*

Reporter's Statement of the Case

93 C. Cls.

Nation, be, and he is, hereby authorized and directed for and on behalf of the Muskogee Nation, to make requisition upon the proper authorities of the United States, in such form as may be required by such authorities, for the payment to Pleasant Porter, David M. Hodge, and Esparhecher, the duly authorized delegates of the Muskogee Nation, or in the event of the death or inability to act of any of them, then to the surviving member or members of them, of the sum of Forty-two thousand one hundred and ninety-eight dollars ($12,198.00) out of the amount that may be appropriated by Congress to be paid in money to the Muskogee Nation on account of the purchase of the lands ceded by the treaty of 1866, under the agreement of January 19th, A. D. 1889, between Honorable William F. Vilas, Secretary of the Interior, and the said delegates. The same to be paid in such sums and at such times and places as shall be requested by said delegates, and such requisition when made shall be taken and accepted as, and is hereby declared to be, the requisition of the proper authorities of the Muskogee Nation.

4. At the time the Creek delegates entered into the aforementioned agreement with the Secretary of the Interior, and prior to the passage of the acts of the National Council of said tribe, as above set out, the said delegates wrote the Principal Chief of the Creek Nation enclosing a copy of the agreement, in which letter they said:

On account of the vast interests involved and the many legal questions to be determined, we deemed it essential, at the outset to employ an Attorney to advise and assist in conducting the negotiations, and also in securing the necessary appropriation by Congress.

Acting therefore, upon our own judgment as well as through your advice, we employed the Honorable Samuel J. Crawford and entered into a contract with him subject to ratification by the Council to act as our Attorney, Solicitor, and Counsel and agreed to pay him ten per centum of whatever amount we might receive for said Oklahoma lands.

With the assistance of said Attorney, we prepared and on the 27th day of December last, submitted to the Government of the United States, through the Honorable John H. Oberly, Commissioner of Indian Affairs, a proposition as the basis for such negotiations, of which the following is a copy:

1

Reporter's Statement of the Case

Should our action in this matter be approved and ratified by the Council, it will also be necessary for the Council to ratify the contract made with Hon. Samuel J. Crawford, our Attorney, in order to enable us to fulfill and carry out our agreement with him, and close the matter up in a manner satisfactory to all who have rendered valuable assistance in the premises. In the management of this important matter, we have endeavored to subserve the best interests of the Muskogee Nation, and if we have succeeded to the satisfaction of our people, we shall be contented.

We herewith forward drafts of the following Acts which it is necessary for the Council to pass and should be passed exactly as they are written without the change of a single word, if success is to be achieved. 1st. An act ratifying and confirming the sale.

2nd. An act confirming contract made with the Hon. Samuel J. Crawford.

3rd. An act asking for the appropriation and payment of the price agreed upon.

4th. An act authorizing requisition to be made for ten per cent of the additional price agreed upon.

5th. An act authorizing requisition to be made for $42,198 to settle the McKee note.

5. On March 1, 1889, Congress ratified the agreement (c. 317, 25 Stat. 757, 759). Section 4 of the act reads as follows:

That the Secretary of the Treasury is hereby authorized and directed to pay, out of the appropriation hereby made, the sum of two hundred and eighty thousand eight hundred and fifty-seven dollars and ten cents, to the national treasurer of said Muscogee (or Creek) Nation, or to such person as shall be duly authorized to receive the same, at such time and in such sums as shall be directed and required by the national council of said nation, and the Secretary of the Treasury is hereby further authorized and directed to place the remaining sum of two million dollars in the Treasury of the United States to the credit of said Muscogee (or Creek) Nation of Indians, to be held for, and as provided in said articles of cession and agreement, and to bear interest at the rate of five per centum per annum, from and after the first day of July, anno Domini eighteen hundred and eighty-nine; said interest to be paid to the treasurer of said nation annually.

Reporter's Statement of the Case

93 C. Cls.

Prior to the passage of this act, and on February 11, 1889, the Secretary of the Interior wrote to the Chairman of the House Committee on Indian Affairs as follows:

