While we know our northern friends may not feel it, in the South, Spring is
here. So we thought we'd share a few of our gardening sites appropriate
for this time of the year. Along with gardening, there's grilling, and getting
ready to diet so that you can fit back into that bathing suit this summer!
U.S. Supreme Court
Winton V. Amos, 255 U.S. 373 (1921)
255 U.S. 373
Winton et al. V. Amos et al.
No. 6.
Bounds V. Same.
No. 7.
London V. Same.
No. 8.
Field Et Al. V. Same.
No. 9.
Beckham V. Same.
No. 10.
Vernon V. Same.
No. 11.
Howe V. Same.
No. 12.
Argued Jan. 14 and 15, 1919
Restored to Docket for Reargument Jan. 5,
1920.
Reargued April 21 and 22, 1920.
Decided March 7, 1921.
[255 U.S. 373, 375] Mr. William W. Scott,
of Washington, D. C., for appellants Winton
and others.
Mr. Guion Miller, of Baltimore, Md., for
other appellants.
Mr. Assistant Attorney General Davis, for
the United States.
Mr. Justice PITNEY delivered the opinion of
the Court.
These are appeals from a judgment of the
Court of Claims rejecting claims for alleged
services rendered and expenses incurred in
the matter of the claims of the Mississippi
Choctaws to citizenship in the Choctaw
Nation. The decision of the Court of Claims
is reported in 51 Ct. Cl. 284. In the Winton
Case (No. 6), a request for additional
findings, equivalent to an application for
rehearing, was denied, 52 Ct. Cl. 90. The
appeals were taken under section 182, Jud.
Code (Comp. St. 1173).
The jurisdiction of the court below arose
under an Act of April 26, 1906 (chapter
1876, 9, 34 Stat. 137, 140), and an [255
U.S. 373, 376] amendatory provision in the
Act of May 29, 1908 (chapter 216, 27, 35
Stat. 444, 457). The former provided:
'That the Court of Claims is hereby
authorized and directed to hear, consider,
and adjudicate the claims against the
Mississippi Choctaws of the estate of
Charles F. Winton, deceased, his associates
and assigns, for services rendered and
expenses incurred in the matter of the
claims of the Mississippi Choctaws to
citizenship in the Choctaw Nation, and to
render judgment thereon on the principle of
quantum meruit, in such amount or amounts as
may appear equitable or justly due there
for, which judgment, if any, shall be paid
from any funds now or hereafter due such
Choctaws by the United States. Notice of
such suit shall be served on the Governor of
the Choctaw Nation, and the Attorney General
shall appear and defend the said suit on
behalf of said Choctaws.'
The original petition was filed October 11,
1906, by Wirt K. Winton, one of the heirs at
law of Charles F. Winton, in behalf of
himself and the other heirs and also in
behalf of the associates and assigns of
Charles F. Winton. Thereafter it was
provided by the amendatory act that the
court be authorized and directed to hear,
consider, and adjudicate claims of like
character on the part of William N. Vernon,
J. S. Bounds, and Chester Howe, their
associates or assigns, and render judgment
on the same principle of quantum meruit; the
judgment, if any, to be paid from 'any funds
now or hereafter due such Choctaws as
individuals by the United States'; Vernon,
Bounds, and Howe were authorized to
intervene in the pending suit of the estate
of Winton, and it was 'provided further,
that the lands allotted to the Mississippi
Choctaws are hereby declared subject to a
lien to the extent of the claims of the said
Winton and of the other plaintiffs
authorized by Congress to sue the said
defendants, subject to the final judgment of
the Court of Claims in the said case. Notice
of such suit or intervention shall [255 U.S.
373, 377] be served on the Governor of the
Choctaw Nation, and the Attorney General
shall appear and defend the said suit on
behalf of the said Choctaws.'
Thereafter a second amended petition was
filed by Wirt K. Winton, as administrator of
the estate of Charles F. Winton, deceased,
in behalf of the estate of Winton and also
of Winton's associates and assigns. In this
petition James K. Jones, administrator of
James K. Jones, deceased, and Robert L. Owen
in his own behalf, joined. Intervening
petitions were filed by William N. Vernon;
Chester Howe, who died pending suit and in
whose place his administratrix, Katie A.
Howe, was substituted; and several others.
As shown by the findings the claim of Winton
and associates arose as follows: By article
3 of the treaty of September 27, 1830 (7
Stat. 333), known as the Treaty of Dancing
Rabbit Creek, the Choctaw Nation of Indians
ceded to the United States the entire
country possessed by them east of the
Mississippi river, and agreed to remove
beyond the Mississippi during the three
years next succeeding. But, in view of the
fact that some of the Choctaws preferred not
to move, it was provided in article 14 that
each head of a family who desired to remain
and become a citizen of the states should be
permitted to do so, and should thereupon be
entitled to a reservation of one section of
land, with an additional half section for
each unmarried child living with him over
ten years of age, and a quarter section for
each child under ten. 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; and it was further
provided:
'Persons who claim under this article shall
not lose the privilege of a Choctaw citizen,
but if they ever remove are not to be
entitled to any portion of the Choctaw
annuity.'
