225 U.S.

572
32 S.Ct. 707
56 L.Ed. 1212

EASTERN CHEROKEES, Appts.,

v.
UNITED STATES.
No. 234.
Argued April 30 and May 1, 1912.
Decided June 7, 1912.

Messrs. Charles Poe and Samuel A. Putman for appellants.

Assistant Attorney General Thompson for appellee.
Mr. Justice Van Devanter delivered the opinion of the court:

The controversy here to be considered arises in this way: In recent years there
was litigated in the court of claims and this court a claim against the United
States, arising under treaties with the Cherokee Indians, and consisting of four
items, one of which, designated as item 2, was for $1,111,284.70, with interest
at 5 per cent from June 12, 1838, to the date of payment. The litigation was
conducted under 68 of the act of July 1, 1902 (32 Stat. at L. 716, 726, chap.
1375), as construed and amplified by the act of March 3, 1903 (32 Stat. at L.
982, 996, chap. 994), and the parties were the Cherokee Nation, the Eastern
Cherokees, and the United States. Most of the Eastern Cherokees were
members of the Cherokee Nation, but some were not, as was the case with
those who remained in North Carolina and other adjacent states; and most of
the members of the Nation were Eastern Cherokees, but some were not, as was
the case with those who were known as Old Settlers. The principal questions in
controversy in the litigation, so far as they are now material, were (a) whether
there could be a recovery against the United States on item 2; (b) whether the
recovery should be in the name of the Cherokee Nation or in that of the Eastern
Cherokees; and (c) whether, if the recovery were in the name of the Cherokee
Nation, it should be for the benefit of the members of the Nation, whether
Eastern Cherokees or otherwise, or for the benefit of the Eastern Cherokees,
whether members of the Nation or otherwise. These questions were all stoutly

contested in both courts. As to the first, the Cherokee Nation and Eastern
Cherokees made common cause against the United States, and as to the other
two, they advanced opposing contentions. The jurisdictional acts, before
mentioned, required that 'both the Cherokee Nation and said Eastern Cherokees'
be made parties to the suit, and provided that if the claim were sustained the
judgment should be 'in favor of the rightful claimant,' and should determine, 'as
between the different claimants, to whom the judgment so rendered equitably
belongs, either wholly or in part.' The acts also provided that the Cherokee
Nation should be represented by attorneys to be employed and compensated in
the manner prescribed in Rev. Stat. 2103-2106, and that the Eastern
Cherokees should be represented by attorneys employed by them, whose
compensation should be fixed by the court of claims upon the termination of
the suit.
2

The litigation was started by the Cherokee Nation, which, on January 16, 1903,
had entered into a contract, conformably to Rev. Stat. 2103-2106, with the
late Gustavus A. Finkelnburg and others, whereby the latter were to represent
the Nation as its attorneys in the prosecution of the claim, and were to receive,
as compensation for their services, 5 per cent of the first $1,000,000, or part
thereof, collected, and 2 1/2 per cent of the amount collected cover and above
the first $1,000,000, such compensation to be, by the proper officers of the
United States, deducted from the amount recovered, and paid directly to such
attorneys.

The court of claims held, and its decree was to the effect, that there should be a
recovery against the United States on all the items of the claim; that the
recovery on all should be in the name of the Cherokee Nation; and that the
recovery on items 1, 3, and 4 should be for the benefit of the Nation, and on
item 2 for the benefit of the Eastern Cherokees, whether members of the Nation
or otherwise; that the proceeds of items 1, 3, and 4 should be paid or credited to
the Nation, less the percentage thereof contracted by the Nation to be paid as
counsel fees, and that the proceeds of item 2, 'less such counsel fees as may be
chargeable against the same under the provisions of the contract with the
Cherokee Nation of January 16, 1903, and such other counsel fees and
expenses as may be hereafter allowed by this court under the provisions of the
act of March 3, 1903,' should be paid to the Secretary of the Interior, to be by
him distributed directly to the Eastern Cherokees, inclusive of a class spoken of
as Western Cherokees. The concluding portion of the decree declared: 'So
much of any of the above-mentioned items or amounts as the Cherokee Nation
shall have contracted to pay as counsel fees under and in accordance with the
provisions of 2103 and 2106, both inclusive, of the Revised Statutes of the
United States, and so much of the amount shown in item numbered two (2) as

