Stewart v. United States (206 U.S. 185)
The appellant herein filed his petition in the court of claims to obtain compensation for services performed by him while a register of the United States land office at Humboldt, in the state of Kansas, during the time from May 12, 1869, until November 20, 1871.

His petition to recover for such services was filed in the court of claims pursuant to the provisions of § 13 of the Indian appropriation act (chapter 994), approved March 3, 1903 (32 Stat. at L. 1010, 1011). The section reads as follows:

'Sec. 13. That any one or more of the registers and receivers of the United States land offices in the state of Kansas upon whom was imposed the responsibility of making sale and disposal of the Osage ceded, Osage trust, and Osage diminished reserve land in said state under the treaty of September twenty-ninth, eighteen hundred and sixty-five [14 Stat. at L. 687], between the United States and the Osage Indians, and the acts of Congress for carrying said treaty into effect, may bring suit in the court of claims against the Osage Nation and the United States to determine the claim of the plaintiff or plaintiffs for commissions or compensation for the sale of said lands or any service or duty connected therewith. And the said court shall have jurisdiction to hear and determine said cause and to render judgment thereon on the merits; and the Attorney General shall appear on behalf of the United States and the Osage Nation, and either party feeling aggrieved at the decision of the court of claims may appeal to the Supreme Court of the United States, and the final judgment in such case shall determine the rights of all such registers and receivers similarly situated. Said Osage Nation may also appear in said suit by an attorney employed with the authority of said nation. 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.'

The petition was dismissed on its merits by the court of claims (39 Ct. Cl. 321), and from such dismissal the appellant was allowed an appeal to this court. The following facts were found by the court:

The United States and the Great and Little Osage Indians entered into a treaty September 29, 1865, which was proclaimed January 21, 1867. (14 Stat. at L. 687.) In the first article it was stated that the tribe of the Great and Little Osage Indians, having more land than was necessary for their occupation, and all payments by the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus land, they therefore granted and sold to the United States the lands described in that article, and, in consideration of the grant and sale to them of such lands, the United States agreed to pay the Indians the sum of $300,000, which sum was to be placed to the credit of such Indians and interest thereon paid. The lands were to be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, and, after reimbursing the United States for the cost of such survey and sale and the said sum of $300,000 advanced to the Indians, the remaining proceeds of sales were to be placed in the Treasury of the United States to the credit of the 'civilization fund,' to be used under the direction of the Secretary of the Interior.

By article 2 of the treaty the Indians also ceded to the United States the tract of land therein described, in trust for the Indians, to be surveyed and sold for theirbenefit by the Secretary of the Interior under such rules and regulations as he might from time to time prescribe, under the direction of the Commissioner of the General Land Office, as other lands are surveyed and sold. Provision was then made in the article for the proceeds arising from the sale.

By article 16 it was provided that, if the Indians should remove from the state of Kansas and settle upon lands to be provided for them by the United States in the Indian territory on terms to be agreed upon, then the diminished reservation should be disposed of by the United States in the same manner and for the same purposes as thereinbefore provided in relation to said trust lands, with exceptions not material to be noticed. (The Indians did subsequently remove from Kansas.)

It was also provided by the 13th article that, as the Indians had no annuities from which the expenses for carrying the treaty into effect could be taken, the United States should appropriate $20,000, or so much thereof as might be necessary, for the purpose of surveying and selling the land thereby ceded in trust, which amount so expended was to be reimbursed to the Treasury of the United States from the proceeds of the first sales of the lands.

On the 23d of November, and again on the 19th of December, 1867, the Commissioner of the General Land Office, by authority of the Secretary of the Interior, issued instructions to the registers and receivers in the state of Kansas for the rendition of services in the sale of land ceded to the United States by article 1 of the treaty above mentioned, and the lands agreed to be held in trust by the United States and surveyed and sold for the benefit of the said Indians by article 2 of that treaty. Among other instructions, under date of December 19, 1867, it was provided that the registers and receivers were to be 'allowed a commission of 1 per cent each on the proceeds of the sales of these lands, with limitations, as a matter of course, to the legal maximum of $2,500, inclusive of commissions and fees, etc., on the disposal of the public lands, the payment of which is to be made by the receiver, in his capacity of disbursing agent, and to be debited in a special account, together with such other expenses incident to the sale of the lands alluded to as may be authorized by law and instructions.'

On the 28th of March, 1871, further instructions were given in regard to the performance of services, in which was the further statement that 'nothing, however, shall be herein construed as authorizing the register and receiver to receive more than the maximum of $2,500 per annum, now allowed by law, and the receiver, in adjusting his accounts, will take care to first ascertain how much short of the maximum the receipt from public lands, including the fees received from declaratory statements on the Osage lands, will bring their fees and commissions, and will then charge to the Indian fund only so much commissions as will bring their compensation to the maximum.' In accordance with these instructions claimant performed services in the sale of lands ceded by the Osage Indians under article 1, and of lands held in trust by the United States under article 2 of the treaty, and of lands included within the diminished reservation of the Indians under article 16 of the treaty.

The claimant was paid for each year of his service the full maximum amount due him, in accordance with the instructions from the General Land Office. This full maximum would not, in some cases, have been reached without resort to the sales of land under the treaty. This suit has been brought by claimant to recover a commission of 1 per cent on the amount of the sales of the land, and the filing fees on the lands mentioned in the treaty and now in the Treasury, as a reasonable compensation for his services in the sale of these lands as outside of and in addition to his regular official duties in the sale of public lands.

The total amount received on the sale of Osage ceded lands was $1,055,162.01; and the total amount received on sale of Osage trust and diminished reserve lands was $9,608,156.27; and the total amount of money held in trust by the government for said Osage Indians under said treaty of September 29, 1865, is $8,327,439.07, on which interest at 5 per cent is paid by the United States, amounting annually to $416,371.95.

Messrs. George A. King, William B. King, and R. V. Belt for appellant.

[Argument of Counsel from pages 189-191 intentionally omitted]

Assistant Attorney General Van Orsdel for appellee the United States.

Mr. Lorenzo A. Bailey for appellee the Osage Nation.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: 

Notes
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