Rollins v. . Cherokees , 87 N.C. 229 ( 1882 )

^* RUFFIN, J., did not sit on the hearing of this case. This action is prosecuted against the remnant of the Cherokee Indians remaining in the south-western countries of the state, after the removal of the great body of the nation under treaty arrangements with the government of the United States, to the reservation provided for them beyond the Mississippi river, for the recovery of compensation for services under contracts entered into on the same day between the plaintiff and John Ross, their Chief, and between him and a large number of their head-men and chiefs, both undertaking to act on behalf and by the authority of the entire body, as a separate and organic community.

The contracts bear date May 15th, 1874, the one entered into by their principal chief, being pursuant to certain resolutions adopted at a general council of the Indians, held on October 9th, 1872; and the other, essentially of the same import in its general provisions, executed by other chiefs and head-men; and both professing to be obligatory upon the entire tribe.

The contracts were on the same day presented to the judge of the district court of the United States, then holding a term of the circuit court at Asheville, and the execution of each acknowledged by the parties, and so, certified by him under the seal of the court with certain other facts stated, as required by the act of congress, hereafter more particularly referred to.

The contracts were with these certificates submitted to, and bear endorsed, the approval of the Commissioner of Indian Affairs (241) and of the Secretary of the Interior Department at Washington.

Among the claims asserted in the contract, five of which were against the government or its official agencies, to be prosecuted and pressed by the plaintiff, and to which he promises to give diligent attention, the last is thus described: "Sixth. To prosecute and attend to personally, and by such attorney or attorneys as he may employ, and whom he is hereby authorized to employ, all suits now pending in the courts of the United States in behalf of the Eastern Band of Cherokees against any person or persons whatsoever, and such other suits as it may be necessary hereafter to institute in any court of the United States or of the state of North Carolina, or of any other state or territory, to establish any right, or redress any wrong or injury done to the undersigned, chiefs or head-men, their tribe or any of their tribe."

The plaintiff stipulates to prosecute the several claims mentioned in the contract, and due from the different sources specified, and the suits on their behalf before these instituted and undetermined, and to receive as his remuneration therefor, the amount of twenty per centum, fixed in the contract with Ross, on whatever funds and the value of what ever property may be by him secured for them from the government or its agents, and from the said, or other suits, as their direct results, or upon any award made by referees or arbitrators, or upon a compromise, but declared in the other contract to be a sum "not to exceed twenty per centum to be allowed by the Commissioner of Indian Affairs, out of such amounts as he may collect for, or establish to be due to the Eastern Band of Cherokees on account of any one or all of the claims hereinbefore mentioned, and at the same rate out of the amounts of money or property as may be recovered in the said above suits at law or in equity, now pending or which may be hereafter instituted.

(242) The resolutions adopted in the Indian council in 1872, before the suits were brought for the services in which the present demand is made, conferring authority upon John Ross to employ counsel on behalf of the tribe, enumerate their several claims upon the government only, and make no mention of suits to be brought in the courts, while the contract actually made by him with the plaintiff, embraces attention to the suits which had in the meantime been brought, and were then pending. Both contracts were to be in force for four years, and the compensation sought in the present action is limited to the services rendered in the suits only.

The somewhat anomalous condition in which the Indians were placed by reason of the participation of large numbers of them in the military service of the Confederate government during the civil war, and the refusal of the government to pay over the funds due them in consequence, was put an end to by the passage of the act of congress, approved July 27th, 1868, in which the Secretary of the Interior is directed to "cause a new roll or census to be made of the North Carolina or Eastern Cherokees, which shall be the roll upon which payments due said Indians shall be made," and to "cause the Commissioner of Indian Affairs to take the same supervisorycharge of the Eastern or North Carolina Cherokees as of other tribes ofIndians." Acts 40 Cong., 2 Sess., ch. 259.

Under this act an enrolment was made and the Interior Department assumed and has exercised such supervisory control over the interests of these Indians, establishing schools, appointing agents and disbursing money to them, and they have organized and put in operation a form of local civil government and public administration, but of course in subordination to the state government.

To enable the Indians to pursue and obtain their funds and the lands which had been purchased with them by preceding agents, (243) in the act appropriating money for the Indian service for the year ending June 30th, 1871, congress inserted the following clause: "That the Eastern Band of the Cherokee Indians by that name and style be and they are hereby authorized and empowered to institute and carry on a suits in law or equity, in the district or circuit courts of the United States, against the present or former Indian agent or agents of said Band, their administrators, executors and heirs and against the securities of such agent or agents, their administrators, executors, curators or trustees, for all claims, causes of suit or rights, in law or equality, that said Band may have against them or either of them; and the law of limitations shall apply to such claims, causes of action and rights, from and after the day this act takes effect. It shall be the duty of the District Attorney and the Attorney General of the United States to institute and prosecute all suits, causes for which may arise under this section." Acts 40 Cong., 2 Sess., ch. 296, sec. 11.

