dissenting.
It results from the findings of the court below that the petitioners in that court whó áre appellants, apart from the. question of their laches, are entitled to the relief which they seek. This was conceded by the court below in the conclusion of law which it drew, from ijhe findings of fact, was not challenged by the government in the argument at bar, and is, besides, not now questioned by this court in its opinion. But the lower court held, and this court now affirms such conclusion, that because of their laches the petitioners are cut off from obtaining that judicial relief to which they would otherwise be entitled. In other words, it is decided that although the power exists in the court to grant relief, its duty is not to exert-its lawful powers to that end because the petitioners have so neglected their rights that they aré not entitled now to enforce them. From this conclusion I am constrained to dissent, because, in my opinion, there is no power in the court to entertain jurisdiction, and therefore no right in it to'decide the question of laches. In other words, I think the plaintiffs in error must be relegated to Congress for relief, not because they have lost their right to redress in the courts by their neglect, but because the wrong which they have suffered is one which can only be remedied by Congress, the courts being without jurisdiction over the subject matter. Whilst both in the opinion of the court and in my view the plaintiffs' in error can only obtain relief at the hands of Congress, there is a serious difference in the grounds upon which the conclusion proceeds, for manifestly it is one thing to refer the plaintiffs to Congress because they have lost their rights by neglect, and another to refer them to Congress because that body alone has power over the subject. Because of the difference between these views and the effect which this difference may have on the rights of the parties when their claim for relief is presented to Congress, I deem it my dutv to state quite fully the reasons for my dissent.
The history of this controversy was stated in the opinion in Phineas Pam-to-pee v. United States, 148 U. S. 691. For the *385purpose of present clearness, however, the salient facts are again recapitulated.
On the 26th and 27th of September, 1833, by a treaty and articles supplementary thereto, the united nation of Chippewá, Ottawa and Pottawatomie Indians ceded certain lands-ifl Michigan and Illinois to the United States, arid agreed to remove within three years west of the Mississippi. 7 Stat. 431, 442. Among other payments to be made on account of the cessions, there was to be paid to the Indians under the treaty proper the sum of-$280,000, and under the articles supplementary $40,000, in twenty annual installments of fourteen thousand dollars and two thousand dollars respectively.
Appended to the articles supplementary was a provision wherein it was recited :
“ As since the signing of the treaty a part of the band residing on the reservations in the Territory of Michigan have requested, on account of their religious creed, permission to remove to the northern part of the peninsula of Michigan, it is agreed that in case of such removal .the just proportion of all annuities payable to them under former treaties and that arising from the sale of the reservation on which they now reside shall be paid to them at l’Arbre Croché.” 7 Stat. 445.
Only a portion óf the Indians embraced by the provision just quoted removed from their reservations to the northern part of Michigan. The others disbursed throughout Michigan and a few settled in Indiana.
From the year 1843 to the year 1865, inclusive, payments were made to the Pottawatomie Indians who had not removed-West, and who were deemed to be entitled to the annuity benefits stipulated in the articles supplementary signed on September 27, 1833. These payments were made at the Mackinac agency, and it would seem that the payments embraced Indians who had not removed to the northern part of Michigan, but who had located elsewhere in Michigan and Indiana. A schedule showing the dates of payments, the names of the agents who made them, and the number of Indians to whom the aggregate sums were paid, is annexed in *386the margin.1 The amounts which were paid, as stated in the schedule, embraced sums deemed to be due under an annuity of sixteen thousand dollars, arising from a treaty made on July 27, 1829, and the annuity of two thousand dollars, mentioned in the articles supplementary ofv September 27, 1833,
By a treaty signed in June, 1846, 9 Stat. 833, all the Indians (Chippewas, Ottawas and Pottawatomies) embraced in the treaty of 1833, who had removed to the West and retained their tribal organization, were designated as the Pottawatomie Nation.
