United States v. Omaha Tribe of Indians 55 Ct. Cl. 521

THE UNITED STATES v. OMAHA TRIBE OF INDIANS; OMAHA TRIBE OF INDIANS v. THE UNITED STATES.

[53 C. Cls., 549; 253 U. S., 275.]

Judgment was rendered in favor of the plaintiff Indians in the court below for a portion of the amount claimed. On cross appeal the judgment was reversed in fart and affirmed in part, and the Supreme Court decided:

Findings purely of fact or of mixed fact and law are not reviewable on appeal from the Court of Claims.

By the treaty of 1854, art. 7, 10 Stat., 1043, the United States agreed to protect the Omahas from the Sioux and other hostile tribes as long as the President might deem such protection necessary. In a suit under the jurisdictional act of June 22, 1910, e. 313, 36 Stat., 580, held, that failure to provide necessary protection did not render the United States liable to pay for horses stolen and Omahas killed by the Sioux, in the absence of a finding that the protection was deemed by the President to be necessary.

The agreement of the United States, in the treaty of March 6, 1865, 14 Stat., 667, to pay a certain sum to the Omahas to be expended for cattle, etc., for their benefit, was not complied with by supplying cattle which died after reaching the reservation as a result of bad condition when purchased or of bad treatment while being driven there from market; and a finding that such cattle “ when they reached the reservation were in bad condition and 50 of them died,” necessarily imports that death was due to one or the other of those causes rather than to the hardships of the drive.

Under the treaties of 1854, supra, art. 4 and of 1865, supra, art. 2, certain moneys of the Omahas were to be or might be expended by the United States in the way of improvements for their benefit, art. 4 authorizing the President to expend part “ for such beneficial objects as in his judgment will be calculated to advance them in civilization ” and “ for medical purposes.” Held: (1) That a finding that a building, constructed as an infirmary, “ was not used, and it was not such a building as was contemplated by the treaties,” should be interpreted as meaning that it was not suitable for its purpose and was not accepted by the Indians; (2) that the Indians were not obliged to accept it, and the expenditure was a misappropriation of their funds “ for purposes not for their benefit,” within the jurisdictional act of June 22, 1910, supra.

*522By the treaty of 1854, supra, the land of the Omahas south of a certain line was ceded for a fixed consideration to be paid in the future either in money or through expenditures for their use from time to time at the President’s discretion, and it was provided that, upon a certain contingency (which took place), their land north of the line “ shall be and is hereby ceded ” at the same rate per acre as paid for the land south, deducting the area of a new reservation to be assigned. Held, that in the second case, as in the first, the passing of title was not conditioned upon payment of the consideration, and that interest upon the amount to be paid was not allowable. Judicial Code, sec. 177.

The fact that the jurisdictional act of June 22,1910, supra, authorized the determination of all equitable as well as legal claims of the tribe did not take the case out of the rule denying interest on claims against the Government. United States v. Old Settlers, 148 U. S., 427, distinguished.