Opinion of the Court * 93 C. Cls. James count all their service as cadets at the United States Since the foregoing act clearly establishes plaintiff's status after August 13, 1940, giving him full credit after that date for his service in the Academy, the scope of this inquiry is limited to the period prior to August 13, 1940. Plaintiff first entered the Academy on June 14, 1911, but was discharged on June 22, 1912, because of deficiency in his studies. He entered the Academy the second time on August 28, 1912, and was graduated June 12, 1916. The statute provides (Sec. 1325 R. S.) that no cadet discharged because of deficiency in his studies shall be returned or reappointed to the Academy except upon the recommendation of the Academic Board. Plaintiff, on or about June 18, 1912, before he was actually discharged, and at the suggestion of the Superintendent of the Academy, made request of his member of Congress for another appointment. The member of Congress advised him that he would be reappointed, and on June 25, 1912, the Adjutant General of the Army wrote plaintiff informing him that the Academic Board had recommended that he be reappointed, and authorizing him to report at West Point on August 28, 1912, for admission to the United States Military Academy, subject only to physical examination. There was enclosed in that letter a blank form of acceptance, and plaintiff was asked to immediately inform the Adjutant General of his acceptance or declination of the contemplated appointment. He filled in and returned the form on July 9, 1912, indicating that he would accept the appointment. We think that when plaintiff entered the Academy on August 28, 1912, he did so by virtue of a new and independent appointment, and one which in no way related back to the prior one. By his discharge of June 22, 1912, plaintiff's connection with the Academy was completely severed, and the only way he could again gain admission was by another appoint 494 Opinion of the Court ment. It is true that the second appointment could be made only upon the recommendation of the Academic Board, but this does not mean that the new appointment was to be considered as a mere reinstatement. The provision was designed to prevent the reappointment of a candidate who was obviously unfitted for a career in the United States Army, and who would probably have to be again discharged for some deficiency. Any appointment so made was subject to the same formalities which governed an original or first appointment. In this particular case, the plaintiff was not required to take the mental examination, having already passed that prior to his admission in 1911. It was, however, necessary for him to obtain a nomination for appointment, the permission of the War Department to take the qualifying physical examination, and to again take the prescribed oath of office as a cadet. And it was not until after all these preliminaries had been completed that the formal notice of appointment, or cadet warrant, signed by the Secretary of War and the Adjutant General of the Army for the President, was actually issued. This warrant states on its face that plaintiff was appointed a cadet of the United States Military Academy, to rank as such from the 28 day of August, 1912. Nowhere in the record do we find any evidence that there was any definite appointment prior to that date. That this warrant was not issued until after the nominee had actually taken the oath of office and been admitted to the Academy was not a matter of chance. It is the regular and customary method of procedure, indicating that the appointment does not become effective until all conditions have been fulfilled. Furthermore, the communication from the Adjutant General, dated June 25, 1912, referred to a contemplated appointment, thus denoting that it was not an accomplished fact. Plaintiff's contention that he was reappointed by his congressman on or about June 18, 1912, is an erroneous one. Members of Congress are not empowered to actually appoint cadets to the Military Academy. They can only nominate candidates for appointment. The statute (Sec. 1315 R. S.) specifically provides that these appointments are to be made by the President. Since the appointment in question did Syllabus 93 C. Cls. not confer upon plaintiff the rank of cadet in the United States Military Academy until August 28, 1912, and since by the terms of the statute (Sec. 1317 R. S.) no pay or other allowance may be drawn until the appointee shall actually have been admitted, there is nothing upon which to base a finding that plaintiff was appointed to the Academy until after August 24, 1912. He, therefore, comes within the provisions of the Act of August 24, 1912, supra. It follows that plaintiff's petition must be dismissed and it is so ordered. MADDEN, Judge, WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. THE SEMINOLE NATION v. THE UNITED STATES [No. L-51. Decided January 6, 1941. Plaintiff's motion for new trial allowed, findings of fact and opinion amended May 5, 1941] On the Proofs Indian claims; ratification of expenditures made without authorization. Where the full amounts due under articles VIII and IX of the treaty of 1856 were not expended for the benefit of the Seminole Indians, in accordance with the provisions of said treaty, and where under the Act of July 5, 1862, Seminole funds in excess of said amounts were expended "for the relief and support of said tribes (the Seminoles included) as have been driven from their homes and reduced to want on account of their friendship to the Government"; it is held that, although it may be doubtful whether the power resided in Congress to authorize the expenditure of Seminole funds for the benefit of Indians of other tribes, nevertheless such expenditures were ratified by the treaty of 1866, and plaintiff is not entitled to recover. Same; meaning of "annuities."