of the final rolls of the Mississippi Choctaws by the Secretary of the Interior, to make settlement within the Choctaw-Chickasaw country, and, on proof of the fact of bona fide settlement, they shall be enrolled by the Secretary of the Interior as Choctaws entitled to allotment."

The act as passed contained the following:

force of clerks and stenographers, and the United States Commission to the there identified and made up a schedule Five Civilized Tribes shall have the of 1,923 persons as being Mississippi right, at any time prior to the approval Choctaws, entitled to citizenship in the Choctaw Nation under article 14 of the treaty. The principle adopted was that proof of the fact that a claimant was a full-blood Indian whose ancestors were living in Mississippi at the date of the treaty was sufficient evidence to report his name as a Mississippi Choctaw under § 21 of the Curtis Act. This schedule, known as the "McKennon roll," was subsequently approved by the commission, who forwarded it, with a report dated March 10, 1899, to the Secretary of the Interior. The schedule never was approved by the Secretary, and was attempted to be withdrawn by the commission December 20, 1900, errors having been discovered in it. It was formally disapproved by the Secretary March 1, 1907. The court of claims finds that "the work of Commissioner McKennon, covering a period of about three weeks, in identifying and making up said schedule, was interfered with and retarded by said Charles F. Winton, who endeavored to prevent the Indians from appearing for identification." No explanation of this appears. At the same time it is found that Mr. Owen (who, of course, was associated with Winton) furnished to Commissioner McKennon a list [386] of 16,000 Choctaw Indians, which aided McKennon in his official work.

Because of material errors discovered by the commission in the McKennon roll, another party was organized and sent out by the commission for the purpose of making a more accurate and complete roll of the Mississippi Choctaws under the Act of 1898, whose hearings were commenced in Mississippi in December, 1900, resumed in April of the following year, and continued until the latter part of August, 1901.

February 7, 1900, Winton and associates presented a memorial to Congress, praying that the treaty rights of the Mississippi Choctaws be so construed as to afford them the rights of Choctaw citizens without removal, or that they be permitted to have those rights determined in the courts. Congress took no action upon this.

"Provided, That any Mississippi Choctaw duly identified as such by the United States Commission to the Five Civilized Tribes shall have the right, at any time prior to the approval of the final rolls of the Choctaws and Chickasaws by the Secretary of the Interior, to make settlement within the Choctaw-Chickasaw country, and, on proof of the fact of bona fide settlement, may be enrolled by the said [387] United States Commission and by the Secretary of the Interior as Choctaws entitled to allotment: Provided further, That all contracts or agreements looking to the sale or encumbrance in any way of the lands to be allotted to said Mississippi Choctaws shall be null and void." Act of May 31, 1900, chap. 598, 31 Stat. at L. 221, 236, 237.

The Dawes Commission thereafter required from all applicants for enrolment proof of descent from Choctaw Indians who remained in Mississippi and received patents for lands under the 14th article of the Treaty of 1830. This constituted a reversal of the principle previously adopted in making the McKennon roll, to wit, a presumption that the ancestors of full-blood Choctaws residing in Mississippi had fully complied with the requirements of article 14. It resulted that only six or seven persons claiming as Mississippi Choctaws enrolled under the Act of May 31, 1900, although from 6,000 to 8,000 applications were filed in 1900 and the early part of 1901.

were

On April 1, 1901, the second party, already mentioned, sent by the Dawes Commission to Mississippi for the purpose of making a complete and accurate roll of Mississippi Choctaws, resumed hearings at Meridian, Mississippi, and April 4, 1900, Winton and his associ- held continuous sessions there and at ates memorialized Congress, requesting other places in the state until the latter the following amendment to the Indian part of August. The court of claims Appropriation Act, then pending: "Pro- finds that during these hearings and the vided, That any Mississippi Choctaw making of this roll the conduct of Winduly identified and enrolled as such by ton and associates increased the work

[388] June 20, 1901, Winton, under advice of counsel, began taking new contracts with individual Choctaws living in Mississippi, in lieu of the previous contracts already mentioned. The new contracts were 834 in number, and embraced in all about 2,000 persons.