SIR: I have the honor to advise you that, since the making of the agreement for the relinquishment and cession of the claims of the Muscogee or Creek Nation to the lands which were ceded to the United States in the treaty and cession of 1866, I have learned that a contract which was made between that Nation and the Honorable S. J. Crawford for the special services of Mr. Crawford in presenting the claims and interests of that Nation, which contract was dated on the 4th day of February 1885, and made with him by two delegates of the said Nation, but which was subsequently disaffirmed by a letter to the Commissioner of Indian Affairs, signed by the principal chief of said Nation, had been practically renewed by the delegates of the said Creek Nation with whom the agreement of cession now pending before Congress was negotiated, and that an act of ratification of the said agreement was recently passed by the national council of the said Creek Nation. The recent agreement of cession was made by me without the intervention of any attorney, but directly; and I have not been cognizant of the extent or value of any services which have been rendered by Mr. Crawford in the past upon the request of the present delegates, or of any former delegates, of that Nation. Declining to approve the contract, Mr. Crawford has surrendered it at my request, and expressed his willingness to accept in compensation such sum only as the national council of the Creek Nation shall deem to be a just compensation for his services and such as they may be willing to pay him by a direct act of their council for that purpose. It is suggested, however, that under the statutes of the United States authority is necessary to be conferred by congress upon the Creek Nation to give and upon him to receive any sum of money in payment of his services in this behalf. It has seemed to me that this was the proper course for this business to take. Whatever may be justly due from the Creek Nation, in view of its advanced position among Indian nations and its independent powers, may properly be left to itself to adjust and pay.

I therefore transmit herewith copies of the papers referred to, and a suggestion of such an amendment as, in my opinion, would, if the judgment of congress approved that course, effectuate the object, all of which is

1

Reporter's Statement of the Case

respectfully submitted for the consideration of the committee.

6. On March 12, 1889, the Principal Chief of the Creek Nation made two requisitions on the Commissioner of Indian Affairs, the first of which reads in part as follows:

* hereby makes requisition, on behalf of the Muskogee (or Creek) Nation, for the payment to Pleasant Porter, David M. Hodge, and Esparhecher the duly authorized delegates of the Muskogee (or Creek) Nation or to their order, of the sum of Two hundred and twenty-eight thousand and eighty-five dollars and seventy-one cents ($228,085 & 71/100) being ten per cent of the additional price of the land sold to the United States under the agreement of January 19th, 1889 in accordance with an Act of Congress entitled An Act to ratify and confirm an agreement with the Muskogee (or Creek) Nation of Indians in the Indian Territory and for other purposes approved March 1st 1889-Said sum to be charged to the appropriation of Two hundred and eighty thousand eight hundred and fifty-seven dollars and and ten cents ($280,857 10/100) to be paid in money to the National Treasurer of said Muskogee (or Creek) Nation, or to such person as shall be duly authorized to receive the same at such time and in such sums as shall be directed and required by the National Council of said Nation, under said Act.

The second requisition reads in part as follows:

* hereby makes requisition on behalf of the Muscogee (or Creek) Nation for the payment to Pleasant Porter, David M. Hodge, and Esparhechar the duly authorized delegates of the Muscogee (or Creek) Nation or to their order of the sum of Forty Two Thousand one hundred & Ninety eight Dollars in accordance with an act of Congress entitled An act to ratify and confirm an agreement with the Muscogee (or Creek) Nation of Indians in the Indian Territory and for other purposes approved Mch 1" 1889. Said sum to be charged to the appropriation of Two hundred & Eighty Thousand Eight hundred and fifty seven & 10/100 Dollars to be paid in money to the National Treasurer of said Muscogee (or Creek) Nation or to such person as shall be duly authorized to receive the same at such time and in such sums as shall be directed and required by the National Council of said Nation under said act.

Reporter's Statement of the Case

93 C. Cls.

Pursuant thereto, on March 13, 1889, the Treasurer of the United States paid to the three above-named delegates the sum of $270,283.71. Of this amount said delegates paid to Samuel J. Crawford, or to others designated by him, the sum of $228,058.71 as attorney's fees, and they paid $42,198.00 in settlement of the McKee note, the principal amount of which was $84,000.

7. The contract executed by the delegates, on behalf of the Creek Nation, with Samuel J. Crawford, providing for the payment of 10 percent of the amount received by the Creek Nation as attorney's fees for his services during the negotiations, was not submitted to the Secretary of the Interior for approval and was never approved by him. On the contrary, the Secretary, learning of the execution of this contract, demanded that it be surrendered to him, which was done.

8. Complaint having been made by certain members of the Creek Nation that said payments were unlawful, the Secretary of the Interior, on the recommendation of an agent of that department who had made an investigation of the transaction, referred the matter to the Attorney General of the United States, who replied to the Secretary of the Interior in part as follows:

Finally, the language of section 2103 provides for an action, in the name of the United States, but evidently upon the relation of some private person, or persons. It does not provide in terms for an action by the United States through the Attorney General. My first inclination was, if an action was to be brought, to bring it myself to the end that whatever might be recovered should go to the use of the real beneficiaries, instead of a moiety going to the person or persons through whom the action should be prosecuted. My right and power to bring and maintain such an action is, however, so doubtful that I have determined not to do so, and I am better satisfied with this conclusion from the fact that under the direct language of the statute the name of the United States is at the service of these people, and if they choose so to do representatives of the Creek people can, in the name of the United States, assert whatever rights they may be advised by private counsel they have in the premises, without the interposition of the Attorney General.