IN THE MATTER OF THE RIGHT OF THE CREEK NATION OF INDIANS. UNDER THE TREATY OF AUGUST 28, 1856 (11 STAT., 700), AND SECTION 2094 OF THE REVISED STATUTES, TO BE PAID "FOR ASSISTANCE IN AGRICULTURE," "FOR EDUCATION," AND "FOR SERVICES OF A WAGON MAKER, BLACKSMITH AND ASSISTANT, SHOP AND TOOLS, IRON AND STEEL".-CREEK INDIAN CASE.

1. Construction given to the Revised Statutes, sections 2093, 2094, 2095.

2. Construction of part of Article V, of the Creek treaty of August 28, 1856 (11 Stat., 700).

3. Under section 2093 of the Revised Statutes, the whole proceeds of the sale of the lands to which it refers are to be paid into the Treasury of the United States. 4. Section 2094 of the Revised Statutes makes a permanent specific appropriation of all sums that are or may be required to be advanced, paid or invested, by virtue of section 2093 of the Revised Statutes.

5. The only sums to be advanced, paid or invested, by virtue of said section, are such as are given by treaty as a consideration for the cession of lands by Indians.

6. There is no appropriation for the benefit of the Creek Nation of Indians, "for assistance in agriculture," ," "for education," or "for services of a wagon maker," etc. 7. When the estimates of appropriation, transmitted through the Secretary of the Treasury to Congress, include an item for the benefit of Indians, which by treaty depends upon "the pleasure of the President," it is to be presumed that the President has signified his pleasure that such estimate should be submitted to Congress.

8. But such estimates are not evidence that the President has signified his pleasure that the accounting officers of the Treasury Department shall allow a claim to be paid by warrant.

9. As the First Comptroller is required to countersign only those Treasury warrants which "shall be warranted by law," he must judge and decide whether a balance, certified by the Second Comptroller, is (1) authorized by law, and (2) whether there is an appropriation for the payment thereof.

July 14, 1884, the Second Auditor addressed a letter to the Secretary of the Treasury, inviting his attention to the claim of the Creek Nation of Indians for $19,740, under article V of the treaty of August 28, 1856 (11 Stat., 700), etc. The letter says:

"That article provides that in return for the relinquishment of cer tain lands, the Creeks are to receive certain sums of money, including the following amounts payable per annum, during the pleasure of the President' (1) two thousand dollars for assistance in agriculture (2) one thousand dollars for education (3) one thousand seven hundred and ten dollars for services of a wagon-maker, blacksmith and assistant, shop and tools, iron and steel-in all, $4710 annually.

"This claim is stated by the Indian Office for the amounts of the above-named items, which have, from time to time, been embraced in the estimates submitted to Congress, on the theory that such submis sion, being substantially an executive recommendation, is tantamount to an expression of the pleasure of the President' that such sums be paid; and that, notwithstanding the failure of Congress to act favora

bly by making the specific appropriation asked for, the Secretary of the Treasury is empowered, under sections 2093 and 2094, Revised Statutes, to issue a warrant for the amounts estimated.

"It is desirable, before acting on this claim, to obtain an authoritative decision on the main points involved, to wit:

"1st. Whether the favorable 'pleasure of the President' is sufficiently expressed by the embodiment, in official estimates submitted to Congress, of items made dependent on the executive pleasure by the terms of treaty;

"2d. Whether the provision of section 2094, Revised Statutes, that all sums required to be paid for Indian lands by treaties, are appropriated in conformity to them, and shall be drawn from the Treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the President,' is sufficient authority for the issue of a warrant in the present case, for payment of the sum claimed, from the appropriation, Fulfilling Treaty with Creeks.'

"It is respectfully requested, therefore, that the subject be referred to the First Comptroller for his opinion on the points involved.

The account, as stated by the Acting Commissioner of Indian Affairs, is, in part, as follows:

1884.

The United States to Creek Nation, Dr.

