Opinion of the Court 128 C. Cls. alternative but to starve and perish if they continued there, or to return to their old residence on the Arkansas;" that upon returning to their old residence on the Arkansas, "they now find themselves very unhappily situated in consequence of having their little improvements taken from them by the settlers of the country; and being anxious to secure a permanent and peaceable home the following articles or treaty are agreed upon between the United States and the Quapaw Indians by John F. Schermerhorn * * *" The treaty then provided for the cession by the Quapaws to the United States of whatever right and title and interest they had to the lands "given them by the Caddo Indians on the Bayou Treache of Red River." Article II provided that the United States would convey to the Quapaws one hundred and fifty sections of land west of Missouri between the lands of the Senecas and Shawnees, to be selected for them by the Commissioners of Indian Affairs West. In Article III the United States agreed, "in consideration of the important and extensive cessions of lands made by the Quapaws to the United States and in view of their present impoverished and wretched condition," that the Quapaws should be moved to their new homes at the expense of the United States and would be supplied with one year's provision from the time of their removal. In the same article the Government agreed to furnish cows and other farm animals, as well as farm implements, blankets, rifles, etc., and to provide a farmer for their instruction, a blacksmith and blacksmith shop. The Government also agreed to appropriate a thousand dollars a year for the tribe's education. In Article IV, it was provided that in lieu of and in full consideration for the Quapaw's present annuities, "perpetual and limited," the Government would pay the debts of the Quapaw Indians in accordance with a schedule annexed to the treaty and would give them an annuity of $2,000 a year for twenty years. Article V of the treaty contains the language on which the Government principally relies in urging that the 1833 treaty was in reality a part of the 1824 treaty. That article provides in part as follows: Article V of the 1818 treaty provided for a perpetual annuity, and Article II of the 1824 treaty provided for a limited annuity (for eleven years). 45 Opinion of the Court It is hereby agreed, and expressly understood, that this treaty is only supplementary to the treaty of 1824, and designed to carry into effect the views of the United States in providing a permanent and comfortable home for the Quapaw Indians ***. The permanent and comfortable home which the Quapaw tribe had under the 1818 treaty had been taken from them. We do not think that the above statement is controlling on the question of whether the 1833 treaty was a mere addition to the 1824 treaty. The 1833 treaty may have been supplemental to the 1824 treaty in attempting to carry out the Government's desire to see the Quapaws settled in a permanent and adequate home outside of Arkansas, a plan which was not fulfilled because of the facts already described and noted in the preamble to the 1833 treaty. However, as the Commission has pointed out, each specific provision of the 1824 treaty was completely carried out by both parties and in all material respects the 1833 treaty was an entirely new and separate agreement and transaction. The United States was under no legal obligation to do anything further under the 1824 treaty or to make any supplemental agreement with respect to it. In the 1824 treaty the Government bought and paid a certain sum for lands belonging to the Quapaw in Arkansas. In the 1833 treaty it took a conveyance of the Quapaw lands in Oklahoma and paid something for such lands by conveying the Quapaw lands owned by the Government in the northeastern corner of the Indian Territory and in the southeastern corner of Kansas. In the 1818 treaty the Quapaws received a perpetual annuity, and in the 1824 treaty this was "supplemented" by a limited annuity to run only for eleven years. In the 1833 treaty the tribe gave up both annuities in return for a 20-year annuity. The 1833 treaty provided considerably more in the way of goods and services for the Quapaws than had the 1824 treaty. We can only suppose and therefore conclude, in the light of the record, that the Government considered the consideration passing from the tribe to it to have been most adequate, that is, the Caddo lands in Oklahoma and the giving up of the perpetual annuity. In view of all the circumstances surrounding the negotiation of the 1833 treaty and the 1824 treaty, and the actual Opinion of the Court 128 C. Cls. terms of the two treaties, we agree with the Commission that the two treaties were separate and distinct and that the 1824 treaty was in all material respects completely executed by the time the 1833 treaty was entered into. We accordingly affirm the Commission's conclusion that only the sum of $28,037 may be regarded as the consideration paid for the reserve lands (under the 1824 treaty); and we agree with the Commission that such consideration was unconscionable in view of the true value of the land which the Commission found to have been $987,092. This finding and conclusion of the Commission are, in our opinion, fully supported by substantial evidence. OFFSETS Section 2 of the Indian Claims Commission Act makes the following provision respecting offsets: In determining the quantum of relief the Commission shall make appropriate deductions for all payments made by the United States on the claim, and for all other offsets, counterclaims, and demands that would be allowable in a suit brought in the Court of Claims under section 145 of the Judicial Code (36 Stat. 1136; 28 U.S. C. sec. 250), as amended; the Commission may also inquire into and consider all money or property given to or funds expended gratuitously for the benefit of the claimant and if it finds that the nature of