In reaching his conclusions the Auditor evidently relies upon a decision of the Second Comptroller (Digest Second Comp. Dec., vol. 3, sec. 130) quoted above. The error into which the Auditor has been led arises from taking a decision based upon a particular case and applying it to a case wholly dissimilar in many of its material points.

The case before the Second Comptroller at the time the decision referred to was made was one. where the authority for the expenditure of money and certification of balances depended solely on the existence of an appropriation, and that officer very properly held the appropriation was exhausted by the mere act of entering into contracts requiring the entire fund for their fulfillment, though not a dollar of said appropriation had been drawn from the Treasury.

The case now under consideration is one where the appro priation was made for the payment of claims legally arising under treaty and law wholly independent of the act of appropriation, The claims of those Indians who were living at the date of the treaty of 1835 were valid obligations of the United States, though no provision had been made for their payment. In recognition of the validity of claims properly arising under the treaty of 1835 and the act of 1848, the sum of $20,000 was appropriated by the act of March 3, 1893, to pay the same as far as the money thus provided would permit. The failure to provide sufficient funds to pay all claims of this character was no denial of their existence or legality. Having provided for their payment to the extent of $20,000, Congress, in the exercise of its rightful power, directed, by the act of March 2, 1895, that Joel M. Bryan should be paid $3,000 out of any unexpended balance of said appropriation.

Is there any unexpended balance from which to pay this claim?

In determining this question we must consider at what time or point claims of these Indians became a valid and binding charge against the appropriation in question. As before stated, the claims of these Indians arise independently of the act of appropriation, and while they are in the nature of contract obligations of the United States, they are not contract obligations against any particular appropriations until the tribunal having the authority to make a final decision in each particular case has so declared. When a final decision has been made on one of these claims and the balance certified

and charged to the appropriation, then and not before is the appropriation expended to the extent of the balance so certi fied. Under the laws governing the settlement of these claims the Secretary of the Interior is not authorized to make a final decision; that power is vested in the proper accounting officer of the Treasury.

The decision of the Auditor is disapproved, and it is decided that any money standing to the credit of the appropriation March 2, 1895, and not required to pay claims finally certified by the proper accounting officer before that date, is an unexpended balance, and available for the payment of Joel M. Bryan under the authority of the act of March 2, 1895.

The Auditor asks a modification of the decision of the Second Comptroller of October 20, 1893. The decision is as follows:

"I have received your letter of the 16th instant in regard to the claims for the removal and subsistence of members of the Eastern Cherokee tribe of Indians, and asking my opinion as to whether these claims can legally be certified, notwithstanding the inadequacy of the appropriation for their payment.

"In reply I have to say that these claims have been in part appropriated for by the act of March 3, 1893, in words as follows: "That for the amount necessary to pay for the removal and subsistence of those members of the Eastern Band of Cherokees who have removed themselves, as well as those who may now or hereafter desire to remove, to the Cherokee Nation, in the Indian Territory, at the rate of fifty-three dollars and thirtythree cents per head, being the amount specified in the eighth article of the Cherokee treaty of December twenty-ninth, eighteen hundred and thirty-five, and the act of Congress approved July twenty-ninth, eighteen hundred and forty-eight, twenty thousand dollars, or so much thereof as may be necessary to be expended under the direction of the Secretary of the Interior.'

"This act of appropriation specifically refers to a treaty, which reads as follows:

666# * Such persons and families as in the opinion of the emigration agent are capable of subsisting and removing themselves shall be permitted to do so; and they shall be allowed in full of all claims for the same twenty dollars for each member of their family; and in lieu of their one year's rations, they shall be paid the sum of thirty-three dollars and thirty-three cents if they prefer it.'

"and to the act of Congress of July 29, 1848, reading as follows: "That whenever hereafter any individual or individuals of said Cherokee Indians shall desire to remove and join the tribe west of the Mississippi, then the Secretary of War shall be authorized to withdraw from the fund set apart as aforesaid the

sum of fifty-three dollars and thirty-three cents, and the interest due and unpaid thereon, and apply the same, or such part thereof as shall be necessary, to the removal and subsistence of such individual or individuals, and pay the remainder, if any, or the whole, if the said Indians, or any of them, shall prefer to remove themselves, to such individuals or heads of families upon their removal west of the Mississippi.'

"It thus appears that these claims arise under provisions of treaty and law obligating the United States to pay such amount as may be necessary to carry out their terms. This being the case, it seems to me right and proper that all just claims should be certified, and that payment should be made to the extent of the appropriation and the remainder certified to Congress for further appropriation."

The contention of the Auditor is that the treaty of 1835 provided for the removal and subsistence of those Indians who should remove within two years, and there is no provision for those who failed to remove within the time specified. If the question is to be determined by the treaty alone, there is some force in the contention.