By another article (19) reservations were
provided for certain prominent Choctaws by
name, [255 U.S. 373, 378] and for limited
numbers of heads of families and captains.
The mixed-blood Choctaws who elected to
remain in Mississippi were provided for
under article 19, while the full bloods who
remained and elected to become citizens of
the state were provided for under article
14; hence full-blood Mississippi Choctaws
have always been called 'Fourteenth Article
claimants.' Choctaws who remained in
Mississippi under that article adopted the
dress, habits, customs, and manner of living
of the white citizens of the state. They had
no tribal or band organization or laws of
their own, but were subject to the laws of
the state. They did not live upon any
reservation, nor did the government exercise
supervision or control over them. No funds
were appropriated for their support, though
much land was given to them. Neither the
Indian Office nor the Department of the
Interior assumed or exercised jurisdiction
over them, and they never recognized them
either individually or as bands, but
regarded them as citizens of the state of
Mississippi, and the Department held it had
no authority to approve contracts made with
them.
Pending the negotiation of the treaty, the
Legislature of the state of Mississippi
passed an act, January 19, 1830, abolishing
the tribal customs of Indians not recognized
by the common law or the law of the state,
making them citizens of the state, with the
same rights, immunities, and privileges as
free white persons, extending over them the
laws of the state, validating tribal
marriages, and abolishing the tribal offices
and posts of power. Recognition of their
citizenship was afterwards embodied in the
state Constitution.
The right of the Fourteenth Article
Mississippi Choctaws to citizenship in the
parent tribe appears to have been recognized
at one time by the Choctaw Nation west,
which had removed to Indian Territory
pursuant to the treaty. [255 U.S. 373, 379]
On December 24, 1889, the Nation, through
its Legislature, memorialized Congress,
reciting that there were 'large numbers of
Choctaws yet in the states of Mississippi
and Louisiana who are entitled to all the
rights and privileges of citizenship in the
Choctaw Nation,' and requesting the United
States government to make provision for the
emigration of these Choctaws from said
states to the Choctaw Nation. In 1891 a
commission was provided for and funds
appropriated by the Choctaw Council for the
removal and subsistence of Mississippi
Choctaws to the Nation, and during that year
181 were removed and admitted to
citizenship.
By Act of March 3, 1893 (chapter 209, 16, 27
Stat. 612, 645), Congress created the
Commission to the Five Civilized Tribes,
familiarly known as the Dawes Commission,
with the object of procuring through
negotiation the extinguishment of the
national or tribal title to the lands of
those tribes in the Indian Territory, either
by their cession to the United States or
allotment in severalty among the Indians,
with a view to the ultimate creation of a
state. By act of June 10, 1896 (chapter 398,
29 Stat. 321, 339, 340), the Commission was
directed to make a complete roll of
citizenship of each of the Five Civilized
Tribes, and applicants for enrollment were
to make application to the Commission within
three months from the passage of the act and
have the right of appeal from its decision
to the 'United States District Court'
(construed by this court, in Stephens v.
Cherokee Nation, 174 U.S. 445, 476 , 477 S.,
19 Sup. Ct. 722, to mean the United States
Court in the Indian Territory).
At this time the full-blood Mississippi
Choctaws were extremely poor, living in
unsanitary conditions and working at manual
labor for daily wages. Their children were
not permitted to attend schools provided for
the whites, and they were denied all social
and political privileges. As already
appears, they were receiving neither care
nor attention from the Indian Office or the
Department of the [255 U.S. 373, 380]
Interior; and they were so far overlooked by
the Dawes Commission that the time limited
by the act just mentioned expired without
their being included in the enrollment.
The activities of Winton and associates for
which recovery is asked date from this
point. Soon after the passage of the Act of
June 10, 1896, Messrs. Owen and Winton
entered into an agreement under which the
latter was to proceed to Mississippi and
procure contracts with such Indians as might
be entitled to participate in any
distribution of lands or moneys of the
Choctaw and Chickasaw Nations, arranging to
secure evidence, powers of attorney, and
contracts, as prescribed by Mr. Owen; Owen
was to prepare the necessary forms and
represent the claims of the Indians before
the proper officers of the United States or
Indian governments, with the assistance and
co-operation of Winton; Winton to receive
one-half of the net proceeds of the
contracts. A supplementary agreement between
the same parties provided in terms that Owen
should have a half interest in the
contracts, and in the event of accident to
Winton should take them up as attorney in
Winton's place. Immediately thereafter
Winton proceeded to Mississippi, and during
the year 1896 and the years following
procured approximately 1,000 contracts with
full-blood Mississippi Choctaws, some in the
name of Winton, some in the name of Owen, by
the terms of which Winton and Owen agreed to
use their best efforts to secure the rights
of citizenship for said Mississippi
Choctaws, as members of the Choctaw Nation,
in the lands and funds of said tribe, for a
fee of one-half the net interest of each
allottee in any allotment thereafter
secured. These contracts were subsequently
abandoned by Owen and Winton because void
and unenforceable under the Acts of June 28,
1898, and May 31, 1900, referred to below,
and new contracts were thereafter taken,
principally in the name of Charles S. Daley,
but in behalf [255 U.S. 373, 381] of Owen
and Winton, with whom Daley was associated.