this court hereafter, by appropriate order or decree, shall allow for counsel fees
and expenses under the provisions of the act of March 3, 1903, above referred
to, shall be paid by the Secretary of the Treasury to the persons entitled to
receive the same upon the making of an appropriation by Congress to pay this
judgment. The allowance of fees and expenses by this court under said act of
March 3, 1903, is reserved until the coming in of the mandate of the Supreme
Court of the United States.' 40 Ct. Cl. 252, 365.
4

From that decree the parties severally appealed to this court, the United States
complaining of the recovery against it on item 2, the Cherokee Nation claiming
that the recovery on that item ought not to have been declared to be for the
benefit of the Eastern Cherokees, and the latter insisting (a) that the recovery
on that item should have been in their name, and not in that of the Nation, (b)
that the Western Cherokees, so-called, ought not to have been included among
those who were to participate in the per capita distribution, and (c) that 'the
court erred in charging the said fund of $1,111,284.70 and interest, to be
realized from its said judgment or decree, with the fees of the attorneys for the
Cherokee Nation.' This court overruled all objections to the decree, save the one
relating to the inclusion of the Western Cherokees, and, after directing that the
provision for the per capita distribution be so modified as to confine it to the
Eastern Cherokees, whether east or west of the Missippi, exclusive of the Old
Settlers, affirmed the decree, with that modification. 202 U. S. 101, 50 L. ed.
949, 26 Sup. Ct. Rep. 588.

In passing upon the question whether the recovery on item 2 was in the name of
the rightful claimant, this court said: 'The Cherokee Nation, as such, had no
interest in the claim, but officially represented the Eastern Cherokees.' And
again: 'We concur with the court of claims in the wisdom of rendering
judgment in favor of the Cherokee Nation, subject to the limitation that the
amount thereof should be paid to the Secretary of the Interior, to be distributed
directly to the parties entitled to it.'

In disposing of the insistence that the proceeds arising from that item ought not
to have been charged with any fee for the attorneys for the Cherokee Nation,
this court said: 'In view of the language of the jurisdictional acts of 1902 and
1903 in respect of the Cherokee Nation, we are not disposed to interfere with
the court of claims in the allowance of fees and costs.' And then, after noticing
the arguments advanced by counsel for the Eastern Cherokees in support of a
contrary conclusion, which were based upon the fact, among others, that the
Nation had asserted a right to collect that item, not for the benefit of the Eastern
Cherokees, but for the benefit of its members, whether Eastern Cherokees or
otherwise, the court concluded the consideration of that insistence by saying:

'Nevertheless, taking the entire record together, the various treaties and acts of
Congress, and of the Cherokee Councils, and the language of the jurisdictional
acts of 1902 and 1903, we leave the decree as it is in respect to counsel fees and
costs.'
7

