1 Reporter's Statement of the Case follows, and as apportioned, one-fourth to the Chickasaw Nation: Right-of-way tax Telephone line damages_ Pipe-line damages Sale of town lots and unallotted lands and interest on purchase-money balance------- The fractional amounts of $31.30 and $18.66 are computed on $125.20 and $74.63, and not on $128.20 and $71.63, respectively, but the totals are not affected by the shift of $3.00. The several amounts of $31.30, $18.66, and $14.46 are the identical amounts shown in section (d) of this finding. The three items of $31.30, $18.66, and $14.46 were taken up in the fund "Indian Moneys, Proceeds of Labor, Chickasaw Nation, Royalties, Grazing, etc.,” as indicated in section (d) of this finding. Of the sum of $18,041.83, there was taken up in "Indian Moneys, Proceeds of Labor, Chickasaw Nation, Town Lots,' the sum of $4,458.39 only, which is $52.06 less than one-fourth, $4,510.45. The difference of $52.06 is represented by the sum of $52.09 taken up in Chickasaw funds as related in Finding No. 21 (g), above. The transactions in connection with this item appear to be administrative adjustments of accounts in the Five Civilized Tribes, and there is no proof that they were incorrectly made. Offsets 22. In the case of Chickasaw Nation v. The United States and the Choctaw Nation, Docket No. K-334, in this Court, it is found that numerous sums were expended gratuitously by the United States for the benefit of the Chickasaw Nation of Indians. [Post, p. 45] The gratuities so expended are listed in detail and total $69,920.39. The facts respecting these gratuities, found in that case, are hereby made a part of these findings by reference.* The Court decided that the plaintiff was entitled to recover the sum of $22,858.78, and that the defendant was entitled • Amended by order of January 7, 1946, setting forth offsets in detail. Opinion of the Court 103 C. Cls. to offset against this amount a like sum of $22,858.78 for gratuities expended for plaintiff's benefit, and plaintiff's petition was dismissed.* WHALEY, Chief Justice, delivered the opinion of the court: The several Acts of Congress under which this suit is brought and jurisdiction given to entertain it are set forth in Finding No. 1. Amended petitions have been filed and issue joined by general traverse. The claims sued on here are solely those of the Chickasaw Nation. The Jurisdictional Act, 43 Stat. 537, June 7, 1924, covers "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." The act waives the lapse of time and statutes of limitation. The claims will be discussed in the order in which they appear in the special findings of fact. With the exception of a short deposition the parties rely entirely on defendant's accounting, the results of which have been filed in the case, and the parties are bound thereby. The reports so filed constitute for all practical purposes the sole source of information. The first claim is stated in the petition at $114,487.96, which plaintiff now reduces to $63,222.19. It arises under a presumed treaty or agreement of July 15, 1794. This treaty or agreement is not in evidence and neither the original nor copy thereof can be located. Its existence is evidenced only by a reference thereto in various appropriation acts and in them it appears sometimes as an "agreement," other times as a "treaty." By these various appropriations it appears that the obligation the Government assumed was the payment to the plaintiff of an annuity of $3,000 in goods. See order of January 7, 1946. 1 Opinion of the Court Appropriations of $3,000 per year were made by Congress until by the Act of March 3, 1901, 31 Stat. 1058, 1062, this annuity was funded at $60,000. Without knowledge of the terms of the treaty or agreement, it may not be said that Congress violated them by making no appropriations sooner than it did. Hence, the claim of $10,500 for the last half of the year 1794 and for the years 1795, 1796, and 1797 is without support and cannot be allowed. After Congress did begin appropriating to fulfill the treaty or agreement, the appropriations were without lapse. The treaty or agreement was recognized by the Congress only insofar as appropriations were made, and it is to be given limited effect accordingly. Recognition by the Court is proper notwithstanding lack of proof as to ratification. See Moore v. United States et al., 32 C. Cls. 593. For the years 1798, 1799, and 1800 goods of the annuity values were forwarded from the War Department storehouse in Philadelphia for the Chickasaw Nation. It must be presumed that they were received in due course. To require the defendant to prove affirmatively that the goods were received (the proof at this late date would have to be documentary) would place an impossible burden where it does not rightfully belong. The burden is upon the plaintiff to prove its case. While the jurisdictional act waives the “lapse of time," it does not thereby shift the burden of proof to