These contracts recognized the previous
services of Winton and associates as
beneficial to the Indians, employed Daley
and associates, including Winton and
associates, as attorneys to look out for,
protect, defend, and secure the interest of
the Indians in the lands in Indian Territory
to which they might be entitled as
Mississippi Choctaws or as members of the
Choctaw Nation, and to procure the
recognition of their rights in said lands
and in and to any funds arising from the
Choctaw-Chickasaw lands, and provided that
as compensation for all services rendered
and to be rendered the attorneys should
receive a sum of money equal to one-half of
the value of the net recovery, based upon
the actual value of the lands recovered.
They seem to have contained other provisions
looking to the sale or encumbrance, in part
at least, of the lands secured for the
Indians. The validity of these contracts has
not been discussed.
Early in 1897 Mr. Owen spoke to Hon. John
Sharp Williams, then representative in
Congress from the Fifth Congressional
District of Mississippi, wherein practically
all full-blood Mississippi Choctaws resided,
calling his attention to the possible rights
of such Choctaws to participate in the
partition of the lands of the Choctaw
Nation, at the same time submitting to him a
copy of the Dancing Rabbit Creek Treaty, and
calling his attention to article 14. This
was the first time the matter had been
called to the attention of Mr. Williams.
Thereafter, and until March 4, 1903, when he
ceased to represent that district, he was
active in all matters of legislation
concerning the Mississippi Choctaws.
In December, 1896, Winton presented to
Congress a memorial in behalf of Jack Amos
and other full-blood Mississippi Choctaws,
asking that their rights under article 14 of
the Treaty of 1830 be accorded to them, and
that they be provided for by enrollment
either by the [255 U.S. 373, 382] Dawes
Commission or by a special agent under the
direction of the Commissioner of Indian
Affairs. In January, 1897, a second memorial
in behalf of Jack Amos and 246 other
full-blood Mississippi Choctaws being heads
of families was presented to Congress
through Winton, asking that they be enrolled
so as to participate in the proposed
allotment of Choctaw lands in Indian
Territory; and setting up that by the true
construction of article 14 of the Treaty of
1830, when viewed in connection with other
treaties and laws and the history of the
Choctaw tribe, the Mississippi Choctaws were
entitled to remain in Mississippi as United
States citizens and still retain the rights
of a Choctaw citizen, except as to a
participation in the annuity.
In September, 1897, Winton presented a third
memorial of like purport to the Secretary of
the Interior.
Prior to the presentation of the first of
these memorials, and in September or
October, 1896, Mr. Owen appeared before the
Dawes Commission in behalf of Jack Amos and
97 other full-blood Choctaws residing in
Mississippi, and attempted to secure their
enrollment under the Act of June 10, 1896.
The Commission refused, on the ground that
they were not resident in the Indian
Territory. Owen appealed to the United
States Court for the Central District of
Indian Territory, where the ruling of the
Commission was affirmed. This decision was
'indirectly affirmed' by this court on May
15, 1899, in the case of Stephens v.
Cherokee Nation, 174 U.S. 445 , 19 Sup. Ct.
722, where it was held that the legislation
under which the judgment was rendered was
constitutional, and that this court was
without jurisdiction to review decisions of
the courts of Indian Territory in
citizenship cases except upon the question
of the constitutionality or validity of the
legislation.
On February 11, 1897, a resolution drawn up
by Mr. Owen was passed by the Senate,
directing the Secretary [255 U.S. 373, 383]
of the Interior to transmit certain
historical data and information respecting
the rights of the Fourteenth Article
claimants. This was referred by the
Secretary to the Commissioner of Indian
Affairs for reply, and his reply, containing
material supporting the claims of the
Mississippi Choctaws, was transmitted by the
Secretary to the Senate, February 15, 1897.
Senate Doc. 129, 54th Cong., 2d Sess.
About the same time, Mr. Owen made an
argument before the Committee on Indian
Affairs of the House in support of House
Bill No. 10,372, intended to permit the
Mississippi Choctaws to continue to reside
in that state and still claim the rights of
Choctaw citizens. A favorable report was
made by the Committee, March 3, 1897 (House
Report 3,080, 54th Cong., 2d Sess.), but the
bill never passed either house.
In the Indian Appropriation Act of June 7,
1897, however, the following provision was
contained:
'That the commission appointed to negotiate
with the Five Civilized Tribes in the Indian
Territory shall examine and report to
Congress whether the Mississippi Choctaws
under their treaties are not entitled to all
the rights of Choctaw citizenship except an
interest in the Choctaw annuities.' Chapter
3, 30 Stat. 62, 83.
Following the passage of this act Mr. Owen
appeared before the Dawes Commission in the
interest of the Mississippi Choctaws with
whom he had contracts. On January 28, 1898,
the Commission made a report to Congress as
required by the act last mentioned (House
Doc. 274, 55th Cong., 2d Sess .), setting
forth in brief the history of the
Mississippi Choctaws and their then present
condition; and submitting an elaborate
argument in opposition to the contention
that those Choctaws might continue their
residence and political status in
Mississippi as in the past and still enjoy
all the rights of Choctaw citizenship except
to share in the Choctaw annuities; [255 U.S.