In accordance with a joint resolution of July 28, 1866, 14 Stat. 370, the sum of $39,000 was paid to the Chippewa, Ottawa and Pottawatomie Indians in Michigan and Indiana. This sum was paid to the “ chiefs, headmen, heads of families, and individuals without families ” of the Indians in question, within the Mackinac agency, there being 230 persons falling within the classes above designated, each one of the distributees receiv*387ing an equal share, that is, $169.50. The'money thus paid was receipted for as in full and complete satisfaction of all payments of every .kind and nature, past, present or future, in favor of the persons to whom the payment was made and those by them represented, against the United States or the Pottawatomie Nation of Indians. Despite the receipt in full thus given, the Indians to whom the payment in question had been made continued' to assert a claim against the United States on account of what was alleged to be still due to them under treaty stipulations. Finally, by the act of March 19,1890, 26 Stat. 24, the Court of Claims was authorized “ to. take jurisdiction of .and try all questions of difference arising out of tréaty stipulations with the said Pottawatomie Indians of Michigan and Indiana, and to render judgment thereon.” It was provided that the payment of $39,000 heretofore referred to should hot be given the finality which its terms imported, and appellate jurisdiction over any judgment which might be rendered was conferred upon this court. The second section of the act reads as follows:
“ Sec. 2. That said action shall be commenced by a petition stating the facts on which said Pottawatomie Indians claim to recover, and the amount of their claims, and said petition may be verified by a-member of any ‘ Business Committee’ or authorized attorney of said Indians as to the existence of suph facts, and no other statements need be contained in said petition or verification.”
Under this act two petitions were filed in the Court of Claims. The first of these petitions was entitled The Pottawatomie Indians of Michigan and Indiana v. The United States; the second was entitled Phineas Pam-to-pee and 1371 other Pottawatomie Indians of Michigan and Indiana v. The United States. The right asserted in both of these petitions was based on the averment that the petitioners were entitled to recover a stated sum from the United States, because they had not received their due. proportionate share of the annuities or other sums due the Pottawatomie Nation of Indians. However, although both the petitions substantially stated the same facts as constituting the cause of -action, the amount claimed in each petition was widely different. This arose f-om the fact that in the first pe-*388titicra it was asserted that about 300 of the Indians who had not removed West were entitled to their proportionate share of the tribal annuities under the articles supplementary to the treaty of 1833, it being alleged that those who had removed West were about 4000 in number. The claim was that the distribution should proceed upon that basis; whilst in the second petition it was asserted that the Indians who had not removed West were 1200 in number, and that distribution should be made in the ratio that 1200 ,bore to 4000, the latter being the number of Indians asserted to have gone West. Although, however, there was a difference in the claims of the two petitions as to the amount of the indebtedness owing by the United States, in both petitions recovery was only sought of an aggregate sum as due to the Pottawatomie Indians in Michigan and Indiana entitled to take under the articles supplementary to the treaty of 1833, and in neither petition was there any allegation as to the proportionate sum of the total amount claimed to which, any particular Indian was entitled, nor did either petition purport to state the representative capacity in which any particular Indian was entitled to take his share of the whole fund, if any.
The two- petitions referred to were consolidated and heard together. -The Court of Claims decided that there was due to the Pottawatomie Indians of Michigan and Indiana, after deducting payments made, the sum of $104,626, and entered judgment for that sum. 27 C. Cl. 403, 421.
The “ just proportion ” which the court thus found to be due to the Pottawatomie Indians of' Michigan and Indiana, in the aggregate, entitled to share in the funds of the Pottawatomie Nation, Was arrived at first by ascertaining.from various reports the number of the Indians who had moved West under the treaty of 1833, and then by ascertaining the number of Indians entitled to share who had remained in Michigan. This latter number was arrived at by averaging the number of such Indians as shown by various payments made from 1843 to and including 1866, as-manifested in the schedule of such payments heretofore excerpted or referred to.
The court was of opinion' that under the jurisdictional act of *3891890 it could only find and decree the aggregate amount due all the Indians entitled to participate in the fund found due, and that it was not incumbent upon it to determine who were the particular Indians entitled to take such aggregate amount and the distributive share to which each particular Indian, was entitled. It said:
“ Congress have recognized by the very title of the act a claimant designated as the ‘ Pottawatomie Indians of Michigan and Indiana,’-and under that generic head is to be determined the aggregate right of such claimant, leaving the question of distribution to that department of the government, which by law has incumbent on it the administration of the trust, which in legal contemplation exists between the United States and the different tribes of Indians.”
