Choctaw Nation v. United States/Opinion of the Court

The general purpose of this suit is a judicial settlement of all existing controversies between the Choctaw Nation and the United States. The specific claims of the Choctaw Nation are stated in the petition in the alternative. It is claimed, in the first instance, that the award of the senate, and the amount found due as a balance upon the account between the parties, stated upon the principles of that award, should either be enforced as a finality by the judgment of the court in the present case, or that, if not technically enforceable as an award, it still furnishes a rule for an equitable settlement of the differences between the parties. But, in the second place, it is claimed hat, if the award cannot be considered in either of these lights, then the whole controversy, and all questions involved in it, from the beginning, under any of the treaties between the parties, are open for investigation and decision upon their original merits. And under this head the Choctaw Nation claim compensation for various breaches on the part of the United States of the treaty of September 27, 1830, and, in general, such a failure on its part to comply with its provisions as in substance deprived the Choctaw Nation of all the benefits intended to be conferred by it, for which it is claimed they are entitled to an equitable equivalent as compensation.

In respect to so much of the petitioner's case as rests upon specific failures to comply with the provisions of article 14 of that treaty, as to those Choctaw heads of families who claimed reservations within its terms, and did not receive them, the government of the United States relies upon the release executed by the Choctaw Nation in pursuance of the requirements of the act of July 21, 1852, under which a payment of $872,000 was made in satisfaction of the amounts awarded the Choctaw claimants under that article of the treaty of 1830. The court of claims, as it appears, declined to give any legal effect whatever to the award made by the senate under the treaty of 1855, feeling constrained to that conclusion by the terms of the act of March 3, 1881, conferring jurisdiction upon it in this suit, and, on the other hand, it gave all the effect claimed by the United States for the release under the act of 1852. Its judgment in favor of the Choctaw Nation was made up as follows:

For claims under the fourteenth article of the treaty of

1830, not covered by the release of 1852,. $417,656

For claims under the nineteenth article of the treaty

of 1830,........................... 42,920

For land taken in fixing the boundary of the

state of Arkansas and the Choctaw Nation,. 68,102

For transportation and subsistence under the treaty of

For unpaid annuities,.............. 59,449

For guns, ammunition, etc.,........ 18,000

---

Total,.......................... $658,120 32 And credited the balance thus found due with a payment made under the act of March 2, 1861, of $250,000.

In reviewing the controversy between the parties presented by this record, it is important and necessary to consider and dispose of some preliminary questions. The first relates to the character of the parties, and the nature of the relation they sustain to each other. The United States is a sovereign nation, not suable in any court except by its own consent, and upon such terms and conditions as may accompany that consent, and is not subject to any municipal law. Its government is limited only by its own constitution, and the nation is subject to no law but the law of nations. On the other hand, the Choctaw Nation falls within the description, in the terms of our constitution, not of an independent state or sovereign nation, but of an Indian tribe. As such it stands in a peculiar relation to the United States. It was capable under the terms of the constitution of entering into treaty relations with the government of the United States, although, from the nature of the case, subject to the power and authority of the laws of the United States when congress should choose-as it did determine in the act of March 3, 1871, embodied in section 2079 of the Revised Statutes-to exert its legislative power.

As was said by this court recently in the case of U.S. v. Kagama, 118 U.S. 375, 383, S.C.. 6 Sup. Ct. Rep. 1109: 'These Indian tribes are the wards of the nation. They are communities dependent on the United States; dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very wea ness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recongnized by the executive, by congress, and by this court, has always been recognized by the executive,

It had accordingly been said in the case of Worcester v. Georgia, 6 Pet. 582: 'The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. * *  * How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.'

The recognized relation between the parties to this controversy, therefore, is that between a superior and inferior, whereby the latter is placed under the care and control of the former, and which, while it authorizes the adoption on the part of the United States of such policy as their own public interests may dictate, recognizes, on the other hand, such an interpretation of their acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection. The parties are not on an equal footing, and that inequality is to be made good by the superior justice which looks only to the substance of the right, without regard to technical rules framed under a system of municipal jurisprudence formulating the rights and obligations of private persons, equally subject to the same laws.

