Eastern Cherokees v. United States

delivered the opinion of the court.

. The controversy here to be considered arises in this way: In recent years, there was litigated in the Court of Claims and this court a claim against the United States arising under treaties with the Cherokee Indians and consisting of four items, one of which, designated as item 2, was for $1,111,284.70, with interest at 5 per cent from June 12, 1838, to the date of payment. The litigation was conducted under § 68 of the act .of July 1, 1902, 32 Stat. 725 , 726, c. 1375, as construed and amplified by the 'act of March 3, 1903, 32 Stat. 982 , 996, c. 994, and the parties were .the Cherokee Nation, the Eastern Cherokees, and the United States. Most of'the Eastern'Cherokees. were members of the Cherokee Nation, but some were not, as was the case with those who remained' in North Caro

The litigation was started by the Cherokee Nation, which, on January 16, 1903, had entered into a contract, conformably to Rev. Stat., §§2103-2106, with the late Gustavus A. Finkelnburg and others, whereby the latter were to represent the Nation as its attorneys in the prose

The Court of Claims held, and its decree was to the effect, that there should be a recovery against the United States on all the items of the claim; that the recovery on all should be in the name of the Cherokee Nation; and that the recovery on items 1, 3 and 4 should be for the benefit of the Nation, and on item 2 for the benefit of the Eastern Cherokees, whether members of the Nation or otherwise; that the proceeds of-items 1, 3 and 4 should be paid or credited to the Nation, less the percentage thereof contracted by the Nation to be paid as counsel fees, and that the proceeds of item 2, “less such counsel fees as may be chargeable against the same under the provisions of the contract with the Cherokee Nation of January 16, 1903, and such other counsel fees and expenses as may be hereafter allowed by this court under the provisions of the act of March 3, 1903,” should be paid to the Secretary of the Interior, to be by him distributed directly to the Eastern Cherokees, inclusive of a class spoken of as Western Cherokees. The concluding portion of the decree declared: “So much of any of the above-mentioned items or amounts as the .Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of §§ 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item numbered two (2) as this court hereafter by appropriate order' or decree shall allow for counsel fees and expenses under the provisions of the act of March 3, 1903, above referred to, shall be paid by the :Secretary of the Treasury to the persons entitled to re

From that decree the parties severally appealed to this court, the United States complaining of the recovery against it on item 2, the Cherokee Nation' claiming that the recovery on that item ought not to have been declared to be for the benefit of the Eastern Cherokees, and the latter insisting (a) that the- recovery on that item should have been in their name, and not in that Qf the Nation, (b) that the Western Cherokees, so called, ought not to have been included among those who were to participate in the per capita distribution, and (c) that ‘'the court erred in charging the said fund of $1,111,284.70 and interest, to be realized from its said judgment or decree, with the fees of the attorneys for the Cherokee Nation;” This court overruled all objections to the decree, save the one relating to the inclusion of the Western Cherokees, and, after directing that the provision for the per capita distribution be so modified as to confine it to the Eastern Cherokees, whether east or west of the Mississippi, exclusive of the Old Settlers, affirmed the decree, with that •modification. 202 U. S- 10 -1.

In passing upon the question, whether the recovery on item 2 was in the name of the rightful claimant, this court said (p: 130): “The-Cherokee Nation, as such,' had no interest in the claim, but officially represented the Eastern Chprokees.” And again (p. 130): “We concur with the Court of Claims in the wisdom of rendering judgment in favor of the Cherokee Nation, subject to the limitation , that the amount thereof should be paid to the Secretary of the Interior to be distributed directly to, the parties entitled to it.”

In disposing of the insistence that the proceeds arising

On receipt of the mandate the Court of Claims modified its original decree so as to conform to the direction in respect of the persons who should- participate in the per capita distribution, and, in pursuance of the reservation made before, entered a supplemental decree fixing the compensation of the attorneys for the Eastern Cherokeés at 15 per cent of the amount, of item 2, including interest. Thereafter Congress made an appropriation to pay the original decree as modified, 34 Stat. 634 , 664, c. 3912, and the accounting officers of the Treasury computed the interest due on each item, thereby ascertaining that item 2 amounted to almost $5,000,000. Einkelnburg .and his associates, the attorneys for the Cherokee Nation, then presented to the Acting Commissioner of Indian Affairs a sworn statement of their services under the contract of January 16, 1903,' conformably to the requirements of Rev. Sfcat. § 2104, upon which Statement that officer and the Acting Secretary of the Interior determined and certi

