 13, 1906_ 740, 555. 42

Interest from July 13, 1906, to Mar. 15, 1910, at 5 per cent per annum_ 135, 974. 20

Paid attorneys for Cherokee Nation Nov. 3, 1906_ 148,245.15

Interest from Nov. 3, 1906, to Mar. 15, 1910, at 5 per cent per annum_ 24, 954. 60

Expenses of making roll of Eastern and Eastern Immigrant Cherokees from July 2,1906, to Mar. 15,1910, and distributing warrants_ 103, 749. 74

Interest from Oct. 5, 1908 (average date), to Mar. 15, 1910, at 5 per cent per annum_ 7, 493. 04

Amount paid to Cherokees on the roll_4,105, 810. 77 5, 309, 395. 63

Balance. 2, 216, 091. 76

1

 Appealed.

MEMORANDUM BX THE COURT

This case has already been before this court and the Supreme Court and the identical questions have been considered and decided by both courts. The matters for the determination of. the court in the original case (40 C. Cls. 252; 202 U. S. 101) were the amounts, principal and interest, due the Cherokee Nation and the Eastern and Eastern Emigrant Cherokees under the Slade and Bender account, and those matters were finally settled and determined on March 15, 1910, by payment.

The court is now asked to settle the same question on a different basis, and by using a different rate of simple in*879terest and compounding tbe same from March 4, 1895. The court is now asked to consider the agreement of December 19, 1891, as a hard and fast contract to apply a five per cent rate to all of the items found due on March 4, 1895. In order to do this the court is asked to find that the five per cent interest promised by the Government to the Cherokees in paragraph 6 of the agreement of 1891, “ so long as the money or any part” remained in the Treasury, related to the money found due in the Slade and Bender account, as well as to the cash payment of $8,595,736.12 — a matter open to doubt with the weight of reason against such construction. The court is asked further to find that the failure of Congress to appropriate the payment of principal and interest called for by the Slade and Bender account amounted to a breach of contract that rendered the United States liable for the whole amount, principal and interest; and this, too, in the face of the proviso in the sixth paragraph of the agreement of 1891, “ That nothing contained in this agreement shall have the effect to limit or impair any rights whatever the Cherokee Nation has in or to or over the lands herein ceded until it shall be so ratified by Congress: *And provided*further, That if this agreement shall not be ratified by Congress, and the appropriation of money, as herein provided for, made on or before March 4,1893, it shall be utterly void.”

The agreement of December 19, 1891, was ratified by the act of March 3, 1893, and part of the money consideration for the cession of the Cherokee outlet, $295,736 of the $8,-595,736.12, was appropriated and the Secretary of the Interior was authorized to contract for the payment of the balance of $8,300,000. An appropriation of $5,000 was also made for the employment of experts to render a complete account of moneys due the Nation by the United States under the direction of the Secretary of the Interior. It was under this provision that the Slade and Bender account was rendered. This clearly shows that the five per cent interest did not relate to the money due under the Slade and Bender account provided for in a separate and distinct paragraph, but only to the $8,500,000 cash payment for the “ Outlet.”

*880The Supreme Court, in affirming this court, said that “ the question of interest was a subject of difference while the negotiations were carried on, the determination of which was provided for in the £ treaty itself ’ in 1846, and in the ‘ agreement itself’ in 1891, and is the same in principle as in the case of the Old Settlers.” The Supreme Court said that the question as to the amount of recovery and the different questions involved had been left to the Court of Claims and that the case had been properly decided. 202 TJ. S. 126-132.

The court is now asked to construe the jurisdictional act as requiring it to decide the case again on a different basis from its original determination. The law stood then as it stands now. The agreement of December 19, 1891, on which the plaintiff bases its present claim, was considered by the Supreme Court, in reaching its determination as to interest. *United States*v. Klein, 13 Wall. 128, 146.

Petition is dismissed. It is so' ordered.