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may, within one month after the signing of this agreement, desire to be added thereto." The price stipulated was $1 per acre for the whole number of acres ascertained as above indicated, amounting to about $157,000. The agreement further provided that the Delawares should have the full right of Cherokee citizenship, including the right of participating in the distribution of Cherokee funds, equally with native Cherokees, upon the payment by the Delawares to the Cherokees of a further sum of money which should sustain the same proportion to the existing Cherokee national fund that the number of Delawares registered, as above mentioned, and removing to the Indian country, sustained to the whole number of Cherokees residing in the Cherokee Nation. (Laws of the Cherokee Nation, edition 1892, pp. 397-402.)
Under this agreement the Delaware tribe removed from Kansas to the Cherokee country, and there maintained its tribal organization as a separate band of the Cherokee Nation. The fact that some or all of the Delawares who elected to remain in Kansas and become citizens of the United States, and thereby ceased to be members of the tribe, some years later alienated their lands in Kansas and purchased Cherokee citizenship from the Cherokee Nation, did not reestablish their tribal relations as members of the Delaware tribe. Manifestly they were not entitled to participate in the distribution of annuities or other funds due or belonging to the Delaware tribe, or to participate in their councils.
The provision in the act of April 21, 1904, supra, authorizes and directs payment to the "Delaware tribe of Indians residing in the Cherokee Nation, as said tribe shall in council direct," in the sum of $150,000 in full of all claims and demands of "said tribe" against the United States. The proviso immediately following the appropriation in the act emphasizes the clear indication that the appropriation was made for the tribe as distinguished from the Delaware Indians who had severed their tribal relations and become citizens of the United States. The payment was conditioned upon the discontinuance of all actions pending in all courts wherein the said Delaware Indians are plaintiff and the United States defendants. Certificates of the chief clerk of the Court of Claims and of L. G. Pradt, Assistant Attorney-General, dated January 10, 1905, filed in Indian settlement No. 56690,
dated. January 11, 1905, show that all suits so pending and discontinued were as follows:
No. 23104 (amended petition), filed February 20, 1903.
No. 23162, filed February 20, 1903.
No. 24067, filed September 28, 1903.
No. 24645, filed December 19, 1903.
Nos. 24926 to 24933, inclusive, filed April 23, 1904.
The records of these cases in the Court of Claims indicate that the Delaware tribe of Indians was plaintiff in each case. From the language of the act and conditions therein imposed I think it clear that the appropriation of $150,000 was made. for, and payable only to, the Delaware tribe of Indians, as said tribe by its council direct, and that the Delaware Indians who, under the provisions of Articles III and IX of the treaty of July 4, 1866, supra, elected to dissolve their tribal relations and became citizens of the United States, are not legally entitled to be enrolled for participation in the distribution of said sum.
The cause of action in the first of the above-named cases in the Court of Claims, No. 23104, for which the plaintiff claimed $439,468.50 with interest, was the settlement by the defendant of 248 New York Indians on the Delaware lands in Kansas, without the consent of the Delawares or compensation made to them; the subsequent allotment of 80 acres of such lands to each of 78 of the said New York Indians, the sale of such allotments, and payment of the proceeds to the New York allottees; the enrollment of 150 of the New York Indians with the Delaware tribe that removed from Kansas to the Indian Territory as a part of said tribe, and the subsequent treatment by the defendant of the New York Indians so enrolled as part of the Delaware tribe and participants in Delaware funds, all without the consent and against the protest of the Delaware tribe. No evidence is before me to prove or disprove the truth of the allegations made in plaintiff's petition. If not true, their citation here is neither useful nor harmful. But if true, manifestly the New York Indians, so enrolled and participating in the distribution of Delaware annuities, while not members of the Delaware tribe by blood or adoption, and not admitted to the councils of the tribe, are not within the provisions of the act of April 21, 1904, supra.
I therefore have the honor to advise you that the "Delaware tribe of Indians residing in the Cherokee Nation," within the meaning of the last-named act, consists only of the members of the Delaware tribe by blood or adoption who, under the treaty of July 4, 1866, elected to preserve their tribal relations and who entered into and carried out the agreement with the Cherokees of April 8, 1867, and their descendants.
PAY OF OFFICER OF A MILITIA ORGANIZATION WHICH WAS BROUGHT INTO THE SERVICE OF THE UNITED STATES IN A BODY.
Under the provisions of section 6 of the act of April 22, 1898, an assistant surgeon with the rank of captain in a militia organization, brought into the service of the United States as a body, is entitled to the pay of a captain of cavalry.
(Decision by Assistant Comptroller Mitchell, March 2, 1905.)
The Auditor for the War Department has reported for approval, disapproval, or modification, the following decision:
"Nelson M. Black claims the difference of pay between that of a first lieutenant and assistant surgeon and captain and assistant surgeon.