373, 384] declaring that in order to avail
himself of the privileges of a Choctaw
citizen, any person claiming to be a
descendant of those provided for in article
14 of the Treaty of 1830 'must first show
the fact that he is such descendant, and has
in good faith joined his brethren in the
territory with the intent to become one of
the citizens of the Nation. Having done so,
such person has a right to be enrolled as a
Choctaw citizen and to claim all the
privileges of such a citizen, except to a
share in the annuities. And that otherwise
he cannot claim as a right the 'privilege of
a Choctaw citizen." The Commission further
said that, if they were correct in this,
still any person presenting himself claiming
the right must be required by some tribunal
to prove the fact that he was a descendant
of some one of those Indians who originally
availed themselves of and conformed to the
requirements of the Fourteenth Article of
the Treaty of 1830. 'The time for making
application to this commission to be
enrolled as a Choctaw citizen has expired.
It would be necessary, therefore, to extend
by law the time for persons claiming this
right to make application and be heard by
this commission, or to create a new tribunal
for that purpose.'
On June 28, 1898, Congress passed an act,
commonly known as the Curtis Act, which
contained in section 21 provisions for the
making of rolls of the Five Civilized Tribes
by the Dawes Commission, and among others
the following:
'Said Commission shall have authority to
determine the identity of Choctaw Indians
claiming rights in the Choctaw lands under
article fourteen of the treaty between the
United States and the Choctaw Nation
concluded September twenty-seventh, eighteen
hundred and thirty, and to that end they may
administer oaths, examine witnesses, and
perform all other acts necessary thereto and
make report to the Secretary of the
Interior. [255 U.S. 373, 385] 'No person
shall be enrolled who has not heretofore
removed to and in good faith settled in the
nation in which he claims citizenship:
Provided, however, that nothing contained in
this act shall be so construed as to
militate against any rights or privileges
which the Mississippi Choctaws may have
under the laws of or the treaties with the
United States.' Chapter 517, 30 Stat. 495,
503.
Public notice having been given in
Mississippi as to the times and places at
which the Commission would hear applications
for identification under the above
provision, one of the commissioners, A. S.
McKennon, proceeded to Mississippi in
January, 1899, with a force of clerks and
stenographers, and there identified and made
up a schedule of 1923 persons as being
Mississippi Choctaws entitled to citizenship
in the Choctaw Nation under article 14 of
the treaty. The principle adopted was that
proof of the fact that a claimant was a
full-blood Indian whose ancestors were
living in Mississippi at the date of the
treaty was sufficient evidence to report his
name as a Mississippi Choctaw under section
21 of the Curtis Act. This schedule, known
as the 'McKennon Roll,' was subsequently
approved by the Commission, who forwarded it
with a report dated March 10, 1899, to the
Secretary of the Interior. The schedule
never was approved by the Secretary, and was
attempted to be withdrawn by the Commission
December 20, 1900; errors having been
discovered in it. It was formally
disapproved by the Secretary March 1, 1907.
The Court of Claims finds that:
'That work of Commissioner McKennon,
covering a period of about three weeks, in
identifying and making up said schedule, was
interfered with and retarded by said Charles
F. Winton, who endeavored to prevent the
Indians from appearing for identification.'
No explanation of this appears. At the same
time it is found that Mr. Owen (who of
course was associated with Winton) furnished
to Commissioner McKennon a list [255 U.S.
373, 386] of 16,000 Choctaw Indians, which
aided McKennon in his official work.
Because of material errors discovered by the
Commission in the McKennon Roll, another
party was organized and sent out by the
Commission for the purpose of making a more
accurate and complete roll of the
Mississippi Choctaws under the act of 1898,
whose hearings were commenced in Mississippi
in December, 1900, resumed in April of the
following year, and continued until the
latter part of August, 1901.
February 7, 1900, Winton and associates
presented a memorial to Congress, praying
that the treaty rights of the Mississippi
Choctaws be so construed as to afford them
the rights of Choctaw citizens without
removal, or that they be permitted to have
those rights determined in the courts.
Congress took no action upon this.
April 4, 1900, Winton and his associates
memorialized Congress, requesting the
following amendment to the Indian
Appropriation Act then pending:
'Provided, that any Mississippi Choctaw duly
identified and enrolled as such by the
United States Commission to the Five
Civilized Tribes shall have the right, at
any time prior to the approval of the final
rolls of the Mississippi Choctaws by the
Secretary of the Interior, to make
settlement within the Choctaw-Chickasaw
country, and on proof of the fact of bona
fide settlement they shall be enrolled by
the Secretary of the Interior as Choctaws
entitled to allotment.'