The rules to be applied in the present case are those which govern public treaties, which, even in case of controversies between nations equally independent, are not to be read as rigidly as documents between private persons governed by a system of technical law, but in the light of that larger reason which constitutes the spirit of the law of nations. And it is the treaties made between the United States and the Choctaw Nation, holding such a relation, the assumptions of fact and of right which they presuppose, the acts and conduct of the parties under them, which constitute the material for settling the controversies which have arisen under them. The rule of interpretation already stated, as arising out of the nature and relation of the parties, is sanctioned and adopted by the express terms of the treaties themselves. In the eleventh article of the treaty of 1855, the government of the United States expresses itself as being desirous rights and claims of the Choctaw people against the United States 'shall receive a just, fair, and liberal consideration.' The language of the act of March 3, 1881, conferring jurisdiction in the present case, also requires construction. It confers jurisdiction upon the court of claims to try all questions of difference arising out of treaty stipulations with the Choctaw Nation, and to render judgment thereon. How far the settlement of these differences is to be affected by the various acts of congress referred to in the pleadings and findings of fact made by the court of claims, and which were passed professedly in execution of treaty obligations on the part of the United States, must be determined. These acts of congress, in one aspect, have the force of law, because congress has full power of legislation over the subject; but, in so far as they may have proceeded upon insufficient or incorrect interpretations of the treaty rights of the Choctaw Nation, or in so far as they may have attempted to modify or disregard those rights, they form the very subjects of complaint on the part of the Choctaw Nation, whose allegation is that the United States, by these very statutes, as in other particulars, have broken their treaty obligations. Where, in professed pursuance of treaties, these statutes have conferred valuable b nefits upon the Choctaw Nation, which the latter have accepted, they partake of the nature of agreements; the acceptance of the benefit, coupled with the condition, implying an assent on the part of the recipient to the condition, unless that implication is rebutted by other and sufficient circumstances. Under the terms of the act of March 3, 1881, in exercising the jurisdiction thereby conferred, the court of claims is empowered to review the entire question of differences de novo, which may be interpreted to imply that the whole matter was opened from the beginning, with the view of determining what the original treaty rights of the Choctaw Nation were, and how far they have been performed by the United States in its various transactions with them, including the acts done under the authority of the statutes referred to. The meaning of this clause becomes most important, however, in connection with the question how the court is authorized to deal with the award made by the senate of the United States in pursuance of the treaty of 1855.

It is contended on the part of the Choctaw Nation that that award is final and conclusive, and in support of that contention reference is made to the express provisions of the treaty of 1855. It is recited in the preamble of that treaty that the Choctaws have proposed that their claims against the United States, arising under the various provisions of the treaty of September 27, 1830, shall be referred to the senate of the United States for final adjudication and adjustment, and by the terms of the twelfth article of the treaty it is declared to be 'expressly understood that the adjudication and decision of the senate shall be final;' and the right to insist upon the conclusive nature of this award, it is said, is a treaty right in favor of the Choctaw Nation. On the other hand, it is declared by the act of March 3, 1881, that, in the exercise of its jurisdiction to try this case, the court of claims 'shall not be estopped by any action had or award made by the senate of the United States in pursuance of the treaty of 1855;' and it is insisted on behalf of the United States that this language is inconsistent with the idea that the court should give to that award any legal effect whatever. And this construction is supposed to be rendered necessary by the previous clause, which grants power to the court to review the entire question of differences de novo; for it is said that the court cannot review the question of differences de novo,-that is, from the beginning, and as if the were new and had freshly arisen,-if it gives any effect to a determination of the senate, which it is claimed operates as res adjudicata, foreclosing further inquiry into the merits of the very questions to be reviewed.