Pursuant to this enactment, which, if it does not confer, recognizes a corporate capacity in the Indians as a collective body or tribe to pursue and recover their property by action in the federal courts, sanctions its institutions and provides counsel to prosecute it, suits where instituted on their behalf, one in equity against W. H. Thomas, William Johnston and James W. Terrell, and the other, at law, against them and two other co-defendants, in the circuit court of the western district of North Carolina, which were depending when the contracts were made with the plaintiff, Rollins, and to his service in conducting them, and the compensative provided therefor, the before recited provisions apply.

These cases and the controversies which gave rise to them were, by written consent of the parties, and the approval of the district judge presiding and holding the court, and that of the Commissioner of Indian Affairs, and the Secretary of the Interior, as well as the department of justice at Washington, referred to three referees or arbitrators, for a full adjustment, "whose award was to be final (244) and a rule of court."

The referees with great and unwearied care and diligence entered upon and discharged their duties, and made their report, awarding the Indians a large extent of territory, and settling and determining the claims of the parties against each other, and the right and title of individual members of the Band to various tracts under previous contracts with agent. The award was made and became a degree of the court.

Upon the determintion [determination] of the suits, the plaintiff, Rollins, and his coplaintiff, Otis F. Presbrey, to whom one moiety of the claim had been assigned, made demand for compensative according to the terms of the contract with the head-men and chiefs, in March, 1875, on the Interior Department accompanying the application with a detailed and verified statement thereof in writing, as directed by section 2104 of the Revised Statutes of the United States, and claiming to be due the sum of $42,236.77. The application was referred to the board of Indian commissioners for examination and report, and they made their report in September following, recommending the payment of $5,200 to the claimants in full of their demand. On the same day the Secretary approved the allowance, adding, "without prejudice to the parties to claim a balance to be still due to them." This sum was paid to the plaintiffs. Subsequently a second application for an additional allowance was preferred before the Commissioner and the Secretary and denied by them, and thereupon this action was brought.

In the exercise of the power conferred by the constitution "to regulate commerce with foreign nations, among the several States and with the Indian tribes,"congress has by law prescribed in what form and with what solemnities contracts "with any tribe of the Indians or individual Indians, not citizens of the United States" must be made, in order to their validity, Rev. St. U.S., Sec. 2103, to the provisions (245) of which these contracts seem to have been intended to conform; and the statute declares that "all contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value, paid to any person, by any Indian or tribe, or any one else, for or on his or their behalf on account of such services in excess of the amount approved by the Commissioner and Secretary, for such services, may be recovered by suit in the name of the United States, in any court of the United States, regardless of the amount in controversy."

The next section (2104) forbids the payment to any agent or attorney by an officer of the United States, under any contract, other than the fees due for services rendered thereunder, and proceeds to declare that the moneys due the tribe, Indian or Indians, as the case may be, shall be paid by the United States through its own officers or agent to the party or parties entitled thereto; and no money or thing shall be paid to any personfor services under such contract or agreement until such person shall have first filed with the commissioner of Indian affairs, a sworn statement showing each particular act or service, under the contract, giving date and fact in detail, and the Secretary of the Interior and Commissioner of Indian Affairs shall determine therefrom, whether in their judgment such contract or agreement has been complied with; if so, the same may be paid; and if not it shall be paid in proportion to the services rendered under the contract.

Section 2105 subjects the person receiving money in violation of the provisions of the two preceding sections, and his aiders and abettors, beside the forefeiture, to punishment by imprisonment for not less than six months, and a fine not less than one thousand dollars. The remnant band of Cherokees remaining in the state, by distinct legislative action, have been placed upon the same footing with other Indian tribes, under the protection and care of the government, (246) and theses statutory provisions apply with equal pertinency and force to them as to that portion of the tribe who have emigrated, and located in their western home.

This seems to have been so understood by the plaintiffs, and is manifest not only in pursuing the prescribed formalities in the initiating the agreement, but in applying to the department for the allowance and payment of the remuneration it provides; and resort is had to the jurisdiction of the state court, only after efforts for an additional sum have proved unavailing and fruitless, there.