On appeal this court affirmed the judgment of the Court of Claims. 148 U. S.. 691. After determining that there was no error in the judgment under review, in so far as it fixed the aggregate amount due, the question was then considered whether it was the duty of the court to ascertain what particular Indian was entitled to share in the fund and the amount of his or her distributive share. On this subject, after quoting approvingly the reasoning of the Court of Claims, by which that court sustained its action under the jurisdictional act of 189Ó, in finding only.the aggregate amount due and leaving the distribution of the fund to the executive officers of the government, and after pointing out that the suit was- brought to recover only such aggregate amount, and that there was no finding made by the court below which would justify a decree distributing the fund, the court said (p. 705) :
“ Unable as we are to safely adjudicate this question as between these classes of claimants, we can do no better than ac- . quiesce in the suggestion of the court below, that it is one to be dealt with by the authorities of the government when they come to distribute the fund.
“ As these petitioners no longer have any tribal organization, and as the statutes direct a division, of the annuities and other sums payable, by the head, and as such has been the practice of the government, perhaps the necessities of the situation de*390mand that the identification of each claimant entitled to share in the distribution shall be left to the officers who are the agents of the government in paying out the fund. United States v. Old Settlers, ante, 427,”
By the deficiencies appropriation act of August 23, 1894, 28 Stat. 424, c. 307, various sums were appropriated, “ For payment of judgments of the Court of Claims,” one item reading as follows: “ To the Pottawatomie Indians of Michigan and Indiana, $104,626.00.” In the Indian Department appropriations act of March 2, 1895, 28 Stat. 876, c. 188, was contained the following, italics not in the original (p. 894):
“ Miscellaneous..
‡ ‡ ‡ ‡ $
“ That the Secretary of the Interior is hereby authorized and directed to detail or employ an Indian inspector to take a census of the Pottawatomie Indians of Indiana and Michigan who are entitled to a certain sum of money appropriated by Congress to satisfy a judgment of the Court of Claims in favor of said Indians. And. for the purpose of making the payment to the Pottawatomie Indians, of Indiana and Michigan, of the $104,626, appropriated by the last Congress to satisfy a judgment of the Court of Claims, there is hereby appropriated the sum of one thousand dollars.”
In the Indian Department appropriations act of August 15, 1894, 28 Stat. 286, c. 290, there was appropriated $6243.90 as the “ amount due certain Pottawatomie Indians of Indiana and Michigan ” for their proportion due June 30, 1.893, June 30,1894, and June 30, 1895, “of the perpetual annuities ($22,300.00) . . . as ascertained by the judgment of the Supreme Court of the United States pronounced in the case of the Pottawatomie Indians of Michigan and Indiana against the United States, on April 17, 1893, and which annuities were not embraced in the judgment aforesaid.” 28 Stat. 295. An appropriation of $2081.30 for the proportion of the perpetual annuities due the Pottawatomie Nation for the year ending June 30, 1896, was made by the Indian Department appropriations act of March 2, 1895, 28 Stat. 876, 885, c. 188. It was recited, as in the previous statute, that the amount of the perpetual annuities *391had been ascertained by the judgment of this court on April 1Y, 1893. By a proviso the Commissioner of Indian Affairs was directed “ to withhold from distribution among the said Indians so much of any moneys due them by the United States as may be found justly and equitably due for legal services rendered, and to pay the same on account of the prosecution and recovery of the moneys aforesaid.” In the Indian Department appropriations act of June 10, 1896, 29 Stat. 321, c. 398, there was appropriated to pay the same Indians $2081.30 as their proportion of the perpetual annuities for the year ending June 30, 189Y, and also the sum of $41,626.00, as a “ final settlement by capitalizing their proportion of the perpetual annuities in question.’? Reference was made to the judgment of this court as in the prior appropriation acts.
■ The action of the Secretary of the Interior in respect to the disbursement of the moneys so appropriated is summarized in finding of facts numbered III made by the Court of Claims in this action. It reads as follows:
“ In June, 1895, the Secretary of the Interior ordered and directed that a'census of the Indians be made under the act 2d March, 1895, 28 Stat. 894. The census roll was prepared under instructions of the Commissioner of Indian Affairs, dated June 8,1895 — approved by the Secretary of the Interior June 15, 1895 — by John W. Cadman, and is known as the ‘ Cadman census roll? While the agent was so engaged in taking the census, John B. Shipman, Esq., attorney of record in the case of Pam-to-pee v. United States, addressed a communication to the Secretary of the Interior, dated July 2Y, 1895, representing that such census, by reason of the manner in which it was being taken, would omit many Indians entitled to be paid under the judgment of the court. Before further instructions were given by the Secretary of the Interior the agent, Cadman, in August, 1895, made and returned and filed in the Interior Department the census so made by him.
