1 Syllabus but recovery, if any, could be had only of the balance, and that balance, if any, is unknown, and there can be no recovery on this claim. (No. 5.) Same; apportionment of salaries of mining trustees for Choctaw and Chickasaw Nations under the Atoka agreement.-Under the "Atoka Agreement" (30 Stat. 495, 505, 510) which provided for two trustees for the mining properties of the Choctaw and Chickasaw Nations, one trustee a Choctaw and one a Chickasaw, whose salaries were to "be fixed and paid by their respective nations," which arrangement continued until the enactment of the appropriation act of June 5, 1924 (43 Stat. 390), when one mining trustee was provided for the two nations, the apportionment of one-fourth of the expense to the Chickasaws and three-fourths to the Choctaws, as claimed by the plaintiff, would be to impose upon the Choctaws one-half the salary of the Chickasaw trustee provided the salaries were the same, which they were not, and on the basis of the salaries paid, for the 25-year period, the Choctaw Nation would pay to the Chickasaw trustee more than was paid to him by his own nation, contrary to the provisions of the Atoka agreement. Same.-During the period in which there was only one trustee, the proper apportionment of expense is conceded to be one-fourth to the Chickasaws and three-fourths to the Choctaws, and on this basis the plaintiff is entitled to recover $312.23. See Choctaw Nation v. United States and Chickasaw Nation, 83 C. Cls. 140. Same; distinction between funds expended "for" and "during” the scholastic year.-Where under the Act of April 26, 1906, the Secretary of the Interior was prohibited from expending from Chickasaw funds for school systems more in any one year than "the amount expended for the scholastic year ending June 30th, 1905"; a distinction is drawn between the language of the statute "for" the scholastic year and the plaintiff's claim based on the amount spent for schools "during" the year 1905; since it is apparent from the findings that tribal warrants issued for school purposes were not at once presented for payment, but if so presented were not paid until 1906. (No. 7.) Same; agency expenses do not constitute a gratuity.-Miscellaneous agency expenses, including pay of employees for 1913, 1914, and 1917, aggregating $671.64, disbursed from Chickasaw tribal funds, were not expended for the benefit of plaintiff and hence do not constitute a gratuity, and plaintiff is entitled to recover. Same; unauthorized expenditures for tribe's benefit not recoverable.-Following the decision in Choctaw v. United States, 91 C. Cls. 320, 371, expenditures of tribal funds, even where 103 C. Cls. made without specific appropriation by Congress in violation of Section 18 of the Act of August 12, 1912 (37 Stat. 518, 531), which on their face were for the benefit of the plaintiff, are not recoverable. Reporter's Statement of the Case Same; appropriation for defalcation of Indian Agent disbursing officer.—Where Congress made an appropriation (10 Stat. 41, 43) to cover the defalcation of a disbursing agent; and where the amount appropriated was less than the amount of the book entry as to the defalcation; in the absence of proof of the amount of the defalcation, it cannot be said that Congress appropriated less than the actual loss, and plaintiff is not entitled to recover. Same. The interest allowed on the amount appropriated to cover the defalcation was not a gratuity, since interest was justly due, and plaintiff is not entitled to recover. Same; accounting adjustments.-There can be no recovery for items represented by accounting adjustments where proof is insufficient and to readjust the accounting at this time might conceivably reintroduce errors which the adjustments were designed to correct. Same; expense of transmitting tribal funds.—Where payment by defendant's fiscal officers of the expense of transmitting the collections of tribal funds to the United States Treasury was authorized by neither statute nor treaty but where transmittal of the funds was an incident of their collection and was for the benefit of plaintiff, there can be no recovery under the provisions of the Act of August 12, 1935 (49 Stat. 571, 596). Same; unused gratuities offset against amount which plaintiff is entitled to recover.