The act as passed contained the following:
'Provided, that any Mississippi Choctaw duly
identified as such by the United States
Commission to the Five Civilized Tribes
shall have the right, at any time prior to
the approval of the final rolls of the
Choctaws and Chickasaws by the Secretary of
the Interior, to make settlement within the
Choctaw-Chickasaw country, and on proof of
the fact of bona fide settlement may be
enrolled by the said [255 U.S. 373, 387]
United States Commission and by the
Secretary of the Interior as Choctaws
entitled to allotment: Provided further,
that all contracts or agreements looking to
the sale or encumbrance in any way of the
lands to be allotted to said Mississippi
Choctaws, shall be null and void.' Act of
May 31, 1900, c. 598, 31 Stat. 221, 236,
237.
The Dawes Commission thereafter required
from all applicants for enrollment proof of
descent from Choctaw Indians who remained in
Mississippi and received patents for lands
under the Fourteenth Article of the Treaty
of 1830. This constituted a reversal of the
principle previously adopted in making the
McKennon Roll, to wit, a presumption that
the ancestors of full-blood Choctaws
residing in Mississippi had fully complied
with the requirements of article 14. It
resulted that only six or seven persons
claiming as Mississippi Choctaws were
enrolled under the act of May 31, 1900,
although from 6,000 to 8,000 applications
were filed in 1900 and the early part of
1901.
On April 1, 1901, the second party, already
mentioned, sent by the Dawes Commission to
Mississippi for the purpose of making a
complete and accurate roll of Mississippi
Choctaws, resumed hearings at Meridian,
Mississippi, and held continuous sessions
there and at other places in the state until
the latter part of August. The Court of
Claims finds that during these hearings and
the making of this roll the conduct of
Winton and associates increased the work of
enrollment and impeded its progress. Being
advised by Owen and believing that the
McKennon Roll was a finality and constituted
a favorable judgment in behalf of the
Choctaws whose names appeared therein,
Winton and associates advised all Indians
who had been previously enrolled not to
appear again before the Commission for
identification. Nevertheless, as already
stated, 6,000 or 8,000 applications for
enrollment were made, of which only six or
seven were accepted under the stringent rule
of proof adopted by the Commission. [255
U.S. 373, 388] June 20, 1901, Winton,
under advice of counsel, began taking new
contracts with individual Choctaws living in
Mississippi, in lieu of the previous
contracts already mentioned. The new
contracts were 834 in number, and embraced
in all about 2,000 persons.
March 21, 1902, while preparation of the
identification roll of Mississippi Choctaws
was still in progress, an agreement was
entered into between the Choctaw and
Chickasaw Nations and the Dawes Commission
in which, by sections 41, 42, 43, and 44, it
was proposed to fix the status of the
Mississippi Choctaws. This agreement, after
some amendments in Congress, was approved by
Act of July 1, 1902, and ratified by the
Choctaws and Chickasaws on September 25,
1902 (chapter 1362, 32 Stat. 641, 651, 652).
It was under this agreement, known as the
Choctaw-Chickasaw Supplemental Agreement,
that practically all Mississippi Choctaws
were enrolled and secured their rights to
allotments of Choctaw tribal lands. Section
41 as signed by the parties did not contain
the fullblood rule of evidence-that is, that
fullblood Choctaws living in Mississippi
should be presumed to be descendants of
Choctaws who had complied with the
requirements of article 14 of the Treaty of
1830. It permitted all persons identified by
the Commission under the provisions of
section 21 of the act of July 28, 1898, as
Mississippi Choctaws entitled to benefits
under article 14 of the treaty to make bona
fide settlement within the Choctaw-
Chickasaw country at any time within six
months after the date of the final
ratification of the agreement, and upon
proof of such settlement to the Commission
within one year after the date of such
ratification they were to be enrolled by the
Commission as Mississippi Choctaws entitled
to allotment, but declared:
'The application of no person for
identification as a Mississippi Choctaw
shall be received by said Commission after
the date of the final ratification of this
agreement.'
While the supplemental agreement [255 U.S.
373, 389] as thus proposed was pending in
the Senate, Winton and associates presented
a memorial to that body in behalf of the
full-blood Mississippi Choctaws, reviewing
prior legislation and praying that the
provisions of the agreement then pending
should be amended so that the full-blood
rule of evidence should be established and
the Mississippi Choctaws given time after
identification to remove to the Choctaw
country and longer time within which to make
application. Senate Doc. 319, 57th Cong.,
1st Sess. The memorial prayed that sections
41, 42, 43, and 44, which, it was alleged,
imposed onerous conditions upon Mississippi
Choctaws, should be struck out and plain
provision made that persons whose names
appeared upon the McKennon Roll, and such
full-blood Mississippi Choctaws as might be
identified by the Commission, and the wives,
children, and grandchildren of all such,
should alone constitute the 'Mississippi
Choctaws' entitled to benefits under the
agreement; and that all of them who should
have removed to the Choctaw-Chickasaw lands
within twelve months after official
notification of their identification should
be enrolled upon a separate roll designated
'Mississippi Choctaws' and lands equal in
value to lands allotted to citizens of the
Choctaw and Chickasaw Tribes should be
selected and set apart for each of them, and
that after a bona fide residence for a
period of a year and proof thereof they
should receive patents as provided in the
Atoka Agreement, and be treated in all
respects as other Choctaws. An amendment
embodying these suggestions was introduced
in the Senate at Mr. Owen's request,
submitted to the Department of the Interior,
and adversely reported upon. Section 41,
however, was subsequently amended, and as
finally enacted (32 Stat. 651) established
the full-blood rule as a rule of evidence,
allowed six months after date of final
ratification of the agreement within which
applications for identification might be
made, six months after [255 U.S. 373, 390]
identification within which settlement might
be made within the Choctaw- Chickasaw
country, and one year after identification
for making proof of such settlement of the
Commission.
