#### STOCKBRIDGE TRIBE OF INDIANS v. THE UNITED STATES

[No. D-552.

Decided January 25, 1926]

*On the Proofs*

*Indian tribes: act of May 18, 1916; distribution of proceeds from sale of lands.*— Under the act of February 6, 1871, the proceeds of certain tribal lands were distributed, according to enrollments made thereunder, pro rata to the “ citizen ” class and to the “ Indian ” class, the latter portion being deposited in the Treasury of the United States to the Stockbridge Consolidated Fund. The rolls were revised under the act of March 3, 1893, and payments made in annuities thereafter to the “ Indian ” class in accordance with the revision. The said fund was inadequate to pay the claims of all those re*473stored to the “ Indian ” class under the act of 1893, for the period between the two enrollments, and on May 18, 1916, Congress by appropriation added $95,000 to the said fund for payment to the “ Indian ” class enrolled under the act of 1893, “ equal amounts to the amounts paid to the other members of said tribe prior to the enrollment under said act.” *Held,*that the apportionment to the “ citizens ” under the act of 1871 was not changed by the act of 1893, that the appropriation was to equalize payments as between Indians only, and no right existed in the tribe to recover any portion of the appropriation after its purpose had been accomplished.

*The Reporter's*statement of the case:

*Mr. Dennison Wheeloch*for the plaintiff.

*Mr. George T.*Stormont, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. By a special jurisdictional act of Congress approved June 7, 1924, 43 Stat. 644, under which this suit is brought it was provided:

“ That jurisdiction be, and is hereby, conferred upon the Court of Claims, notwithstanding the lapse of time or statutes of limitation, to hear, examine, and adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of any treaty or agreement between the United States and the Stockbridge Tribe of Indians, or arising under or growing out of any act of Congress in relation to Indian affairs, which said Stockbridge Tribe may have against the United States, which claims have not heretofore been determined and adjudicated on their merits by the Court of Claims or the Supreme Court of the United States.

“ Sec. 2. Any and all claims against the United States within the purview of this act shall be forever barred unless suit be instituted or petition filed as herein provided in the Court of Claims within five years from the date of approval of this act, and such suit shall make the Stockbridge Tribe party plaintiff and the United States party defendant. The petition shall be verified by the attorney or attorneys employed to prosecute such claim or claims under contract with the Stockbridges approved by the Commissioner of Indian Affairs and the Secretary of the Interior; and said contract shall be executed in their behalf by a committee *474chosen by them under the direction and approval of the Commissioner of Indian Affairs and the Secretary of the Interior. Official letters, papers, documents, and records, or certified copies thereof, may be used in evidence, and the departments of the Government shall give access to the attorney or attorneys of said Indian nation to such treaties, papers, correspondence, or records as may be needed by the attorney or attorneys of said Indian nation.

“ Sec. 3. In said suit the court shall also hear, examine, consider, and adjudicate any claims which the United States may have against said Indian nation, but any payment including gratuities which may have been made by the United States upon any claim against the United States shall not operate as an estoppel, but may be pleaded as an offset in such suit.

“ Sec. 4. That from the decision of the Court of Claims in any suit prosecuted under the authority of this act, an appeal may be taken by either party as in other cases to the Supreme Court of the United States.

“ Sec. 5. That upon the final determination of any suit instituted under this act, the Court of Claims shall decree such amount or amounts as it may find reasonable to be paid the attorney or attorneys so employed by said Indian nation for the services and expenses of said attorneys rendered or incurred prior or subsequent to the date of approval of this act: Provided, That in no case shall the aggregate amounts decreed by said Court of Claims for fees be in excess of $5,000, or in excess of a sum equal to 10 per cent of the amount of recovery against the United States.

“ Sec. 6. The Court of Claims shall have full authority by proper orders and process to bring in and make parties to such suit any or all persons deemed by it necessary or proper to the final determination. of the matters in controversy.

“'Sec. 7. A copy of the petition shall, in such case, 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 interest of the United States in such case.”

