likewise be included in the present bill. Therefore, if the proposed legislation is to be enacted, it is suggested that there should be added thereto the following clause:

"The Court of Claims is hereby directed to consider and offset all sums expended gratuitously by the United States for the benefit of the Eastern and Western Cherokees in accordance with the provisions of section 2 of the act of August 12, 1935 (49 Stat. 596)."

The bill would provide a right of appeal to the Supreme Court of the United States by either party rather than review by certiorari. By the act of February 13, 1925 (43 Stat. 939), judgments of the Court of Claims are reviewable only upon writ of certiorari. No reason is perceived why this claimant should be excepted from the rule generally applicable to all litigants before the Court of Claims. It is therefore believed that the bill, if enacted, should be amended by striking from lines 9 and 10, page 1, and line 1, page 2, the words "with the right of appeal to the Supreme Court of the United States by either party, rather than by certiorari:" and by inserting in lieu thereof: "with right of review by the Supreme Court of the United States as provided in the act of February 13, 1925 (43 Stat. 939)."

In view of the considerations discussed, I am unable to recommend the approval of either the original or the proposed substitute bill.

Respectfully,

ROBERT H. JACKSON,

Attorney General.

MEMORANDUM BY ROBERT L. OWEN

The Attorney General having sent me a copy of his interdepartmental letter to the Director of the Budget on S. 2952, Cherokee jurisdictional bill, I make the following observations:

Mr. Wilfred Hearn, assistant attorney to the Attorney General, in case No. 42077, Court of Claims, resisted the petition of the plaintiffs and induced the court to refuse jurisdiction on the ground that the claim submitted had previously been adjudicated and paid in full. The claim asserted by the plaintiffs was for $1,989,218.49 bearing interest at the rate of 5 percent and an unpaid interest balance of $664,377.63 as of March 15, 1910. The claim was based on the fact that the United States in the exercise of eminent domain had taken 7,800,000 acres of Cherokee land worth $10,000,000 at the time; had agreed to pay for this land as of June 12, 1838, $3,067,539.14, paying $1,000,000 at the time and leaving $2,067,539.14 bearing 5-percent interest; that on April 5, 1852, the United States paid an amount slightly exceeding the interest then due by about $78,000 and later, on the 15th of March 1910, made a second payment, which left the amount of the interest-bearing principal due from April 5, 1852, unpaid and leaving unpaid over $660,000 of accrued interest.

The plaintiffs stated in effect that the United States claim that the payment was in full of the amount due in each case was ineffective because it was not true that the amount due had been paid in full. That the Slade-Bender accounting, ex parte, of 1893 conceded the error of $1,111,284.70 with interest at 5 percent had not been liquidated or taken into account on April 5, 1852. When the United States Supreme Court ascertained this fact, it was the legal duty of the United States to have paid the Eastern Cherokees the amount of the interestbearing principal as of April 5, 1852, with interest at 5 percent; and that the amount paid on March 15, 1910, failed to meet this requirement by the amount sued for in No. 42077. That the Eastern Cherokees at no time in their history had had an opportunity of raising this question and presenting this claim until the jurisdictional act of April 25, 1932; which act expressly directed the court to recognize the law governing partial payments. But the court, on the advice of Mr. Hearn, refused to take jurisdiction on various highly technical grounds which had no adequate foundation of fact, to wit, that the court had no jurisdiction because the claim sued for had been previously adjudicated in 202 U. S. 101.

In No. 42077 was involved a sum of $41,348.31 additional which the Supreme Court (148 U. S. 427) had discovered in the accounting on an item known as debts and claims which was ignored by the Slade-Bender accounting. No pretense of answering this item appeared in the proceedings.

The Secretary of the Interior in various reports relating to this matter had used the following comment:

"The fact remains, however, that the argument of erroneous application of partial payments is one that does not appear to have been previously presented to or considered by the court."

The Western Cherokee case, No. 42078, was thrown out of the court on the precedent set by the court in No. 42077.

