# Brief for Petitioner — Creek Nation v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0210%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1962 - **Citation:** 370 U.S. 157 ## Text - a Mw RFIilLbkD Office S_preme Court MAR 21 1962 . JOHN F. DAVIS, CLERK “J JS. Supreme Court of the United States Ocroser Term. 1961 No. 124 Tue Creek Natron or INpbIaNs. Petitioner v. Tue Unrirep Srates, Respondent BRIEF FOR THE CREEK NATION, PETITIONER THE CREEK NATION, Petitioner Pavi M. Nresen. Attorney for Petitioner ! WILSON - EPEs Printine Co - RE 7-6002 - Wasninctron 1 D C INDEX SUBJECT INDEX Pag Opinions REESE SNS Me GS NE er SE. NETO ] BREST Ee LAL OEE eg I CE OE 1 Treaties and Statutes Involved 00000000. » ENN tr UIE cicacalesetk Senescence ctcrsdnccnnectbenis daaoraandb nico Hs) i et evita ice . Ciaims Under Treaties of 1802 and 1805 6 Claim Under Article XIII, Treaty of March o4, RRR a ie Ge PaTI Py ae OO ee Ae 18 Claim Under Treaty I ater 21-22 Claim Under the Treaty of 1856 —220 2... 95) Summary of Argument ......................... rachcshatcmasiaiined 2 ae MI peisctentacsttitcnncccnstecerniclablichpnctein aloe ess redtehece deci anipn 2 ies. 41 1. A Fiduciary Relationship Exists Between the United States and the Indian Tribes, Requir- ing the United States to Account Strictly to the Indian Tribes for the Disbursements Made by It in Fulfillment of Its Treaty Obligation- with Them ..... SPU Coote Se” Rats ASI FM See EEE 2. Petitioner Was Entitled to Rely Upon the Admissions Contained in’ the Government's Accounting Report ......................... Sichisiaataves The United States as the Fiduciary Has the Burden of Proving the Credits it Claims | 4. The Majority of the Court of Claims Failed in Its Duty as an Appellate Court Under Section 20(b) of the Indian Claims Commission Act to Determine Whether the Findings of the Com mission Are Supported by Substantial Fvi dence When the Findings are Challenged on NE acticin eee Gngicileis Hhene *- ~~ 41 il INDEX—Continued PAGE Claim Under Treaties of 1802 and 1805 ........ 64 Claim Under Treaty of 1832-00000... 65 Claim Under Treaty of 1833 _20220.0.....--.- 66 Claim Under Treaty of 1856 20.00.0000... 67 5. A Denial of a Writ of Certiorari by This Court Does Not Constitute an Affirmance of the Decision of the Lower Court -....................... 75 CII | acca a ciechiachcc ct echseeittinadeerlaceentntecbinonaticenninansbeaiis 77 TI baila initia caepeieretibii aac anieutiasacnstnenn 78 Text of Seeret Articles of the Treaty of August Ba I cata eh caintiek bet aaeike hg cena, aca shantcescivceneig 78-82 Articles V, VI, and XXVI, Treaty of August 7, 1856, 11 Stat. 699, 2 Kapp. 756 _..................-... 82-84 Article XI, Treaty of June 14, 1866, 14 Stat. 785, RN, I ic irri . 84 CITATIONS Cases: Akin v. Warner (1945, Mass.), 63 N.E.2d 566, Atlantic Coast Line R. Co. v. Powe (1931), 285 U.S. 401, 402-404 2000. AES DS Rae ee ...... 40, 76 Benbow v. Benbow (1934, 117 Fla. 37), 157 So. Bennett v. Weber (1936, 323 TIL. 288), 154 N.E. Cherokee Nation vy. Georgia (1831), 5 Pet. 1. OR AD ARRAS rear le ars FS eae ano aE RED 35, 42 Chickasaw Nation v. Tni'ed States (1945), 103 C. Cis. 1 (eert. granted 326 U.S. 217, but limited to offsets, judgment reversed)... ............... 17, 69, Chickasaw Nation v. United States (1955), 132 ee ees MG. II we octassicg wh cance bce hcip rund dhe hrs neeinbente 46 INDEX—-Continued 1 PAG —- Nation v. United States, 21 . Fata no, 2-93, reversed (1886), ae S. 1, 27-28 .:.. 34, 43-44 Peas v. Scott ge (.C.A. 5), 102 F.! 7 (20 .... 39, 61 Colorado Coal Co, Peed aie (1887), 125 U.S. 307, 318-3 o. an Ee . oS, 61 Conners v United States (1898), 33 c. Cs, olf. 325, affirmed (1901) 180 U.S. 271, 275-2760... 40,75 Creck Nation v. United States (1988), 78 C. Cs. re oe 52 Creek Nation v. United States (1948), 318 US. KS ARTRIRESRS NR RU IRN AINE SACRO sO APP TN ED RAY Bl cera 36, 46 Creek Nation v. United States (1952), 2 Ind. Cl. ea BR SI8 ci nid. ieee . 43 Creek Nation v. United States (19: 50). 7 Ind. Cl. SI 2 rr i a 49,55, 76 Darr v. Buford (1950), 339 ULS. 220, 226-228 .. 40,76 Dick vy. Albers (1910, 248 Ill. 231). 90 NUE. 683. Ria URES 2 SA in Ek a HR SR ge 37, 50-51 Dillman vy: Hastings (1892), 144 U.S. 126, 140- ENC SERS RR SSE RES SA bret ee ee BEM, Fe 4 Florida Fruit Canners v. Walker (1927. ie & C A.) 90 F.2d 753, 758 ........... 32 Bi-ae, Oo, oe Garrett v. First Nat. Sauk a Ted c 0, of Vicks. burg, Miss. (1946, C.C.A, 5), 1523) F.2d oe). Gila River Pima Mevicosa Indians Vv. Peaad Stetes (1956), 135 ae Se Be sce, 46.47 Hamilton-Brown “— Co. v. Wolf Bros, and Co. (1916), 240 U.S. 251, 958 a a 40.76 Harrison v. Remington eit Co, (1905), 140 . 385, 402 . ees iat ae House v. Mayo (1945). 304 U. S. Pp. 48. : : Ai 76 Txqram v. Lewis (1930, C.C.A. 10), 37) Fie , I ns a I cs is, chain Ghsssitechsonanacecoovones en 2 In re Tretheway’s Estate (1989, Cal.), 89 P.2d INDEX—Continned PAGF Kansas or Kaw Tribe of Indians vy. United States — (1934), 80 C.Cls. 264, 301-302 (cert. den. 296 AE ia seas tcdbensiiipnb ape incectadpaitaccnseenaiia abcess 47 Kiowa, Comanche and Apache Tribes (1957), 5 Ind. Cl. Comm. 297, affirmed United States v. Kiowa, Comanche and Apache Tribes (1958), " ge, SE SF i ee McComb v. Frink (1893), 149 U.S. 629, 644 ...... 37,54 Nenominee Tribe v. United States (1944), 101 a Ae i MIE heciicoedioctininsiettidaccennstie vesseeeee BO-et. 40-44, 51 Menominee Tribe v. United States (1945), 102 NE XE RAR aR TEE NAR MU ei Stal as Re 46 Menominee Tribe v. United States (1951), 118 5a RR ER ees en 39, 62 Merriam v. Venida Blouse Corgoration (S. D. NY. 1938) 23 F.Supp. 659, 660-661 . oe wee Montoya v. United States (1897), 32, C. Cl. 349, 361-362, affirmed Montoya v. United States te: Do ae RR eae ee 40, 74 Omaha Tribe of Nebraska v. United States (1957), 6 Ind. Cl. Comm. 68, 71-74 .00..0022002 2. 47 Quick Bear v. Leupp (1908), 210 U.S. 50, 80-81... 35-36 45. 47 Rossi v. United States (1933), 289 U.S. 89, Seminole Nation v. United States (1942), 316 OR Ss yal ate Cena 20, 36-37, 42. 44-46, 51.71 Seminole Nation v. United States (1942), 316 Rea ed 20, 37, 72 Sioux Tribe of Indians v. United States (1946), BO ES GOD Sick consist rncruns 17, 37-38, 47-49, 52. 76 Snake or Piute Indians v. United States (1953), 135 C. Cle. 245, 255 ~..-.... ..... 20, 39, 66, 72 Smith v. Robinson (1914, 83 NJ. Eq. 384), 9 A. wee. 1666 ........... me _ 38, 58 Smith v. Tolversen (1934. ‘Wise }, “959 NW. 423. ERS SRB Shee srcdiens Samer aig Pca Se aR aes tera 38, 58 INDEX -- Continued v PAGE Sunal v. Large (1947), 382 U.S. 174. 181... .... 40, 76 Talbot v. Automobile Identification Underwriters, Inc. (1931, Tenn.), 43 S.W.2d 220, 221 ........ . 38, 08 United States v. Bull Steamship Line (S.D.N.Y. 1956), 146: F.Supp. 220, 218 ............................... 4 39, 61 Onited States v. Carver (1928), 260 U. S. 482, Nt EU TU DILL RAE EN LIS 7 EN 40, 76 United States v. Creek Nation (1935), 295 U.S. Ws WERE el sctninccadechacccniPoe edsmeckcanses 35-36, 42. 47 United States v. Denver & R.G.R.R. Co. (1903), Pe oT EE ics ech acbtaacnedeniuia uae, 38, 61 United States v. Kagama (1886), 118 U.S. 375, STE TUR PIES DE SIRI rete OU ea AE Pe ERT PO 30, 43 United States v. Payne (1924), 264 U.S. 446, UIE ececeachistiinenisinigasenuntbloult Hg sckdelieg’ Jadisisniatiay eckaboricicat a 30, 44 United States v. Seminole Nation (1959), 146 ¢ Cl. 171, 181-182, 178 F. Supp. 784,790... 36, 46-47 United States v. Shubert (1955), 348 U.S, 222, UTR TERRI PA ghee: LACE Ne ented Nr 40), 76 Tilla Site Co. v. Copeland (1920, 91 N.J.Eq. 505), BAe aie ey Oe DO icine ccc, 52 Statutes: Act of— July 7, 1638, ¢. clexevi, 5 Stat. 290 ........................ 