May 26. To the following sums, stipulated to be paid during the pleasure of the President, to the Creek Nation, under the Sth article of the treaty of Jan'y 24, 1826,* (7 Stat., 287) 5th article of the treaty of Feb'y 14, 1883, (7 Stat., 419) and 5th article of treaty dated August 7, 1856, (11 Stat., 700) reported to Congress for appropriation by the President, through the Secretary of the Treasury, in Books of Estimates for the fiscal years, 1875, 1876, 1877, 1879, 1883 and 1884, not appropriated by Congress, but subject to allowance and payment under sections 2093, and 2094, Revised Statutes.

The amounts to be paid, during the pleasure of the President, are specified in the 5th article of the treaty of 1856, and are as follows:

Blacksmith and assistant, and for shop and

The account then gives items for the period, 1875 to 1884 inclusive,

and the aggregate thereof.

July 16, 1884, this letter and account were referred by the Chief Clerk in the office of the Secretary to the First Comptroller, "for his opinion on the question

submitted.

*NOTE: This should be, Aug. 28. Treaties are of effect only as from the date of their proclamation. (Wheaton, Internat. L., §§ 264, 546.)

OPINION BY WILLIAM LAWRENCE, First Comptroller.

Treaties have been made with the Creek Nation, August 7, 1790 (7 Stat., 35); June 16, 1802 (Id., 68); February 12, 1825 (Id., 237); January 24, 1826 (Id., 286); February 14, 1883 (Id., 417); January 4, 1845 (9 Stat., 821); August 28, 1856 (11 Stat., 699). Some of the chiefs were dissatisfied with the treaty of 1825, and war was imminent. To avoid this, a number of the prominent chiefs were brought to Washington, and, on January 24, 1826, the treaty of 1825 was annulled and a new one entered into. Article eight of the treaty of 1826 (7 Stat., 287) provides that a blacksmith and a wheelwright and such assistance in agriculture as the President may think proper shall be furnished. A subsequent treaty was made at Fort Gibson, February 14, 1833 (7 Stat., 417) by article five of which, "as an evidence of * kind feeling

*" the United states promised to furnish one blacksmith and one wheelwright or wagon maker in addition to those already employed, and to bestow other enumerated benefits under the direction of the President, to be continued as long as he found them conducive to the welfare of the Creek Nation. These items were intended as gratuities in the nature of rewards of merit for good conduct. Prior to the treaty of 1856, the amounts that might thus be given for the various purposes were left in doubt. One of the objects of article five of the treaty of 1856, was to fix these amounts.

The treaty of 1856 (11 Stat., 700, 701) contains the following provisions:

"ARTICLE V. The Creek Indians do hereby, absolutely and forever, quitclaim and relinquish to the United States all their right, title, and interest in and to any lands heretofore owned or claimed by them, whether east or west of the Mississippi River, and any and all claim for or on account of any such lands, except those embraced within the boundaries described in the second article of this agreement; and it doth also, in like manner, release and fully discharge the United States from all other claims and demands whatsoever, which the Creek Nation or any individuals thereof may now have against the United States, excepting only such as are particularly or in terms provided for and secured to them by the provisions of existing treaties and laws; and which are as follows, viz: permanent annuities in money amounting to twenty-four thousand five hundred dollars, secured to them by the fourth article of the treaty of seventh August, seventeen hundred and ninety, the second article of the treaty of June sixteenth, eighteen hundred and two, and the fourth article of the treaty of January twenty-fourth, eighteen hundred and twenty-six; permanent provision for a wheelwright, for a blacksmith and assistant; blacksmith shop and tools, and for iron and steel under the eighth article of the last-mentioned treaty; and costing annually one thousand seven hundred and ten dollars; two thousand dollars per annum, during the pleasure of the President, for assistance in agricultural operations under the same treaty and article; six thousand dollars per annum for education for seven years, in addition to the estimate for present fiscal year, under the fourth article of the treaty of January fourth, eighteen hundred and forty-five; one thousand dollars

per annum during the pleasure of the President, for the same object, under the fifth article of the treaty of February fourteenth, eighteen hundred and thirty-three; services of a wagon maker, blacksmith and assistant, shop and tools, iron and steel, during the pleasure of the President, under the same treaty and article, and costing one thousand seven hundred and ten dollars annually; the last instalment of two thousand two hundred and twenty dollars for two blacksmiths and assistants, shops and tools, and iron and steel, under the thirteenth article of the treaty of March twenty-fourth, eighteen hundred and thirty-two, and which last it is hereby stipulated shall be continued for seven additional years.

