APPEALS FROM THE COURT OF CLAIMS.
MR. JUSTICE HOLMES delivered the opinion of the court.
his is a claim for annuities granted by the treaty of July 23, 1851, 10 Stat. 949, but declared forfeited by the act of February 16, 1863, c. 37, 12 Stat. 652, in consequence of a great outbreak and massacre by the Indians. The claim is made
under the Indian appropriation act of June 21, 1906, c. 3504, 34 Stat. 325, p. 372, the material part of which is as follows:
"That jurisdiction be, and hereby is, conferred upon the Court of Claims in Congressional case numbered twenty-two thousand five hundred and twenty-four, on file in said court, entitled 'The Sisseton and Wahpeton bands of Sioux Indians against the United States,' to further receive testimony, hear, determine, and render final judgment in said cause, for balance, if any is found due said bands, with right of appeal as in other case, for any annuities which would be due to said bands of Indians under the treaty of July twenty-third, eighteen hundred and fifty-one (Tenth Statutes at Large, page nine hundred and forty-nine), as if the Act of Forfeiture of the annuities of said bands, approved February sixteenth, eighteen hundred and sixty-three, had not been passed; and to ascertain and set off against the amount found to be due to said Indians, if any, all payments or other provisions of every name or nature made to or for said bands by the United States, or to or for any members thereof, since said Act of forfeiture was passed, which are properly chargeable against unpaid annuities.
"Upon the rendition of such judgment and in conformity therewith, the Secretary of the Interior is hereby directed to determine which of said Indians now living took part in said outbreak and to prepare a roll of the persons entitled to share in said judgment by placing on said roll the names of all living members of the said bands residing in the United States at the time of the passage of this Act, excluding therefrom the names of those found to have participated in the outbreak; and he is directed to distribute the proceeds of such judgment, except as hereinafter provided, per capita to the persons borne on the said roll; and the court shall consider the evidence now on file in said cause in connection with such other evidence as may hereafter be adduced therein."
The act of June 21, 1906, was passed in pursuance and extension of an earlier act of March 3, 1901, c. 832, 31 Stat. 1058, p. 1078, which gave the Court of Claims full jurisdiction to
report to Congress what members of these bands of Indians were not concerned in the depredations of the outbreak, and to report what annuities would now be due to the loyal members if the act of forfeiture had not been passed. The court was "further authorized to further consider, ascertain, and report to Congress what lands, appropriations, payments, gratuities, or other provisions have been made to or for said bands or to any of the members thereof since said Act of forfeiture was passed." "And if said court shall find that said bands preserved their loyalty to the United States, they shall ascertain and state the amount that would be due to said Indians on account of said annuities had said Act of Congress of February sixteenth, eighteen hundred and sixty-three, not been passed, stating in connection therewith what credits shall be charged against said annuities on account of the lands, appropriations, payments, gratuities or other provisions as hereinbefore stated." A petition was filed, but the court found that it was impossible to determine what members of these bands remained loyal to the United States; but that a large majority, if not all, aided and abetted the massacres and depredations. 39 C. Cls. Rep. 172. Thereupon the later act was passed, referring to the above petition, and the present supplemental petition was filed.
The Court of Claims stated the account and ordered a judgment for the balance, from which both parties appeal. The account is as follows:
By fifty installments of $73,600, treaty July 23, 1851 $3,680,000 00
By amount allowed to chiefs for removal and subsistence by
By amount allowed to chiefs for manual labor schools, etc 30,000 00
1. To twelve installments of annuity appro-
priated under the treaty of 1851
949) prior to outbreak, less $104.66 re-
turned to the Treasury ($883,200
Amount credits carried forward 3,985,000 00