2 June 17, 1844, ¢. eviii, 5 Stat. 704, 706 . Soir May 27, 1902, ¢. 888, 32 Stat, 245, 249-250. ? May 24, 1994, . 181, 43 Stat. 129 52 August 13, 1946, ¢. 949, 60 Star. 1049, 25 TLS.C, eet a EMME PEA NMOS BRET Bata Merce Aecuecsins 15,52 INE Se toicsedccak oe ike Pncek inactcdensrees eg Ws ae En CECE mene Ss Ee SENSE REN ETERS TF Resolution of — February 22, 1862, 12 Stat. (14 33, 67.73 Joint Res. of May 19, 1926, 6. 341. 44 Stat. 56s 52 Joint Res. of Feb. 19, 1929, & 268, 45 Stat. 129. Be vi INDEX—Continued PAGE Treaties: August 7, 1790, 7 Stat. 35, 2 Kapp. 25 .. 11-13, 31-32, 42, 47, 59-60, 64-65 June 16, 1802, 7 Stat. 68, 2 Kapp. 58. 6-7, 31, 59, 62, 64 November 14, 1805, 7 Stat. 96, 2 Kapp. 85 ..... 9-10.31. 59, 62, 64 March 24, 1832, 7 Stat. 366, 2 Kapp. 341 ...... 18-20, 32, 62, 65-66 February 14, 1833, 7 Stat. 417, 2 Kapp. 388 ...... 21, 32, 62, 66 January 4, 1845, 9 Stat. 821, 2 Kapp. 550... 19 August 7, 1856, 11 Stat. 699, 2 Kapp. 756 .... 22, 25-26, s 33, 40, 62,67, 72 June 14, 1866, 14 Stat. 785, 2 Kapp. 931 ........... 33, 68 Treaty with Confederate States, July 10, 1861... 33, 68 Miscellaneous: ke te: | ssid suc naaieiaaoiaibeapimantcaneneian 1,2 Bogert, Trusts and Trustees (1948 nd.), Vol. 4, Pt. 2, See. 962, pp. 239-242, 244-245... 38, 57 a Trusts and Trustees (1948 Ed.), Vol. 4, PR, STR Fis Wii wicca cccnneriensennmennsinanrnsiennne 37,52 Bogert, Trusts and Trustees (1948 Ed.), Vol. 4, Pt. 2, See, S960, np. 207, FOO ..............0......neeenrs 37,53 Bogert, Trusts and Trustees, See, 971, p. 828... 98 Pomeroy’s Equity Juris. (4th Ed.), Vol. 2, See. > ce ees 38,98 Restatement of Law of Trusts, Amer, Law Inst., Vol. 1, See. 172, pp. 445-446 .................-.-.-.. 38,58 Seott on Trusts (2nd Ed.), See. 172, pp. 1287- BO ccecemes shen. cntengnnstamanesiensnesenniuaeannanannnannmnnsannnnins 37,52 Vattel, Book ITT, Ch. XVITT, pars. s, 292, 293, Chitty Bid., popr, 424, 427 nnn. see eeececeeeeeesenees ce teneneees 39-40, 73 Words & Phrases (Perm. Ed.), Vol. 8A, p. 103 2. 90 Supreme Court of tie Hnited States Ocrorer Term, 1961 No. 124 Tae Creek Nation oF INpIANs, Petitioner We Tre Unitep Srates. Respondent BRIEF FOR THE CREEK NATION, PETITIONER OPINIONS BELOW The opinion of the Indian Claims Commission is re- ported at 7 Ind. Cl. Comm, 117, 127 (R. 264-283). The opinion of the Court of Claims of Mareh 1, 1961 js not yet reported (R. 292-315). JURISDICTION The judgment of the Court of Claims was entered on March 1, 1961 (R. 292). The petition for a writ of certi- orari was filed on May 29, 1961, and was granted on October 9, 1961 (R. 315). The jurisdiction of this Court is invoked under 28 U.S.C. 1255 (1), and Section 20(c) of the Indian Claims Commission Act (Act of August 13, 1946, ¢. 959, 60 Stat. 1049, 1055; 25 U.S.C. Section 70s). > TREATIES AND STATUTES INVOLVED The Indian Claims Commission Act of August 13, 1946, e. 959, 60 Stat. 1049 (25 ULS.C. 70-70v), provides in pertinent part as follows: “See, 2. The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the terri- torial limits of the United States or Alaska: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with re. spect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements be- tween the claimant and the United States were revised on the ground of fraud, duress, unconscionable con- sideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the age ag for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized hy any existing rule of law or equity. No claim accruing after the date of the ap- proval of this Act shall be considered by the Com mission. “All claims hereunder may be heard and deter- mined by the Commission notwithstanding any statute of limitations or laches, but all other defenses shall be available to the United States. “In determining the quantum of relief the Com- mission shall make appropriate deductions for all payments made by the United States on the claim, and for all other offsets, counterclaims, and demands that would be allowable in a suit brought in th: Court of Claims under section 145 of the Judicial Code (36 Stat. 1136; 28 U. S. C. see. 250), as amended; the 3 Commission may also inquire into and consider all money or property given to or funds expended gratuitously for the benefit of the claimant and if it finds that the nature of the claim and the entire course of dealings and accounts between the United States and the claimant in good conscience warrants such action, may set off all or part of such expendi- tures against any award made to the claimant, * *.” “See. 20(b). When the final determination of the Commission has been filed with the clerk of said Commission the clerk shall give notice of the filing of such determination to the parties to the proceeding in manner and form as directed by the Commission. At any time within three months from the date of the filing of the determination of the Commission with the clerk either party may appeal from the de- termination of the Commission to the Court ef Claims, which Court shall have exclusive jurisdiction to affirm, modify, or set aside such final determination. On said appeal the Court shall determine whether the findings of fact of the Commission are supported by substan- tial evidence, in which event they shall be conclusive, and also whether the conclusions of law, including any conclusions respecting ‘fair and honorable dealings’, where applicable, stated by the Commission as a basis for its final determination, are valid and supported by the Commission’s findings of fact. In making the foregoing determinations, the Court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error. The Court may at any time remand the cause to the Commission for such further proceedings as it may direet, not. in- consistent with the foregoing provisions of this sec- tion. The Court shall promulgate such rules of prac- tice as it may find necessary to carry out the fore going provisions of this section. “(¢) Determinations of questions of law by the Court of Claims under this section shall be subject to review by the Supreme Court of the United States in the manner prescribed by section 3 of the Act of February 13, 1925 (48 Stat. 939; 28 U.S. C., see, 288), as amended.” 4 The pertinent provisions of the treaties and statutes involved in the claims of petitioner are printed as a part of the Statement, or are set forth in the Appendix, pp. QUESTIONS PRESENTED 1. Whether the United States has an obligation to render a clear and accurate accounting of its dealings and the fulfillment of its treaty obligations owing to an Indian tribe in the manner of a fiduciary or of a superior and learned power dealing with an unlettered and inferior tribe or race; or whether the United States is merely in the position of a debtor in its relationship under a treaty with an Indian tribe. In other words, whether a fiduciary relationship exists between the United States and an Indian tribe (in this ease the Creck Nation of Indians) requiring the United States to account strictly to the Indian tribe for the amounts dishursed by the United States in fulfillment of its treaty obligations; or whether the relationship is mere'y that of debtor-creditor. 2. Whether an Indian tribe can rely upon admissions contained in an accounting made by the accounting officers of the United States showing that the United States had failed to fulfill its treaty obligations to said tribe, and that balances are due and owing to the tribe under said treaty obligations of the United States. 