THE ATTORNEY GENERAL'S LETTER

The Attorney General's letter abstracts the Senate resolution in ...vor of interest at 5 percent and says that the interest was to be allowed "until the payment of the principal." This quotation is harmonious with the argument of Mr. Hearn, who contended that no interest was due on any part of the principal until the principal had been found by the United States. This is not true. The Senate resolution declared that the interest should be allowable at 5 percent per annum and does not justify the contention that no interest was payable until the accounts of the defendant should correctly state the amount due. Moreover, the Supreme Court decisions on the constitutional right of persons deprived of property by eminent domain to 5-percent interest precluded such an interpretation. Moreover, the act of 1841 declared that all trust funds held by the Government should be invested in United States securities bearing interest at 5 percent per annum. In the second paragraph the Attorney General's letter says that payments in full were made in 1851 and 1852. But his letter withholds the fact that while the receipts were printed as a receipt in full the Cherokees protested in writing before receiving payment that the payment was not in full but only a partial payment, or payment on account. The Supreme Court held that they were not bound by these receipts and that the payment then made was only a payment on account, not a final settlement.

The payment to the Western Cherokees in 1899 on the finding of the court in 1891 was not a full payment because it was not based on a correct statement of the account which should have corrected the error made in 1851 as of the date when the partial payment was made. The same thing is true with regard to the payment to the Eastern Cherokees of March 15, 1910. The Attorney General's letter, following the Hearn theory, would make it appear that the decision by the Supreme Court was dealing with the claim now asserted, when, as a matter of fact, the claim now asserted based on partial payments could not have arisen until after the second partial payments had been erroneously made, with a grave deficit to the Western Cherokees in 1899 and a still greater deficit to the Eastern Cherokees in 1910. It is perfectly obvious that Mr. Hearn misled the Court of Claims into the belief that the claim passed on by the Supreme Court in 1893 was the same as that asserted by the Western Cherokees under the jurisdictional act of 1932. The words used in the pleading and the court's decision show that the term "claim" was equivocal, really referred to the error made in the settlement of 1851 and in the settlement made in 1852 and did not refer to the claim made under the jurisdictional act of 1932.

The Attorney General's letter abstracting the action of the Court of Claims said "that in any event the prior payments had been made on a correct statement of the account.' Certainly the payments made in 1851, 1852, 1899, and 1910 were made on a correct statement of the account as far as the account went at the time it was made. But this is an entirely different matter from the account which should have been rendered as a matter of law, and as a matter of justice when the error made in 1851 and 1852 had been ascertained in 1891 and 1905. Of course Congress appropriated the amount according to the account rendered to the Congress. But this does not exempt the United States from its obligation to pay the amount which was due under the treaties and the common law of the land relating to partial payments.

The letter of the Attorney General commenting upon the attitude of the Interior Department omits the vital part of what the Secretary of the Interior said and confines the statement to the point that the contention of the plaintiffs was not "wholly without foundation." The Secretary gave a good reason of fact which the Attorney General's letter ignored, to wit: The fact that the claim had never been presented to any court.

The Attorney General's letter says:

"Irrespective as to whether the question was before the court in the suits decided in 1891 and 1905, the matter was thoroughly briefed and argued in the suits instituted under the jurisdictional act of 1932 and the court not only held that the question had been theretofore decided, but discussed the merits at length and concluded (82 C. Cls. at pp. 208-209) that the adjudication had been made on a correct statement of the account."

This statement is not justified by the facts. The Court of Claims merely recited what the contention of the plaintiffs was, and this was done only in the opinion of the court. The merits of the contention were denied on the ground

that the claim had previously been adjudicated. In this case the court confused the claim passed on in 1905 and the present claim because the claim passed on in 1905 was a per capita claim based on the ninth article of the treaty of 1846. But it was not the present claim at all. The claim then passed on was the amount of the error of 1852, not the amount of the error of March 15, 1910, based upon the failure to properly correct the error of 1852 when the court had found the amount of the error then made.