If the words conferring the power to review the question of differences de novo are permitted to have that force, it is difficult to understand how the release made by the Choctaw Nation in pursuance of the act of congress of July 21, 1852, should stand in the way of a reconsideration of the claims covered by it. That act of congress, it is true, declares that the final payment and satisfaction of the sum thereby appropriated and paid should, when ratified and approved by the proper national authority of the Choctaws, operate as a final release of all claims of those to whom such payments are made, under the fourteenth article of the treaty of September 27, 1830. But whether that payment was a just and fair extinguishment of those claims, according to the terms of that treaty, was one of the very questions in dispute. And it is not unreasonable to contend, as it is contended on behalf of the Choctaw Nation, that the effect of that release should be considered in view of the circumstances under which it was executed, and in reference to which the court of claims has found, in the sixteenth finding, that 'the claimants under the fourteenth article, the said Choctaw heads of families and their children, were redu ed to a helpless condition of want, which rendered it practically impossible for them to contend with the United States in their requirement that the said Choctaw heads of families should accept and receive the scrip provided to be issued to them in lieu of the reservations by the act of 1842; and the said scrip, and the money paid to redeem the same, were taken and accepted because they were powerless to enforce any demands against, or impose any conditions upon, the United States.'

However this may be, the language of the act of March 3, 1881, in reference to the award made by the senate under the treaty of 1855, does not abrogate it, and does not require, as a condition of the exercise of the jurisdiction conferred by the act, that the court should entirely disregard it, giving it no effect whatever. It merely says that the court shall not be estopped by any action had or award made by the senate in pursuance of that treaty. The plain and literal meaning of this language is fully satisfied by holding that the award, considered as such, shall not, upon its face, be taken to be final and conclusive. There is nothing in the language to prevent the court from giving to that award effect as prima facie establishing the validity of the claim so far adjudged in favor of the Choctaw Nation, leaving to the representatives of the government in this litigation the right, not only to question the validity of the award, as such, upon any such grounds as might or should invalidate awards ordinarily, either at law or in equity, but also to attack it upon the merits, as a finding unsupported by proof, or unjust and unfair in view of all the circumstances, and on that account not to be enforced. In that view, so much effect only would be given to it as to cast the burden of disproving its justice and fairness upon the United States in this suit. In that light, and with that view, it has been attacked in argument by the counsel for United States, upon the proof contained in the case.

In the first place, it is objected that the award did not agree with the submission, and under that head it is argued that the first question submitted for adjudication to the senate was whether the Choctaws were entitled to the proceeds of the sale of the lands ceded by them to the United States by the treaty of September 27, 1830, and that there was no authority to allow to them such proceeds, unless the senate should first find that they were entitled to them. And it is said that the senate not only did not find that, as matter of law, the Choctaws were so entitled under the terms of the treaty of September 27, 1830, but that, according to the report of the committee on Indian affairs, which was adopted by the senate in the passage of the resolutions which contain the award itself, their title to those proceeds, considered as matter of law, was denied. We do not, however, think that the words of the question submitted to the senate by the treaty of 1855 are to be confined to a consideration of the question of a strict title to the proceeds of the sale of the lands; but that they plainly mean whether the Choctaws, under all the circumstances, as a matter of justice and fair dealing, ought to receive such proceeds, whether as deducible from the terms of the treaty, or as merely a fair compensation to be awarded to them for its breaches by the United States. The language of the question is in the alternative. It is whether the Choctaws are entitled to or shall be allowed; and it was sufficient, in our judgment, to satisfy the terms of the submission, for the senate to declare, as it did, that the Choctaws should be allowed the proceeds of the sale of the lands sold by the United States which had been ceded by the Choctaws under the treaty of 1830; and we are therefore of opinion that the award cannot be avoided on this ground.