of enrolment and impeded its progress., mission after the date of the final ratiBeing advised by Owen, and believing, fication of this agreement." While the that the McKennon roll was a finality, supplemental agreement, [389] as thus and constituted a favorable judgment in proposed, was pending in the Senate, behalf of the Choctaws whose names ap- Winton and associates presented a peared therein, Winton and associates memorial to that body in behalf of the advised all Indians who had been previ- full-blood Mississippi Choctaws, reviewously enrolled not to appear again be- ing prior legislation, and praying that fore the commission for identification. the provisions of the agreement then Nevertheless, as already stated, 6,000 or pending should be amended so that the 8,000 applications for enrolment were full-blood rule of evidence should be made, of which only six or seven were established, and the Mississippi Chocaccepted under the stringent rule of tavs given time, after identification, to proof adopted by the commission. remove to the Choctaw country, and longer time within which to make application. Senate Doc. 319, 57th Cong., 1st Sess. The memorial prayed that §§ 41, 42, 43, and 44, which, it was alleged, imposed onerous conditions upon Mississippi Choctaws, should be struck out, and plain provision made that persons March 21, 1902, while preparation of whose names appeared upon the Mcthe identification roll of Mississippi Kennon roll, and such full-blood MissisChoctaws was still in progress, an agree- sippi Choctaws as might be identified by ment was entered into between the the commission, and the wives, children, Choctaw and Chickasaw Nations and and grandchildren of all such, should the Dawes Commission in which, by $8 alone constitute the "Mississippi Choc41, 42, 43, and 44, it was proposed to taws," entitled to benefits under the fix the status of the Mississippi Choc- agreement; and that all of them who taws. This agreement, after some should have removed to the Choctawamendments in Congress, was approved Chickasaw lands within twelve months by Act of July 1, 1902, and ratified by after official notification of their identhe Choctaws and Chickasaws on Sep- tification should be enrolled upon a september 25, 1902 (chap. 1362, 32 Stat. at arate roll designated "Mississippi ChocL. 641, 651, 652). It was under this taws," and lands equal in value to lands agreement, known as the Choctaw- allotted to citizens of the Choctaw and Chickasaw Supplemental Agreement, Chickasaw tribes should be selected and that practically all Mississippi Choc- set apart for each of them, and that, taws were enrolled and secured their after a bona fide residence for a period rights to allotments of Choctaw tribal of a year, and proof thereof, they should lands. Sec. 41, as signed by the parties, receive patents, as provided in the did not contain the full-blood rule of Atoka Agreement, and be treated in all evidence, that is, that full-blood Choc- respects as other Choctaws. An amendtaws living in Mississippi should be pre- ment embodying these suggestions was sumed to be descendants of Choctaws introduced in the Senate at Mr. Owen's who had complied with the requirements request, submitted to the Department of of article 14 of the Treaty of 1830. It the Interior, and adversely reported permitted all persons identified by the upon. Section 41, however, was subsecommission under the provisions of § 21 quently amended, and, as finally enacted of the Act of June 28, 1898, as Missis- (32 Stat. at L. 651, chap. 1362), estabsippi Choctaws entitled to benefits under lished the full-blood rule as a rule of article 14 of the treaty, to make bona evidence, allowed six months after date fide settlement within the Choctaw-of final ratification of the agreement Chickasaw country at any time within six months after the date of the final ratification of the agreement, and, upon proof of such settlement to the commission within one year after the date of such ratification, they were to be enrolled by the commission as Mississippi Choctaws entitled to allotment; but declared: "The application of no person for identification as a Mississippi Choctaw shall be received by said com

within which applications for identification might be made, six months after [390] identification within which settlement might be made within the ChoctawChickasaw country, and one year after identification for making proof of such settlement to the commission.

The passage of the Act of July 1, 1902, as thus amended, was opposed by Mr. Owen and the associates of Winton, who protested against the conditions

contained in the amended sections relat- | funds, the names being carried on ing to the Mississippi Choctaws as final- separate roll. ly adopted.

