dissenting;
I regret to find myself unable to agree to this judgment. If the United States had authorized suit to be brought against *42them on. the Senate award, I should not have hesitated about giving judgment in favor ’of the Choctaw Nation, upon the facts now found by the court below, for the full amount due according to the statement of the Secretary of the Interior. That award has not, in my opinion, been abrogated by the bringing of this suit. It remains, so far as anything appears in this record, as valid and as binding today as it was when made. The United States have neglected to pay the amount awarded, but the Choctaw people have never, so far as this record shows, released them from their obligation to pay. On the contrary, it seems always to have been insisted upon.
This suit is not brought upon the award, but upon the treaties, and it is to be determined, in my opinion, according to the legal rights of the parties now existing as fixed by the treaties, without regard to anything that was done, by the Senate under the treaty of 1855. The language -of the jurisdictional statute is this: “ The Court of Claims is hereby authorized to take jurisdiction of 'and tiy all questions of difference arising out of treaty stipulations with the Choctaw ' Nation, and render judgment thereon; power is hereby granted the said court to review the entire question of differences. de novo, and it shah not be estopped by any action or award made by the Senate of the United States in pursuance of the treaty of 1855.” This, as it seems to me, means np more than that the questions of difference are to’ be tried de novo, as far as the award is concerned. Á judgment is to be rendered. This implies that the proceeding is to be judicial in its character, and that the -judgment is to be in accordance with-the 'principles governing the rights-of parties in the ad:. ministration. of justice by a court. The Senate, however, were, by -the treaty of 1855, made arbitrators, and' they were invested with power to determine whether-the Choctaws were “ entitled ” legally to the proceeds of their lands, .and, if not, whether they ought, under ah. the circumstances of the case, to be “ allowed ” such proceeds. The Seriate could consider arid act upon the moral obligations of. the United States, but neither we nor the Court of Claims can do more than enforce their legal liabilities.
*43What, then, are tbe legal obligations of tbe United States, under tbe treaties at tbis time, leaving tbe Senate award entirely out of view? Tbe jurisdictional statute neither waives nor abrogates tbe release which was executed under tbe act of July 21, 1852. Tbe same is true of the treaty of 1855. By the put of 1852. payments were to be made in cash to claimants under tbe fourteenth article of tbe treaty of 1830, for tbe amount of the scrip which bad been awarded under tbe act of August 23, 1842, but not delivered, provided “ that tbe final payment and satisfaction of said awards shall be first ratified and approved as a final release' of all claims of sueh parties under tbe fourteenth article.” That release was executed on tbe 6th of November, 1852. Tbe treaty of . 1855 recites that “the Choctaws contend that, by a just and fair construction of the treaty of September 27, 1830, they are of right entitled to the net proceeds of the- lands ceded by them to tbe United States under said treaty, and have proposed that tbe question of their right tó tbe same, together with the whole subject-matter of their tmsettled claims, whether national or individual, against the United States, arising under the various provisions of said treaty, shall be referred to the Senate of the United States for final adjudication and adjustment.” In view of this recital, we are to construe Article XI of the .treaty, which is in these words:
“ The Government of the United. States not being prepared to assent to the claim set up under the treaty of September the twenty-seventh, eighteen hundred and thirty, and so earnestly contended for by the- Choctaws as a rule of settlement, but justly appreciating the sacrifices, faithful services, and general good conduct of tbe Choctaw people, and being desirous that their' rights and claims against the United States shall receive just, fair, and liberal consideration, it is therefore stipulated that the following questions be submitted for adjudication to the Senate of the United States:
“ First. Whether the Choctaws are entitled to, or shall be allowed, the proceeds of the sale of the lands ceded by .them to the United States, &c.,” or
■ “ Second. Whether the Choctaws shall be allowed a gross *44sum in further and full satisfaction of their claims, national and individual, against the United States; and, if so, how ■much.”
■Thus the whole matter was referred to the Senate to determine, 1, Whether the Choctaws were in law entitled to the proceeds of the sale'of. their lands, and, if not, then, 2, What, 'under the circumstances, would be a fair and liberal settlement of all the matters of difference, with the right under this branch of the submission to “allow” the Choctaws the proceeds, or.a “ gross sum ” to be ascertained in some other way. The Senate decided that they "were not entitled to the proceeds as a matter • of right, but that, under all the circumstances, it -would be fair and just to settle on that basis. Had the same power been granted to the Court of Claims, I should not hesitate to affirm a judgment to the full amount of the award if placed on that ground. But, as has been seen, the jurisdictional statute confines the jurisdiction of the courts in this suit to a determination of the legal rights of the parties. Under the treaty the Senate could do what was fair and just, but we can only adjudge according to law.
TAs court agrees with the Senate committee in deciding that the Choctaws were not legally entitled to the proceeds of the land. In that I concur. The only inquiry, then, is, how much jnjust be paid for the violation of the treaty of 1830 by the -United-States. If the release stands, then there can only be a recovery for the wisettlecl claims of the Choctaws, national and individual. In my opinion, the release has not been invalidated as an instrument binding in law by the findings in the case. The United States may have taken advantage of the necessities of the Indians- and exacted a hard bargain, but the bargain was made and both parties promptly carried it out. The Senate, under its powers, might take the hardship of this bargain into account and go behind the release, but, in my judgment, 'we cannot. All that remains, then, is to ascertain what is legally due from the United States on account, .of the national and individual claims not included in that settlement,, and upon this I am entirely satisfied "With what was done by the Court of Claims. I think the. judgment should be affirmed.