-The word "annuities," as used in the treaty of 1856, is not to be restricted to annual payments for per capita distribution to the Seminole tribe but embraces all annual payments. Same; payments made pursuant to resolution of tribal General Council.-Where under article VIII of the treaty of August 7, 1856, providing for the payment to the Seminole Indians per capita of interest at 5 percent on $500,000, as annuity, such payments were not made in full for the years 18701874, inclusive, and where, however, in each of said years payments were made out of said fund for the benefit of 500 Syllabus the Seminoles for purposes other than those specified in article VIII of said treaty, and where such other payments were made pursuant to resolutions of the Seminole General Council; it is held that the defendant is entitled to credit for said payments made pursuant to said resolution. Same; treaty and agreement with the tribe.-The treaty of 1856, even if it was an agreement for the benefit of the individual members of the Seminole tribe, was an agreement between the United States and the tribe, and not the individuals. The Sac and Fox Indians, 45 C. Cls. 287; 220 U. S. 481, cited. Same; payment made to Indian Agent.--Payment made to the United States Indian Agent in accordance with the provisions of section 11 of the Act of April 26, 1906, must be allowed as a credit to the defendant on payments authorized by article VIII of the treaty of 1856. Same; annual payments for schools.-Where under article III of the treaty of March 21, 1866, the Government agreed to pay annually 5 percent interest on $50,000, or $2,500 annually, for "the support of schools," and where during the fiscal years 1867 to 1874, both inclusive, of the $20,000 theretofore appropriated for payment of accrued interest on said school fund, only $16,902.80 was disbursed by the defendant for educational purposes; it is held that the defendant is liable for the balance due, $3,097.20. Same; payments made to tribal treasurer.-Where during the years 1875-1879, both inclusive, payments of $57,500 made to the tribal treasurer by the defendant may have been unauthorized but where it appears that the tribal treasurer disbursed annually for the maintenance of tribal schools an amount in excess of the amount the tribe was obligated to expend for schools; it is held that since the schools received the money the defendant is not liable. Same. Where the amount of $750.00 due for the year 1907 was paid to the Indian Agent under the authority of section 11 of the Act of April 26, 1906, it is held the plaintiff cannot recover. Same; agency building; violation of treaty.-Where under the provisions of article VI of the treaty of March 21, 1866, the Government agreed to erect an agency building on the Seminole reservation "at an expense not exceeding ten thousand dollars"; and where an appropriation of $10,000 for erection of an agency building was made by the Act of July 28, 1866, which amount was not used and was returned to surplus; and where by the Act of May 18, 1872, the sum of $20,000 was appropriated to replace the unused appropriation of 1866 for the erection of an agency building pursuant to the Creek treaty; and where it appears that $9,030.15 of the $10,000 appropriated for the Seminole Agency was ex Syllabus 93 C. Cls. pended for some purpose; and where it appears than an agency building was in fact erected in the year 1873; and where there is no showing by the plaintiff that such agency building was not suitable; it is held that there was no violation of the said article VI of the treaty and plaintiff is not entitled to recover. Same; Curtis Act.-It is held that although section 19 of the Curtis Act, prohibiting payments to any of the tribal governments or to any officer thereof, is applicable to the Seminole Nation, such prohibition applied only to the payment of per capita payments. Same; vested rights of individuals.-It is held that although the Curtis Act did prohibit the making of these per capita payments to the tribal treasurer, and they were so made in violation of its terms; the Curtis Act did not create in the individual Indians any vested rights, it did not constitute an agreement with the tribe for the benefit of its individual members, but was merely a direction to the agents of the United States. Same; suit for second payment of money improperly disbursed.Where it is not disputed that the Seminole Nation received certain money, though improperly disbursed, and said money was paid to it in pursuance of a request of the General Council of the Nation, it is held that the Seminole Nation cannot maintain an action for the payment of said money for a second time. Same; excess land in Seminole reservation.-Where defendant under the treaty of 1866 was obligated to provide 200,000 acres of land for the use of the Seminoles, and where the original reservation consisted of only 188,449.46 acres, or a shortage of 11,550.54 acres; and where in the adjustment of the boundary between the Seminole and Creek reservations an additional 175,000 acres were purchased at $1 per acre from the Creeks and added to the Seminole reservation; it is held that under the Act of August 12, 1935, the defendant is entitled to an offset of $1 per acre for the excess 165,847.17 acres, or $165,847.17. Same; case "tried or submitted."-Where a prior decision in the instant case (82 C. Cls. 135) was reversed by the Supreme Court (299 U. S. 417) and where following such reversal an amendatory act was passed enlarging the period of limitations, and where subsequently a second amended petition was filed in accordance with the provisions of the amendatory act; it is held that as to all issues not finally disposed of at the former trial the instant case is not a case that had been "tried or submitted" within the meaning of the Act of August 12, 1935 (49 Stat. 571, 596). Same; expense of allotment.-Where under the agreement with the Seminoles ratified by the Act of July 1, 1898, providing for |