Second. It is next insisted that the award is invalid because it is uncertain, inasmuch as while it determines that the Choctaws shall be all wed the proceeds of the sale of the lands ceded by the treaty of 1830, and at the rate of 12 2/1 cents an acre for the residue, it does not ascertain what those proceeds and the value of the residue amount to in the aggregate. But the award itself provided the means of reducing this uncertainty by a reference to the secretary of the interior, who was directed to cause the account to be stated with the Choctaws, showing what amount was due them according to the principle of settlement embraced in the award. It is not disputed but that the secretary of the interior was enabled by the records of his office to state such an account, and that in fact he has stated it. This reference to the secretary of the interior for the mere purpose of an account cannot be considered as a delegation of authority by the senate to adjudicate any of the questions which had been submitted to it by the agreement of the parties. The stating of the account was merely in execution of the judgment; the principle on which it should proceed was fully, clearly, and finally adjudged. Whatever exception might be taken to the account when rendered, would not be different from such as, in the usual course of equity practice, might be taken to the report of a master to whom was referred the statement of an account the principles of which had been previously settled by a decree of the court fixing and establishing the rights of the parties.

Third. It is also said that the award is invalid for lack of proper notice to the United States of the intended action of the arbitrator before proceeding to the adjudication. When it is considered that the senate of the United States was the arbitrator, constituting, as it does, a branch of the legislative as well as of the treaty-making power of the government of the United States, it can hardly be contended that the United States had no notice of proceedings taken by the senate in pursuance of laws or treaties made by the United States.

Whatever force might otherwise be supposed to reside in these objections to the validity of the award are further answered by a reference to the terms of the Indian appropriation act of March 2, 1861, (12 St. at Large, 238,) which enacts as follows: 'For payment to the Choctaw Nation or tribe of Indians, on account of their claim under the eleventh and twelfth articles of the treaty with said nation or tribe made the twenty-second of June, 1855, the sum of five hundred thousand dollars; two hundred and fifty thousand dollars of which sum shall be paid in money, and for the residue the secretary of the treasury shall cause to be issued to the proper authorities of the nation or tribe, on their requisition, bonds of the United States, authorized by law at the present session of congress: provided, that in the future adjustment of the claim of the Choctaws under the treaty aforesaid the said sum shall be charged against the said Indians.'

This appropriation, and the payment which was made under it, would seem to have the effect of confirming the award of the senate; for it makes an appropriation in part payment of it, and provides for the future adjustment of the claim of the Choctaws under it. It is true, as is insisted in argument, that no express mention is made in this act of the award, and the claim of the Choctaw Nation is described as one arising under the eleventh and twelfth articles of the treaty of 1855; but no possible claim could arise under those articles of that treaty in behalf of the Choctaw Nation, except one to insist upon the arbitration, and to enforce the award made, in pursuance of their terms. The whole object and scope of those articles of the treaty is to provide for the submission to the arbitration of the senate, and the execution of the award made under it. The future adjustment of the claims of the Choctaws mentioned in the proviso evidently refers to the division of the fund ascertained by the report of the secretary of the interior, by which a portion was to be paid over to the nation for the satisfa tion of individual claimants, and the remainder retained by the United States as a trust fund, according to the thirteenth article of the treaty of 1855.

It does not, therefore, give too much effect to the act of March 2, 1861, to treat it as an act of congress confirming the validity of the senate award. This view is very much strengthened by the terms of the act of June 23, 1874, from which it appears that at that recent date congress intended to treat the award of the senate as valid and binding, and the report of the secretary of the interior as to the balance due to be final. The provision of that act (18 St. at Large, 230) is as follows: 'That the secretary of the treasury is hereby directed to inquire into the amounts of liabilities due from the Choctaw tribe of Indians to individuals, as referred to in articles 12 and 13 of the treaty of June 22, 1855, between the United States and the Choctaw and Chickasaw tribes of Indians, and to report the same to the next session of congress, with a view of ascertaining what amounts, if any, should be deducted from the sum due from the United States to said Choctaw tribe, for the purpose of enabling the said tribe to pay its liabilities, and thereby to enable congress to provide a fund to be held for educational and other purposes for said tribe, as provided for in article 13 of the treaty aforesaid.'