On receipt of the mandate the court of claims modified its original decree so as
to conform to the direction in respect to the persons who should participate in
the per capita distribution, and, in pursuance of the reservation made before,
entered a supplemental decree fixing the compensation of the attorneys for the
Eastern Cherokees at 15 per cent of the amount of item 2, including interest.
Thereafter, Congress made an appropriation to pay the original decree as
modified (24 Stat. at L. 634, 664, chap. 3912), and the accounting officers of
the Treasury computed the interest due on each item, thereby ascertaining that
item 2 amounted to almost $5,000,000. Finkelnburg and his associates, the
attorneys for the Cherokee Nation, then presented to the Acting Commissioner
of Indian Affairs a sworn statement of their services under the contract of
January 16, 1903, conformably to the requirements of Rev. Stat. 2104, upon
which statement that officer and the Acting Secretary of the Interior determined
and certified that such attorneys had fully complied with the contract, and were
entitled to the compensation therein provided, including the stipulated
percentage of the amount recovered on item 2; and, upon the presentation of
that certificate, the officers of the Treasury Department paid to such attorneys,
out of the moneys applicable to the several items, the percentage named in the
contract, and deducted the same from the proceeds of the several items, the
amount so deducted from item 2 being $147,527.01, The certification and
payment, in so far as they affected that item, were made over the objection and
protest of the Eastern Cherokees, who insisted at the time that no fees or
compensation for the attorneys for the Cherokee Nation lawfully could be paid
out of, or charged against, the moneys arising therefrom.

Shortly thereafter the Eastern Cherokees filed in the court of claims, in the
original cause, a supplemental petition wherein they challenged (a) the right of
the attorneys for the Cherokee Nation to receive any fees or compensation out
of the moneys recovered on item, 2, and (b) the authority of the officers of the
Treasury Department to make any payment or deduction therefrom by reason of
the contract between the Nation and its attorneys, and alleged, in substance, that
the decree furnished no warrant for any such payment or deduction; that the
jurisdictional acts had not conferred upon the court of claims any power to hear
or determine any question pertaining to the fees of the attorneys for the Nation;
and that throughout the litigation the Nation's attorneys had contended that the
amount due on item 2 should be awarded and paid to the Nation for its own
benefit, to the exclusion of the Eastern Cherokees, save as most of them might,

as members of it, be benefited indirectly. The prayer of the petition was that the
court would pass a further decree 'construing and enforcing its former decrees'
in such manner that the entire proceeds of item 2, less the fees and expenses
theretofore or thereafter allowed by the court to the attorneys for the Eastern
Cherokees, would be distributed as before directed, but without any payment
therefrom to the attorneys for the Cherokee Nation, or any deduction by reason
of any such payment. After a hearing on the petition, the court of claims
entered a decree dismissing it for the reasons assigned in the following excerpts
from the opinion of that court, delivered by Chief Justice Peelle (45 Ct. Cl. 104,
130, 131):
9

'The litigation was over a fund arising from treaty stipulations, supposed to be
in the Treasury in trust for the parties entitled thereto. Surely the fund which
was the stake in controversy should bear the expense, and such was the
conclusion of this court. . . . The decree clearly recognized the distinction
between the fees authorized by the separate acts. That is to say, the fees to be
paid to the attorneys for the Cherokee Nation under the first act were to be
governed by the contract made in accordance therewith, while under the second
act the court was authorized to fix the fees of the attorneys for the Eastern
Cherokees. . . . It was not until after the payment of the money under said
contract that the Eastern Cherokees filed their supplemental petition herein,
praying the court to so construe its decree as to provide that the sum of
$1,111,284.70 [with interest] should not be chargeable with the fees of the
attorneys of the Cherokee Nation. But independent of their delay, such
construction would not only be contrary to the language of the decree, but
would, in effect, be changing the decree after its affirmance by the Supreme
Court, and, too, after the contention here was presented there and denied. . . .
The Cherokee Nation was the proper party to the suit under both jurisdictional
acts, and it had contracted to pay its attorneys, with the approval of the
Secretary of the Interior, in strict accordance with the law, all of which was
recognized by the court and sanctioned and provided for in its decree; and the
decree, in respect to the payment of said fees, having been affirmed and
executed, the court is not at liberty to modify the decree, or to construe it
contrary to the clear import of the language used.'

10

It was from this last decree that the present appeal was taken.

11

We pass other questions discussed in the opinion of the court of claims and
elaborately argued by counsel, and come directly to consider whether further
controversy over the matter presented by the supplemental petition was
foreclosed by the original decree and the proceedings had in this court on the
prior appeal, because, if it was, that alone requires that the action of the court

of claims in dismissing the petition be affirmed.

