Kendall v. United States (74 U.S. 113)

APPEAL from the Court of Claims.

A. and J. Kendall made an agreement, in the year 1843, with persons representing a branch of the Cherokee tribe of Indians, called the Western Cherokees, to prosecute a claim which these Indians set up against the United States. It was a part of the agreement that the Kendalls were to receive, directly from the United States, 5 per cent. upon all sums that might be collected on the claim.

The justice of this claim, which it was thus agreed that the Kendalls should prosecute, had never been acknowledged by the United States, and the amount of it was uncertain. A treaty was finally made, in 1846, not with the Western Cherokees, who were but a part of the Cherokee tribe, but with the whole tribe; and it embraced not only the claim set up by the Western Cherokees, but many other matters, setting matters between the United States and the tribe, as also between the Western Cherokees and the main body. The treaty, as finally ratified by the Senate and by the tribe, provided that the sum of money found due (and which included moneys to the main tribe), should be held in trust by the United States, and paid out to each individual Indian, or head of a family, and that this per capita allowance should not be assignable, but should be paid directly to the person so entitled. On the 30th September, 1850, Congress made an appropriation of the amount necessary to fulfil this treaty, and the act contained a provision that no part of the money should be paid to any agents of said Indians, or to any other person than the Indian to whom it was due.

The Kendalls having thus failed to get anything from the appropriations, presented a petition to the Court of Claims. They set forth in it the fact and history of the treaty, the great labor which they had had, and the value of which their services had been in procuring the treaty and appropriation (with interest, about $887,000); all, as they alleged, due to those services. That they had repeatedly given specific notice to Congress and to its committees, and to all proper officers of the government, of the contract made by them with the Indians, and of their claim under it, and of the justice of the same.

There was no answer or evidence produced on the other side.

The Court of Claims dismissed the petition.

Messrs. Carlisle and McPherson, for the appellants:

1. The contract and order given by the Indians operated as a valid assignment of one-twentieth part of the amount due the Indians; it being settled that, in equity, an order given by a debtor to his creditor, upon a third person, having funds of the debtor, to pay the creditor out of such funds, is a binding equitable assignment of so much of the fund; and these rights of assignees being recognized and protected in courts of law.

2. Neither the treaty of 1846, nor the act of 1850, prohibited the payment of this claim. It is true that there are in the treaty provisions intended to secure to the Indian himself the amount due to him; but, while the treaty prohibits payment to any agent of an Indian, and prohibits, prospectively, any assignment of the share of any Indian, it is silent as to any existing assignment, and uses no words applicable to an assignment made by the body of the tribe out of the gross sum. The act of 1850 is more comprehensive in its language, but it was made simply to carry into effect the treaty, and its terms are to be construed in connection with the treaty itself.

Mr. Dickey, Assistant Attorney-General, contra:

1. The pretended assignment, by the Indians, of a portion of their claim, could not, if valid, be enforced in a court of law.

The Court of Claims has no equity jurisdiction.

2. The assignment was not valid unless recognized to be so by the United States.

3. The treaty of 1846, and the act of 1850, prohibited the payment of this claim.

The justice or injustice of this action of the government, is not a matter for the consideration of the Court of Claims. The case of the appellants stands upon the legal effect of their agreement with the Indians, and there is nothing in it which can override the action of the treaty-making and the law-making powers of the government.

Mr. Justice MILLER delivered the opinion of the court.