II. Under the provisions of an act of Congress approved February 6, 1871, 16 Stat. 404, lands were sold as therein directed and thereafter, in accordance with the provisions of section 4 of said act a statement was made up, under the direction of the Secretary of the Interior, as follows:

*475RECEIPTS

From sales of lands_$179, 272.46

From tlie appropriation in the act' of June 22, 1874 (18 Stat. 174), being the value of 11,803 acres, at 60 cents, remaining unsold_ 7, 081. 80

Total_ 186,354.26

EXPENDITURES

Tribal indebtedness paid by the United States_$10, 988. 00

Paid individuals for improvements-— 8,420. 00

Expenses of appraisal and sale_ 4, 592.12

- 24, 000.12

Balance_ 162, 354.14

From sale of $6,000 U. S. 5 per cent bonds-:- 6, 750.00

Accrued interest and premium on same_: 779. 08

Total amount subject to division- 169, 883. 22

Pro rata share of 139 Indians known as “ citizen ” class, including $200 required for expenses- 94, 379. 57

Pro rata share of 112 Indians known as Indian ” class- 75, 503. 65

III. Under the provisions of section 6 of said act W. T. Bichardson, then agent for the Stockbridge and Munsee Indians, had been designated, on August 30, 1871, to prepare the rolls, which he did, including in the “ citizen roll ” the names of 131 persons and in the “ Indian roll ” the names of 110 persons.

These rolls did not meet with the approval of the officers of the tribe, who refused to sign them, and so much friction developed that it became necessary to suspend the tribal authority, order a new election and defer the matter of the enrollment.

On March 24, 1874, H. E. Wells was appointed a special commissioner to complete the enrollment and on April 8, 1874, he reported two rolls, signed and certified as required by said section, and containing on the “ citizen roll ” the names of 139 persons and on the “ Indian roll ” the names of 112 persons. The rolls were approved by the Secretary of the Interior on June 3, 1874.

*476IV. Of said sum of $169,883.22, shown in Finding II, the proportionate part due the “ citizens ” appearing on said approved rolls, viz, $94,379.57, was distributed to them per capita in 1874 and 1875, except a balance of $760.28, returned to the Treasury as a credit to that part of the fund belonging to the “ citizen ” party and the sum of $75,503.65, being the proportionate part due the “ Indian ” party, together with a further sum of $300.81, unaccounted for, making a total of $75,804.46, was on June 17, 1875, credited on the books of the Treasury to the Indian party under the title “ Stock-bridge Consolidated Fund.” This fund w,as further augmented in February, 1881, and August, 1888, by the sums of $81.58 and $102.50, making a total fund of $75,988.60.

Interest accruing upon this fund at 5 per cent per annum was paid semiannually to the members of the tribe and the principal of the fund was disbursed as follows:

Under the act of June 21, 1906 (34 Stat. 325, 382), in 1914_$4,416.94

Under the act of June 21, 1906 (34 Stat. 325, 382), in 1914_31,120.00

Under the act of June 21, 1906 (34 Stat. 325, 382), in 1916_ 1,640.00

Total_$37,176.94

On account of per capita shares in 1911_ 49. 36

On account of per capita shares in 1923_ 80. 00

Total_ 129.36

Under the act of May 18, 1916 (39 Stat. 123, 156)_ 38, 682. 30

Total_ 75, 988. 60

The expenditures under the act of June 21, 1906, were payments to individual members of the tribe in lieu of lands.

V. After the sale of the tribal lands under the act of February 6,1871, the approval of the Wells rolls, the apportionment of the funds, the distribution to the citizens, and the covering into the Treasury of the tribal fund, a number of persons belonging to what was known as the “ Old Citizen Party ” who had received allotments under the treaty of February 5, 1856, and had not been included in the Wells enrollment began to assert their right to participate in the *477tribal fund and in the allotment of the 18 sections of land reserved under the act of 1811.

This agitation continued until and resulted in the passage by Congress of an act approved March 3, 1893, 27 Stat. 744, which, beside fixing title to lands in certain persons declared to be members of the tribe and providing for their participation in tribal funds, directed the preparation of an enrollment in accordance with the provisions of said act.

C. C. Painter was appointed to make this enrollment and on January 30, 1894, he submitted his report and a roll which was approved by the Secretary of the Interior. This roll contained 498 names but after its approval five names inadvertently omitted were added on the recommendation of Mr. Painter and the Indian agent and on November 30, 1896, 25 names were stricken from the rolls for the reason that those persons had elected to affiliate with the tribes of their mothers, leaving a total enrollment of 478.

