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to the Attorney General for his opinion on the legal question, whether any allowance can be made."
The amount purports to be a claim on the part of Mr. Peyton, as late district attorney for the eastern district of Louisiana, for official services rendered in the circuit court of the said district. From the description which accompanies your reference, the services of the district attorney, for which the claim to compensation is made, were rendered in cases of indictment, and of civil actions. Some of the latter were for real estate, and many were revenue cases. The legal question which I understand to be submitted for my opinion, is whether any compensation can be made for such official services. The magnitude of the interests involved, the amount of labor and professional service rendered, and the quantum of compensation, I do not regard as within the scope of the reference; but my examination is confined to the single inquiry whether by the law, as it now stands, compensation can be made.
I have no doubt that it was the official duty of the district attorney to prosecute these suits in the circuit court. This is the plain result of the act of 1798. Is he entitled to any compensation for the discharge of such official duty? The 4th section of the act of 28th of February, 1799, declares “ that the compensation to the attorneys of the respective districts of the United States shall be as follows, to wit: five dollars for each day which any attorney shall necessarily atiend on business of the United States during the session of any district or circuit court; for travelling from his abode lo such court, ten cents a mile, and such fees in each State, respectively, as are allowed in the supreme court thereof; and in the district courts, his stated fees in the cases herein mentioned shall be as follows: " and the annual sum of two hundred dollars, as a full compensation for all extra services,”' &c. Congress thus gave to the district attorney travelling expenses from his abode to the place of holding the court, an allowance per diem while attending the courts, and two hundred dola lars per annun for extra services; for official services in the district courts, certain specified fees; and for e.r officio services in the circuit courts, such fees in each State, respectively, as are allowed in the supreme court thereof. It appears that in two of the States of this Vuion, to wit: Louisiana and Illinois, there is no legal fee bill, and no fees are taxed or allowed in the supreme court of either State. In an opinion given by Mr. Wirt, 31st of July, 1820,
" When the cause was removed into the circuit court, I consider the district attorney as bound ex officio to attend to it, for the compensation allowed by the act of Congress." He did not mean the travelling allowance, the per diem, or the two hundred dollars, but such fees as may be taxed in the supreme court of the State.
In Mr. Butler's opinion to the Secretary of the Treasury, on the 5th July, 1837, he says: “Mr. Baker correctly supposes that I was ignorant of the fact, at the time of preparing that opinion (of the 7th March, 1836,) that in the State of Illinois no fees are allowed by law to be taxed and recovered in the supreme court of that State; and it must be admitted that this circumstance very materially distinguishes the district attorneys of that State from other district attorneys of the United States.” “ It is evident, however,” he adds,“ that Mr. Baker has an equitable claim for compensation, and if the subject were properly presented to Congress I can scarcely doubt that some general provision concerning the district attorney of Illinois would be made."
In the act of 1841, amongst other things, it is provided in regard to the fees of United States clerks, attorneys, and marshals in the district and circuit courts, “and for any services including the compensation for mileage performed by the said officers in the discharge of their official duty for which no compensation is provided by the laws of the said States respectively, the said officers may receive such fees as are now allowed by law according to the existing usage and practice of said courts of the United States; and every district attorney, except the district attorney of the southern district of New York, shall receive, in addition to the above fees, two hundred dollars per annum;" thus recognising that neither this annual allowance nor the mileage and per diem was in. tended as an equivalent for regular e.c officio services. I refer to this law also to show that the act of 1839 does not forbid the allowance of compensation for such services. On the 23d December, 1842, the Secretary of the Treasury communicated to Congress a very elaborate report from the Solicitor of the Treasury on this subject, which very fully stated the difficulties and asked the interposition of Congress. All that was done was the insertion in an appropriation act of 18th May, 1812, of a provision which was only calculated to prevent the district attorneys from receiving more than the maximum allowance of six thousand dollars. No explanatory law has been passed. Since that report, in the case of the United States vs. Hoyt, Justices Thompson and Betts held that the payınent of counsel fees to the district attorney for defending him as collector, in suits instituted in the State courts and transferred to the circuit court of the United States, was legal and proper. And regarding this as a judicial interpretation of the law which the Executive ought not to disregard, Mr. Nelson, on the 15th December, 1843, advised the payment of a fee to Mr. Hoffman, district attorney of the southern district of New York.
I learn, too, from the First Comptroller of the Treasury, that the practice of the treasury is, and has been, in those States in which provision has not been made for taxing costs of judicial proceedings in their courts, to allow bills of costs, following the rates allowed in neighbor. ing States, certified or taxed by the judge of the attorney's district, as they were severally reasonable, and certified to the like effect by one or more prominent members of the bar. This practice has been recently acted on in settling the accounts of the districi allorney of Illinois.