3. Whether the United States has the burden of prov- ing the credits it claims against amounts showr by its accounting to be due and owing an Indian tribe under treaty stipulations between the United States and an Indian tribe. 4. Whether the Court of Claims has discharged its duty as an appellate court under Section 20(b) of the Indian Claims Commission Act, when it, by a mere per 4) curiam statement, affirms the findings and opinion of the Indian Claims Commission in a ease wherein appellant raises serious objections with respect to the failure of the Commission to find facts essential to the proper dis. position of the claims presented, or found faets which were not supported by substantial evidence, or which were contrary to the record, when the above Act directs that the Court “shall” review the whole reeord and settle such questions. 5. Whether a denial of a writ of vertiorari by this Court constitutes an approval of the decision of the Jower court. > STATEMENT The petitioner, the Creek Nation of Indians, brought an action before the Indian Claims Commission under the Indian Claims Commission Act of August 13, 1946, &. 959, 60 Stat. 1049 (25 U.S.C. §§ 70-70v), to reeover for certain unfulfilled obligations of the United States under five treaties between the Creek Nation and the United States. Petitioner (plaintiff-appellant below) alleged that. the full amounts which the United States was obligated to pay to the Creek Nation as considerations due for cessions of Creek lands under these treaties were not in faet paid in full, and petitioner claimed the right to recover the unpaid balances (R. 1-6). The United States answered denying that any sums were due, owing and unpaid under the treaties in ques- tion, “and that all of said funds were paid, administered and disposed of for the use and benefit of plaintiff. and in fulfillment of the stipulations of the treaties referred to by plaintiff’ (R. 7-14). It also presented defenses of res judicata and release, which the Indian Claims Coi- mission did not consider in deciding the case, beeause it held that petitioner had not proved its case (R. 273, 282). - 6 The Creek Nation relied upon and introduced in evi- dence before the Indian Claims Commission pertinent extracts from a report of the Government's own General Accounting Office setting forth in detail all treaty pay- ments made by the United States to the Creek Nation under the treaties in question, shown by the records which were maintained solely by the Government, and now in the custody of the General Accounting Office. In other words, the Creek Nation relied solely upon the accounting of disbursements under these treaties made by the Gov- ernment’s own accounting officers, and the admissions made therein showing that balances were due the Creek Nation under these treaties. The Government's account- ing does not specifically show that the entire amounts due under the treaties in issue were paid to the Creek Nation in accordance with the stipulations of the United States in these treaties (R. 15-138, 295). The claims under the several Creek treaties are set forth below. Claims Under Treaties of 1802 and 1805 Petitioner originally presented independent claims under the Creek Treaties of 1802 and 1805. However, in de- ciding this case the Indian Claims Commission combined these claims, and we will follow this course in reviewing their treatment by the Commission, and Court of Claims. Article IT of the Treaty of June 16, 1802, between the Creek Nation and the United States, proclaimed January 11, 1803 (7 Stat. 68. 2 Kapp. 58) provided in part as follows: “The commissioners of the United States, for and in consideration of the foregoing concession on the part of the Creek Nation, and in full satisfaction for the same do hereby covenant and agree with the said nation, in behalf of the United States, that the said states shall pay to the said nation, annually, and every year, the sum of three thousand dollars, and - one thousand dollars for the term of ten years, to the chiefs who administer. the government, agreeably to a certificate under the hands and seals of the eom missioners of the United States, of this date, and also twenty-five thousand dollars in the manner and form following, viz. Ten thousand dollars in goods and merchandise, the receipt of which is hereby ac knowledged; ten thousand dollars to satisfy certain debts due from Indians and white persons of the Creek country to the faetory of the United States; the said debts, after the payment aforesaid, to become the right and property of the Creek Nation, and to be recovered for their use in such way and manner as the President of the United States may think proper to direct; five thousand dollars to. satisfy claims for property taken by individuals of the said nation, frem the citizens of the United States, subse- quent to the treaty of Colerain, which has been or may be claimed and established agreeably to the provisions of the act for regulating trade and inter. course with the Indian tribes, and to preserve peace on the frontiers. * * *” Article TV of said treaty provided: “The contracting parties to these presents, do agree that this treaty shall become obligatory and of full effect so soon as the same shall be ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof.” This treaty became effective on January 11. TS802, th date of its proclamation by the President (R. 266). Ther under the United States was obligated te pay to the Creek Nation said perpetual annuity of $23,000.00 per annum beginning with the vear 1808 through the tiseal vear 1902 (R. 266), when this permanent annuity was funded under the Act of May 27; 1902 (Ce, SSS. 32 Stat, 245. 249, 250) a period of 100 vears, less the Civil War period of sis years (fiscal vears 1862 through 1867).° * The Creek Nation eliminated from this case ony clam for annuity payments due from the United States during the Civil War period, or for the fiscal years 1862-1867. 6 vears. this period being covered by separate petition (R. 266). 8 The parties agreed that the total obligations of the United States under said Article Il were as follows (R. 266-267) : Permanent annuity of $3,000.00 per annum for 94 years . $282,000.00 Annuity to chiefs, $1,000.00 per annum for 10 years 1 In goods and merchandise, receipt of which was acknowledged 1 To satisfy certain debts due from Indians ard white persons of the Creek country to tle factory of the United States To satisfy claims for property taken by indh- viduals of the Creek Nation from citizens cf the United States coast to the — of Colerain (1796)... Total The report of the Government's 1 0,000.00 0,000.00 0,000.00 5,000.00 _ $317,000.00 General Accounting Office shows that $254,690.25 only was disbursed by the United States to the Creek Nation in fulfillment of its treaty obligations under said Article Il, below (R. 44-49, 119, 266-267, 274, 295-296) : Depredations Cash payments to Chiefs Cash annuity Cash payments to Creek Treasurer Support of Creek Children at Choctaw Academy, with con- sent of Creek Chiefs Disbursed for benefi: of Creek Nation, 4 years at $3,000.00 Goods and merchandise distrib- uted at treaty council and receipted for in treaiy 1806-1811 1805, 1811 1819-1836 1837, 1839-1841, 1843, 1846-1861, 1868-1869 1844-1845 1861, 1868-1898 1831 1899-1902 1802 Total disbursed $55,500.00 66,000.00 6,000.00 as set forth $ 3,290.25 700.00 127,500.00 99,000.00 2,200.00 12,000.00 10,000.00 $254,690.25 9 The reeerd thus showed that the United States failed to account to the Creek Nation ‘or the balance due under said Article Tl. and the Creek Nation