The only further question, then, which can be claimed to be left open for adjudication in this suit by the terms of the act of March 3, 1881, is, on the supposition that the award is prima facie evidence of the correctness of the claim thereby reduced to judgment, whether upon its merits it was fair, just, and equitable, as a settlement between the parties of the matters in controversy, having regard to all the circumstances of the case. As already declared, it is the right of the United States to question its validity by questioning its justice. At the same time, the burden of proof is upon them to establish, by affirmative proof, the considerations which ought to constrain this court, as a matter of justice, altogether to disregard it.

Proceeding, then, to review the whole questions of difference between the parties de novo for this purpose, we are led to the conclusion that the principle of settlement adjudged by the senate in its award, in pursuance of the eleventh article of the treaty of 1855, furnishes the nearest approximation to the justice and right of the case that, after this lapse of time, it is practicable for a judicial tribunal to reach. Our judgment to this effect is based upon the following considerations:

The situation and circumstances in which the parties were found at the time the treaty of September 27, 1830, was entered into, were these: By the previous treaty of 1820 the policy of the United States therein declared, and the agreement between the parties, was 'to promote the civilization of the Choctaw Indians by the establishment of schools among them, and to perpetuate them as a nation by exchanging for a small part of their land here'-that is, in Mississippi-'a country beyond the Mississippi river, where all who live by hunting, and will not work, may be collected and settled together.' It was also recited that it was 'desirable to the state of Mississippi to obtain a small part of the land belonging to said nation for the mutual accommodation of the parties.' Accordingly, the Choctaws, by the treaty of 1820, ceded to the United States a portion only of their lands in Mississippi.

By the second article of the treaty it was declared that, 'for and in consideration of the foregoing cession on the part of the Choctaw Nation, and in part satisfaction for the same, the commissioners of the United States, in behalf of said states,' thereby ceded to said nation a tract of country west of the Mississippi river, the boundaries of which were described. It was also declared by article 4 of that treaty that 'the boundaries hereby established between the Choctaw Indians and t e United States on this side of the mississippi river shall remain without alteration until the period at which said nation shall become so civilized and enlightened as to be made citizens of the United States, and congress shall lay off a limited parcel of land for the benefit of each family or individual in the nation.'

By the treaty of January 20, 1825, it was further stipulated that the fourth article of the treaty of October 18, 1820, should be so modified as that congress should not exercise the power of apportioning the lands for the benefit of each family or individual of the Choctaw Nation, and of bringing them under the laws of the United States, but with the consent of the Choctaw Nation. In the mean time, however, under the pressure of the demand for the settlement of the unoccupied lands of the state of Mississippi by emigrants from other states, the policy of the United States in respect to the Indian tribes still dwelling within its borders underwent a change, and it be came desirable, by a new treaty, to effect, so far as practicable, the removal of the whole body of the Choctaw Nation, as a tribe, from the limits of the state to the lands which had been ceded to them west of the Mississippi river. To carry out that policy the treaty of 1830 was negotiated. By the third article of that treaty the Choctaw Nation of Indians ceded to the United States the entire country they owned and possessed east of the Mississippi river, and agreed to remove beyond the Mississippi river as early as practicable, so that as many as possible of their people, not exceeding one-half of the whole number, should depart during the falls of 1831 and 1832, and the residue follow during the succeeding fall of 1833. But, in order to induce the consent of the Choctaw Nation, as such, to the provisions of that treaty, the United States entered into the obligations already specified and contained in its subsequent articles, particularly articles 14, 15, and 19, by which large reservations of land were made, so that under article 14 the head of every Choctaw family who desired to remain and become a citizen of the United States was entitled to do so, and thereupon became entitled to a reservation of a section of 640 acres of land for himself, and an additional half-section for each unmarried child living with him over ten years of age, and an additional quarter-section for each child under ten years of age, to adjoin his own location; with the further provision that if they resided upon said lands, intending to become citizens of the states, for five years after the ratification of the treaty, a grant in fee-simple should issue to them. The Choctaws, it appears, were very reluctant to emigrate from their old homes to their new ones, and a very much larger number than was expected manifested an intention to avail themselves of those provisions of the treaty which entitled them to remain.

