The daily union., 1852-08-17

compensaton--no mailer Whdl
have never assumed jurisdiction over
seems TO me. therefore that this claim Is stripped Of
every ienabe ground Even If the parties had appeared
al the department and the contract had been denied by
the Indians and they had refused their assent and con.
sent 10 The contract, the department would have had no
jurisdiction this matter because it is not an actual
assignment to these agents In the first place. this gov.
ernalsnt had right to pay the money directly TO the
principal, and the agents cannot complain that we did
so H. Ia the next place, the agents had no interest
upon the principal which could be enforced at the de-
parnent and therefore the payment OF the principal has
caused them no loss and therefore they can bring no
clam against The government u seems to me, there
tore, that this claim is without foundation.
Mr. SEBASTIAN. | wish to get through with this
Indian appropriation bill to-day. but do not believe we
| MT BADGER. | have another amendment to offer.
| Mr. SEBASTIAN refer TO that matter excuse
for consuming lew moments in relation TO this matter
think that senators aborng under misappre-
hssoa Of the facts and think that remark applies with
grese force to the senator from North Carolina Mr..
BADoEa j who with the legal knowledge which he pos
and which concede to him fully, could not have
fallen into aaces of very high order as he has done
unless he had mistaken the facts in this case. am the
more particular in adveng 10 this, because in 1880 when
this claim was first presented, was caught 10 the pedca
ment oil forming Just such legal opinions IN regard to II
have been advanced by the senator from North Carroll
ma. The history OF the case s contained in very few
facts. A long time since, the od-settled Cherokees hav
ing tlaim against this government, employed two sets OF
agenlsone, this Mr. Sambaugh, who has been referred
to here, and the other the Messrs. Kendall Before
they engaged in the prosecution OF this claim, they took
from the Indians contract, by which they as
signed TO them one-twentieth part OF everything
whether land money, which they might procure from
the government of the United States, and authorized
their attorneys represent them at the Department OF the
Treasury and obtain that much OF the claim from the
Uned States. Now, ask the honorable senator from
North Carolina, [Mr BADGER if, in any judicial pro-
cepdnss where the United States could be made party
their liabilities and rights would not be decided by precisely
the rule as il they private individuals! pro-
pound 10 him another Observation-Disclosures the power OF
attorney was Ievokable in this case presume he
would say il was not And the government is to be
iudg hy fha he
uals under the circumstances. Here, them they
only constituted these Messrs Kendall agents 10 re-
ceive their money, but made assignment TO them OF
twentieth OF the be received from the Uni
ted States may be true that this is what called
chose action but in court of equity it would be re-
garded equitable assignment OF so much money so
that when the treaty of 1916 directed this amount 10 be
paid the Cheokees, take il for granted that
according 10 the equitable view OF the case there was
one twentieth OF it, the real ownership OF which had
been parted with, and the title TO which had been given
to these agents by assignment OF the most solemn char.
and had been secured to them by every safeguard
that they could throw around the transaction They took
not only power of attorney to represent the Indians at
the department. but assignment OF one-twenhelh OF
the to be received; and this was done with the
very parties who bound the Cherokee nation by the treaty
OF 1916 Now if these parties were competent to enter
into the treaty of 1916, and bind the western Cheok okees
according its provisions, they were competent at least
siipuae provide for these agents. by whose ins,u
mentality they were enabled to bring about the passage OF
that treaty.
But there was more than this. The agents seemed to
have anticipated something like difficulty OF this kind ;
and, after the ratification OF the treaty. they got from these
very same men an instrument which reaftrmed tie pro-
vision, OF the contract and in which they again author
lied the United States to pay these agents one-wenteh
OF the amount appropriated so that the competency OF
these parties TO bind the western or odseed Cherokees
cannot for moment be called in question. And the
question is, whether, there having been an equa.
bic assignment Of onetweneth OF what should be given
und s ss U nf
having notice of this fact are not liable Tor IT, having
paid the money TO the Indians per odpsa And gentlemen
mistaken who say that the Appropriation was made, by
the terms of the treaty alone. TO be distributed per slpa
That not in the body OF the amendment which had
the honor to offer upon that occasion. There was an
amendment offered afterwards by the senator from Wis.
cons n, mr. WALKER.l But the question now presented
is how much OF that appropriation had we control over
The view OF the Committee Indian Affairs in this case
s, that nineteen twentehs OF II belonged 10 the Cheo-
KEGS, and oae-twentieh Of il, with the ownership OF
which they had parted had no right 10 give to other
persons than these agents. These assignments were
filed in the Office of the Commissioner OF Indian Affairs
for during the time this appropriation was being consd
cred, the claimants were so particular TO prevent their
claims from being precuded and from not being known
that they took the precauuon oil hlng solemn protest
against paying this FIVE per cent, onetweneth 10 the
Indians, that portion Of the appropriation had under
gone the operation Of an ueyocaole assignment And
dsbarses money not bis own and pays over TO wrong
parties II was upon this simple equitable view OF the
question that the committee believed this claim TO be
well founded Ii was upon this view alone that they
believed the United States 10 be responsible Tor this claim
We decided that the United States were liable; believe
lnat III IL COuu Oe qutsuoU oupicht
Court OF the United States would decide II upon the
ground that trustees, the United States had misap-
piled this money. should myself prefer al any moment
that we should have amendment which should make
judicial question OF this matter, and submit the rights
oil this government judicial decision for If the ques
ton OF law is against the claimants, there is ground
for the claims here II there sno then making
legislative matter OF judicial question which am not
in favor Of The amendment, however, has not been
presented in that shape. present my view alone upon
the legal question.
As 10 the mere equity OF the question, we all admit
that II comes up in most dsadvaniageous light We
| all know something of that feeling with which senators
view these questions based upon the abuses oil this sys
TEN OF agencies which has grown up here. All know
that no Kind OF favor is exhibited towards these
claims But the Committee Indian Affairs places Il
alone upon the ground OF the legal liabilities oil the Uni
ted Slaes which could be enforced in court Of justice
il this matter could be brought up there. offer these
remarks because thought that senators had omitted to
state my view of this question. This is not simple
power OF attorney, but what lawyers call "a power OF
attorney coupled with interest" and II IL regarded as
good clam, and the claimants placed upon The FOOT
| ing OF equitable mortgages.
| Mr. BADGER Overwhelmed as | am with some
thing like bushes at the compliment bestowed upon me
by my friend from Arkansas, Mr.. SEnAsTAs,l feel
bound nevertheless TO well as can The ques-
tions he has put 10 me- Now as the power Of ator.
ney coupled with interest not being revokabe, that ls
very true. The principal cannot revoke the power but
is still but power. Bot undertake TO say that II there
be power OF attorney authorizing A b to recover debt
of ID, still has the right TO pay the debt TO the pn-
cpa My friend, think. will not dispute that That
the case here. The government having paid the debt 'o
the principal not bound to pay the compensation 10 The
agent of the principal.
Now, in this case far have discovered there is
a. do mats Enn