limited its claim to the amount of $62,309.75 which the accounting report showed was due and owing from the United States to the Creek Nation under said treaty obligations of the United States. On this record the Indian Claims Commission made the following finding of fact (R. 267): “Plaintiff admits the payment and disbursement by the United States to the Creek Nation on said treaty obligation and in the amount of $254,690.25 (as itemized in its Req. Find. No. 4) and claims a balance due under said treaty obligation in the amount of $62,309.75.” Petitioner challenged the sufficiency of this finding on appeal to the Court of Claims (R. 284, 286), because it merely stated petitioner's claim without determining whether or not the record supported the claim, Article IIT of the Treaty of November 14, 1805, between the Creek Nation and the United States, proclaimed June 2, 1806 (7 Stat. 96, 2 Kapp. 85), provided as follows: “Tt is hereby stipulated and agreed, on the part of the United States, as a full consideration for the land ceded by the Creek nation in the first article as well as by permission granted for a horse path through their country, and the occupancy of the reserved tract, at the old Oemulgee fields, that there shall be paid annually to the Creek nation, by the United States for the term of eight vears, twelve thousand dollars in money or goods, and implements of husbandry, at the option of the Creek nation, sea- sonally signified from time to time, though the agent of the United States, residing with said nation, to the department of war; and eleven thousand dollars shall be paid in like manner, annually, for the term of the ten succeeding years, making in the whole, eighteen payments in the course of cighteen years, without interest. The first payment is to be made as soon 10 as practicable after the ratification of this convention by the government of the United States, and each payment shall be made at the reserved tract, on the old Ocmulgee fields.” Article V of said treaty provided in part: “e * * and this convention shall be obligatory on the contracting parties as soon as the same shall have been ratified by the government of the United States.” Said treaty became effective on June 2, 1806, when proclaimed (2 Kapp. 85; R. 269). The parties agreed that the total obligations of the United States under said Article III were as follows (R. 269): $12,000.00 annually for & years in money, or goods, and implements of husbandry, at the option of the Creek Nation ‘ $ 96,000.00 $11,000.00 annually for 10 succeeding years, to be paid in like manner 110,000.90 SES $206,000.00 The report of the Government's General Accounting Office shows that $169,452.25 only was disbursed by the Uniied States to the Creek Nation in fulfillment of its treaty obligations under said Article TIT, as set forth below (R. 51-52): Cash annuities 1811, 1815, 1817-1823 $128,667.45 Annuities in goods 1811, 1815 40,784.80 Total disbursements $169,452.25 The United States thus failed to account to the Creek Nation for the balance due under said Article ITT, and the Creek Nation limited its claim to the amount of $36,547.75, which the Government's accounting report showed was due and owing from the United States to the Creek Nation under said treaty obligations of the United States. On this record the Indian Claims Commission found that (R. 269): 11 “The report of the Accounting Office shows annual appropriations to fulfill the above obligation, but disbursements definitely allocated to the fulfillment of the obligations of this treaty are in the amount of $169,452.25." Although the Commission did not so find, it is obvious that the amount due and owing to petitioner under said Article II] was admittedly the difference between the total treaty obligation of the United States, or $206,000.00, and the total disbursements of the United States there- under, or $169,452.25, leaving the balance of $36,547.75 - due the Creek Nation under this treaty provision. The total amount claimed by petitioner under the Treaties of 1802 and 1805 was $98,857.50 (R. 267, 269, 274-275, 295-296). In an endeavor to overcome the above balance of $98,- 897.90 shown by its accounting report to be due the Creek Nation under the Treaties of 1802 and 1805, the United States took out of context certain unallocated expendi. tures for the vears 1808 threugh 1809, totaling $77,263.45, for goods purchased and forwarded from Philadelphia for Creek Indians, which the Government's own account- ing report sets up as possible disbursements in fulfillment of an earlier Treaty of August 7, 1790 (7 Stat. 35, 2 Kapp. 25), between the Creek Nation and the United States, which was not in issue, and which expenditures the accounting report did not and could not. specifically allocate to the Treaties of 1802 and 1895 in issue (Rf. _ 23-24). The United States had assumed obligations to the Creek Nation ‘under the Treaty of August 7, 1790, proclaimed August 13. 1790 (7 Stat. 35, 2 Kapp. 25), which were as follows: “Article II. The undersigned Kings, Chiefs and Warriors, for themselves and all parts of the Creek Nation within the limits of the United States. do 12 acknowledge themselves, and the said parts of the Creek Nation, to be under the protection of the United States of America, and of no other sovereign whosoever; * ° “Article IV. * * it is hereby agreed, in addition to the considerations heretofore made for the said land, that the United States will cause certain valu- able Indian goods now in the state of Georgia, to be delivered to the said Creek nation; and the said United States will also cause the sum of one thousand five hundred dollars to be paid annually to the said Creek nation. * ° “Article XII. That the Creek nation may be led to a greater degree of civilization, and to become herdsmen and cultivators, instead of remaining in a state of hunters, the United States will from time to time furnish gratuitously the said nation with useful domestic animals and implements of husbandry. And further to assist the said nation in so desirable a pursuit, and at the same time to establish a certain mode of communication, the United States will send such, and so many persons to reside in said nation as they may judge proper, and not exceeding four in number, who shall qualify themselves to act as inter- preters. These persons shall have lands assigned them by the Creeks for cultivation for themselves and their successors in office; but they shall be pre- cluded exercising any kind of traffic. s se s a “Article XIV. This treaty shall take effect and be obligatory on the contracting parties, as soon as the same shall have been ratified by the President of the United States, with the advice and consent of the Senate of the United States.” This treaty became effective when proclaimed on August 13, 1790. (2 Kapp. 26). Furthermore, the United States assumed other obliga- tions under Secret Articles of said Treaty of August 7. 