It appears to me that it is not inconsistent with law, and ought not to be departed from until Congress shall more explicitly provide for the case and relieve the subject from the difficulty which enubarrasses it. If the allowance cannot be made according to this practice, an unjust inequality will exist in the compensation of the district attorneys of the several States. In the eastern district of Louisiana, the duties of the office appear to have heen, and must continue to be, highly arduous and re. sponsible, requiring constant attention and much professional attainment; and the incumbent of so important and responsible an office ought not 10 be denied the compensation which is made to others because the State has no legal system for taxing fees, which it was the intention of Congress only to adopt by analogy. The intention is clear that compensation should be made. If the States respectively have not by law furnished a guide, the practice and usage, it would appear, might be fairly resorted to as a rule of compensation. I answer your inquiry, therefore, that com.
pensation may be made to Mr. Peyton for ex officio services rendered in the circuit court of the eastern district of Louisiana in criminal and civil suits in the said court. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. Robert J. WALKER,
Secretary of the Treasury.
CHOCTAW CLAIMS UNDER TREATY OF DANCING RABBIT CREEK.
The same Indian cannot be allowed a claim under both the 14th and the 19th article of the
treaty of Dancing Rabbit creek. (See opinion of Mr. Taney, given 9th September, 1831,
which set led the construction which has ever since been adhered to.) A claimant under the 14th article of the creaty, who complied with its requisitions and who
was expelled from his land by the force or was induced to leave it by the fraud of the government or its agents, by virtue of a sale of his land made by the government, has not
forfeited his rights under the treaty and the law of 1842. Nor has any forfeiture resulted from the fraudulent acts of the agent of the government who
induced claimants to apply for a reserve under the 19th article, and which were located for them, but for which patents have not been demanded nor issued. The certificate of the Indian agent in reference to the facts upon which the Choctaw claims
are based is not conclusive testimony for any purposes beyond the act of Congress. The 3d section of the act of 1842 authorizes the examination and allowance of claims under the 14th article of the treaty, and the proviso contains nothing to affect them.
ATTORNEY GENERAL'S OFFICE,
November 18, 1845. Sır: I have carefully examined the report of the Commissioner of Indian Affairs, made to you on the 4th of June last, with the accompanying papers. The questions subinitted for my opinion relate to the claims of Indians of the Choctaw tribe under the treaty of Dancing Rabbit creek, which was ratified on the 24th February, 1831. The claims which have rendered this reference necessary arise under the 14th and 19th articles of the treaty. The 14th article provided a grant of land for those Indians who did not choose to emigrate, and imposed conditions which were not likely to be performed by any but settled alid substantial persons who intended in good faith to become citizens of the State of Mississippi. The provisions of the 19th article contemplated emigration, and were confined to a limited number who had cultivated land in the year 1830. The respective grants depended on the quantity of land so cultivated. The questions now subinitied are thus stated by the Commissioner of Indian Affairs:
Ist. Whether any dispossession other than one occasioned by a sale of the land by the government can save the right of the claimant.
2d. Whether a claimant under the 14th article of the Choctaw treaty of 1830, who appears on F. W. Armstrong's register to have been located, or to have “relinquished" under the 19th article of same treaty, can now receive land under the said 14th article; or, in other words, whether the register of Armstrong is or is not conclusive of an election before it was prepared.
It was decided at this office by Mr. Taney, on the 9th September, 1831, that the same Indian could not take the benefit of both the 14th and the 19th articles; and this opinion has been uniformly adhered to here, and acted on at the War Department. I have no doubt it was correct.
To execute the treaty, it became obviously indispensable that the necessary information should be collected and communicated to the War Department. For this purpose, Major F. W. Armstrong was appointed a special agent, with instructions “to examine the country ceded by the Choctaws, and to ascertain the quantity of land cultivated by each Indian during the year 1830, and to make a register of farms examined, and the acres in cultivation, their situation and probable worth, the names of the Indians owning or claiming the several places secured under the 19th article, with the name of each family, &c." On the 21st May, 1831, Col. William Ward, then the regular agent of the Choctaws, was directed by the Secretary of War to be careful in keeping a register of reservations taken under the 14th article, and to send a copy to the department. the 11th February, 1832, the department received from him a register purporting to be made under these instructions, containing sixty-nine names.
I do not understand that Armstrong's register was prepared by him in conjunction with the respective chiefs of the three districts of the Choctaw nation. But on the 20th January, 1832, Col. Ward transmitted to the War Department three registers of the three Choctaw district claims to reserves of land, as allowed by the three chiefs and by Major Armstrong, special agent for that object.