Yet

The Attorney General's letter says that, "neither the bill nor the proposed substitute contains provision for the offset of gratuities expended by the United States for the benefit of the Indians." The answer to this proposal is that the ninth article of the treaty of 1846 expressly precludes any gratuities against the Eastern or Western Cherokees, and confines the offsets in specific terms. even in the Jurisdictional Act of 1932 the influence of Mr. Hearn and his associates obtained from Congress in that Jurisdictional Act a provision allowing gratuities. It is to be observed, however, that the act of August 12, 1935, authorized gratuities only against Indian tribes and bands and not against "groups.' It is further to be observed that the Court of Claims in No. 42077 allowed about $2,000,000 of gratuities, including hundreds of thousands of dollars alleged to have been paid for the benefit of the Eastern Cherokees before the treaty of 1846, which the act of 1935 forbade. It is further to be observed that the act of 1935 was further disregarded in No. 42077 in that all of the gratuities allowed by the court were unjustified under the explanation made by Mr. Blair and Mr. Stormont before the Committee on Appropriations which put this gratuity item on an appropriation bill. The chairman of that committee, Mr. Buchanan, put in the record of the hearings the understanding of the committee that the term "gratuity" only meant offsets gratuitously paid which in themselves were "legitimate and equiable. This matter is fully set up in my testimony before the Senate Judiciary ubc ommittee on S. 3083, with which you are familiar.

Of course, Mr. Hearn, or his associates, does not want the plaintiffs allowed an appeal to the Supreme Court, and the letter of the Attorney General says, "no reason is perceived why this claimant should be excepted from the rule." The answer to this observation is that in amending the Judicial Code in 1920 the right of appeal to the Supreme Court from the courts of the United States was limited to a possible appeal through certiorari. But all of the courts had one right of appeal to the circuit court of appeals. Apparently it was overlooked that there was no right of appeal from the Court of Claims, except to the Supreme Court. Since then Congress has repeatedly in important cases allowed the right of appeal to the Supreme Court, especially in Indian cases involving large amounts, seven instances of which were submitted by me to the Director of the Budget recently and which had been approved by the President. In these Cherokee cases the amount involved is over $6,000,000. The gratuities claimed amount to about $2,000,000. The claim is based upon the constitutional right to compensation for land taken by eminent domain. It is based also upon two treaties ratified by the Senate. One of these treaties was the treaty of 1835, obtained by John Schemerhorn from a small band of unauthorized Cherokees by bribery in which Schemerhorn paid some $20,000, and which caused the death of a number of their leaders. Of course, there should be an appeal to the Supreme Court in this case for the further express reason that the decision by the Court of Claims in No. 42077 and No. 42078 disregarded and violated a number of decisions of the Supreme Court, which forbid using technicalities and legalistic phrases as a means of defeating the substance of the right to Indian claimants.

Over a year ago, as attorney of record, I submitted to the President a simple statement of this case in the form of a petition, asking immediate payment for the reason that there is no legal defense of the claim. As a result of the hearings before the Interior Department I was advised to go to the legislative department. And now the executive department, through one of its branches, is nullifying the relief recommended to me as attorney of record by the Interior Department, to whom the petition to the President was referred by him. Attached to the petition I had the acquiescence in affirmative legislative relief, and now this is to be brought in question by the Director of the Budget at the instance of the Attorney General's office attempting to nullify legislative relief through the stock phrase, "not in accordance with the program of the President."

Might I respectfully ask if this be in accord with the spirit of the decisions of the Supreme Court in regard to the Indians. For your convenience I enclose a number of these decisions which were printed in the Congressional Record at the instance of Mr. Cartwright, chairman of the Oklahoma delegation.

I remind you that this claim for immediate payment met the unanimous endorsement of the two Senators and nine Congressmen from Oklahoma.

Respectfully submitted.

CHANGES IN THE LAW

ROBERT L. OWEN.

In compliance with paragraph 2a of rule XIII of the Rules of the House of Representatives, changes of the law made by the bill are shown as follows:

ACT OF APRIL 25, 1932

[PUBLIC-No. 105-72D CONGRESS]

[S. 2405]

AN ACT To confer jurisdiction on the Court of Claims to hear and determine certain claims of the Eastern or Emigrant and the Western or Old Settler Cherokee Indians against the United States, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all claims against the United States of the Eastern or Emigrant Cherokees, and the Western Cherokee or Old Settler Indians, so-called, who are duly enrolled members of the Cherokee Tribe of Indians in Oklahoma, as classes, respectively, may be submitted to the Court of Claims, and jurisdiction is hereby conferred upon the Court of Claims, notwithstanding the lapse of time or statutes of limitation, to hear, examine, adjudicate, and render judgment in any and all legal and equitable claims arising or growing out of any treaty or agreement between the United States and the Cherokee Indians, or arising or growing out of any Act of Congress in relation to Indian affairs, which the said Eastern or Emigrant and Western or Old Settler Cherokees 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 and paid in full: Provided, That said Eastern or Emigrant and Western or Old Settler Cherokee Indians may act together or as two bodies hereunder as they may be advised: Provided further, That the said Eastern or Emigrant and Western or Old Settler Cherokees may intervene in any suit or suits now pending in the Court of Claims under authority of the Act of Congress approved March 19, 1924 (43 Stat. L. 27, 28), in which the Cherokee Nation is party plaintiff and the United States party defendant.