1790. and thereunder obligated itself to pay to each of the 6 medal chiefs of the Creek Nation $100.00 annua!) and to the Creek Chief. Alexander MeGi|! vray, for bis Services as the agent of the United States. $1200 00 annually, during their lifetimes ¢ Appendix #22 ). So the total definite obligations of the United States te the Creek Nation under the Treaty of 1790, and the seere article thereof, amounted te $3,706.00 annually (RO 1% 199); and under Article NIP the United States further agreed to furnish the Creek Nation with domestic animal: and implements of husbandry without fimetation as te the amount for such disbursements. The General” Accounting Offies report completely over looked the obligations of the United States under th secret article of the Treaty of 1790. and accounted only for the perpetual annuity of $1,500.00. However. ot did not begin to account regularly for the $1500.06 perma on annuity until the year I8]] (Ro 25-24, 86). Tp endeave: ing to explain its failure te account for this permanen annuity during the period 1790 through ISTO. tie Genera’ Accounting Office: report stated (Ro 2928-24): “In connection with the annuities duc the Creel Nation of Indians under the aforesaid Treaty ot August 7, 1790, it may be stated that while a earefius search of the records of the General Accounting Offic: failed to disclose the amounts disbursed in the pur chase of annuity goods for the Creek Indians during the years 1790 to 1809, said search did diselose that some arnuity goods were furnished said Indians dis ing said period. An examination of the ledgers sand journals of the office of the Aecountant for the Wa: Department, the records of the storekeeper at Phils delphia (now on file in the General Accounting Office: and various records found with the old museellaneou: papers on file in the Office of Indian Affairs. mdicate- that goods valued at $1.500.11 were shipped fron Philadelphia to the Creek country, on May 20, 1797, and that goods valued at $1.500 and $1,499.02 were actually delivered to the Creek Nation of Indinan- during the years 1798 and 1799, respectively. Said a l4 examination also discloses that goods of the following values were forwarded from Philadelphia for the Creek Indians during the following vears: Year Value of goods * Remarks Lave $1,500.34 Annuity for year 1800 1LROS 3.000.00 Annuity for Creeks 1803 1,008.08 Goods for Creek chiefs 1804 4,150.84 Annuities tor Creeks 1804 1,100.07 Goods for Creek chiefs 1au5 4,000.24 Annuities tor Creeks 1805 500.16 Gooes for Creek chiefs 1805 4,000.00 Annuity for vear 1805 1805 6,000.50 Annuity for vear 1806 1806 6,673.85 Annuity for year 1806 1807 1,000.08 Goods for Upper Creek chiefs 1807 499.05 Goods fur Lower Creek chiefs 1807 6,025.06 + Annuity for Upper Creeks 1807 5,999.39 Annuity for Lower Creeks 1808 7,646.46 Annuity for Upper Creeks 1808 8,250.45 Annuity for Lowe: Creeks 1808 501.38 Goods for Lower Creek chiefs 1808 499 90) Goods for Upper Creek chiefs 1809 500.41 Goods for Unper Creek chiefs 1809 348.98 Goods for Lower Creek chiefs 13809 7,300.40 Annuity for Upper Creeks 1809 7,749.64 Annuity for Lower Creeks 1809 508.51 Annuity for year 1809 Said examination also discloses that moneys were advanced to disbursing officers for payment of. sal- aries of interpreters for the Upper and Lower Creeks. During the vears 1790 to 1809, various amounts were advanced to disbursing officers for annuities, but due to the facet that in most instances the names of the tribes for which the annuities were intended are not set out, it is impossible to state what portion, if any, of the amounts set out in the foregoing tabulation were in fulfillment of the aforesaid Treaty of August 7, 1790. It appears, however, that portions of said amounts were ‘n fulfillment of treaties with said Indians subsequent to the aforesaid Treaty of 1790, as the value of the goods furnished said Indians during the vears indicated was in excess of the $1,500 annuity due said Indians under said treaty.” le In addition toe the above dishursements under the Treaty of 1790, and in search of further eredits against th balance of $98.857.50 due the Creek Natien under th Treaties of 1802 and 1805, the United States alse injected into the case certain disbursements, totaling $22. 108.00, Which the General Accounting Office report stated if could not wdentitu with any specitic Creek treatu. These dis bursements are set forth as follows (R. 122, 127-128, 206) : 1811 S15 1817 1818 Annuity, goods $3,350.00 $4,300.00 Annuity, cash S0.547 00 Claims (depredations } $2,000.00 5.2801-00 Cash payments to Chiefs — 200.00 The United States, nevertheless claimed these disburse ments as eredits against the balances shown im the General Accounting Office report te be due the Creek Nation under the Treaties of L802 and 1805, without identitying them with these treaties (R. 122, 246). The United States contended before the Commission that beeause the petitioner did not shew that any of the total amount of the eredits claimed by the Government (the $77,263.45 of the unallocated expenditures set forth by the General Accounting Office Report as possible dis bursements under the Treaty of 1790 not in issue, and the $22,198.00 unidentitied disbursements), or S40 461.45, wax not paid in satisfaction of the obligations of the United States under Treaties of TSO2 and TS05. the Gav ernment was entitled to eredit the entire amount agains! its obligations under those treaties. The S09 46145 ox ceeded the $9S8897.50 claimed by petitioner te he the balance due under the Treaties of Tse2 and DSQ). seas to defeat petitiones’s recovery under these two treaties (R. 296). The Indian Claims Cominissien adopted the Govern. ment’s position and determined that nething was due te petitioner under the Treaties of TS8O2 and 1805 (R267 16 268, 296). In doing so the Commission found that the Creek Nation was a tribe of American Indians within the meaning of the Indian Claims Commission Ae, and was authorized to bring this cause of action under Section 2 of said Act: that the claim was in the nature of an action of debt, asking payment for sums allegedly owing and unpaid and obligations unfulfilled, and due petitioner un der the treaties in question; and that the relation of guardian and ward as between the plaintiff and the de- fendant had not been established by competent or rele vant evidence (R. 264-265). The Commission further applied the whole amount of $77,263.45 as possible dis “rsements under the Treaty of 1790 not in issue, without considering the obligations of the United States te the Creek Nation under said Treaty of 1790, and the seeret article thereof, and also the $22,198.00 whieh the Genera! Accounting Office could not identify with any specific Creek treaty, against the balance due under the Treaties of 1802 and 1805, and found and held that petitioner had not proven that any amounts were due the Creek Nation oF »f- ”\ under said treaties (R. 267-269, 273, 277, BRR). “* Let us point out to the Court that in eharging the entire amount of $77,269.45 disbursed for goods pur chased at Philadelphia for Creek Indians during the period TS06.1809, against the balames due the Creek Na tion under the Treaties of TRO2 and TSO5, the Comission assumed that these goods were actually received by the Creek Nation. However, the reeord shows that such shipments were not made directly to the Creek Ageney, but were shipped to the United States Faetor at Savan nah, and held there for transportation overland by wagon to the Creek Ageney on the Flint River, when requested by the Indian Agent (R. 215-220, 222). The Govern ment’s accounting report shows that only “goods valued at $1.500 and $1,499.02 were actually delivered to. the Creek Nation of Indians during the vears 1798 and 179°. respectively.” (R. 23). 