"The claimant was an assistant surgeon in the First North Dakota National Guard with the rank of captain. Section 6 of the act of April 22, 1898 (30 Stat., 362), provides
"That the Volunteer Army and the militia of the States when called into the service of the United States shall be organized under, and shall be subject to, the laws, orders, and regulations governing the Regular Army: Provided, That each regiment of the Volunteer Army shall have one surgeon, two assistant surgeons, and one chaplain, and that all the regi mental and company officers shall be appointed by the gov ernors of the States in which their respective organizations are raised: Provided further, That when the members of any company, troop, battery, battalion, or regiment of the organized militia of any State shall enlist in the Volunteer Army in a body, as such company, troop, battery, battalion, or regiment, the regimental, company, troop, battery, and battalion officers in service with the militia organization thus enlisting may be appointed by the governors of the States and Territories, and shall, when so appointed, be officers of corresponding grades in the same organization when it shall have been
received into the service of the United States as a part of the Volunteer Army.'
"The Court of Claims, in the case of Eugene Hawkins v. The United States, in passing upon his right to extra pay, said
“The claimant in the present case was an assistant surgeon in the First Indiana National Guard, with the rank, as provided by the law of that State, of captain. The act of Congress, before cited, assured him that if he should go with his regiment into the service of the United States he should continue to hold in their service a corresponding grade, and grade included rank. To tell an officer that he should continue to have the same grade and rank, and to imply in some latent way that he should not continue to have the usual legal consequences of grade and rank, one of which is pay, would be to ascribe to Congress an unworthy purpose. It is the opinion of the court, therefore, that he is entitled to the pay of a captain of cavalry, such as would be.paid to a surgeon in the service of the United States having the rank of captain.'
"In the light of the opinion of the Court of Claims in the case above cited, I am of the opinion that an assistant surgeon with the rank of captain, in service with a militia organization brought into the service of the United States as a body, is entitled to the pay of a captain of cavalry. The Acting Comptroller of the Treasury (5 Comp., 29) held
"The two officers borne on the rolls of the same regiment, each as captain and assistant surgeon, if they have served less than five years should each be paid $1,600 a year, and after five years service $2,000 a year, with increase for length of service, being the pay provided by law for assistant surgeons.'
Under the decision of the Court of Claims in the Hawkins case, supra, No. 22396, decided December 20, 1904, the proposed decision by the Auditor is approved, and so much of my decision of July 15, 1898 (5 Comp. Dec., 25) as is in conflict with the decision in the Hawkins case is overruled.
COMPUTING PAYMENTS OF ANNUAL COMPENSATION FOR A FRACTIONAL PART OF A MONTH.
The Assistant Surgeon-General of the Public Health and Marine-Hospital Service, whose salary was increased, by operation of law, on the tenth day of a 28-day month, from $3,770 to $4,060 per annum, is entitled for his services during said month to nine-thirtieths of the one-twelfth part of $3,770 and twenty-one thirtieths of the one-twelfth part of $4,060.
(Comptroller Tracewell to the Secretary of the Treasury, March 3, 1905.)
I am in receipt of your communication of the 1st instant, referring to me a voucher for the compensation of Asst. Surg. Gen. L. L. Williams, of the Public Health and Marine-Hospital Service, for the month of February, 1905, and a letter from Assistant Surgeon-General Williams, setting forth his service, as follows:
"I have the honor to state that the inclosed pay roll rendered by me for the month of February, 1905, and approved by the Bureau, has been returned to me by the chief clerk and disbursing agent, to whom it was returned by the appointment division, without approval, together with a decision of the Comptroller of the Treasury, also inclosed, on what has presumably been regarded as a similar case. Having taken the oath of office on February 10, 1885, and the act of Congress, July 1, 1902, having fixed my salary, while detailed as Assistant Surgeon-General, at the rate of $2,900 per annum, with the addition of 10 per cent on the annual salary for each five years' service up to 40 per cent, I became entitled, on February 10, 1905, to compensation at the rate of $4,060 per annum. The pay roll was accordingly made out for nine days at the rate of $3,770 per annum and twenty-one days at the rate of $4,060 per annum, in compliance with the instructions contained in Department circular No. 46, 1904, which provides:
"For the purposes of payment of annual or monthly compensations, where there is no break of service, the thirty-first day of any month will be treated as dies non. The last day of February will be counted as three days and in leap year as two days.'
On the 10th of February, 1905, there was no change in my rank and no break in my service, but on that day my compensation was increased by operation of law. If the cases cited in the inclosed Comptroller's decision are made to apply to this pay roll, my salary for the month of February, instead of being increased would be decreased, and I would receive less money for said month than I would receive at my former rate of pay, the provision of the act of Congress, July 1, 1902, referred to above, being thus nullified. The cases cited in the Comptroller's decision appear to belong in a different category. The clerks referred to were promoted from one grade to another grade, each of these grades being regarded by the Comptroller as separate positions. There has been no change in my rank, grade, or duties, and no break in my service.
"I have the honor, therefore, to retransmit the pay roll with the request that it be returned to the appointment division with this letter, for further consideration."