“ After this roll had been prepared many applications for enrollment were received by the Commissioner of Indian Affairs, based upon the statement that while such applicants were not on the roll of 1866 they were on prior rolls from 1843 to 1866, *392or ■ were the descendants of such persons. The question was then submitted to the Secretary of the Interior for an opinion as to whether the rolls from 1843 to 1866 should be considered in connection with the enrollment of those who were entitled to participate in the' distribution of the $104,626 awarded by the Court of Claims.
“ On January 10, 1896, the Secretary of the Interior made his final decision in regard to the Indians who should be enrolled and paid under the judgment of this court and the appropriation, of Congress. Marcus D. Shelby, a special Indian agent, was designated by the Commissioner of Indian Affairs do examine and report upon the claims of the several parties alleging to be descendants of the Pottawatomie Indians of Indiana and Michigan who were permitted by supplemental clause to the treaty of- September 27,1833, to remain east, and for whom the Court of Claims rendered a decision in their favor of $104,626, June 27, 1892. The instructions given to the agent by the Commissioner were dated February 5,1896. The agent so designated proceeded to Michigan and reported the result of his investigation, bearing date of March 14, 1896. The report so made was accepted by the Secretary of the In-•térior as substantially correct, and the amount appropriated by Congress in satisfaction of the judgment of this court, 28 Stat. 450, as well as other'funds appropriated to pay the Indians upon treaties mentioned in the petitions in said suits, (the sum paid being $118,554.52) paid to the persons upon the roll made by Cadman, after adding thereto two names on the recommendation of Shelby in closing his report as persons mentioned on the census roll of 1866. Later one more was added by the department. The money was paid to the Indians as communal owners. That is to say, it was paid pro rata to every living member of that portion of the tribe entitled to participate in the fund and not per stirpes.
“Enclosed in the said letter of John B. Shipman was a list containing the names of over one hundred and fifty of the claimants herein, the names of their ancestors and number on the pay-roll of 1843 and 1844 being given as stated in the letter.”
*393The report of agent Shelby was made a part of the findings of the court. The manner in which he proceeded to ascertain who were entitled to be added to the Cadman roll was thus summarized in the opinion below:
“ His report to the Commissioner of Indian Affairs, March 14, 1896, shows that he traveled through the country where these Indians resided, or were supposed to reside, and notified them, so far as he could, to appear and prove their cases. In his report he said: I found these people very badly scattered, and as they do not frequent post offices, the notices prepared for me to be.posted in the various post offices, to give them notice of my coming, were of but little value. In nearly every instance, • on reaching the vicinity of these Indians, I had to take teams and drive to their homes. I got, however, the newspapers to publish the principal points I would visit.’ A number appeared, some of whom claimed because their ancestors’ names were on the rolls of 1843 and 1844,. others because they had Pottawatomie blood in their veins. All of these applicants were rejected for various reasons; some because their proof was insufficient ; some because they or their forefathers had allied themselves with other Indian tribes; some because their fathers’ names had been erroneously placed, in the opinion of Indian agents, upon the former rolls, and had been dropped from subsequent rolls.”
There was no finding that any notice had been given to Mr. Shipman of the movements of agent Shelby, nor was it found that any of the Indians whose names were furnished by Mr. Shipman to the Secretary of the Interior ever had actual notice of the investigation which the representative of'the Secretary of the Interior made intermediate the receipt of the instructions of February 5, 1896, and the return of Shelby to Washington in the early part of the following month.
On April 22, 1899, the present action was instituted in the Court of Claims, the petition • being filed on behalf of Phineas Pam-to-pee and 362 other named Indians, alleged to be a portion of the Indians in whose favor the judgment for $104,626 was rendered. The proceedings in the prior actions were set out and the passage of the various appropriating acts to which *394allusion has already been made was averred, as also that distribution had been made of the greater part of the funds among 273 Indians, while- nothing had been paid to the petitioners. Judgment was prayed for such proportionate amount of the various funds as the evidence might show the petitioners were entitled to, to be “ allotted and awarded to them severally.”