7 The Commission in dome so relied largely on a dee ston of the Court of Claim. supportmg the Government’ position in Chickasau Nation \ United State . (145). TO C.Cls. 1, certiorar) granted but limited te the question of specitie designation of offset<. and judgment reversed, 326 USS. 2170 In relving upen this ease rather than Upon mere recent decisions of the Court of Claums which overrule it, the Commission stated that “The refusal of the Supreme Court) to allow eceertiorar: on the matters °° * specifically ealled te its attention ‘im Chiekasaw | is evidence that i apnroved the holdings of the Court of Claims in reference to sueh matters” (7 Ind. Cl. Comm. at 185: Ro 278.280). The Commission further stated that the deeision of the Court oof Clamms m Sioux Tribe of Indians v. United States (1946), 105 Cl Cis. T25. “eould not overrule the same | Chickasaw ease because the Sroux ease ds a Court of Claims. opimion only, while the holding: in the Chiekasaw case were approved by the Supreme eof Ourt by its refusal te grant a writ ef certiorari” OR PSI). We assigned this holding a. error because this Court has made it clear in many instanees that me sueh inference ds te be drawn from its demiul oof eertiorar In any case (R200), The main issues in this ease are thus presented. Petitioner contended that a fiduciary relations os isted between the United States and the Creek Natron, an Indian tribe, and that the Government had the burden or presenting an aceurat aevounting of ifs pavinent. tr petitvoner purstlant te the treaties mn question Petitioner maintained, therefore, that the Governmmient Was met en titled te @redit for any amount. not specitically allocated on its books te the fulfillment of these treaties: and that the Government as the fiduciary had the clear burden of proving the eredits it claimed against the balance. it own accounting showed were due and owing petitioner under said treaties (Ro 277-281). i8 Petitioner further contended that the many decisions of this Court have established that the fiduciary relation- ship existing between the United States and the Indian tribes is sufficiently similar to the relationship between a guardian and its ward as to impose upon the United States the burden of accounting clearly for the disburse- ments made in fulfillment of its treaty obligations to an Indian tribe (R. 277-278); that before the respondent was entitled to credit against the amounts claimed by petitioner under the Treaties of 1802 and 1805, it must prove affirmatively that the credits claimed were payments in fulfillment of the 1802 and 1805 Treaties, and were not disbursements under the earlier Treaty of 1790, and the secret article thereof. Claim Under Article XIII, Treaty of March 24, 1832 Article XIII of the Treaty of March 24, 1332, between the United States and the Creek Nation, proclaimed April 4, 18382 (7 Stat. 366, 2 Kapp. 341), provided in part as follows: “e ¢ * Three thousand dollars, to be expended as the President may direct, shall be allowed for the term of twenty years for teaching their children.* * * ” Article XV of said treaty further provided: “This treaty shall be obligatory on the contracting parties, as soon as the same shall be ratified by the United States.” This treaty became obligatory upon the parties on April 4, 1832, when proclaimed (2 Kapp. 341; R. 269). The parties agreed that the total obligation of the United States to the Creek Nation under said Article XITI, was $60,000.00 (R. 270). The Report of the General Accounting Office shows that the United States disbursed $49,938.99 only in fulfillment of this treaty obligation to the Creek Nation under said Articie XTII, as set forth below (R. 59-65) : 19 Education : Support of Creek Children at Choctaw Academy 1832-1836, 1838 $10,934.48 IS37-1845, 1845, 1849-1850 16,683.12 $27,617.60 Pay of superintendents and teachers 1842-1846, 1848, 1850-1851 2,593.37 Furniture and equipment 1842, 1846, 1850-1851 580.54 Pay of miscellaneous employees 1846-1548, 1850-1851 464.40 Provisions 1846, 1850-1851 2,511.15 Board and tuition 1846-1848, 1850-1851 7,998.48 Medical attention 1846-1848, 1850 105.12 Support of schools 1846-1847 3.40 Transportation of pupils 1848 365.00 Clothing 1850-1851 797.68 Transportation of supplies 1850-1851 1,081.93 Erection and repair of school buildings 1850-1851 4,336.71 Livestock 1850-1851 541.50 School farm 1850-1851 908.07 Fuel and light 1851 19.24 Feed and care of livestock 1851 ; 15.00 Total disbursements $49,938.99 The United States failed to account to the Creek Na- tion for the balanee due under said treaty obligation in the amount of $10,061.01, which petitioner claimed as being due and owing to it from the United States under this treaty obligation. Although petitioner asserted a claim under Article XIII of the Treaty of March 24, 1832 only (R. 4). and issue Was joined on this treaty obligation (R. 8), vet, at the request of respondent the Commission injected into its Finding 6 facts relating to an obligation cf the United States incurred under Article 4 of the Treaty of Janu- ary 4, 1845, between the Creek Nation and the United States (9 Stat. 821; 2 Kapp. 550), not a part of peti- 20 tioner’s claim, and not material to it (R. 270, 275). We assigned this action of the Commission as error (R. 286- 287). The respondent admitted that its total obligation under this 1832 Treaty provision was $60,000.00, as the Com- mission found (R. 270), and the Commission further found that the disbursements under Article XIII of the Treaty of 1882, which began in 1832 and ended in 1851, totaled $49,938.99, as shown by the General Accounting Office Report (R. 59-64). However, the Commission sim- ply made the following finding with respect to petitioner's claim under the 1832 Treaty (R. 270): “The plaintiff approves fulfillment by the defendant of the obligations of the Treaty of 1832 in the amount of $49,938.99 as itemized in its Requested Finding 6 and contends that there is a balance due from said obligation in the amount of $10,061.01. This credit in the amount of $49,938.99 is for disbursements up to and including the year 1851 only; however, there were disbursements for the period 1852 to 1861 in the amount of $60,673.23 (Dft’s. Ex. 185, 186) in fulfillment of the treaties of 1832 and 1845 that de- fendant contends is in full settlement of its obliga- tion made by the Treaty of 1832 and renewed and enlarged by the Treaty of 1845.” The Commission thus completely failed to find whether or not the obligation of the United States under Article XIII of the Treaty of 1832 had been fulfilled. Petitioner assigned this failure as error (R. 286), beeause this was an essential fact necessary to the proper disposition of the claim asserted by petitioner; and that a finding merely stating the contentions of the parties, without finding which of the contentions was correct, was a failure on the part of the Commission to make an essential and material finding, and was error (Seminole Nation v. United States (1942), 316 U.S. 286, 300; Seminole Nation v. United States, (1942) 316 U.S. 310, 315-316; Snake or Piute Indians v. United States (1953), 125 C. Cls. 241, 255). 