The passage of the Act of July 1, 1902, as
thus amended, was opposed by Mr. Owen and
the associates of Winton, who protested
against the conditions contained in the
amended sections relating to the Mississippi
Choctaws as finally adopted.
The Indian Appropriation Act of March 3,
1903(chapter 994, 32 Stat. 982, 997),
contained the following:
'That the sum of twenty thousand dollars, or
so much thereof as is necessary, is hereby
appropriated, to be immediately available,
for the purpose of aiding indigent and
identified fullblood Mississippi Choctaws to
remove to the Indian Territory, to be
expended at the discretion and under the
direction of the Secretary of the Interior.'
The special disbursing agent of the Dawes
Commission was sent to Mississippi to carry
out this provision. He there organized
parties and assembled all Indians who could
be found and induced to come, and they were
later transported by special trains to
Indian Territory and there further
maintained until placed upon allotments, and
supplied with tools and other equipment and
rations for six months, all at the expense
of the United States. The total number thus
transported, maintained, and equipped was
420.
The Dawes Commission received applications
from approximately 25,000 persons for
enrollment as Mississippi Choctaws. Of this
number 2,534 were identified by the
Commission; but of these 956 failed to
remove to Indian Territory or submit proof
of their removal and settlement within the
time prescribed by law. The total number of
applicants identified and finally enrolled
and who have received allotments as members
of the Choctaw Nation is 1,578, of whom only
833 appear on the McKennon Roll, [255 U.S.
373, 391] and only 696 had contracts with
Winton and his associates. 181 Mississippi
Choctaws had voluntarily removed to the
territory in 1891 and were received into the
Choctaw Nation. These were carried on the
rolls as Mississippi Choctaws, making the
total enrollment 1,759; but the 181 Indians
just mentioned were not regarded as
defendants in this proceeding.
The funds derived from sales of allotted
lands of enrolled Mississippi Choctaws
subject to the restrictions upon alienation
prescribed by section 1 of the Act of May
27, 1908 (chapter 199, 35 Stat. 312) are
held by the government to the credit of the
individual Indians entitled thereto. All
other funds belonging to enrolled
Mississippi Choctaws are held as tribal
funds, the names being carried on a separate
roll.
As we construe the jurisdictional acts under
which these claims were submitted to the
Court of Claims, they contemplate not an
action in person to establish a personal
liability against individual Indians, or a
group of Indians, but a suit of an equitable
nature against that class of Mississippi
Choctaws who, through successful assertion
of the right of citizenship in the Choctaw
Nation, acquired allotments of lands in what
formerly was the tribal domain, and a
participation in funds held in trust by the
United states; a suit having the object of
imposing an equitable charge upon their
funds and lands for a reasonable and
proportionate contribution towards the value
of services rendered and expenses incurred
by the claimants in securing for said class
of Indians a beneficial participation in the
trust estate, according to the principle
applied in Trustees v. Greenough, 105 U.S.
527 , 532, et seq., and Central Railroad v.
Pettus, 113 U.S. 116 , 122-127, 5 Sup. Ct.
387. The present suit is of that nature.
It is thoroughly established that Congress
has plenary authority over the Indians and
all their tribal relations, and full power
to legislate concerning their tribal
property. [255 U.S. 373, 392] The
guardianship arises from their condition of
tutelage or dependency; and it rests with
Congress to determine when the relationship
shall cease; the mere grant of rights of
citizenship not being sufficient to
terminate it. Lone Wolf v. Hitchcock, 187
U.S. 553 , 564, et seq., 23 Sup. Ct. 216;
Tiger v. Western Investment Co., 221 U.S.
286 , 310-316, 31 Sup. Ct. 578. In
authorizing the present suit Congress
evidently recognized that it was
impracticable to bring before the court all
interested individual Choctaws; hence,
treating them as a class, it designated the
representatives who should defend for them,
by analogy to the familiar practice in
equity, recognized in Equity Rule 38 ( 226
U.S. 659 , 33 Sup. Ct. xxix). To the
objection that the government's trusteeship
of the funds of these Indians and its
guardianship over their interests in the
allotted lands made it necessary that the
United States should be a party to the
proceeding, it is sufficient to say that the
regulation of this matter is clearly within
the power of Congress, and that Congress
acted within that power in constituting the
Governor of the Choctaw Nation the
representative of the defendants upon whom
notice of the suit was to be served in their
behalf, and designating the Attorney General
of the United States as their attorney to
appear and defend the suit. We are clear,
therefore, that there is no substantial
basis for the contention that the
jurisdictional acts have the effect of
depriving the Indians of their property
without due process of law, and hence are in
conflict with the Fifth Amendment, a
contention which, while overruled by a
majority of the Court of Claims, was acceded
to by the Chief Justice in a concurring
opinion. 51 Ct. Cl. 324-327.