After issue joined, the cause was tried and the Court of Claims filed findings of facts and conclusions of law. Finding III has heretofore been set out. Finding IY reads as follows:
“ None of the Indians, parties in or represented by the present suit, were paid as aforesaid. A large number of them, to wit, 272, whose names are set forth in Schedule A annexed to claimants’ requests for findings were descended from Indians whose names were enrolled on the rolls of Indians in Michigan in the years 1843, 1844, and 1866. A portion of the Indians who remained in Michigan as coming within the exemption of the treaty of September 27, 1833, were represented in both petitions in the cases of the Pottawatomie Indians v. The United States and the Pam-to-pee Indians v. The United States.”
The Court of Claims thus expressly found that a large number of the Indians, claimants in this suit, had received nothing in the distribution made by the Secretary of the Interior, although some of these Indians were parties to or represented in the consolidated case, and were also represented by Mr. Shipman before the Secretary of the Interior, and were entitled to share in such distribution. In addition, from the facts found concerning the investigation made by Agent Shelby prior to the distribution referred to, the court below expressed the opinion that the investigation by Agent Shelby “ was hurried, and to the judicial mind is unsatisfactory.” Moreover, the court, considering the judgment rendered in the previous consolidated case and the acts of Congress making the appropriation to pay the judgment of $104,626, arrived at the.conclusion that “there is not a line in the judgment of this court or in any statute of Congress which empowered of authorized the Secretary to dispose of the fund.” It was decided that the suit must be dismissed, because the petitioners had been guilty of such laches in pressing their claims after the appropriation was made and whilst the distribu*395tion was pending, as to debar them from all right to relief at the hands of the court.
It is difficult for me to determine precisely on what ground the theory of laches was predicated. In one aspect of the opinion below it would seem to have been rested upon the theory that, as the distribution of the money was a judicial act and not an administrative one, it was incumbent on the petitioners to have invoked the power of the court to control the Secretary of the Interior and compel him to distribute the money rightfully ; on the other, that although the petitioners had formally notified the Secretary of their claims, they were nevertheless guilty of laches because they did not foresee that that officer would distribute the money'without notice to them, and after an investigation which the court itself finds to have been wholly unsatisfactory to. the judicial mind.
In the argument at bar the error which was committed in the distribution in question as shown by the facts found by the court below is not disputed. On the contrary, in addition to the error in the distribution so shown, it is expressly conceded that the distribution was besides fundamentally wrong, because it was' made on an illegal basis. Thus it is said in the brief on behalf of the United States:
“ It appears from the record in this case that the judgment was distributed not per stirpes but per capita. That is to say, all the Indians discovered were allowed to participate equally in the fund, irrespective of the generation to which they belonged. ■ The son of an Indian who appeared on one of the pay rolls was allowed only the same amount which each of, say, five grandchildren of an Indian on one of the pay rolls was allowed. They should have taken by representation. The aggregate of the five shares of the five grandchildren mentioned should have equaled- the share of the son of the original payee. The consequence is that the whole judgment Avas distributed on a wrong basis. The payments became due to individuals at various times. The record discloses no reason why the estate of the individual to Avhom such payment was due.is not entitled to the whole of such payment.
“ If any one on the pay rolls at the time the annuities became *396due died without heirs who could inherit, there is no reason why this share should not escheat. It is perfectly evident that a mere enumeration of the Indians, and an equal division among them, does.not fulfill the requirements of the situation.”
The deduction which the government makes from the admission just quoted being that the petitioners are not entitled to relief, because relief cannot be administered without making parties defendant all those to whom the distribution was made and securing an entire readjustment and settlement of the rights of all parties.
This court now affirms the judgment of the court below. In effect the application of the rule of laches made by the lower court is approved, and the decisive result of the laches is additionally sustained by the conclusion that, although it was not shown that any notice was served upon the petitioners prior to the distribution made by the Secretary Of the Interior, the presumption that the officers of the government discharged their duty raises the legal inference that before making the payment such full and fair investigation had been made by the executive officers as warranted the paying out of the money in the manner in which it was disbursed. This court now, moreover, holds that as the judgment in the consolidated case, although it only .found the amount due to the Pottawatomie Indians in Michigan and Indiana as a body, had remitted the question of what Indians were entitled to such gross sum to the- proper executive department of the government, the executive officers who made the distribution in effect acted under the order of the court.
The jurisdiction to entertain the action can alone be predicated upon the following considerations: First, the act of Congress of 1890, by-the authority of which the original judgment in the consolidated ease was rendered, or upon the judgment thus rendered; or, second, the appropriation made by Congress to pay such judgment and the acts of Congress in connection therewith.