2l Claim Under Treaty of 1833 Article V of the Treaty of February 14, 1833, between the United States and the Creek Nation, proclaimed April 12, 1834 (7 Stat. 417; 2 Kapp. 388), provided in part as follows: “As an evidence of the kind feeling of the United States towards the Muskogee Indians, and as a testi- monial of the [their] gratification with the present amicabie and satisfactory adjustment of their diffi culties with the Cherokees, experienced by the com- missioners, they agree on behalf of the United State Sy to furnish to the Creek Indians west of the Missis- sippi, one blacksmith and one wheelwright or wagon- maker, as soon as they may be required by the na- tion, in addition to those already employed—also, to erect shops and furnish tvols for the same, and supply the smith shops with one ton of iron and two hun- dred and fifty pounds of steel each; and allow the said Creek Indians, annually, for education purposes, the sum of one thousand dollars, to be e xpended under the direction of the President of the United States— the whole of the above grants to be continued so long as the President may consider them conducive to the interest and welfare of the Creek Indians: e®*ee#ps Article IX of said treaty provided: “This agreement shall be binding and obligatory upon the contracting parties, ax soon as the same shall be ratified and confirmed by the President and Senate of the United States.” This treaty became binding upon the parties on April 12, 1834, when proclaimed (2 Kapp. 388; R. 271). The amount to be disbursed annually for education was definitely fixed in the treaty at $1,000.00, but the amount to be disbursed annually for blacksmiths, ete. was not definitely fixed in the treaty. However, Congress made annual appropriations definitely uxing the amount of this treaty provision for blacksmiths. ete, at $1,710.00 over a , 22 long period of time (R. 135-136). The General Accounting Office Report shows that payments under these treaty ob- ligations began in the vear 1834 (R. 75). So the date of beginning of these treaty obligations is definitely fixed by the action of the United States. Specific annual appropria- tions to fulfill these treaty obligations, from 1837 to 1878, were made by Congress, generally in the amount of $2,- 710.00—$1,710.00 for blacksmiths, ete., and $1,000 for edu- cation (Act of July 7, 1838, e.clxxxvi, 5 Stat. 299; R. 135- 136). The Act of June 17, 1844 c.eviii, 5 Stat. 704, 706, provided: “For blacksmith and assistant, and use of shop and tools, during the pleasure of the President, stipulated in the fifth article of the treaty of fourteenth Febru- ary, eighteen hundred and thirty-three, eight hundred and forty dollars: “For iron and steel, two hundred and seventy dollars; “For wagonmaker, stipulated in the fifih article of the treaty of fourteenth February, eighteen hundred and thirty-three, 66 —" dollars; “For education, sti nleted i in the fifth article cf the treaty of fourteenth February, eighteen hundred and thirty-three, one thousand dollars ;” And Article V of the Creek Treaty of August 7, 1856 (11 Stat. 699; 2 Kapp. 756), continued these 1833 treaty obligations in the definite amount of $2,710.00 annually, in the following language: “* * * one thousand dollars per annum during the pleasure of the President for the same object [educa- tion], under the fifth arcicle of the treaty of February fourteenth, eighteen hundred anc thirty-three; services of a wagonmaker, blacksmith and assistant, shop and tools, iron and steel, during the pleasure of the Presi- dent, under the same treaty and article, and costing one thousand seven hundred and ten dollars an- nually ; eee” Pay of blacksmith ys The General Accounting Office report shows that. the United States continued this annual treaty obligation through the year 1878 (R. 136). So the respondent's own records show th: t the payments on the 1833 Creek treaty obligations began in 1834 and continued through the fiseal year 1878 (R. 75-88). The United States thus acknowl- edged its obligation to the Creek Nation under this treaty provision in the amount of $2,710.00 annually, or $1,710.00 for blacksmiths, ete., and $1,000 for education, over the period from 1834 through 1878, or for a period of 45 years, less the Civil War period of six vears (fiseal vears 1862 through 1867), leaving a net obligation of the United States to pay said annuity to the Creek Nation over a period of 39 years at $2,710.00 per annum, or a total obli- gation of $105,690.00. The report of respondent’s own General Accounting Office shows that $76,285.45 only was disbursed by the United States to the Creek Nation to fulfill the obligation of the United States under this treaty provision, as set forth below (R. 73): 1834, 1836, 1844-1846 $ 2,234.32 Pay of striker Pay of blacksmith and striker Iron, etc., for blacksmith shops Pay of wagonmaker Material for mechanical shop Erection of shops Cash payments to Creek Treasurer Education: Pay of superintendents and teachers Support of Creek children at Choctaw Academy Furniture and Equipment 1834-1836, 1844-1845 1838-1841, 1843, 1845-1860 1835-1839, 1841, 1843-1845, 1847-1849, 1851-1853, 1855-1860 1834-1837, 1839-1843, 1857, 1859-1860 1836 1839 1861, 1868-1875, 1877-1878 1837-1841, 1843-1846 1850, 1853 1844-1845 1849-1841, 1846. 1850 911.72 17.890 71 7,266.53 4,702.33 6.00 2,000.00 20,466.00 7,278 41 1.658.69 162.28 24 Pay of miscellaneous employees 1850, 1853 237.56 Medical attention 1850 9.24 Provisions 1850 302.13 Clothing 1850, 1853 @ 801.68 Erection and repair of . school buildings 1844, 1850, 1853, 1868 2,059.26 Board and tuition 1851-1852, 1855-1860 8,171.31 Transportation of supplies 1853 5.36 Fuel and light 1853 12.60 Traveling expenses of school officials, etc. 1844-1853 81.75 Manual training supplies 1853 33.57 Total disbursements $76,285.45 The United States failed to account to the Creek Nation for the balance thus shown by its own accounting to be due under said treaty obligation in the amount of $29,- 404.55, which petitioner claimed as being due and owing from the United States to the Creek Nation (R. 270 2/1). The Commission made the following findings relative to petitioner’s claim (R. 271-272): | “Petitioner contends that the obligation of the United States under said treaty was for a period of 29 years (omitting the Civil War years) at $2,710.00 per annum or a total obligation of $108,- 690.00; and that the report of the General Accounting Office showed expenditures in fulfillment of said treaty obligation by the United States in the amount of $80 981.45 (items appearing in its Req. Find. No. 7) and that there is a balance due under said treaty obligation of $24,708.55 (Pltf. in its reply brief claims a credit of $4,696.00 was erroneously given defendant and that the balance due is $29,404.55, Reply Brief . Se | “There is no proof in the record as to any pecuni- ary loss suffered by the petitioner, nor as to the need of services of blacksmiths or other equipment which the treaty obligated the defendant to provide, nor is there any evidence of any demand having been made by petitioner for services or equipment not supplied.” 25 Petitioner on appeal assigned this portion of the Com mission’s Finding 7 as error (R. 287). The petitioner contended on appeal that the finding in the first paragraph above quoted is wholly incomplete, and therein the Com- mission failed to find the essential fact—whether or not the total obligation of the United States to the Creek Nation under Article V of the Creek Treaty of February 14, 1833 (7 Stat. 417, 2 Kapp. 38%}, had been fulfilled; that such a finding, which the Commission failed to make, is essential to the final disposition of this claim; and that a mere finding of what the petitioner contended, with- out a further finding of whether petitioner’s contention was right or wrong meant nothing to the ultimate deci- sion of the case. Petitioner further contended that it was unnecessary for the ward to prove a demand upon its guardian, the United States, for the service and equipment not supplied, before it was entitled to recover the amount shown by the Government’s own accounting report to be due and owing to petitioner under the above treaty obligation of the United States; and that the United States was obligated to fulfill its treaty obligation without a demand from its ward that it do so. Claim Under the Treaty of 1856 Article VI of the Treaty of August 7, 1856, between