the defendant, nor does the jurisdictional act by its terms excuse the absence of proof by the plaintiff. It must also be presumed that the goods forwarded were paid for out of the appropriations made in fulfillment of the supposed treaty or agreement. The Government's accounts are not complete in that respect, but it may not be assumed that the Government paid for the goods without appropriation. Counsel do not invite attention to any other appropriations. For the years 1801, 1802, 1803, and 1804 the records disclose purchase by the defendant of annuity goods for various tribes, including the plaintiff, but do not show how much was allocated to the plaintiff. Unless this allocation is known, the Opinion of the Court 103 C. Cls. shortage, if any, in the goods annuity of $3,000 cannot be ascertained. The accounts show no shortage for which judgment may be given. For the period 1805 to 1811, inclusive, the same remarks are applicable as for the period 1798 to 1800, inclusive, and there can be no recovery. By the treaty of October 19, 1818, 7 Stat. 192, 194, pending goods annuities were to be paid in cash. For the period 1812 to 1852 inclusive, the accounts show a balance unexpended from appropriations amounting to $4,446.05 which plaintiff is entitled to recover. As shown by Finding No. 4, an additional item of $3,000 was unexpended for that period, but it was carried forward in the accounts until finally expended for refugee Indians, as explained in Finding No. 8. Having been finally expended, the validity of the expenditure-that is, for the benefit of refugee Indianswill be discussed under the question of expenditures for refugee Indians. The second claim is for an unexpended balance of $2,000 under a treaty obligation of September 20, 1816, the obligation having been duly appropriated for. Recovery is due in the sum of $2,000. The third claim is for $1,000. Finding No. 6 shows it to be an unexpended balance of a treaty obligation of October 19, 1818, duly appropriated for. Recovery is due in the sum of $1,000. The fourth claim is for a shortage of $3,859.42 in disbursement for the education of children of the tribe, pursuant to the treaty of May 24, 1834 (Finding No. 7). The treaty obligation of $45,000 was duly appropriated by Congress, but the children to be educated were to be selected and recommended by a designated set of seven persons. More children could not be educated than were selected and recommended, and since, as the findings state, there is no evidence as to selection and recommendation, it does not appear that the treaty obligation was unfulfilled. It was not a bare cash annuity without a defined application. The object was apparently attained, the expense of educating selected and recommended children duly met, and there can be no recovery. 1 Opinion of the Court The fifth claim (Finding No. 8) is the "refugee" claim. The Act of July 5, 1862, appropriated $3,000 "For permanent annuity in goods, per act of twenty-fifth February, seventeen hundred and ninety-nine." But in this Act was a general proviso (it is quoted at length in the findings) for the suspension of appropriations for those Indians in hostility against the United States, including the Chickasaws and other named tribes, "at and during the discretion and pleasure of the President," and the Act further provided that the President might expend appropriations already made and unexpended, to relieve individual members of the tribes driven from their homes and reduced to want because of their friendship to the Government. There were similar succeeding acts of Congress, the Secretary of the Interior being substituted for the President. The Act of July 5, 1862, further authorized the President to proclaim treaties with the hostile tribes abrogated, but no such proclamation appears to have been promulgated. The Act of July 5, 1862, was perhaps peculiar in its language, in that it permitted that "appropriations the discretion be of the President." But what the Act did that is of particular concern here was to authorize the President to expend treaty appropriations for the benefit of individual refugees. To suspend or postpone annuities is very different from accumulating them. To resume annuities at the end of a period of suspension does not include the payment of back annuities. Annuities are annual allowances. Moreover, the Act of July 5, 1862, and succeeding acts did not require that annuity appropriations for hostile Chickasaws should be available only for Chickasaw refugees, Choctaws for Choctaws, Cherokees for Cherokees. The appropriations were of Government monies, not of tribal funds, and the self-evident purpose of the Act of July 5, 1862, was to suspend the payment of annual treaty obligations, the money thus set free to be available for refugees, who might in the very nature of the situation be scattered and impractical of segregation into tribes for the purpose of general and immediate relief, and individual accounting. |