SEC. 2. Any and all claims against the United States within the purview of this Act shall be forever barred unless suit or suits or intervening petition shall be filed, subject to amendment, however, as herein provided in the Court of Claims within six months from the date of approval of this Act, and such suit or suits shall make the Eastern or Emigrant and/or Western or Old Settler Cherokees party or parties plaintiff and the United States party defendant. The petition or petitions shall be verified by the attorney or attorneys employed to prosecute such claim or claims under contract or contracts with the said Indians approved in accordance with existing laws, and said contract or contracts shall be executed in their behalf by a committee or committees selected by said Indians or provided by existing law. Official letters, papers, documents, and records, maps, 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 Indians to such treaties, papers, maps, correspondence, or reports as they may require in the preparation and prosecution of any suit or suits instituted under this Act.

SEC. 3. In said suit or suits the court shall also hear, examine, consider, and adjudicate any claims which the United States may have against the said Indians or any of them, but any payment or payments which have been made by the United States upon any such claim or claims shall not operate as an estoppel but may be placed as an offset in such suit or suits, and the United States shall be allowed to plead and shall be given credit for all sums, including gratuities, paid to or expended for any of said classes of Indians: Provided, however, That in any claim sued on by said Cherokees for any part of an interest-bearing fund upon which account any payment or payments shall have been made, such payment or payments shall first be applied to reduction or payment of interest earned to the date of such respective payments, and the balance, if any, shall then be applied to reduce the interest-bearing principal, and not otherwise.

H. Repts., 77-1, vol. 2--22

SEC. 4. Any other tribes or bands of Indians the court may deem necessary to a final determination of any suit or suits brought hereunder may be joined therein as the court may order: Provided, That upon final determination of such suit or suits the Court of Claims shall have jurisdiction to fix and determine a reasonable fee, not to exceed 10 per centum of recovery or recoveries, together with all necessary and proper expenses incurred in the preparation and prosecution of such suit or suits, to be paid to the attorney or attorneys employed as herein provided by the said Indians, and the same shall be included in the decree and shall be paid out of any sum or sums adjudged to be due said Indians, or any of them, and the balance of such sum or sums shall be placed in the Treasury of the United States, where it shall draw interest at the rate of 4 per centum per annum, and be disposed of as provided by existing law.

Approved, April 25, 1932.

H. R. 10 AS AMENDED BY THE COMMITTEE

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Court of Claims is hereby authorized and directed to reinstate the suits entitled "Eastern or Emigrant Cherokees against The United States", numbered 42077, and "Western or Old Settler Cherokees against The United States", numbered 42078, heretofore dismissed by that court on December 2, 1935, and February 3, 1936, respectively: Provided, That application therefor is made within one year after the approval of this Act, and jurisdiction is hereby conferred on the Court of Claims to hear and determine the claims asserted in said suits de novo and on the merits with findings of fact and conclusions of law based thereon, giving to both the plaintiffs and the defendant their legal and equitable rights and defenses under the laws of the United States to the end that the substance of the right shall be given to both the plaintiffs and the defendant, including the right of the Government to plead and prove if it can the defense of its adjudication. The Court of Claims shall reinstate and retry said suits under such provisions of the Act of April 25, 1932 (47 Stat. 137), as are not in conflict herewith. The Court of Claims is hereby directed to consider and offset all sums expended gratuitously by the United States for the benefit of the Eastern and Western Cherokees in accordance with the provisions of section 2 of the Act of August 12, 1935 (49 Stat. 596). Either party shall have the right to appeal to the Supreme Court, or to apply for a writ of certiorari according to and as provided by the laws, rules, regulations, limitations, and practices of the Supreme Court at the time application is made.

1 So in original.

O