The claim of Winton, Owen, and associates,
is based wholly upon services
rendered-nothing being asked because of
expenses incurred or moneys disbursed.
According to the findings the services
rendered were in the nature of professional
services before Congress and its committees,
individual Representatives and Senators, the
[255 U.S. 373, 393] Dawes Commission,
etc., intended to establish the right of the
Mississippi Choctaws to participation in the
material benefits of citizenship in the
Choctaw Nation, and to secure such
legislation by Congress as might be needed
for the practical attainment of the object
sought. The findings render it clear that
services of this nature, altogether proper
in character-not lobbying, in the odious
sense-were rendered by these claimants under
particular employment by many individual
Mississippi Choctaws, but with the object,
incidentally, of benefiting the Mississippi
Choctaws as a class, because only so could
the clients of the claimants be benefited.
We make no doubt that, for proper
professional services rendered and expenses
incurred in promoting legislation that has
for its object and effect the rescue of
substantial property interests for a class
of beneficiaries under a trust of a public
nature, it is equitable to impose a charge
for reimbursement and compensation upon the
interests of those beneficiaries who receive
the benefit, the same as if a like result
had been reached through successful
litigation in the courts. In either case
there is the same curious analogy to the
salvage services of the maritime law; and,
while it may be more difficult to weigh the
effect of a service rendered in promoting
legislation and to estimate its value than
in a case of successful litigation, we think
the principle of Trustees v. Greenough and
Central Railroad v. Pettus applies in the
one case as in the other.
The fact that in the present case the
services were rendered under contracts with
particular Indians, whether valid or
invalid, is no obstacle to a recovery.
Services not gratuitous, and neither mala in
se nor mala prohibita, rendered under a
contract that is invalid or unenforceable,
may furnish a basis for an implied or
constructive contract to pay their
reasonable value. King v. Brown, 2 Hill (N.
Y.) 485, 487; Erben v. Lorillard, 19 N. Y.
299, 302; Smith v. Administrators of Smith,
28 N. J. Law, 208, 218, 78 Am. Dec. 49; [255
U.S. 373, 394] McElroy v. Ludlum, 32 N. J.
Eq. 828, 833; Gay v. Mooney, Adm'r, 67 N. J.
Law, 27, 687, 50 Atl. 596, 52 Atl. 1131;
Gray v. N. Y. Central & Hudson River R. R.
Co., 161 App. Div. (N. Y. 924, 932, 145 N.
Y. Supp. 1125, affirmed 239 U.S. 583, 587 ,
36 S. Sup. Ct. 176.
And assuming the last set of contracts
made by Winton and Owen with the Mississippi
Choctaws (including the Daley contracts) be
regarded as valid, they still do not create
an obstacle to the present suit. As between
the claimants and their own clients, the
existence of valid express contracts would
bar recovery upon an implied contract. But
there was no privity between claimants and
the Mississippi Choctaws as a class, no
contract having been made with them in their
aggregate capacity and the individual
contracts not including all members of the
class. Under the equitable doctrine that we
hold applicable, claimants, having
substantially performed the agreements,
might demand compensation under them as
against their own clients, and the latter
would then be entitled to a ratable
contribution upon the basis of a quantum
meruit from their fellow beneficiaries whose
interests in the trust estate were secured
and rendered available through the services
of claimants. And by way of avoiding
circuity of action the equitable proceeding
may well be brought, as it has been brought,
by claimants directly against the
beneficiaries of the trust; claimants
waiving, as they must, any right to recover
under the contracts the measure of
compensation prescribed therein. Hence,
whether valid or invalid, the contracts are
important merely as they show that claimants
were not intermeddlers, but were employed by
large numbers of Mississippi Choctaws,
members of the benefited class, and that
their services were not intended to be
gratuitous.
But, in order that there may be an equitable
charge in such a case, it is essential that
the services rendered shall have been
substantially instrumental in producing a
result beneficial to the class of cestuis
que trustent upon whose [255 U.S. 373, 395]
interests the charge is to be imposed. And
while from the facts found it is altogether
probable that the services of Winton and
associates did materially conduce to bring
about a result beneficial to the Mississippi
Choctaws by furthering the measures of
legislation and administration that were
needed to give them a participation in the
lands and funds of the Choctaw Nation, there
is no specific finding of fact upon that
subject. If, from the circumstantial facts
as found, it followed as a necessary
inference that the services did materially
contribute to produce the effect indicated,
it might be held that the ultimate fact
resulted as a conclusion of law. See United
States v. Pugh, 99 U.S. 265 , 269-272. But
the facts as found are inconclusive
respecting the crucial point. Some of the
services set forth in the findings clearly
tended to produce a beneficial result; but
there were others having apparently a
contrary tendency. The interference by
Winton with the work of Commissioner
McKennon in making up his roll, and with the
work of the second party in making
identifications; the insistence before
Congress upon measures for granting to the
Mississippi Choctaws the rights of
citizenship in the Nation while retaining
their residence in Mississippi; and the
opposition to the passage of the Act of July
1, 1902, in its final form-may be mentioned.
