Section 8 of the Foraker Act, as we have seen, continues in force the laws and ordinances of Porto Rico, except as modified by military orders and decrees in force, so far as the same are not inconsistent or in conflict with the statutory laws of the United States, which by section 14 of the act, when not locally inapplicable, with certain exceptions, are declared to be in force and effect in Porto Rico as in the United States. The general provisions as to jury trials in civil causes in Circuit Courts of the United States are not inconsistent with the enforcement of a special statutory proceeding as to the assessment of damages in attachment proceedings, as to which the United States has no special statutory procedure, and enforces in that respect the requirements of the local law.

If we are right in holding that the Porto Rican law and practice as to attachments and the recovery of damages in respect thereto are controlling in a Federal court in that territory, and a common law action for a wrongful and malicious attachment was unknown to the Porto Rican procedure, the court had no jurisdiction of the action. The record shows that practically no exception was taken in the record and proceedings in the trial court, but it is familiar law that this court will of its own motion inquire into the jurisdiction which it has and as well that of the court below, without any special exception being taken. If, as illustrated in the brief for counsel for the plaintiff in error, a Circuit Court of the United States should undertake to entertain a bankruptcy proceeding or an admiralty cause, its proceedings would be void for want of jurisdiction. So, in the present case, there being no such common law action enforceable under the Porto Rican procedure, a court of that district would have no jurisdiction to entertain the suit. Where the jurisdiction fails the objection can be raised in this court; if not by the parties, then by the court itself. Parker v. Ormsby 141 U.S. 81; Mansfield &c. Railway Co. v. Swan, 111 U. S. 379; Thompson v. Railway Companies, 6 Wall. 134.

We, therefore, reach the conclusion that the United States

District Court had no jurisdiction of this action, and consequently the proceedings had therein were null and void. Judgment reversed.

MR. JUSTICE WHITE dissenting.

As it is conceded that the question upon which the judgment is now reversed was not saved in the court below, I am constrained to dissent. In my opinion the error, if any, was a mere question of mode of procedure, involving no want of jurisdiction ratione materia, even conceding that the presence of a question of such a character would authorize this court to reverse in the absence of any exception in the court belowor any reference to the question in that court.

MR. JUSTICE MCKENNA concurs in this dissent.

UNITED STATES v. CHEROKEE NATION. EASTERN CHEROKEES v. CHEROKEE NATION AND UNITED STATES.

CHEROKEE NATION v. UNITED STATES.

APPEALS FROM THE COURT OF CLAIMS.

Nos. 346, 347, 348. Argued January 16, 17, 18, 1906.-Decided April 30, 1906. Under sec. 68 of the Cherokee Act of July 1, 1902, 32 Stat. 726, as construed by the act of March 3, 1903, 32 Stat. 996, and the agreement of December 19, 1891, providing for the sale of the Cherokee outlet, the Court of Claims had jurisdiction of all claims of the Cherokee Indians against the United States, and the claims were to be reopened and reëxamined de novo, and the court and the accountants were to go behind statutory and treaty bars and receipts in full, and were to consider any alleged and declared amount of money promised but withheld under any treaty or law.

The United States, as stated in the Slade & Bender account made under the agreement of December 19, 1891, and as found by the Court of Claims, is liable to the Cherokee Nation for $1,111,284.70, the amount paid for the removal of the Eastern Cherokee Indians to the Indian Territory, improperly charged to the treaty fund.

The question whether interest should be allowed on this fund having been submitted, under the Eleventh Article of the Cherokee Treaty of 1846, to the Senate of the United States, and that body having by resolution

found that interest should be allowed at five per cent from June 12, 1838, until paid, the amount of interest was one of the subjects of difference referred to the Court of Claims under the act of July 1, 1902, and that court had jurisdiction to allow interest, and correctly awarded it at the rate, and from the time specified, in the Senate resolution. The term, Cherokee Tribe or any band thereof, as used in the act of July 1, 1902, means the Cherokee people as a people, and not the Cherokee Nation as a body politic, and the Court of Claims correctly decided that the amount awarded to the Cherokee Nation be paid to the Secretary of the Interior to be by him received and distributed to the persons entitled thereto, but such distribution should be made as to the Eastern Cherokees as individuals whether East or West of the Mississippi, parties to the treaties of 1835, 1836 and 1846, exclusive of the Old Settlers. The Eastern and Emigrant Cherokees are not entitled to their demand of one-fourth of the entire sum awarded, but only to per capita payment with the Eastern Cherokees.

SECTION 68 of the act of Congress of July 1, 1902, entitled "An act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes," 32 Stat. 716, 726, reads as follows:

"Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme Court of the United States by any party in interest feeling aggrieved at the decision of the Court of Claims any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act; and also to examine, consider, and adjudicate any claim which the United States may have against said tribe, or any band thereof. The institution, prosecution, or defense, as the case may be, on the part of the tribe or any band, of any such suit, shall be through attorneys employed and to be compensated in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, and the band acting through a committee recognized by the Secretary of the Interior. The Court of Claims shall have full authority, by proper orders and

process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time."

February 20, 1903, the Cherokee Nation filed a petition in the Court of Claims asking judgment on an account rendered by Slade & Bender, pursuant to the treaty of March 3, 1893 (27 Stat. 640), with interest.

March 3, 1903, an act was approved entitled "An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes," 32 Stat. 982, 996, containing the following provisions:

"Section sixty-eight of the act of Congress entitled 'An act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes,' approved July first, nineteen hundred and two, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi river, acting together or as two bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the Court of Claims upon the termination of such suit; and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned in House of Representatives Executive Document numbered three hundred and nine of the second session of the

Fifty-seventh Congress; and if said claim shall be sustained in whole or in part the Court of Claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi river constitute a part of the Cherokee Nation, or of the Eastern Cherokees, so called, as the case may be."

The claim mentioned in said H. R. Ex. Doc. No. 309, 57th Cong., 2d sess., is therein referred to as "the award rendered under the Cherokee agreement of December 19, 1891, ratified by act of Congress approved March 3, 1893."

March 14, 1903, a petition was filed on behalf of all the Eastern Cherokees, both west and east of the Mississippi river, alleging in substance that there was due to the Eastern Cherokees, upon the account of Slade & Bender, the sum of $1,111,284.70, with interest from June 12, 1838, as an award against the United States or, if the court should not hold said account as an award, the sum of $1,761,447.27, with interest at 5 per cent from the same date, together with interest on the income annually accruing, at the rate of five per cent per annum until paid, by virtue of the treaties of 1828 (7 Stat. 313), and the treaty of 1835-36, commonly known as the "treaty of New Echota." But at the trial of the case no contention was made for this larger amount.

March 20, 1903, a petition was filed on behalf of certain Eastern Cherokees, living east of the Mississippi, amended September 3, 1903, when petitioners took the title of the Eastern and Emigrant Cherokees, asserting their claim to a pro rata share of—

"That portion of the removal and subsistence fund improperly taken by the United States from the five million fund on account of removal of Eastern Cherokees, as found