By section 1066 of the Revised Statutes it is provided that the jurisdiction of the Court of Claims “ shall not extend to any qlaim against the government . . . growing out of or dependent on any treaty stipulation entered into . . . with *397the Indian tribes.” Clearly, therefore, .aside from the jurisdiction conferred by the act of 1890, there was no power in the courts to consider and determine the question of the proper distribution of the funds due the Pottawatomie Nation of Indians, or to fix the just proportion to which the Pottawatomie Indians of Michigan and Indiana were entitled. Now, the act of 1890, which conferred jurisdiction on the Court of Claims to déter-mine the sum due the Pottawatomie Indians of Michigan and Indiana'out of the tribal funds, was susceptible of being construed in one of two ways: First, that it alone delegated the power to determine the aggregate amount of the just proportion of the tribal funds due to the Indians in question, or that it conferred such authority, and, in addition, imposed the duty of ascertaining the particular Indians who were entitled to share in the distribution when the total sum for distribution was judicially determined. That the statute embraced only the first power, that is, of fixing the aggregate amount, seems to me to conclusively result from the judgment rendered by the Court of Claims and affirmed by this court. It cannot be doubted that the Court of Claims expressly decided that the authority conferred by the act of 1890 related only to determining the aggregate amount, and not to the ascertainment of the particular persons entitled to share in the same and the amount they were respectively entitled to take. True, this court, in its opinion, in 148 U. S. 691, referred to the absence of evidence as to who were entitled to the distributive shares, and the impossibility of rendering a decree on that subject, yet it nevertheless, in affirming the judgment, expressly approved the conclusion of the Court of Claims limiting the judgment to the determination of the aggregate amount and leaving the distribution of that sum, when Congress should thereafter appropriate therefor, to the action of the executive officers of the government.
It follows that the jurisdictional power conferred by the act of 1890 was exhausted by the decree of affirmance, and the subsequent distribution of the gross sum when the appropriation had been made was solely a matter within the jurisdiction of Congress and the administrative officers of the government. *398That such was the legislative conception.' of the effect of the judgment of affirmance rendered by this court, is conclusively shown by the appropriation to pay the money and the other legislative acts concerning that sum and other sums awarded to the Indians in question, since such acts treat of the ascertainment of the individuals entitled to the gross amount found due as a purely administrative question, with no intimation whatever that it was conceived that the administrative discretion which the acts imposed was subject to be reviewed and controlled by the judicial branch of the government. To repeat, the jurisdiction, under the act of 1890 having been exhausted and the judgment fixing the aggregate sum having expressly remitted the distribution to the administrative branch of the government, it follows that no support for the jurisdiction over the present suit, either in the Court of Claims or in this court, can be founded upon the act of 1890 or the judgment rendered thereunder. Did, then, jurisdiction arise from the act of Congress appropriating the sum necessary to pay the judgment referred to or from the other appropriation acts to which reference. has heretofore been made ?
From' what has already been stated, it would seem that a negative answer must be given to -this question. In view of the terms of section 1066 of the' Revised Statutes, I think it is clearly requisite that the intention of Congress to commit to the courts the ultimate regulation and control of a distribution prima facie intended to be made or expressly directed to be made among unascertained beneficiaries by the executive officers of the government, should be plainly made to appear before it should be held that such authority was conferred on the judiciary. Now there had been no claims presented to Congress on behalf of Pottawatomie Indians seeking individual relief; but the claims urged were on behalf of the whole body of Pottawatomie Indians in Michigan and Indiana, who asserted the non-payment of their just proportion of the tribal annuities. On twenty-four different occasions, during as many years, Congress, through the Interior Department, had ascertained and determined who were the individuals constituting the Pottawatomie Indians of Michigan and Indiana, entitled to a just *399proportion of tribal annuities, and neither in the jurisdictional act of 1890 nor in any of the appropriating acts was language used importing that it was deemed that a necessity, existed for a judicial ascertainment of the particular individuals who might possess a right to share in the “just proportion” referred to. The various acts in which the appropriations in question were embodied made provision for numerous other appropriations, in compliance with