Shortly thereafter the Eastern Cherokees filed in the Court of Claims, in the original cause, a- supplemental petition wherein they challenged (a) the right of the attorneys for the Cherokee Nation to receive any fees or compensation out of the moneys recovered on item 2, and (b) the authority of the officers of the Treasury Department to make any payment or deduction therefrom by reason of the contract between the Nation and its attorneys, and alleged, in.substance, that the decree furnished no warrant for any such payment-or deduction; that the jurisdictional acts had not conferred upon the court of claims any power to hear or determine any question pertaining to the fees of the attorneys for the Nation; and that throughout the litigatipn the Nation’s attorneys had contended that the amount due on item 2 should be awarded and'paid to the Nation for its own benefit,' to the exclusion of the Eastern Cherokees, save as most of them might as members of it be benefited indirectly. The prayer of the petition was that the court would pass a further decree “construing and enforcing its former decrees” in such manner that the entire proceeds of item 2,

"The litigation was over a fund arising from treaty stipulations supposed to be in the Treasury in trust for the parties entitled thereto. Surely the fund which was the stake in controversy should bear the expense, and such was the conclusion of this court. . . . The decree clearly recognized the distinction between the fees authorized by the separate acts. That is to say, the fees to be paid to the attorneys for the Cherokee Nation under, the first act were to be governed by the contract .made in accordance therewith, while under the second act the court was authorized to fix the fees of the attorneys, for the Eastern Cherokees. ... It was not until after the payment of the money under said contract that the Eastern Cherokees filed their supplemental petition herein praying the court to so construe its decree as to provide that the sum of $1,111,284.70 [with interest] should not be chargeable with the fees of the attorneys of the Cherokee Nation. But independently of their delay, such construction would not only be contrary to the language of the decree, but would, in effect, be changing the decree after its affirmance by the Supreme Court, and, too, after the contention here was presented there and denied. . . The- Cherokee Nation was the proper party to the suit under both jurisdictional acts, and it had contracted to pay its attorneys, with the approval of the Secretary of the Interior, in strict accordance with the law, all of which was recognized by the court and sanctioned and provided

for in its decree; and the decree, in respect to the payment of said fees, having been affirmed and executed, the court is not at liberty to modify the decree or to construe it contrary to the clear import of the language used.”

It was from this last decree that the present appeal was taken.

■ We pass other questions discussed in the opinion of the Court of Claims and elaborately argued by counsel, and come directly to consider whether further controversy over the matter presented by the supplemental petition was foreclosed by . the original decree and the proceedings had in this court on the prior appeal, because, if it was, that alone requires that the action of the Court of Claims in dismissing the petition be affirmed.

By rendering a decree on item 2 in favor of the Cherokee Nation, over the objection of the Eastern Cherokees, the Court of Claims necessarily recognized the Nation as the titular claimant and as authorized to prosecute the item to a recovery, even although the recovery was for the ultimate benefit of the Eastern Cherokees. The iatter so understood the decree and accordingly repeated their objection on the prior appeal, but this court sustained the action of the Court of Claims, saying, as we have seen: “The Cherokee Nation, as such, had no interest in the claim, but officially represented the Eastern Cherokees.” Of course, that was an adjudication of the controverted question whether, in view of the treaties and congressional enactments bearing on the subject and of the attitude of the Cherokee Nation, the recovery should be in its name or in that of the Eastern Cherokees.

When-the Court of Claims determined that question in favot of the Cherokee Nation, and also that the recovery should be for the benefit of the Eastern Cherokees, the question naturally aróse, whether the attorneys for the Nation should be paid out of the proceeds. That matter was dealt with in two paragraphs.of the decree. In one

Thus it is apparent that the decree of the Court of Claims as affirmed by this court, determined every question bear-' ing upon the right of the attorneys for the Cherokee Nation to have their fees for the prosecution of item 2 paid out of the proceeds thereof, save the single question of the amount of the fees. That was left to be determined by the terms of the contract and the certification contemplated by Rev. Stat. § 2104. It is not charged that the amount'actually paid was not the true amount under

What really was sought by the supplemental petition was a modification of the decree in a particular wherein it had been affirmed by this court. But the Court of Claims was without power to grant any such relief, for it, like any other court whose judgment or decree has been reviewed by this court, was bound to give effect to the rule stated in In re Sanford Fork and Tool Co., 160 U. S. 247 , 255:

“When a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this -court, and disposed of by its decree, is considered as finally settled; The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.”

Decree affirmed.