the claim and the entire course of dealings and accounts between the United States and the claimant in good conscience warrants such action, may set off all or part of such expenditures against any award made to the claimant, except that it is hereby declared to be the policy of Congress that monies spent for the removal of the claimant from one place to another at the request of the United States, or for agency or other administrative, educational, health or highway purposes, or for expenditures made prior to the date of the law, treaty or Executive Order under which the claim arose, or for expenditures made pursuant to the Act of June 18, 1934 (48 Stat. 984), save expenditures made under section 5 of that Act, or for expenditures under any emergency appropriation or allotment made subsequent to March 4, 1933, and generally applicable throughout the United States for relief in stricken agricultural areas, relief from distress caused by unemployment and conditions resulting therefrom, the prosecution of public work and public 45 Opinion of the Court projects for the relief of unemployment or to increase employment, and for work relief (including the Civil Works Program) shall not be a proper offset against any award. In determining what amounts expended by the United States on behalf of appellant-tribe should be allowed as offsets, the Commission has sought to apply the provisions of the Indian Claims Commission Act set forth above, this court's rule in the case of Sioux Tribe v. United States, 105 C. Cls. 725, and the rules suggested by this court in The Menominee Tribe of Indians v. United States, 118 C. Cls. 290.5 We have examined the items disallowed as offsets by the Commission and in each instance we agree with the disposition made by the Commission. We turn now to those items allowed by the Commission as offsets and to appellant-tribe's objections to such allowances. In finding 13, the Commission found that defendant had paid to or expended for appellant tribe $13,450 pursuant to Article 2 of the treaty of November 15, 1824, including $7,450 as annuities, $4,000 in merchandise and goods, and $2,000 in payments to chiefs. These items constitute "payments made by the United States on the claim" and are allowable offsets under Section 2 of the Indian Claims Commission Act. • At page 793 this court said; "*** An expenditure by the Government, in order to be a gratuity or a legal or equitable offset chargeable against the Indians, must be one with respect to which the United States has not assumed any obligation, direct or incidental, as a party to the treaty or in its sovereign capacity pursuant to the intention of the treaty." In the Menominee case (p. 326), the court held that expenditures for maintenance of law and order and for transportation for that purpose were primarily in the category of "agency and other administrative" expenses; that "education" included adult education such as that given by teachers of farming and by agricultural agents, and that expenses of such nature should not to be set off; that in the absence of any showing as to just what was the purposes of the expenditures for planting and harvesting crops, seeds, fruit trees, fertilizers, agricultural implements and equipment, the court would assume that they were for the purpose of demonstration and were educational; that the same would apply to items for feed and care of livestock, transportation of livestock, transportation of supplies for agricultural aid and of agricultural implements and equipment; that the Government has the burden of proving the propriety of the offsets asserted and when an item, on the basis of the evidence submitted, may or may not have been expended for one of the purposes for which offsets cannot be made, the doubt must be resolved against the offset. Opinion of the Court 128 C. Cls. In finding 14, the Commission found that defendant had paid to or expended for appellant-tribe $12,408.19 pursuant to Article 5 of the treaty of 1824, including $3,558.73 for pay of interpreters, $500 for pay of a sub-agent, $1,000 for removals and $7,349.46 for meat and salt. Appellants object to the allowance of the last item for meat and salt on the ground that the treaty provided that meat and salt would be furnished for six months from January 1, 1826, whereas $6,950.29 for such purposes were paid in 1825 from an appropriation entitled "Annuities, Quapaw Indians," and the balance in 1832, 1833 and 1835, and therefore could not have been payments "on the claim." The Act of March 3, 1825 (4 Stat. 92, 93), contained an item of $15,372 "For the purchase of provisions for six months, as provided for by the fifth article of said treaty," the treaty in question being that of November 15, 1824. By the Act of March 2, 1829, 4 Stat. 348, 349, $2,000 was authorized for the same purpose. By the Act of June 15, 1832, 4 Stat. 532, an additional thousand dollars was appropriated "for provisions for the Quapaws, by act of second March," 1829. From the above it appears that the total amount of $7,349.46, expended for "meat and salt," was pursuant to Article 5 of the 1824 treaty and, as such, was a payment "on the claim" and therefore an allowable offset from the judgment on the claim. In finding 16, the Commission allowed as an offset $5,552.36 expended by the United States for the benefit of the tribe for provisions in the years 1836, 1881 and 1882. Although the Quapaw treaty of May 13, 1833 (7 Stat. 424), provided (Article III) that the United States would supply the tribe with provisions for one year from the time of removal, these particular expenditures were not made pursuant to that treaty obligation, or, as far as the record shows, to any other treaty obligation. Accordingly, as held by the Commission this appears to be a proper offset. The Commission also allowed as an offset $1,558.35 which the Commission stated was gratuitously expended for the benefit of plaintiffs in 1867, 1869, 1872, 1873, 1874 and 1875, |