stipulations embodied in treaties made with sundry Indian tribes, and as in the particular appropriating paragraphs in question payments were merely directed to be made to unascertained individuals constituting a body of Indians, there was certainly no clearly implied or expressed intention that the payments should be subject to the ultimate control of the courts or that the disbursement of the funds should be under any other direction or control than that of the Secretary of the. Interior, who had made prior payments of a similar character upon his own ascertainment of the individual beneficiaries. As a matter of fact, also, a contrary intent-is clearly manifested in several of the appropriating paragraphs. Thus, in the act of March 2, 1895, 28 Stat. 894, the duty is expressly imposed on the Secretary of the Interior to take a census of the Indians who were entitled to the fund appropriated by the previous Congress to pay the judgment of $104,626, thus implying that' there had .not been any provision in the judgment of the Court of Claims or of this court for the ascertainment of such individual beneficiaries; and one thousand dollars was appropriated “for the purpose of making the payment? obviously to those who, by a proper performance of the duty imposed on the Secretary of the Interior, should be found to be embraced within the class. • So, also, in the same act, 28 Stat. 885, the absolute control which Congress deemed it was exercising for the distribution of the sums found due to the Indians as a body was evinced in the direction to the Commissioner of Indian Affairs “ to withhold from distribution among the said Indians so much of any moneys due them by the United States as may be found justly and equitably due for legal services rendered, and to pay the same on account of the prosecution and recovery of the moneys aforesaid.” Bearing in mind that the appropriated *400sums in question, though a “ just proportion,” were in fact tribal funds, and that the expenditure of tribal funds is peculiarly regulated by Congress and committed to the Indian Department, Rev. Stat. sec. 2086, et seq., it seems to me beyond reasonable controversy that Congress intended that the ascertainment of- the particular beneficiaries entitled to the funds and the distribution among them should be performed solely by its own agencies.
The decision in United States v. Weld, 127 U. S. 51, is not an authority opposed to the views just expressed. In that case a judgment had been rendered by the Court of Commissioners of Alabama Claims, in favor of certain claimants, and they had received a portion of such judgment. The amount of the gross fund due all claimants had been fixed in the statute, what should be deducted had been specifically declared, and it had also been explicitly provided that the balance which would necessarily result should be distributed to the judgment creditors. The holding of this court was simply that creditors, whose claims against the fund had been adjudicated by the commission provided for in the statute, possessed a right to sue in the Court of Claims to recover their share of a portion of the fund which had been improperly retained by the Treasury Department.
Being of opinion that the judgment below should be reversed for want of jurisdiction, and that the sole remedy of the petitioners lies in an appeal to the fairness and sense of justice of the legislative branch of the government, it would, of course, be but of place for me to discuss the grounds upon which the laches is held to apply. It is manifest, however, that the reasoning by which I have been led to th'e conclusion that the court was without jurisdiction, if -sound, is in absolute conflict, with the theory that laches can be imputed to the petitioners because they did not invoke the aid of the court below to control the discretion to distribute the money vested in the Secretary of the Interior by the acts of Congress making the appropriations. This ground of laches being put out of view, the only other theory upon which it can be rested is, that although the petitioners formally presented' their claim- to the Secretary of the Interior and called his attention to their rights, *401they yet lost them because they did not foresee that that officer would, without notice, proceed to distribute the money to the wrong persons and upon, a basis which the government now, whether advisedly or not I need not consider, declares to have been absolutely unjust and illegal.
I am authorized by Me. Justice McKenna to say that he joins in this dissent.
Year. Name. No. paid. Amount.
1843 Robert Stuart.-.. 253 $1587.50
1844 do . 269 1587.50
1845 Wm. A. Richmond...’.. 217 1587.50
1846 do • 204 1587.50
1847 do .'. 244 1587.50
1848 do 260 1587.50
1849 Chas. P. Babcock. 260 1587.50
1850 do .'. 218 1587.50
1851 Wm. Sprague. 229 1587.50
1852 do . 214 1587.50
1853 Henry C. Gilbert. 219 1587.50
1854 do ..'. 236 1587.50
1855 do . 236 1587.50
1856 do . 221 1587.50
1857 A. N. Fitch. 229 1587.50
1858 do . '234 1087.50
18o9 do .'.. 253 1587.50
1860 do, ....,..'. 236 1587.50
1861 DeWitt C. Leach.,. 235 1587.50
1862 do . 247 1587.50
1863 do . 246 1587.50
1864 do .. 242 1237.50
1865 Richard M. Smith, principal in currency $1587.50 ¿o gold premium in currency 692.24 232 2279.74