It is notorious as an historical fact, as it abundantly appears from the record in this case, that great pressure had to be brought to bear upon the Indians to effect their removal, and the whole treaty was evidently and purposely executed, not so much to secure to the Indians the rights for which they had stipulated, as to effectuate the policy of the United States in regard to their removal. The most noticeable thing, upon a careful consideration of the terms of this treaty, is that no money consideration is promised or paid for a cession of lands the beneficial ownership of which is assumed to reside in the Choctaw Nation, and computed to amount to over 10,000,000 of acres. It was not an exchange of lands east of the Mississippi river for lands west of that river. The latter tract had already been secured to them by its cession under the treaty of 1820.

It is true that by the eighteenth article of the treaty of 1830 it is provided that, 'for the payment of the several amounts secured in this treaty, the lands hereby ceded are to remain a fund pledged to that purpose, until the debt shall be provided for and arranged; and, further, it is agreed that, in the construction of this treaty, wherever well-founded doubt shall arise, it shall be construed most favorably towards the Choctaws.' The only money payments secured by the treaty, over and above the necessary expenditures in removing the Indians, in providing for their subsistence for 12 months after reaching their new homes, and paying for their cattle and their improvements, are-First, an annuity of $20,000 for 20 years, commencing after their removal to the west; and, second, the amount to be expended in the education of 40 Choctaw youths for 20 years, and for the support of three teachers of schools for 20 years, together with the cost of erecting some public buildings, and furnishing blacksmiths, weapons, and agricultural implements, in addition to the several annuities and sums secured under former treaties to the Choctaw Nation and people. It is nowhere expressed in the treaty that these payments are to be made as the price of the lands ceded; and they are all only such expenditures as the government of the United States could well afford to incur for the mere purpose of executing its policy in reference to the removal of the Indians to their new homes. As a consideration for the value of the lands ceded by the treaty, they must be regarded as a meager pittance.

It is, perhaps, impossible to interpret the language of this instrument, considered as a contract between parties standing upon an equal footing, and dealing at arms-length, as a conveyance of the legal title by the Choctaw Nation to the United States, to hold as trustee for the pecuniary benefit of the Choctaw people; and yet it is quite apparent that the only consideration for the transfer of the lands that can be considered as inuring to them is the general advantage which they may be supposed to have derived from the faithful execution of the treaty on the part of the United States; and when, in that connection, it is considered that the treaty was not executed on the part of the United States according to its just intent and spirit, with a view to securing to the Choctaw people the very advantages which they had a right to expect would accrue to them under it, it would seem as though it were a case where they had lost their lands without receiving the promised equivalent. In such a case, there is a plain equity to enforce compensation, by requiring the party in default to account for all the pecuniary benefits it has actually derived from the lands themselves. This is the solid ground on which the justice of the award of the senate of the United States under the treaty of 1855 seems to us fairly to stand.

The committee of the senate which reported the resolutions adopted by that body as the award under the treaty of 1855 reached their conclusion upon the same premises. Their report discusses at length the various grounds on which the Choctaw Nation rightfully complained of the injurious character of the dealings of the United States with them under the treaty, and concludes as follows: 'It being thus impossible to ascertain to how much the Choctaws would be entitled, on a fair and liberal settlement, for the damage and loss sustained by them, it seems to the committee that the only practical mode of adjustment is to give them the net proceeds of their lands, not on the ground that the letter of the treaty entitles them to it, but that it is the only course by which justice can now be done them. And while, on the one hand, to award to the tribe the net proceeds of their lands would surely be no more than just to them, because practically no regard is paid to actual value by the United States in the sales of public lands,-and undeniably the real market value of these lands which the Indians might have realized, if protected in their possession, was far greater than the price for which they actually sold,-on the other hand, the United States would neither have lost, paid, nor expended anything hatever, but would only have refunded to the Choctaws the surplus remaining on hand of the proceeds of their own lands, after having repaid themselves every dollar expended for the benefit of the Choctaws; and that, after having had the use of this surplus for many years without interest, and when, according to the estimates of the general land-office, it would really amount to little more than half of what might be recovered in a court of equity, if the case were one between individuals, as will appear by the comparative statement hereto appened. The committee accordingly report the following resolutions, and recommend that they be adopted, and made the award and judgment of the senate upon the questions submitted by the treaty of 1855.'