These are the registers called Armstrong's in the act of 1842, and are partial copies, certified by him on the 7th September, 1831. They do not embrace the number of the families nor the locality of farms. These copies were furnished by Major Armstrong to Col. Ward, to aid him in the performance of his duty.
The copy thus furnished contains: 1st. A column of names; 2d. A column showing how much land was in cultivation in 1830; 3d. The quantity of land allowed to the Indians under the 19th article; 4th. A column showing who had relinquished; and, 5th. Remarks. It must be borne in mind that Armstrong's instructions did not embrace any inquiry as to who would be claimants under the 14th article. The object of his register was to enable the government to execute the 19th article of the treaty, and also to regulate the allowance under the 14th, when the election should be made. It was intended to embrace every Indian who had cultivated lands in 1830, and who might therefore claim under that article; and it contained, or was intended to contain, the means of determining the extent of such claim. But Choctaws might have been, and no doubt were registered by him, who, being thus entitled under the 19th, might, by the treaty, elect to take the more favorable terms of the 14th article, upon its conditions, and thus relinquish the claim under the 19th.
But of this election Armstrong took no list and furnished no evidence. Ward having returned his list of sixty nine Choctaw names, as entered by the agent previous to the 24th of August, 1831, received, on the 7th of September, 1831, a copy of Major Armstrong's list, and inserted in the 4th column against many names the word as relinquished.”
relinquished.” The 19th article contained a provision that “the reservations secured under this ar. ticle may
be sold with the consent of the President of the United States; but should any prefer it, or omit to take a reservation for the quantity he may be entitled to, the United States will, on his removing, pay fifty cents an acre after reaching their new homes; provided that, before the first of January next, they shall adduce to the agent, or some other authorized person to be appointed, proof of his claim, and the quantity of it."
This column might, therefore, with great propriety have contained a list of those who should have relinquished their claims to land, and taken money or scrip in lieu, at fifty cents an acre. I cannot perceive how it can be construed to mean an election to take under the 19th, and not un. der the 14th article. If it be said that Ward had nothing to do with claims under the 19th, it may be replied that Armstrong had nothing to do with claims under the 14th article, or with persons who might elect between them. By the treaty the Indians were required to make known their claims and relinquishments to the agent within six months. By an order from the War Department, of the 18th November, 1831, Ward, the agent, was instructed to inform the chiefs that the department had decided that the Indians had the right to make relinquishments until the 1st January, 1832. Although the questions submitted do not contain any allusion to Ward's lists, I deem it due to justice to remark that his conduct as agent seems to have been so irregular, and so regardless of the rights of the Indians, that his official acts have not, nor did they deserve to command any great degree of confidence. On the contrary, by the act of 3d March, 1837, a board of commissioners was organized to adjust claims to reservations under the 14th article of the treaty. By the act of February, 1837, their limitation of time was extended; and by the act of August 23d, 1842, it was further extended, and authority was also given to entertain and decide claims under the 19th article.
The 3d section of the last named act sets forth with great minuteness the conditions which must have been performed to entitle Indians to establish before the board a claim under the 14th article; and then gives the board jurisdiction over claims under the 19th article, with this proviso: “ That no claims shall be considered or allowed by said commissioners for or in the name or behalf of any Indian claimant whose name does not appear upon the lists or registers of claimants made by. Major Armstrong, special agent for that purpose, in conjunction with the three chiefs of the three Choctaw districts, and returned to the War Department in January, 1832; and who does not appear, from those registers, to be entitled to a reservation under the 19th article."
This proviso applied only to claims under the 19th article. It did not inhibit the commissioners from considering clains under the 14th article if the names did not appear, because the list did not purport to contain such claimants. It made Armstrong's list conclusive against any claimant who might endeavor to set up a claim under the 19th article, whose name did not so appear; but does not, in its terms or intention, deny to any Choctaw, whose name appears on the list, to assert and have considered his claim under the 14th or any article of the treaty.
There was great propriety in thus tying down claims, under the 19th article, to Armstrong's list. These claims depended mainly on the extent of land cultivated in the year 1830. The information necessary to de. cide them was collected with great care and fidelity, with the aid of the chiefs of the districts, and was imbodied in that report. After so great a lapse of time it would have been hardly possible to have procured the necessary information, in a form to be relied on, to determine these classes of claims. But this difficulty did not exist in regard to the claimants under the 14th article. Of them no satisfactory list had ever been taken. Whilst the act of 1842 makes Armstrong's list conclusive as to