Statement of the Case. the present case was not required to withhold, and did not withhold from the State anything that would otherwise be due to the State. Judgment affirmed. UNITED STATES v. OLD SETTLERS. OLD SETTLERS v. UNITED STATES. APPEALS FROM THE COURT OF CLAIMS. Nos. 1031, 1032. Argued December 13, 14, 1892. Decided April 3, 1893. Finding of facts by the Court of Claims, in a suit which Congress has authorized it to take jurisdiction of in equity, may be reviewed by this court. Congress has not authorized the courts in this litigation to go behind the treaty of August 6, 1846, 9 Stat. 871, with the Cherokee Nation. So far as there is a conflict between the treaties with the Cherokees and subsequent acts of Congress, the latter must prevail. The contention made by the Western Cherokees as to the ownership of land to the west of the Mississippi was put to rest by the treaty of 1846, and cannot now be revived. The rule that, when a party without force or intimidation and with a full knowledge of all the facts in the case, accepts on account of an unliquidated and controverted demand a sum less than what he claims and believes to be due him, and agrees to accept that sum in full satisfaction, he will not be permitted to avoid his act on the ground of duress, does not apply in this case, as it is evident that Congress was convinced that a mistake had been made, and intended to afford an opportunity to have it corrected. On examining the account between the United States and the Western Cherokees, this court finds some small errors in the statement of it as made by the Court of Claims, and, after correcting those errors, it agrees with the Court of Claims that interest should be allowed on all but a small part of it, and orders the judgment, as thus corrected, to be affirmed. THE original petition was filed March 8, 1889, and the substituted petition, January 23, 1890, and thereby the petitioners, Bryan, Wilson and Hendricks, purporting to act for themselves, and as the commissioners of the "Old Settlers," or Statement of the Case. "Western Cherokee " Indians, represented that the latter are that part of the Cherokee race of Indians which formerly composed the Western Cherokee Nation, and which subsequently became known as the "Old Settlers," and that for the purpose of prosecuting their claims against the United States government they had appointed Bryan, Wilson and Hendricks as their commissioners to represent and in their names and for their benefit to do and perform any and all acts and things necessary and proper to be done by them in the premises; that the suit was brought under the provisions of the act of Congress approved February 25, 1889, entitled "An act to authorize the Court of Claims to hear, determine and render final judgment upon the claim of the Old Settlers or Western Cherokee Indians," 25 Stat. 694, c. 238, and which is as follows: "That the claim of that part of the Cherokee Indians, known as the Old Settlers or Western Cherokees, against the United States, which claim was set forth in the report of the Secretary of the Interior to Congress of February third, eighteen hundred and eighty-three, (said report being made under act of Congress of August seventh, eighteen hundred and eighty-two,) and contained in Executive Document Number Sixty of the second session of the Forty-seventh Congress, be, and the same hereby is, referred to the Court of Claims for adjudication; and jurisdiction is hereby conferred on said court to try said cause, and to determine what sum or sums of money, if any, are justly due from the United States to said Indians, arising from or growing out of treaty stipulations and acts of Congress relating thereto, after deducting all payments heretofore actually made to said Indians by the United States, either in money or property; and after deducting all off-sets, counter-claims and deductions of any and every kind and character which should be allowed to the United States under any valid provision or provisions in said treaties and laws contained, or to which the United States may be otherwise entitled, and after fully considering and determining whether or not the said Indians have heretofore adjusted and settled their said claim with the United States, it being the intention of Statement of the Case. this act to allow the said Court of Claims unrestricted latitude in adjusting and determining the said claim, so that the rights, legal and equitable, both of the United States and of said Indians, may be fully considered and determined; and to try and determine all questions that may arise in such cause on behalf of either party thereto and render final judgment thereon; and the Attorney General is hereby directed to appear in behalf of the government; and if said court shall decide against the United States, the Attorney General shall, within sixty days from the rendition of judgment, appeal the cause to the Supreme Court of the United States; and from any judgment that may be rendered, the said Indians may also appeal to said Supreme Court: Provided, That the appeal of said Indians shall be taken within sixty days after the rendition of said judgment, and said courts shall give such cause precedence: Provided further, That nothing in this act shall be accepted or construed as a confession that the government of the United States is indebted to said Indians. "SEC. 2. That said action shall be commenced by a petition stating the facts on which said Indians claim to recover, and the amount of their claim; and said petition may be verified by the authorized agent