As we construe the jurisdictional acts The Indian Appropriation Act of under which these claims were submitted March 3, 1903 (chap. 994, 32 Stat. at L. to the court of claims, they contemplate 982, 997), contained the following: not an action in personam to establish a "That the sum of twenty thousand personal liability against individual dollars, or so much thereof as is neces- Indians, or a group of Indians, but a sary, is hereby appropriated, to be im- suit of an equitable nature against that mediately available, for the purpose of class of Mississippi Choctaws who, aiding indigent and identified full-blood through successful assertion of the right Mississippi Choctaws to remove to the of citizenship in the Choctaw Nation, Indian Territory, to be expended at the acquired allotments of lands in what discretion and under the direction of the formerly was the tribal domain, and a Secretary of the Interior." The special participation in funds held in trust by disbursing agent of the Dawes Commis- the United States, a suit having the sion was sent to Mississippi to carry out object of imposing an equitable charge this provision. He there organized par- upon their funds and lands for a reaties and assembled all Indians who sonable and proportionate contribution could be found and induced to come, and towards the value of services rendered they were later transported by special and expenses incurred by the claimants trains to Indian Territory, and there in securing for said class of Indians a further maintained until placed upon beneficial participation in the trust allotments, and supplied with tools and estate, according to the principle apother equipment and rations for six months, all at the expense of the United States. The total number thus transported, maintained, and equipped was 420.

The Dawes Commission received applications from approximately 25,000 persons for enrolment as Mississippi Choctaws. Of this number 2,534 were identified by the commission; but of these 956 failed to remove to Indian Territory, or submit proof of their removal and settlement within the time prescribed by law. The total number of applicants identified and finally enrolled, and who have received allotments as members of the Choctaw Nation, is 1,578, of whom only 833 appear on the McKennon roll, [391] and only 696 had contracts with Winton and his associates. One hundred and eighty-one Mississippi Choctaws had voluntarily removed to the territory in 1891, and were received into the Choctaw Nation. These were carried on the rolls as Mississippi Choctaws, making the total enrolment 1,759; but the 181 Indians just mentioned were not regarded as defendants in this proceeding.

plied in Internal Improv. Fund V. Greenough, 105 U. S. 527, 532, et seq., 26 L. ed. 1157, 1160, and Central R. & Bkg. Co. v. Pettus, 113 U. S. 116, 122127, 28 L. ed. 915, 917-919, 5 Sup. Ct. Rep. 387. The present suit is of that nature.

It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property. [392] The guardianship arises from their condition of tutelage or dependency; and it rests with Congress to determine when the relationship shall cease; the mere grant of rights of citizenship not being sufficient to terminate it. Lone Wolf v. Hitchcock, 187 U. S. 553, 564, et seq., 47 L. ed. 299, 305, 23 Sup. Ct. Rep. 216; Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 310-316, 55 L. ed. 738, 747-749, 31 Sup. Ct. Rep. 578. In authorizing the present suit, Congress evidently recognized that it was impracticable to bring before the court all interested individual Choctaws; hence, treating them as a class, it designated the representatives who should defend The funds derived from sales of allot- for them, by analogy to the familiar ted lands of enrolled Mississippi Choc- practice in equity, recognized in Equity taws subject to the restrictions upon Rule 38 (226 U. S. 659, 57 L. ed. 1643, alienation prescribed by § 1 of the Act 33 Sup. Ct. Rep. xxix.). To the objecof May 27, 1908 (chap. 199, 35 Stat. at tion that the government's trusteeship L. 312, 3 Fed. Stat. Anno. 2d ed. p. 881), of the funds of these Indians, and its are held by the government to the credit guardianship over their interests in the of the individual Indians entitled there- allotted lands, made it necessary that to. All other funds belonging to enrolled the United States should be a party to Mississippi Choctaws are held as tribal the proceeding, it is sufficient to say

that the regulation of this matter is legislation, and to estimate its value, clearly within the power of Congress, than in a case of successful litigation, and that Congress acted within that we think the principle of Internal power in constituting the governor of Improv. Fund v. Greenough and Central the Choctaw Nation the representative R. & Bkg. Co. v. Pettus applies in the of the defendants, upon whom notice of one case as in the other. the suit was to be served in their behalf, and designating the Attorney General of the United States as their attorney to appear and defend the suit. We are clear, therefore, that there is no substantial basis for the contention that the jurisdictional acts have the effect of depriving the Indians of their property without due process of law, and hence are in conflict with the 5th Amendment, -a contention which, while overruled by a majority of the court of claims, was acceded to by the Chief Justice in a concurring opinion, 51 Ct. Cl. 324-327.

