215 Opinion of the Court At the time the judgment in the Net Proceeds case was collected, the Choctaws were fully aware of the interest of the Chickasaws. They had sold the Chickasaws a one-fourth interest in their lands. For many years in all proceeds arising from the disposition and leasing of these lands the Chickasaws had received one-fourth. In accordance with this custom, practice, and interest, the Choctaws had promised by the Agreement and Treaty of 1905 to pay to the Chickasaws one-fourth of the net proceeds of that judgment. The agreement to pay this amount was approved by the President of the United States. Accordingly, therefore, defendant is entitled to recover on its cross action against the Choctaw Nation the sum of $16,003.97, the amount which all parties to this suit agreed should be paid by the Choctaws to the Chickasaw Nation. Since there was no stipulation for interest on this amount, since the claim is for a part of the moneys paid to the Choctaw Nation for the taking of lands in which the Chickasaws had an interest, and because of the peculiar relationship existing between the defendant and the Choctaw Nation, and because of the delay of the defendant in seeking a return of the money from the Choctaws, we do not think this obligation for the return of funds should bear interest prior to the date of entry of judgment herein. United States v. Sanborn, 135 U. S. 271, 281. This position is all the more conclusive because of the distinctions made by the Supreme Court in the case of Goltra v. United States, decided February 3, 1941 (312 U. S. 203). We do not think the doctrine that money voluntarily paid cannot be recovered should be applied to the instant case. Wisconsin Central Railroad Co. v. United States, 164 U. S. 190, 211, 212. Plaintiff is entitled to recover, but the determination of the amount of the recovery and the amount of offsets, if any (See Rule 39a), is reserved for further proceedings; and the defendant, the United States, is entitled to recover over against the Choctaw Nation the sum of $16,033.97. It is so ordered. MADDEN, Judge; WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. Reporter's Statement of the Case 94 C. Cls. THE SEMINOLE NATION v. THE UNITED STATES [No. L-208. Decided May 5, 1941. Plaintiff's motion for new trial overruled October 6, 1941]* On the Proofs Indian claims; shortage in Seminole reservation; additional lands.Where by the treaty of 1866 the United States acquired from the Creek Nation the westerly half of said nation's lands, and of said lands so acquired granted 200,000 acres to the Seminole Nation; and where in the settlement of the Seminoles on said lands a part of the lands retained by the Creek Nation was turned over to the Seminoles; and where, to rectify this error, the United States then, at its own expense and without cost to the plaintiff, purchased from the Creek Nation an additional 175,000 acres, which were added to the original reservation of 200,000 acres; it is held that the plaintiff is not entitled to recover for an alleged shortage of 11,550.54 acres in the original reservation of 200,000 acres. Same.-Where plaintiff was entitled to receive from the defendant only 200,000 acres but in fact received at least 360,000 acres, it is held that plaintiff cannot recover for the deficit, if any, in the original 200,000-acre tract agreed to be set apart to it. Same; offset under special jurisdictional act.-Where, under the special jurisdictional act of August 12, 1935, the defendant is entitled to an offset of "all sums expended gratuitously by the United States for the benefit of said tribe or band," it is held that even if the plaintiff should be entitled to recover for a deficit in the 200,000acre tract originally set aside for said nation, defendant would be entitled to an offset of the value of the acreage given said nation gratuitously, which value is far in excess of the value of whatever deficit there may have been. The Reporter's statement of the case: Mr. Paul M. Niebell for the plaintiff. Messrs. W. W. Pryor and C. Maurice Weidemeyer were on the briefs. Mr. Wilfred Hearn, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief. The court made special findings of fact as follows: 1. Plaintiff's claim is asserted in its amended petition filed herein on December 27, 1937, pursuant to the authority granted by acts of Congress of August 16, 1937 (c. 651, 50 Stat. Part I, 650); February 19, 1929 (45 Stat. 1229); May *Certiorari granted February 16, 1942. 240 Reporter's Statement of the Case 19, 1926 (c. 341, 44 Stat. 568); and May 20, 1924 (c. 181, Stat. 133). 43 2. By the treaty of March 21, 1866 (14 Stat. 755) the United States granted to the plaintiff 200,000 acres of land immediately west of the eastern portion of the Creek lands. Article III of said treaty provides in part as follows: * The United States having obtained by grant of the Creek Nation the westerly half of their lands, hereby grant to the Seminole Nation the portion thereof hereafter described, which shall constitute the national domain of the Seminole Indians. Said lands so granted by the United States to the Seminole Nation are bounded and described as follows, to wit: Beginning on the Canadian river where the line dividing the Creek lands according to the terms of their sale to the United States by their treaty of February 6, 1866 [June 14, 1866], following said line due north to where said line crosses the north fork of the Canadian river; thence up said north fork of the Canadian river a distance sufficient to make two hundred thousand acres by running due south to the