PETITION FOR WRIT OF MANDAMUS.
MR. JUSTICE McKENNA delivered the opinion of the court.
Petition for mandamus to the Court of Claims to require it to conform to a decree of this court modifying a decree of that court in the case of the United States v. Cherokee Nation, 202 U.S. 101.
A rule to show cause was issued, to which a response has been made by the Court of Claims.
A recitation of the facts of the litigation between the Eastern Cherokees and the United States need not be made. They are set out in 202 U.S. 101. We are only concerned with the decree and what took place in accordance with it in the Court of Claims. It is enough to say that the Eastern Cherokees under the authority of acts of Congress brought suit against the United States for certain sums alleged to be due under treaties with the United States, and the Court of Claims decreed May 18,
, that, after deducting counsel fees, costs and expenses, the sum of $1,111,284.70, among other sums, with interest, should be paid to the Secretary of the Interior, to be by him received and held for the use and purpose of paying costs and expenses as stated, and the remainder to be distributed "directly to the Eastern and Western Cherokees, who were parties to the treaty of New Echola, as proclaimed May 23, 1836, or to the treaty of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi River, or to the legal representatives of such individuals."
We held that the decree, "in directing that the distribution be made to "the Eastern and Western Cherokees'" was "perhaps liable to misconstruction," though limited by a reference to the treaties, and decided that the decree should be modified "so as to direct the distribution to be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi, parties to the treaties of 1835-36 and 1846, exclusive of the Old Settlers." As modified, the decree was affirmed.
We also decided that the amount of the decree "should be paid to the Secretary of the Interior, to be distributed directly to the parties entitled to it."
Upon the going down of the mandate the Court of Claims modified its decree, as directed, by explicitly excluding the Old Settlers in terms from its operation and distributing the fund "to the Eastern Cherokees as individuals," omitting the words "or to the legal representatives of such individuals." And the court directed the Secretary of the Interior to prepare or have prepared a roll of the Cherokees entitled to share in the amount of the decree and to "accept as a basis for the distribution of said fund the rolls of 1851, upon which the per capita payment to the Eastern Cherokees was made, and make such distribution in pursuance of article 9 of the treaty of 1846."
It is stated in the response of the Court of Claims to the rule to show cause that the special agent appointed by the Secretary encountered difficulties in making up the roll "upon a per capita basis and otherwise," and that the Secretary of the Interior called the attention of the court to the difficulties and asked the following questions: "First. Shall the rolls of 1851 be used as the exclusive basis for the present distribution? Second. Shall the distribution be per stirpes or per capita? Third. If per capita, what disposition shall be made of those portions for which there have been no applications?"
The court, considering that its decree, as modified by our mandate, directed a per capita distribution, ordered the commissioner named for the purpose to "enroll as entitled to share in the fund arising from said decree of May 28, 1906, all such individual Eastern Cherokee Indians by blood, living on May 28, 1906, as shall establish the fact that they were members of the Eastern Cherokee tribe of Indians at the date of the treaties of 1835-36 and 1846, or are descendants of such persons, and who shall further ...