The secretary of the interior found to be due to the Choctaw Nation, in his statement of account in conformity with the resolutions and decision of the senate under the treaty of 1855, the sum of $2,981,247.30. This balance was reached by crediting them with the proceeds of the sales of the lands ceded by them under the treaty of September 27, 1830, made up to January 1, 1859, adding for the unsold residue of said lands their estimated value at 12 1/2 cents per acre, amounting to $8,078,614.80 in the aggregate. Against this deductions were charged as follows: First, the cost of the survey and sale of the lands at 10 cents an acre; and, second, payments and expenditures under the treaty,-the whole amounting to $5,097,367.50, resulting in the balance above stated. Some of the items charged as payments and expenditures in this account are objected to on the part of the Choctaw Nation in this suit, and we are asked to restate the account. If, however, we felt at liberty to enter into such an examination of this account, we see nothing in the evidence presented by the record to show that the items objected to were not properly chargeable. The result, therefore, is to establish the balance found by the secretary of the interior, as the true amount due, ascertained according to the principle adjudged by the senate in its award, and which we have declared to be the equitable rule of settlement between the parties. From this is to be deducted the payment of $250,000 made under the act of March 2, 1861.

This disposes of all questions of difference involved in this suit arising under treaties prior to that of 1855, except for unpaid annuities, ascertained by the court of claims to amount to the sum of $59,449.32, which is to be included in the judgment.

There is, however, another controversy arising under the treaty of 1855. The first article of that treaty fixed definitely the boundary of the territory ceded to the Choctaw Nation by the treaty of 1820. It is found as a fact by the court of claims that, in the location of the line which was surveyed under the authority of the United States, and fixed as the permanent boundary between the state of Arkansas and the Indian country by the act of congress of March 3, 1875, (18 St. at Large, 476,) the government made a mistake whereby they embraced in the territory appropriated by the United States, as part of the public lands, 136,204 02-100 acres of Indian lands, the value of which, as ascertained by the court of claims, is $68,102. This is a just and valid claim, for which the petitioner is entitled to recover.

The final result is that the Choctaw Nation is entitled to a judgment against the United States for the following sums: First, $2,981,247.30, subject to the deduction of $250,000 paid under the act of 1861; second, for unpaid annuities, $59,449.32; third, for lands taken in fixing the boundary between the state of Arkansas and the Choctaw Nation, $68,102.

The judgment of the court of claims is therefore reversed, and the cause is remanded to that court, with instructions to enter a judgment in conformity with this opinion. And it is so ordered.

I regret to find myself unable to agree to this judgment. If the United States had a thorized suit to be brought against them on the senate award, I should not have hesitated about giving judgment in favor of the Choctaw Nation, upon the facts now found by the court below, for the full amount due according to the statement of the secretary of the interior. That award has not, in my opinion, been abrogated by the bringing of this suit. It remains, so far as anything appears in this record, as valid and as binding to-day as it was when made. The United States have neglected to pay the amount awarded, but the Choctaw people have never, so far as this record shows, released them from their obligation to pay. On the contrary, it seems always to have been insisted upon. This suit is not brought upon the award, but upon the treaties, and it is to be determined, in my opinion, according to the legal rights of the parties now existing as fixed by the treaties, without regard to anything that was done by the senate under the treaty of 1855. The language of the jurisdictional statute is this: 'The court of claims is hereby authorized to take jurisdiction of and try all questions of difference arising out of treaty stipulations with the Choctaw Nation, and render judgment thereon. Power is hereby granted the said court to review the entire question of differences de novo, and it shall not be estopped by any action or award made by the senate of the United States in pursuance of the treaty of 1855.' This, as it seems to me, means no more than that the questions of difference are to be tried de novo, as far as the award is concerned. A judgment is to be rendered. This implies that the proceeding is to be judicial in its character, and that the judgment is to be in accordance with the principles governing the rights of parties in the administration of justice by a court. The senate, however, were, by the treaty of 1855, made arbitrators, and they were invested with power to determine whether the Choctaws were 'entitled' legally to the proceeds of their lands, and, if not, whether they ought, under all the circumstances of the case, to be 'allowed' such proceeds. The senate could consider and act upon the moral obligations of the United States, but neither we nor the court of claims can do more than enforce their legal liabilities.

