1 Opinion of the Court 9. Subsequently, on April 8, 1890, an action was brought in the United States Circuit Court for the Western District of Arkansas under the provisions of Revised Statutes, sec. 2103, the style of which is as follows: The United States on the Relation of Daniel Noonan The court quashed the summons as to Samuel J. Crawford because he was beyond the jurisdiction of the court. As to the other defendants it was held that the payments to them were authorized by section 4 of the act of March 1, 1889, supra. No appeal was taken from this judgment. The court decided that the plaintiff was not entitled to recover. WHITAKER, Judge, delivered the opinion of the court: The plaintiff alleges in its petition that a certain payment made by the duly authorized delegates of the Creek Nation to Samuel J. Crawford on a contract for attorney's fees, which had not been approved by the Commissioner of Indian Affairs, was in violation of section 2103 of the Revised Statutes of the United States, and that the defendant is, therefore, liable to it, because it had "failed and neglected to institute suit for the benefit of said Nation to recover said sum *, in disregard of its duty as trustee." The payment was made pursuant to an agreement between the parties, ratified by both the National Council of the plaintiff and by the Congress, and was paid in exact accord with the agreement and the acts of ratification and the requests of the plaintiff made pursuant thereto. The agreement made between the representatives of the plaintiff and of the defendant provided for the payment of $2,280,857.10 for lands ceded the defendant, and of this amount, it provided, "two hundred and eighty thousand eight hundred and fiftyseven dollars and ten cents shall be paid to the national treas 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 an maintain such an action is, however, so doubtful t have determined not to do so, and I am better with this conclusion from the fact that under t language of the statute the name of the Uni is at the service of these people, and if they do representatives of the Creek people ca of the United States, assert whatever righ advised by private counsel they have without the interposition of the Attorn 9. Subsequently, on ApriLauman in the United States Creur Ge of Arkansas under the protease 2103, the style of which is as flows The United States on the rear Elijah Hermogine. Le David M. Hodge, Irene & Experien The court quashed the summos as to cases The court decided that the pirm Opinion of the Court 93 C. Cls. urer of said Muscogee (or Creek) Nation, or to such other person as shall be duly authorized to receive the same." In ratifying this agreement Congress said: 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, * * * This is in strict compliance with the agreement. The act of the National Council of the Creek Nation provides: the said amount which is to be paid in money, to be paid over in such sums and at such times and places as may be required, directly to the National Treasurer of the Muskogee Nation, or to such officer or other person or persons as shall be named in the requisition of the proper authorities of the Muskogee Nation; and on the same day another act was passed providing that the Principal Chief of the Creek Nation was authorized and directed to make requisition * * * * for the payment to Pleasant Porter, David M. Hodge, and Esparhecher * of the sum of ten percent of the additional price of the lands ceded to the United States by the treaty of 1886 The same to be paid in such sums and at such times and places as shall be requested by said delegates * * * Pursuant thereto, on March 12, 1889, the Principal Chief of the Creek Nation made the requisition called for, and the money was paid as requested. How it is possible for liability to have been incurred by the defendant for having followed to the letter the provisions of the agreement and of the acts of the legislative bodies of the two parties ratifying the agreement, is beyond our comprehension. Certainly section 2103 of the Revised Statutes creates no such liability. This act vests no right in any Indian tribe. It does not even direct the defendant to institute suits for the recovery of money paid out 1 Syllabus under a contract entered into in violation of its provisions. It merely permits the use of the name of the United States in a suit brought by some private party to recover such sums. Such a suit was in fact brought, and it was decided adversely to the plaintiff. The money was paid to the plaintiff's representatives in strict accord with the agreement and without any restrictions as to what they should do with it. It was paid to Samuel J. Crawford or on his order, not by the defendant, but by plaintiff's representatives, and they, it may be said, in so doing, were acting according to instructions of the National Council of the Nation. There is no merit in plaintiff's petition, and it will therefore be dismissed. It is so ordered. LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur. HAZEL L. FAUBER, ADMINISTRATRIX, C. T. A., V. THE UNITED STATES [No. 41941. Decided March 3, 1941] On the Proofs Patents for hydroplane boats; assignment of exclusive rights in a limited field.-Where patentee made an assignment to another providing that all the rights under the two patents in suit were transferred to the assignee only "insofar as they relate to the exclusive use thereof in connection with the manufacture, use, and sale of hydroplane boats, or the like, primarily designed not to leave the surface of the water and not including toy and model boats too small to carry one person, together with the right to sue for and recover profits and damages for past or future infringements of any one or all of said patents," it is held that said transfer was of exclusive rights in a limited field and did not convey title to the patents. Gamewell Fire-Alarm Telegraph Co. v. City of Brooklyn, 14 Fed. 255, cited. Same. While an exclusive licensee as to one field of use, the assignee was a nonexclusive licensee under the patents, and as such was not a necessary party plaintiff in the instant suit since the interests of assignee are not affected by the claim made 323387-41-vol. 93--3 |