This roll contained the names of 219 persons who were 20 years or more of age at the time it was made and if these persons had been enrolled under the act of February 6, 1871, the Indian party would have consisted of 219 members and the citizen party of 139 members. The proportionate distribution of the fimd of $169,883.22 would have been $65,960.25 to the citizens and $103,922.97 to the Indians.

VI. From the date of the approval of the Wells roll to the approval of the Painter roll semiannual payments of interest were made to those persons carried on the Wells roll. Thirty-seven payments were made aggregating $567.33 per capita. After the approval of the Painter roll under the act of 1893, all members of the tribe carried on that roll and children born to them subsequently shared in all tribal payments made.

VII. In 1911 a member of the tribe who had not been enrolled under the act of 1871, but who had been restored to the rolls under the act of 1893, made claim on behalf of himself and two children born between the dates of the two acts for back annuities covering the period between the two enrollments during which he had been excluded from the rolls, and his claim was allowed and paid. This was followed by numerous other claims of persons similarly situated and the *478claims soon exceeded the amount of the tribal funds in the Treasury.

The Secretary of the Interior estimated that to pay all these claims and certain claims for moneys due in lieu of allotments of lands under the act of 1906, would require approximately $95,000 in addition to the balance of tribal funds in the Treasury, and -he recommended to Congress the appropriation of that amount. Upon said recommendation there was included in the Indian appropriation act of May 18, 1916, 39 Stat. 123, the folowing provision :

“ There is hereby appropriated the sum of $95,000, to be used in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians, for the payment of the members of the Stockbridge and Munsee Tribes of Indians who were enrolled under the act of Congress of March third, eighteen hundred and ninety-three, equal amounts to the amounts paid to the other members of said tribe prior to the enrollment under said act,” etc.

Thereafter all such claims were paid out of funds applied thereto as follows.:

Balance of the “ Stockbridge Consolidated Fund ” in the Treasury of the United States_$38, 682. 30

Accumulated interest on said fund_ 21, 542.07

Out of the appropriation in the act of May 18, 1916_ 46,184. 27

106, 408. 64

leaving in the Treasury an unexpended balance of $48,-815.73 out of said appropriation of $95,000.

The court decided that plaintiff was not entitled to re-, cover.

DowNet, Judge,

delivered the opinion of the court:

The plaintiff, under a special jurisdictional act approved June 7,1924, 43 Stat. 644, sues for an unexpended balance of $48,823.61 out of an appropriation of $95,000, made by a provision in the Indian appropriation act of May 18, 1916, 39 Stat. 123, and quoted in Finding VII.

The relations between the plaintiff tribe and the United States, so far as material, and the circumstances leading up to this appropriation are quite fully set out in the findings *479and will not be repeated here except as the discussion may necessitate.

It is alleged in the petition that the Indians who were erroneously excluded from the enrollment under the act of 1871 were restored to the rolls under the act of 1893 and that the appropriation of $95,000 was made to restore to the funds of the tribe the amount paid to the citizens in excess of their true share, said appropriated sum including the interest on such excess to March 3, 1893, and that “ as of March 3, 1893,” there remains in the Treasury $48,823.61 of said $95,000.

In plaintiff’s brief it is contended that the act of May 18, 1916, is a legislative admission that on March 3, 1893, a valid claim of $95,000 existed in favor of the Stockbridge Tribe of Indians upon a recast of the division of the fund arising under the act of 1871 and that the “ other members of said tribe ” referred to in the act of 1916 meant the “ citizen ” party.

This contention renders necessary a construction of the appropriating legislation in question and some other conditions applicable to the whole situation.

The division of the fund arising under the act of 1871 was made in accordance with the rolls made under the provisions of that act. These were then the legal rolls and remained so until after the passage of the act of 1893, a period of more than 20 years.

While it is, of course, apparent that if the fund arising under the act of 1871 were to be apportioned between the citizens and Indian parties on the basis of the rolls made under the act of 1893 the citizens would receive less and the Indians more than was apportioned to them, respectively, under the Wells rolls made under the act of 1871, it does not appear that the act of 1893 contemplated any reapportionment of the fund.