Canadian river; thence down said Canadian river to the place of beginning. In consideration of said cession of two hundred thousand acres of land described above, the Seminole Nation agrees to pay therefor the price of fifty cents per acre, amounting to the sum of one hundred thousand dollars, which amount shall be deducted from the sum paid by the United States for Seminole lands under the stipulations above writ ten. * ** 3. In the fall of 1866 the Seminoles were removed by the United States to what was believed to be their new national domain, and thereafter occupied said lands and made improvements thereon. At this time the boundaries of said domain had not been established. In 1871 the line dividing the eastern and western parts of the Creek domain was run by Frederick W. Bardwell, and was approved by the Secretary of the Interior on February 5, 1872. This line became the eastern boundary of the Seminole national domain, as provided for in the Seminole treaty of March 21, 1866. Shortly thereafter, within about two months, Nathaniel Robbins was employed by the defendant to run the western line of the plaintiff's domain so as to include the 200,000 acres Opinion of the Court 94 C. Cls. which the defendant had granted to plaintiff. This survey was completed in 1871 and was approved by the Secretary of the Interior February 5, 1872. According to Robbins' calculations, the number of acres included between the Canadian River on the south, the North Fork of the Canadian River on the north, the Bardwell line on the east, and the Robbins' line on the west, was 200,000.03 acres. 4. The defendant granted to the Pottawatomie Indians of Kansas a certain tract of land immediately west of the plaintiff's domain, and subsequently allotted and patented said lands to said Indians in severalty, or sold and patented them to settlers thereon and turned the purchase price thereof into the Treasury as public money. Thereafter said lands have been held by the grantees adversely to the plaintiff. It is alleged that when the boundaries of this tract came to be fixed, the area included was 11,550.54 acres short of 200,000 acres. If it was in fact short this amount, or any other amount, the plaintiff has been dispossessed of said acreage and the same has been granted and is now held adversely by others. 5. After the Bardwell line separating the eastern from the western half of the original Creek domain had been run, it was discovered that the plaintiff had been located on a large part of the Creek domain east of the Bardwell dividing line, which lands had been reserved by the Creek Nation. In order to remedy this situation, the defendant purchased from the Creek Nation 175,000 acres of its domain immediately east of the Bardwell dividing line and between the Canadian River on the south and the North Fork of the Canadian River on the north, and this 175,000 acres, more or less, was added gratuitously to the original Seminole reservation of 200,000 acres, more or less. This acreage was added to the Seminole domain at the expense of the defendant and without cost to the plaintiff. The court decided that the plaintiff was not entitled to recover. WHITAKER, Judge, delivered the opinion of the court: The plaintiff sues to recover the value of an alleged deficit in the number of acres the defendant agreed to set apart for 240 Opinion of the Court it as a reservation. By the treaty of 1866 the United States acquired from the Creek Nation the westerly half of their lands; and it granted to the plaintiff 200,000 acres of these lands immediately west of the lands retained by the Creeks and between the Canadian River on the south and the North Fork of the Canadian River on the north. However, when the defendant undertook to settle the plaintiff on their said reservation, by accident it settled them instead on a part of the lands retained by the Creeks. When this error was discovered, the defendant purchased from the Creek Nation at its own expense and without cost to plaintiff 175,000 additional acres immediately east of plaintiff's original reservation and added this to the original reservation of 200,000 acres. When the defendant came to survey and fix the boundaries of the original reservation of 200,000 acres, it is alleged that it included therein only 188,449.46 acres, and it later gave to another tribe the remainder of 11,550.54 acres. The plaintiff sues to recover the value of this deficit. Plainly it cannot recover. Although there may have been this deficit, more or less, in the 200,000-acre tract the defendant was obligated to set apart for plaintiff, the plaintiff was compensated therefor fifteenfold by the addition to the reservation of 175,000 or more additional acres immediately to the east. The plaintiff was entitled to receive from the defendant only 200,000 acres, but it has in fact received at least 360,000 acres and, therefore, cannot complain that there was a small deficit in the original 200,000-acre tract agreed to be set apart to it. Moreover, under the act of August 12, 1935 (49 Stat. 571, 596), the defendant is entitled to an offset of "all sums expended gratuitously by the United States for the benefit of the said tribe or band." Therefore, if the plaintiff be entitled to recover for any deficit in the 200,000-acre tract, the defendant would be entitled to an offset of the value of the acreage given them gratuitously. This value is far in excess of the value of whatever deficit there may have been. Plaintiff's petition will be dismissed. It is so ordered. JONES, Judge; and LITTLETON, Judge, concur. WHALEY, Chief Justice, dissents. |