What, then, are the legal obligations of the United States under the treaties at this time, leaving the senate award entirely out of view? The jurisdictional statute neither waives nor abrogates the release which was executed under the act of July 21, 1852. The same is true of the treaty of 1855. By the act of 1852 payments were to be made in cash, to claimants under the fourteenth article of the treaty of 1830, for the amount of the scrip which had been awarded under the act of August 23, 1842, but not delivered: provided, 'that the final payment and satisfaction of said awards shall be first ratified and approved as a final release of all claims of such parties under the fourteenth article.' That release was executed on the sixth of November, 1852. The treaty of 1855 recites that 'the Choctaws contend that, by a just and fair construction of the treaty of September 27, 1830, they are of right entitled to the net proceeds of the lands ceded by them to the United States under said treaty, and have proposed that the question of their right to the same, together with the whole subject-matter of their unsettled claims, whether national or individual, against the United States, arising under the various provisions of said treaty, shall be referred to the senate of the United States for final adjudication and adjustment.' In view of this recital, we are to construe article 11 of the treaty, which is in these words: 'The government of the United States not being prepared to assent to the claim set up under the treaty of September 27, 1830, and so earnestly contended for by the Choctaws as a rule of settlement, but justly appreciating the sacrifices, faithful services, and general good conduct of the Choctaw people and being desirous that their rights and claims against the United States shall receive just, fair, and liberal consideration, it is therefore stipulated that the following questions be submitted for adjudication to the senate of the United States: First, whether the Choctaws are entitled to, or shall be allowed, the proceeds of the sale of the lands ceded by them to the United States,' etc.; or, second, whether the Choctaws shall be allowed a gross sum in further and full satisfaction of their claims, national and individual, against the United States; and, if so, how much.'

Thus, the whole matter was referred to the senate to determine (1) whether the Choctaws were in law entitled to the proceeds of the sale of their lands; and, if not, then (2) what, under the circumstances, would be a fair and liberal settlement of all the matters of difference, with the right under this branch of the submission to 'allow' the Choctaws the proceeds, or a 'gross sum' to be ascertained in some other way. The senate decided that they were not entitled to the proceeds as a matter of right, but that, under all the circumstances, it would be fair and just to settle on that basis. Had the same power been granted to the court of claims, I should not hesitate to affirm a judgment to the full amount of the award, if placed on that ground. But, as has been seen, the jurisdictional statute confines the jurisdiction of the courts in this suit to a determination of the legal rights of the parties. Under the treaty the senate could do what was fair and just, but we can only adjudge according to law.

This court agrees with the senate committee in deciding that the Choctaws were not legally entitled to the proceeds of the land. In that I concur. The only inquiry, then, is, how much must be paid for the violation of the treaty of 1830 by the United States? If the release stands, then there can only be a recovery for the unsettled claims of the Choctaws, national and individual. It my opinion, the release has not been invalidated as an instrument binding in law by the finding in the case. The United States may have taken advantage of the necessities of the Indians, and exacted a hard bargain, but the bargain was made, and both parties promptly carried it out. The senate, under its powers, might take the hardship of this bargain into account, and go behind the release, but, in my judgment, we cannot. All that remains, then, is to ascertain what is legally due from the United States on account of the national and individual claims not included in that settlement, and upon this I am entirely satisfied with what was done by the court of claims.

I think the judgment should be affirmed.