—The gratuities, amounting to $69,920.39, found in Chickasaw Nation v. The United States and Choctaw Nation (No. K-334), post page 45, but not used in that case are available for offset in the instant case and are so applied to the extent of $22,858.78, the amount which the plaintiff is entitled to recover, and the balance is available for future application; plaintiff's petition in the instant case being dismissed. The Reporter's statement of the case: Mr. Paul M. Niebell for the plaintiff. Mr. Melven Cornish was on the briefs. Mr. Wilfred Hearn, with whom was Mr. Assistant Attorney General Norman M. Littell for the defendant. The court made special findings of fact as follows: 1. This suit is brought under the special jurisdictional act of Congress approved June 7, 1924, 43 Stat. 537, Sections 1, 2, and 3 of which read as follows: 1 Reporter's Statement of the Case Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 attorney 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, documents, 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 Reporter's Statement of the Case 103 C. Cls. 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. The special jurisdictional act was modified by Joint Resolution May 19, 1926, 44 Stat. 568, permitting plaintiff to bring separate suits on one or more causes of action, and by Joint Resolution approved February 19, 1929, 45 Stat. 1229, extending to June 30, 1930, the time for filing such suit or suits, and by the act of Congress approved August 16, 1937, 50 Stat. 650, authorizing the filing of amended petitions prior to January 1, 1938, to conform to the evidence. 2. A petition under the provisions of the act of June 7, 1924, was filed December 23, 1929, and in answer thereto the defendant February 1, 1930, filed a general traverse. With leave of Court first obtained, plaintiff, on December 12, 1934, filed an amended petition, and with leave of Court first obtained, plaintiff, on September 23, 1936, filed a second amended petition, to which, on November 2, 1936, the defendant filed a general traverse. By the act of Congress approved August 16, 1937, 50 Stat. 650, it is provided: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in suits heretofore filed in the United States Court of Claims by the Five Civilized Tribes under their respective Jurisdictional Acts (Cherokee Nation, Act approved March 19, 1924, 43 Stat. 27; Seminole Nation, Act approved May 20, 1924, 43 Stat. 133; Creek Nation, Act approved May 24, 1924, 43 Stat. 139; Choctaw and Chickasaw Nations, Act approved June 7, 1924, 43 Stat. 537; as amended by joint resolutions approved May 19, 1926, 44 Stat. 568; and February 19, 1929, 45 Stat. 1229), plaintiffs therein shall have the right, prior to January 1, 1938, to amend their petitions to conform to any evidence heretofore filed in said suits, whether such amended petitions develop original claims or present new claims based upon said evi 1 Reporter's Statement of the Case dence; and jurisdiction be, and is hereby, conferred upon said 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 which may have been presented by said Indian Nations in any amended petitions heretofore filed, or which may be filed under the terms of this Act; and claims so presented shall be adjudicated by said court upon their merits as though presented by petition filed within the time limited by said respective original Jurisdictional Acts, as amended; and any case presenting claims which may have been dismissed upon the ground that new claims were set up by amended petition, after the expiration of the time limitation fixed in said original Jurisdictional Acts, as amended, shall be reinstated and retried by said court on their merits. Under the provisions of the act of August 16, 1937, the plaintiff filed a third amended petition December 22, 1937, to which, on February 16, 1938, the defendant filed a general traverse. 3. By the act of June 12, 1798, 1 Stat. 563, 564, Congress appropriated: "For the payment of annuities to the Six Nations, Chickasaws, Cherokees, and Creeks, the sum of fourteen thousand dollars." This appropriation was for the calendar year 1798. By an act of Congress approved February 25, 1799, 1 Stat. 618, entitled "An Act making appropriations for defraying" the expenses which may arise, in carrying into effect certain Treaties between the United States and several tribes or nations of Indians," money was appropriated out of the revenues of the United States to satisfy what was termed in the act "An agreement made and entered into with the chiefs of the Chickasaw nation, in Philadelphia, on the fifteenth July, one thousand seven hundred and ninety-four, to pay to the said nation goods to the amount of three thousand dollars annually." In addition to the agreement mentioned the act made appropriations to cover treaties, named as such, with the Creeks, the Cherokees, and the Six Nations. The agreement of July 15, 1794, with the Chickasaws, mentioned in the act, cannot be located either in the original |