CASES DECIDED

IN

THE COURT OF CLAIMS

March 5, 1935, to December 1, 1935

THE CHOCTAW NATION v. THE UNITED STATES [No. H-37. Decided January 14, 1935. Plaintiff's motion for new trial overruled June 17, 1935]

On the Proofs

Indian claims; Mississippi Choctaws; special jurisdiction; status and rights under Dancing Rabbit Creek Treaty of 1830.-In the making of the Dancing Rabbit Creek Treaty of 1830, the Choctaw Indians and the United States were in agreement that an optional right to remain in Mississippi should be given to the Indians, with a right to those who should remain to regain, under the conditions specified, their exact tribal status quo that existed on the date the treaty was concluded, the only property loss to be sustained by them to be loss of participation in the annuities provided for in the treaty.

Same; claim to right of enrollment; recognition by Congress.-The initiatory claim of the Mississippi Choctaws to the right of enrollment upon the rolls of the Choctaw Nation was of a legal right, and the congressional recognition received by them was intended to grant it as claimed.

Same; intent of Congress as to rights under treaty.-Congress, in its action with reference to the claim of the Mississippi Choctaws to membership and enrollment in the Choctaw Nation, intended to give to such Indians all the rights, both political and of property, incident to membership in the nation, under the Dancing Rabbit Creek Treaty of 1830, except the right expressly reserved by article XIV, of participation in the annuities provided for by the treaty.

Same; right to share in communal funds of the nation. The enrolled Mississippi Choctaws had the right to share not only in the lands of the Choctaw Nation but also in tribal or communal funds of the nation, and regardless of whether such funds were accumulated by the nation before, or after, their enrollment.

1

Reporter's Statement of the Case

The Reporter's statement of the case:

Messrs. William B. Johnson and W. F. Semple for the plaintiff. Johnson & McGill were on the brief.

Mr. Charles H. Small, with whom was Mr. Assistant Attorney General Harry W. Blair, for the defendant. Mr. George T. Stormont was on the brief.

The court made special findings of fact as follows:

I. By the act of Congress approved June 7, 1924 (43 Stat. 537), as modified by joint resolution (44 Stat. 568), 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 Choctaw and Chickasaw Indian Nations or Tribes, or either of them, or arising under or growing out of any act of Congress in relation to Indian affairs which said Choctaw and Chickasaw Nations or Tribes 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. The claim or claims of each of said Indian nations shall be presented separately or jointly by petition in the Court of Claims, and such action shall make the petitioner party plaintiff or plaintiffs 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 approved by the Commissioner of Indian Affairs and the Secretary of the Interior. and said contract with such Indian tribe shall be executed in behalf of the tribe by the governor or principal chief thereof, or, if there be no governor or principal chief, by a committee chosen by the tribe under the direction and approval of the Commissioner of Indian Affairs and the Secretary of the Interior: Provided, however, That the attorney or attorneys employed as herein provided may be assisted by the regular tribal at

Reporter's Statement of the Case

torney or attorneys employed under existing law under direction of the Secretary of the Interior, with such additional reasonable and necessary expenses for said tribal attorneys to be approved and paid from the funds of the respective tribes under the direction of the Secretary of the Interior, as may be required for the proper conduct of such litigation. Official letters, papers, documenis, 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 the above-named Indian nations to such treaties, papers, correspondence, or records as may be needed by the attorney or attorneys of said Indian nations.

"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 nations, but any payment 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 any attorney or attorneys, other than the regular tribal attorney or attorneys employed under existing law, employed by said Indian nations for the services and expenses of said attorneys rendered or incurred subsequent to the date of approval of such contract: Provided, That in no case shall the aggregate amounts decreed by said Court of Claims for services and expenses be in excess of the amount or amounts stipulated in the contract of employment, or in excess of a sum equal to 10 per centum 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 interests of the United States in such case."

II. Under the provisions of the act of June 7, 1924, supra, the original petition herein was filed on February 2, 1927, by

Reporter's Statement of the Case

the Choctaw and Chickasaw Nations as plaintiffs, and, leave of court having been obtained to sever the various counts in the petition contained, an amended petition was filed on April 20, 1934, by the Choctaw Nation as sole plaintiff.

III. On September 27, 1830, at Dancing Rabbit Creek, a treaty was concluded between the United States and the Choctaw Nation of Indians (7 Stat. 333; 2 Kapp. 310), which treaty was proclaimed February 24, 1831, and reads in part as follows:

"ARTICLE I. Perpetual peace and friendship is pledged and agreed upon by and between the United States and the mingoes, chiefs, and warriors of the Choctaw Nation of Red People; and that this may be considered the treaty existing between the parties, all other treaties heretofore existing and inconsistent with the provisions of this are hereby declared null and void.

"ARTICLE II. The United States under a grant specially to be made by the President of the U. S. shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, beginning near Fort Smith where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian fork; if in the limits of the United States, or to those limits; thence due south to Red River, and down Red River to the west boundary of the Territory of Arkansas; thence north along that line to the beginning. The boundary of the same to be agreeably to the treaty made, and concluded at Washington City in the year 1825. The grant to be executed so soon as the present Treaty shall be ratified.

"ARTICLE III. In consideration of the provisions contained in the several articles of this treaty, the Choctaw Nation of Indians consent and hereby cede to the United States, the entire country they own and possess, east of the Mississippi River; and they agree to remove beyond the Mississippi River, early as practicable, and will so arrange their removal, that as many as possible of their people not exceeding onehalf of the whole number, shall depart during the falls of 1831 and 1832; the residue to follow during the succeeding fall of 1833; a better opportunity in this manner will be afforded the Government, to extend to them the facilities and comforts which it is desirable should be extended in conveying them to their new homes.

"ARTICLE IV. The Government and people of the United States are hereby obliged to secure to the said Choctaw Na