Article 16 of the treaty required the Cherokees to remove within two years from the date of the ratification of the same, which took place May 23, 1836. Be it remembered that the treaty would have been inoperative without legislation for carrying it into effect. It, therefore, becomes important to consider the legislation enacted for this purpose. At this point the act of July 29, 1848, section 5 (9 Stat., 265), quoted by the Auditor, must be considered. This act, passed for the purpose of carrying out the provisions of the treaty, and approved more than two years after the limitation named in the treaty had expired, must be taken as a legislative interpretation of the treaty and the rights and privileges of the Indians thereunder. The act provides that whenever, hereafter, any Indian shall desire to remove, then the sum of $53.33 shall be used to pay the expenses of said removal. The evident intention of this act was to waive the restriction found in the two years' limitation, and to provide for any of the Indians (parties to the treaty) who might thereafter desire to remove. The act, unrepealed, is as much the law of the land as the treaty itself, and creates obligations on the part of the United States in favor of those Indians who avail themselves of its provisions.

The treaty of 1835, read in connection with the act of 1848, binds the United States to pay for the removal of the Indians

in question. This being the case, it is the duty of the proper accounting officers to examine and settle all legal and valid claims arising under said treaty and law, notwithstanding there is no appropriation available for their payment.

The decision of the Second Comptroller, above referred to, should not be modified, but the same is hereby approved. R. B. BOWLER,

Comptroller.

The AUDITOR FOR THE INTERIOR DEPARTMENT.

IN RE CLAIM OF HALBERT E. PAINE FOR COMPENSATION UNDER CONTRACT WITH THE CHICKASAW NATION OF INDIANS.

There is no authority for the United States to disburse funds held in trust for the Chickasaw Nation of Indians, except in pursuance of treaty or law, or upon written request of the proper authorities of said nation. The treaty and law do not authorize the payment, and there is no request from the nation; therefore, the claim of Mr. Paine can not be paid by the United States from trust funds belonging to said nation.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

July 16, 1895. Mr. Paine presents a claim for $625, being the quarterly payment for attorney's services due under a contract with the Chickasaw Nation, dated May 18, 1893, and asks payment of the same from funds held by the United States in trust for said Indians. The Auditor for the Interior Department has disallowed the claim and submits his original decision on the same to the Comptroller for the latter's approval, disapproval, or modification, under section 8, act of July 31, 1894 (28 Stat., 208).

The substance of the Auditor's decision is that there is no authority for the United States to disburse funds held in trust for the Indians in question, except in pursuance of treaty stipulations and the laws of Congress.

Without expressing approval or disapproval of the arguments used by the Auditor in reaching his conclusion, his decision that there is no legal authority to pay the claim under consideration is approved. The treaties with the Chickasaw Nation and acts of Congress recognize in the Chickasaws both the capacity and authority to manage their own funds.

(Treaty March 4, 1856, Revised Treaties, p. 277; art. 4, treaty of July 10, 1866, Revised Treaties, p. 290; act of Congress March 3, 1875, 18 Stat., 448.) The nation is fully organized and equipped with executive, legislative, and judicial officers. It has a treasurer fully authorized to receive and disburse funds of the nation. The act of March 3, 1875 (18 Stat., 448), authorizes the United States assistant treasurer at St. Louis to open an account with the treasurer of said nation the same as with disbursing officers of the United States. The uniform practice has been to pay the treasurer of the nation all sums due said nation from the United States. No money is disbursed by the United States the same as has been and is now being done with other uncivilized tribes.

The funds from which it is proposed to pay this claim are trust funds held by the United States for specific purposes. No authority has been presented empowering the United States to use these funds to pay the debts of the nation. The trustee has no authority to disburse these trust funds, except in the manner provided by treaty and law, or by express direction of the cestui que trust, and if said trustee should use said funds, except under authority conferred as herein indicated, he would become liable to the Indians for their unwarrantable diversion.

Mr. Paine recognized this doctrine in his letter of June 29, 1894, to Senator Dawes, as follows:

"I do not see what right Congress has to pay Chickasaw debts out of Chickasaw trust funds. How can Congress transfer A's property to B without due process of law?"

The claimant contends that payment of this claim from trust funds of the Chickasaws is not only authorized but required by section 2104, Revised Statutes. I do not so understand that section. It seems to me it contains a prohibition upon the payment to any agent or attorney of any moneys other than the fees which may be due for services rendered, although the contract made between the Indians and the attorney should provide for the payment to him of such moneys on account or for the benefit of such Indians. As section 2103, Revised Statutes, specifically makes null and void any contracts not made in accordance with its provisions, and further provides that recovery may be had of "all money

paid to any person by any Indian or tribe, or any one else, for or on his or their behalf, on account of such