or attorney of said Indians as to the existence of such facts, and no other statement need be contained in said petition or verification.” And it was thereupon averred that under the provisions of certain treaties, made and entered into in 1817 and 1819, the Western Cherokees, or Old Settlers, sold, ceded and relinquished, and there was conveyed to the United States, all their right, title and interest in and to all the lands belonging to them situated in the States east of the Mississippi, and in consideration thereof the United States sold them certain lands, situated in what is now the State of Arkansas; that in consideration of the subsequent sale and cession of the lands in Arkansas to the United States, and in further consideration of the removal of the Western Nation of Cherokees from the State of Arkansas, under the provisions of the treaties of May 6, 1828, and February 14, 1833, between the Western Cherokee Nation and the United States, the latter bargained, sold, ceded, relinquished Statement of the Case. and conveyed, solely and exclusively to the Western Cherokee Nation, subsequently known as the Old Settlers, all the lands situated in the now Indian Territory, and described in the treaties of 1828 and 1833, and solemnly guaranteed the lands to them forever. That while in the peaceable and undisputed possession and enjoyment of the tract of land, in the now Indian Territory, the United States under the color of a pretended treaty with the Eastern Cherokee Nation in 1835, made and entered into without the knowledge or consent of the Western Cherokee Nation, and to which it was not a party, and from the provisions of which it was prevented from protecting itself by force and fraud on the part of the United States, granted to the Eastern Cherokees the same lands that were sold and conveyed to the Western Cherokee Nation, without the consent and against the wishes and in fraud and violation of the rights of the latter, and removed the Eastern Cherokees against their will and by force of arms from their homes east of the Mississippi, and located them upon the lands belonging to the Western Cherokees, thus depriving them of the sole use, right to and interest in the lands as guaranteed by treaty, and reserving to them only an interest in proportion to their numbers, they being but one-third of the whole Cherokee people; that from that time and continually thereafter the Western Cherokees protested against and resisted this invasion of their rights, until in 1846, when acting under duress of life, liberty and property, advantage being also taken by the United States of the fiduciary relations existing towards the Western Cherokees, and also of the condition of extreme impoverishment, destitution and want to which the Western Cherokees had been reduced by the United States, they were forced to make and enter into an agreement with the United States fraudulent in character, by the terms of which the consideration they were to receive was grossly inadequate to compensate them for their right to and interest in the lands, of which they had been unjustly deprived by the United States, and for the property destroyed and lost to them through the wrongful acts of the United States, and its default to comply with its treaty obligations. It was further alleged that the land so Statement of the Case. bargained, sold, relinquished and conveyed to the Western Cherokees by the treaties of 1828 and 1833 contained in all 13,610,795.34 acres, and that the Western Nation of Cherokees formed but one-third of the whole Cherokee race, the Eastern Nation forming the other two-thirds; and that the amount of land owned by the Western Nation, which was appropriated by the United States and granted to the Eastern Nation of Cherokees under the provisions of the treaty of 1835, was the same part of the whole body of land as was the Eastern Nation of the whole body of the Cherokee people; and that, therefore, the United States took from the Western Cherokees and deprived them of the sole use, right, title and interest in and to two-thirds of 13,610,795.34 acres, amounting to the sum of 9,073,863.56 acres, and converted the same to the public use and benefit, the land being worth at the time it was so taken and converted the sum of $5,671,164.721. Petitioners further alleged that after the Eastern Cherokees had been forcibly removed into the country of the Western Cherokees through the wrongful acts of the United States, and because of its failure to protect the Western Cherokees according to treaty stipulations, property of great value was lost to them, to wit, of the value of $30,000; and further, that the only payments made to the Western Cherokees since the appropriation of their lands and the destruction of their property, were the sum of $532,896.90, appropriated by act of Congress of September 30, 1850, 9 Stat. 556, c. 91, a one-third interest in the sum of $500,000 given by the United States to the whole Cherokee people in common, by the treaty of 1835; and a one-third interest in 800,000 acres of land sold in common to the Cherokee people by the United States in the treaty of 1835, which was made exclusively with the Eastern Cherokee Nation for the sum of $500,000, at which valuation the Western Cherokees have been and still are held charged by the government for their one-third share. It was further alleged that, under the provisions of the treaty of 1846, the sum of $5,600,000, which had been provided by the treaty of 1835, and a supplementary treaty thereto of 1836, was adopted and taken by the United States |