12

By rendering a decree on item 2 in favor of the Cherokee Nation, over the

objection of the Eastern Cherokees, the court of claims necessarily recognized
the Nation as the titular claimant, and as authorized to prosecute the item to a
recovery, even although the recovery was for the ultimate benefit of the Eastern
Cherokees. The latter so understood the decree and accordingly repeated their
objection on the prior appeal, but this court sustained the action of the court of
claims, saying, as we have seen: 'The Cherokee Nation, as such, had no interest
in the claim, but officially represented the Eastern Cherokees.' Of course, that
was an adjudication of the controverted question whether, in view of the
treaties and congressional enactments bearing on the subject, and of the attitude
of the Cherokee Nation, the recovery should be in its name or in that of the
Eastern Cherokees.

13

When the court of claims determined that question in favor of the Cherokee
Nation, and also that the recovery should be for the benefit of the Eastern
Cherokees, the question naturally arose, whether the attorneys for the Nation
should be paid out of the proceeds. That matter was dealt with in two
paragraphs of the decree. In one it was directed, in respect of the moneys
recovered on item 2, 'that such counsel fees as may be chargeable against the
same under the provisions of the contract' between the Cherokee Nation and its
attorneys should be deducted in advance of the distribution among the Eastern
Cherokees, and in the other that 'so much of any' item on which recovery was
had 'as the Cherokee Nation shall have contracted to pay as counsel fees' under
Rev. Stat. 2103-2106 should be paid by the Secretary of the Treasury to the
attorneys entitled thereto, upon the making of an appropriation by Congress to
pay the decree. In this there was a plain recognition of the services rendered by
the Nation's attorneys in prosecuting item 2 and of their right to be compensated
out of the moneys recovered, the amount of the compensation to be as provided
in their contract. The Eastern Cherokees so understood the decree at the time,
and on the prior appeal challenged it as unwarrantably charging a fund
recovered for their benefit with fees for the Nation's attorneys. This court, as is
manifest from its opinion, construed the decree as did the Eastern Cherokees,
and affirmed it with that construction. And, while nothing was said about the
power of the court of claims to provide for the payment of the Nation's
attorneys out of the moneys recovered, the implication of the opinion was that
the power existed; and, of course, the affirmance of the decree wherein the
power was exercised was an affirmance of the power.

14

Thus it is apparent that the decree of the court of claims, as affirmed by this
court, determined every question bearing upon the right of the attorneys for the

Cherokee Nation to have their fees for the prosecution of item 2 paid out of the
proceeds thereof, save the single question of the amount of the fees. That was
left to be determined by the terms of the contract and the certification
contemplated by Rev. Stat. 2104. It is not charged that the amount actually
paid was not the true amount under the terms of the contract, or that it was not
duly certified under 2104, and so it does not appear that the payment was not
in accordance with the decree as construed on the prior appeal.
15

What really was sought by the supplemental petition was a modification of the
decree in a particular wherein it had been affirmed by this court. But the court
of claims was without power to grant any such relief, for it, like any other court
whose judgment or decree has been reviewed by this court, was bound to give
effect to the rule stated in Re Sanford Fork & Tool Co. 160 U. S. 247, 255, 40
L. ed. 414, 416, 16 Sup. Ct. Rep. 291:

16

'When a case has been once decided by this court on appeal, and remanded to
the circuit court, whatever was before this court, and disposed of by its decree,
is considered as finally settled. The circuit court is bound by the decree as the
law of the case, and must carry it into execution, according to the mandate.
That court cannot vary it, or examine it for any other purpose than execution; or
give any other or further relief; or review it, even for apparent error, upon any
matter decided on appeal; or intermeddle with it, further than to settle so much
as has been remanded.'

17

Decree affirmed.