The act of 1871 had provided for an apportionment of the funds arising thereunder between the citizen and Indian parties in accordance with the rolls to be made under that act, the payment of the portion belonging to the citizen party in equal per capita shares to the heads of families and adult members of said party and the placing to their credit *480on the books of the Treasurer of the United States of the portion belonging to the Indian party. The payments made to the “ citizens ” discharged the United States so far as they were concerned. The duty remained to administer the tribal fund, called on the books of the Treasury the “ Stock-bridge Consolidated Fund,” for the benefit of those entitled thereto:

The act of 1898 followed agitation by certain members of the tribe who had been refused enrollment under the act of 1871. The record does not disclose any contention as to the apportionment of the fund arising under the act of 1871, but the act of 1898 recites that a large part of daid Indians and their descendants who had signed the treaty of 1856 and have continued with said tribe to the present time are excluded “ from participating in tribal funds and the right to occupy said reservation,” after which the act declares who are to be deemed members of said tribe and provides that they are “ entitled to their pro rata share in tribal funds and in the occupancy of tribal lands.”

Tribal funds then and for 20 years consisted of the fund in the Treasury arising primarily out of the apportionment of the fund under the act of 1871 and apparently could not in 1893 have any reference to the part of that fund which 20 years before had been paid to “ citizens ” who were no longer members of the tribe. There is in this act no apparent purpose to consider or in any manner, revise the apportionment made under the act of 1871. Indeed it is but reasonable to assume that there could not have been any revision of that apportionment by recoupment from “ citizens ” long since paid and separated from the tribe, and there was in this act no appropriation. ■ It did just what has been recited and conferred no other rights.

After the completion of the new roll under the act of 1893 all those carried on that roll participated in the semiannual payments and so far as appears there was no assertion of any other right until in 1911, when a member of the tribe who had been refused enrollment on the Wells rolls under the act of 1871 but had been enrolled under the act of 1893, made a claim for annuities during the period of his exclusion from the rolls. This claim involved no *481question as to the apportionment under the act of 1871. Being allowed, it was followed by others, resulting, as set out in the findings, in the appropriation, in 1916, of $95,000 in the following language:

> “There is hereby appropriated the sum of $95,000, to be used in addition to the tribal funds of the Stockbridge and Munsee Tribes of Indians, for the payment of the members of the Stockbridge and Munsee Tribes of Indians who were enrolled under the act of Congress of March third, eighteen hundred and ninety-three, equal amounts to the amounts paid to the other members of said tribe prior to the enrollment under said act,” etc.

The real question in this case arises upon construction of this act, but in construing it the circumstances narrated as leading up to it are for consideration.

It does not appear that any of the claims which were for payment and which necessitated this appropriation were predicated on a wrongful apportionment of the fund arising under the act of 1871. They were for annuities arising from the tribal fund and for moneys due in lieu of allotments of lands under the act of 1906.

It is apparent that Congress, no doubt so advised by the Secretary of the Interior, regarded the balance then in the Treasury of the “ Stockbridge Consolidated Fund ” with some accrued interest as properly applicable to the payment of these claims, for it appropriated this $95,000 “ to be used in addition to the tribal funds,” plainly implying that the tribal funds were first applicable thereto, supplemented thereafter by the appropriation made. Reasons may be suggested why this was perhaps not entirely fair, but with that we have nothing to do.

The payments to be made were to members of the tribe enrolled under the act of 1893 of equal amounts to the amounts paid to “ the other members of said tribe prior to the enrollment under said act,” referring, of course, to the act of 1893.

To construe the words “ the other members of said tribe ” as referring to the “ citizen ” party seems wholly unreasonable. They had passed out of the picture more than 40 years before and more than 20 years before the enrollment *482under the act of 1893. They had not during any of that period been members of the tribe. On the other hand, the purpose was plainly to adjust matters as between those members of the tribe who had been excluded from the Wells rolls but restored to the rolls under the act of 1893 and those who had been carried on the Wells rolls. They were all, under the act of 1893, members of the tribe, but the former had not participated in the semiannual payments made to the latter, who were “ the other members ” of the tribe to whom semiannual payments had been made for 20 years “prior to the enrollment under said act” of 1893.

This view of the situation and of the purpose of the legislation in question indicates that it was not the purpose of Congress to appropriate absolutely to the Stockbridge Indians $95,000, but that it was the purpose to supplement the funds in the Treasury to the extent that might be necessary to equalize the payments as between all the members of the tribe who were declared to be such by the act of 1893 and admitted to the rolls made pursuant to that act, and that no right exists in the tribe to recover any portion of said sum which remained after the purposes for which it was appropriated had been accomplished.

Graham, *Judge;*Hat, *Judge;*and Campbell, *Chief Jus*tice, concur.