The fact that, in the present case, the services were rendered under contracts with particular Indians, whether valid or invalid, is no obstacle to a recovery. Services not gratuitous, and neither mala in se nor mala prohibita, rendered under a contract that is invalid or unenforceable, may furnish a basis for an implied or constructive contract to pay their reasonable value. King v. Brown, 2 Hill, 485, 487; Erben v. Lorillard, 19 N. Y. 299, 302; Smith v. Smith, 28 N. J. L. 208, 218, 78 Am. Dec. 49; [394] McElroy v. Ludlum, 32 N. J. Eq. 828, 833; Gay v. Mooney, 67 N. J. L. 27, 50 Atl. 596, 67 N. J. L. 687, 52 Atl. 1131; New York C. & H. R. R. Co. v. Gray, 161 App. Div. 924, 932, 145 N. Y. Supp. 1125, affirmed in 239 U. S. 583, 587, 60 L. ed. 451, 453, 36 Sup. Ct. Rep. 176.

The claim of Winton, Owen, and associates, is based wholly upon services rendered, nothing being asked because of expenses incurred or moneys disbursed. According to the findings the services rendered were in the nature of professional services before Congress And assuming the last set of conand its committees, individual Repre- tracts made by Winton and Owen with sentatives and Senators, the [393] Dawes the Mississippi Choctaws (including the Commission, etc., intended to establish Daley contracts) be regarded as valid, the right of the Mississippi Choctaws to they still do not create an obstacle to participation in the material benefits of the present suit. As between the claimcitizenship in the Choctaw Nation, and ants and their own clients, the existence to secure such legislation by Congress of valid express contracts would bar reas might be needed for the practical covery upon an implied contract. But attainment of the object sought. The there was no privity between claimants findings render it clear that services of and the Mississippi Choctaws as a class, this nature, altogether proper in char- no contract having been made with acter, not lobbying, in the odious them in their aggregate capacity, and sense, were rendered by these claimants the individual contracts not including under particular employment by many all members of the class. Under the individual Mississippi Choctaws, but equitable doctrine that we hold applicawith the object, incidentally, of bene- ble, claimants, having substantially perfiting the Mississippi Choctaws as a formed the agreements, might demand class, because only so could the clients compensation under them as against of the claimants be benefited. We their own clients, and the latter would make no doubt that, for proper profes- then be entitled to a ratable contribution sional services rendered, and expenses upon the basis of a quantum meruit from incurred in promoting legislation that their fellow beneficiaries whose interhas for its object and effect the rescue ests in the trust estate were secured and of substantial property interests for a rendered available through the services class of beneficiaries under a trust of a of claimants. And by way of avoiding public nature, it is equitable to impose circuity of action the equitable proa charge for reimbursement and com- ceeding may well be brought, as it has pensation upon the interests of those been brought, by claimants directly beneficiaries who receive the benefit, the against the beneficiaries of the trust; same as if a like result had been claimants waiving, as they must, any reached through successful litigation in right to recover under the contracts the the courts. In either case there is the measure of compensation prescribed same curious analogy to the salvage therein. Hence, whether valid or inservices of the maritime law; and while valid, the contracts are important merely it may be more difficult to weigh the as they show that claimants were not effect of a service rendered in promoting intermeddlers, but were employed by

large numbers of Mississippi Choctaws, | discretion, might have rejected them members of the benefited class, and that on this ground. Not doing this, howtheir services were not intended to be gratuitous.

[397] The claim in No. 12, Katie A. Howe, executrix of Chester Howe, deceased, like the one we have been discussing, is based upon alleged legal services rendered before Congress and the Interior Department in representing and proBut there were requests for addi- tecting the interests of the Mississippi tional findings, directed to the very Choctaws, and establishing their rights point upon which findings are wantin and to lands in the Choctaw Nation. ing. These requests were preferred The findings show that Chester Howe, under Rules 90-95, but were filed more than the prescribed sixty days after judgment. The [396] court, in its