However reasonable and well-intended these
acts on the part of the claimants may have
been-attributable as probably they were to
zeal in the interests of the Indians-it
cannot be said to be free from doubt that
the efforts of claimants, taken as a whole,
advanced the claims of the Mississippi
Choctaws as a class to citizenship in the
Nation and constituted a material factor in
producing the ultimate advantageous result.
But there were requests for additional
findings, directed to the very point upon
which findings are wanting. These requests
were preferred under rules 90-95, but were
filed more than the prescribed sixty days
after judgment. The [255 U.S. 373, 396]
court in its discretion might have rejected
them on this ground. Not doing this,
however, it passed upon the merits of the
requests, as was reasonable in a case so
important and so complicated; and since,
from the reasons given for rejecting them,
it appears that the court to some extent
misapprehended the nature of the main issue,
and the bearing of the requested findings
thereon, it cannot be said that had it not
done so it would have rejected the requests
because not filed in due season.
Many of the requests, while suggestive of
matters that might well have been included
in the findings, either are not framed with
sufficient definiteness to enable us to say
that there was error in rejecting them, or
are objectionable for other reasons. But
those here stated ought to have been acceded
to:
XXIX-R (52 Ct. Cl. 128): 'Whether or not the
labor of Robert L. Owen in behalf of the
rights of the Mississippi Choctaws to
citizenship in the Choctaw Nation, from
July, 1896, to 1906, resulted in any benefit
or value whatever to the Mississippi
Choctaws.'
XXXI-E (52 Ct. Cl. 130): 'Whether or not the
1,643 Mississippi Choctaws who were admitted
to citizenship in and received allotments as
members of the Choctaw Nation obtained the
right to become such citizens and thereby
receive allotments as a result to any extent
whatever of any of the labor and work done
by Robert L. Owen and associates during the
period of several years prior to the passage
of the acts under which they were enrolled
and allotted; and what compensation is
equitable or justly due there for on the
principle of quantum meruit as required by
the jurisdictional act in this case.'
The reasons given for the rejection of
these requests are not satisfactory; and for
failure to make findings in response
thereto, the judgment in the case of Winton
and associates, No. 6, must be reversed, and
the cause remanded for additional findings
as requested. [255 U.S. 373, 397] The claim
in No. 12, Katie A. Howe, executrix of
Chester Howe, deceased, like the one we have
been discussing, is based upon alleged legal
services rendered before Congress and the
Interior Department in representing and
protecting the interests of the Mississippi
Choctaws and establishing their rights in
and to lands in the Choctaw Nation. The
findings show that Chester Howe, having
acquired an interest in a large number of
contracts taken by a firm of Hudson &
Arnold, or the members of the firm, with
individual Mississippi Choctaw claimants,
having the object of securing the rights of
the latter to allotments in the tribal lands
of the Choctaw Nation and removing the
Indians to the Indian Territory, was
actively engaged for about a year and a half
in pressing the claims of those Choctaws
upon Congressmen and Senators, the
subcommittee on Indian Affairs of the House
of Representatives, the officials of the
Indian Office, and the Secretary of the
Interior. It is found not to have been
established by the evidence that Howe's
services were effective in establishing the
claims of the Mississippi Choctaws to
citizenship in the Choctaw Nation, or that
such legislation as was enacted, under which
they received allotments in the tribal
lands, was the result of his professional
services. The vital element of a benefit
conferred upon the Mississippi Choctaws as a
class is lacking, and from what we have said
it is manifest that the judgment of the
Court of Claims as to this claim must be
affirmed.
In the other cases covered by the present
appeals, viz. Bounds, No. 7, London, No. 8,
Field and Lindly, No. 9, Beckham, No. 10,
and Vernon, No. 11, the findings show no
benefit conferred upon the Mississippi
Choctaws as a class for which recovery can
be had under the jurisdictional acts. The
claims of Bounds, Beckham, and Vernon are
based upon services rendered and expenses
incurred in behalf of individual Indians.
London did nothing to advance the claims of
the Mississippi Choctaws to citizen [255
U.S. 373, 398] ship in the Nation. Lindly
and Field claim as associates of Chester
Howe; it does not appear that Lindly
performed any meritorious service for the
Indians; Field was active in impressing upon
Congressmen and Senators his views as to
necessary and proper legislation for
securing the rights of the Mississippi
Choctaws to citizenship in the Choctaw
Nation; but the extent and effect of such
services do not appear, nor does it appear
that the legislation finally enacted was the
result of said services. In none of these
cases does the record show any proper
foundation laid for a remand for further
findings. All these claims were properly
rejected.
No. 6. Judgment reversed, and the cause
remanded for further findings of fact as
above specified.
Nos. 7, 8, 9, 10, 11, and 12. Judgments
affirmed.
Mr. Justice VanDevanter and Mr. Justice
McReynolds took no part in the consideration
or decision of these cases.