"ARTICLE VI. In consideration of the foregoing quitclaim, relinquishment, release, and discharge, and of the cession of a country for the Seminole Indians contained in the first article of this agreement, the United States do hereby agree and stipulate to allow and pay the Creek Nation the sum of one million of dollars, which shall be invested and paid as follows, viz:"

The remainder of the article describes the time and mode of investment and payment.

The provisions of the Revised Statutes are, as follow:

"SEC. 2093. All moneys received from the sales of lands that have been, or may be hereafter, ceded to the United States by Indian tribes, by treaties providing for the investment or payment to the Indians, parties thereto, of the proceeds of the lands ceded by them, respectively, after deducting the expenses of survey and sale, any sums stipulated to be advanced, and the expenses of fulfilling any engagements contained therein, shall be paid into the Treasury in the same manner that moneys received from the sales of public lands are paid into the Treasury.

"SEC. 2094. All sums that are or may be required to be paid, and all moneys that are or may be required to be invested by the treaties mentioned in the preceding section, are appropriated in conformity to them, and shall be drawn from the Treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the President.

"SEC. 2095. All investments of stock, that are or may be required by treaties with the Indians, shall be made under the direction of the President; and special accounts of the funds under such treaties shall be kept at the Treasury, and statements thereof be annually laid before Congress."

With these treaty and statutory provisions in view, the questions submitted for an opinion may be now considered. Section 2093 of the Revised Statutes relates to Indian treaties, which

I. Cede lands to the United States, and,

II. Provide for (1) the investment or (2) payment to the Indians of the proceeds of the lands, after deducting:

1. The expenses of survey and sale;

2. Any sums stipulated to be advanced;

3. And after deducting the expenses of fulfilling any engagements. contained in the treaty.

This section requires that, after deducting the three above-named

olasses of expenditure from them, the proceeds of ceded lands must be paid into the Treasury. Literally, this section might mean that only the residue, after making the deductions, is to be paid into the Treasury. But, in practice, the entire proceeds are paid into the Treasury as a fund, and it is charged with the three classes of expenditures mentioned, and with moneys drawn from it to be invested for or paid to any Indian tribe. The Constitution provides that:

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." (Const., Art. I, sec. 9, cl. 7.)

In view of this, section 2094 makes a permanent specific apropriation of "all sums that are or may be required to be paid," and also of "all moneys that are or may be required to be invested by the treaties mentioned in the preceding section." The appropriation thus made of all moneys so required, shows that all proceeds of sales must be paid into the Treasury without first making any deductions. Some of the treaties provide for advances of money to Indians before any sales of lands, and some also provide for furnishing supplies and services to them, as part consideration for cessions of land and to be reimbursed from proceeds of sales. Section 2094 appropriates the money to make said advances and to pay for such services and supplies. Literally, this section appropriates money to pay "all sums that are or may be required to be paid by the treaties mentioned in the preceding section

,, whether as a consideration for ceding lands in trust for sale, or to be paid either for other consideration or reason, or even as a gratuity. But the section does not make any appropriation, except such as is to be reimbursed from proceeds of sales of ceded lands. The above analysis of section 2093 shows that it contemplates a re-imbursement of the United States from the proceeds of the sales of ceded lands, and hence it relates only to advances or payments made by the Government as a consideration for the cession. And section 2095 recognizes this view, by requiring "special accounts of the funds under such treaties," to be kept and statements thereof to be annually laid before Congress. These sections are all to be construed together, and the words of each to be limited to and restrained by the objects apparent in all. It is manifest that the three items, which make up the gross sum of the claim in this case, are not, in whole or in any part, a consideration for the cession of lands by the Creek Indians. They are recognized in the treaty of 1856, as accruing under other and prior treaties, but not as a consideration for cessions. This has been so well understood that no sum on account of any of these items has ever been paid by virtue of section 2094 of the Revised Statutes, no charge has ever been made against the fund aris ing from the proceeds of Creek ceded lands on account of payments for such items, and, so far as they have been made, payments have been