It is obvious that the Indian tribes are in a state of pupilage to the general government, and the safe guards of law are placed over them to secure them and their property from the artful practices of designing men, the dictate of an enlightened sense of national duty to the weak and defenceless of a race rapidly diminishing in numbers, and deemed incapable of self-protection.

This policy finds expression in the legislation of congress in reference to the tribes and the superintending control assumed over them for their benefit. We do not undertake to say nor intimate the use of any improper influence in bringing about these contracts — for there seems to have been none — nor to under-estimate the advantages derived by the Indians from the energetic and persistent efforts of their agent in the successful prosecution of the suits; but nevertheless, the compensation to be paid must pass under the revision of the national authorities, charged with this imposed duty, as it has passed, and the result is conclusive upon the court.

The present action is in substance an indirect appeal from the twice rendered decision of the department, and after a distinct and final denial of further compensation.

In our opinion, as that was the only tribunal empowered to entertain the application for payment and determine the amount to be paid, so its decision is exclusive of the interference of a court (247) of the state, and conclusive upon the court.

In our opinion, as that was the only tribunal empowered to entertain the application for payment and determine the amount to be paid, so its decision is exclusive of the interference of a court (247) of the state, and conclusive in effect.

Indeed this is conceded in one of the contracts, which specifies a maximum of compensation — not in excess of twenty per centum — leaving the amount "to be allowed by the Commissioner of Indian Affairs out of such amounts as he (the agent) may collect," and applying the same rule and rate to the value of property acquired by the suits, arbitration or compromise. The sum has been fixed by the Commissioner, sanctioned by the head of the department and paid, and however inadequate it may appear to us, as a remuneration, it is beyond the jurisdiction of the superior court to revise and modify, or to make addition in amount.

Again, the allowance was intended to be, and so it is declared in the report of the board to the Secretary, in satisfaction of the whole claim, and it is not the less so, because the latter left the claimants free to assert, as they afterwards did unsuccessfully assert, a right to an additional allowance upon the same offices, and thus the adjudication became and was unconditional and final.

Strongly corroborating these views is the provision in the enactment authorizing the suits which imposes upon the district Attorney and Attorney-General the duty of bringing and prosecutor the proposed suits in their official capacity; and as the necessity of employing further professional aid is left with the public authorities, so must be the duty imposed of passing upon the extent and value of the services and their just measure of remuneration.

Indeed it is a question not wholly free from doubt, whether, as the professional services of the District Attorney and Attorney-General are expressly given to the Indians in the authorized suits, any additional professional services under contract or otherwise, could under the law be recognized and allowed by the Commissioner out of the moneys due the Indians. But it is our province to decide the point, and it is referred to only to sustain our conclusion that (248) to no other source can the plaintiff look for compensation.

Some embarrassment would be met if there were jurisdiction in enforcing in one action two contracts so variant in the provision for compensation to the same Attorney and agent, and for the same services in the one case, determinate, and in the other, dependent upon the action of another party, both of which contracts have been sanctioned according to the findings of the jury, by the Eastern Band, as a collective and tribal body. But the jurisdictional difficulty met in limine precludes any inquiry as to the effect of the contracts in this respect.

Nor have we considered the defence under our own statute (Bat. Rev. ch. 50 sec. 9) which avoids all contracts made since may 18th, 1838, for an amount equal to ten or more dollars, with any "Cherokee Indian or any person of Cherokee Indian blood within the second degree," unless it be in writing and signed in the presence of two at testing witnesses. if this act be not obnoxious to the imputation of discriminating between this and other classes of citizens, under the prohibition of the recent changes in the constitution of the United States, it is inapplicable to the present case, if not for the reason that it deals with individual Indians, rather than with the tribes, in their political and corporate relations, because of the superseding and annulling effect of the legislation of congress covering the same matter.

It is quite obvious then that the general government having assumed the guardianship and oversight of the various Indian tribes, and prescribed rules and regulations for their guidance and protection, their contracts cannot be enforced against them in the state courts, without the consent of this parental authority, and redress must be sought for violated agreements in a different jurisdiction.

The question of jurisdiction was reserved and the trial allowed to proceed before the jury, but whether reserved or not, if the defect or want of jurisdiction appears, even after verdict, the (249) action should be dismissed, since the results of a trial coram nonjudice, are absolutely null.

We therefore sustain the ruling of his Honor in dismissing the action upon the facts found by the jury and contained in the statement accompanying the record, for the reasons we have already given, and in leaving the plaintiffs to seek elsewhere the relief, if any, to which they may be entitled.

No error. Affirmed.

Cited Frazier v. Cherokee Indians, 146 N.C. 482.