the United States and the Creek Nation ratified August 16, 1856 and proclaimed August 28, 1896 (11 Stat. 699, 2 Kapp. 756), provided in part as follows: “In consideration of the foregoing quit-claim, re- linquishment, release, and discharge, and of the ces- sion of a country for the Seminole Indians contained in the first article of this agreement, the United States do hereby agree and stipulate to allow and pay the Creek Nation the sum of one million of dollars, which shall be invested and paid as follows, viz: two hun- dred thousand dollars to be invested in some safe 26 stocks, paving an interest of at least five per cent per annum; which interest shall be regularly anid faithfully applied toe purposes of education among the Creeks; * °°” Article XXVI of this treaty provided in part: “This convention * * * shall take effect and be obligatory on the contracting parties from the date hereof, whenever it shall be ratified by the Senate and President of the United States.” This treaty thus became effective on August 7, 1856, when proclaimed by the President on August 28, 1856 (2 Kapp. 756). The Government's accounting report shows that al- though Congress annually appropriated the $10,000.00 interest due on said $200,000 fund from the fiseal vears 1857 through 1861, both inclusive, or for five vears, a total of $50,000.00, vet the United States disbursed $21,000.00 only during said period under this treaty obligation (R. 108, 187). This accounting report thus shows that the United States faiied to account to petitioner for the bal- ance due under said treaty obligation in the amount of $29,006.00, which petitioner claimed as due and owing to it from the United States. In its Finding § the Commission stated (R. 272): “Plaintiff claims an obligation of defendant under the above provision to pay $10,000 as interest to the plaintiff for the vears 1857 to 1861, both inelusive— a total of $50,000 upon which obligation the plaintiff contends the defendant still owes $29,000. (Pet. Req. Finding No. 8).” On appeal petitioner assigned this part of said finding as error in that the Commission failed to find whether or not the United States had fulfilled its treaty obligation to the Creek Nation in the amount claimed by petitioner: and instead mere!, recited the petitioner’s claim, without finding whether or not petitioner’s claim for $29,000.00 was right or wrong. (R. 287-288). / 27 Petitioner further assigned as error that part of Find. ing S which stated (R. 272): “The Confederate States paid the $29,000 and plain tiff accepted the same. (Dft's Ex. 160, p. 2382; Dft's Ex. 166-170, 173). “The United States Congress also approved the payment of the $29,000 involved in this claim for the benefit of Indians remaining loval to the United States during the Civil War, which expenditure the plaintiff Indians approved and ratified in the Treaty of June 14, 1866 (14 Stat. 785, 790).” Petitioner on appeal challenged the above findings on the ground that they were immaterial and not supported by substantial evidence (R. 287-288): and contended that there was no evidence in the reeord showing that the $29,000 claimed was ever paid to the Creek Nation either by the Confederate States of America, or by the United States for the relief of refugee Indians in Kansas during the Civil Waur; that the record showed that this amount was due mnd owing by the United States to the Creek Natiou under this treaty obligation before the Civil War beg.n; and that the United States had simply failed te poy it regularly and faithfully for the purposes of educa ion among the Creeks, as provided by the treaty. The petitioner further contended that soon after the beginning of the Civil War the Creek Nation became divided in its sympathies, and formed two independent parties, and that from one-half to three-fourths of the Creeks fled to Kansas where they remained as refugees during the entire period of the War; and that any pay- ment made by the Confederate States to the southern portion of the Creek Nation would not be payment to the Creek Nation, and would not satisfy the obligation of the United States to the Creek Nation, under said Treaty of 1856. And further, that the record did not show that said $29,000 was actually diverted and paid for the relief of refugee Indians in Kansas, and released by the previ- 28 sions of Article XI of the Treaty of June 14, 1866 (14 Stat. 785, 2 Kapp. 931; Appendix p. JH.), Petitioner further challenged on appeal the following ultimate finding of tne Commission, as not being sup- ported by the substantial evidence in the reeord (R. 273, 288) : “There is not sufi © evidence in the record to show that any of the indebtedness claimed by the plaintiff has not been discharged.” Petitioner had contended that the admissions in the Government's own accounting report showing that the balances claimed were due the Creek Nation under the treaties in question, were sufficient proof of the validity of the claims herein presented; and that the burden was upon the respondent to prove any credits it claimed against the balances shown by its accounting to be due and owing to petitioner under said treaties. From the findings and holdings of the Commission dismissing the several claims set forth in petitioner's petition, the Creek Nation appealed to the Court of Claims under Section 20(b) of the Indian Claims Com- mission Act (R. 284-291). After full argument, the ma- jority of the Court of Claims (3 Judges concurring), on March 1, 196i, merely by a per curiam statement, affirmed the findings and holdings of the Commission, without analyzing and reviewing the issues raised on appeal (R. 292). Judge Littleton, the Senior Judge of the Court (now retired), who was joined by Judge Madden, wrote a dis- senting opinion, the only opinion of the Court of Claims in this case, analyzing the findings and holdings of the Commission, and pointing out the errors of fact and law made by the Commission, and upholding the claims of petitioner in the instances set forth in the dissenting opinion (R. 292-315). 29 The dissenting opinion pointed out (R. 292-294): “This appeal, which the majority has disposed of summarily in a per curiam statement which merely affirms the determination of the Commission, concerns an entirely novel question which has been raised for the first time under the Indian Claims Commission Act and goes to the proper administration c* that Act in the general area of accounting suits, a num- ber of which are now pending before the Commission. While the instant suit was not brought strictly as a suit for an accounting, it is very similar in nature to the accounting suits now pending before the Com- mission, and it will inevitably serve as a general ide to their disposition. In general, the grounds or this dissent from the position taken by the Com- mission and affirmed by the majority of this court, without analyzing the issues, are that the ruling of the Commission that the Government has no obliga- tion to render a clear and accurate accounting of its dealings and the fulfillment of treaty obligations in the manner of a fiduciary or of a superior and learned power dealing with an unlettered and _in- ferior tribe or race, but is merely in a position of a debtor in its relationship under a treaty with the Indians, is contrary to the decisions of the Supreme Court, of this court, and of at least one of the Com- mission’s own opinions. In the Jowa Tribe of the Iowa Reservations in Kansas and Nebraska, et cetera ease, Docket No. 70, decided June 19, 1952, 2 Ind. Cl. Comm. 167, 176, the Commission stated that: ‘In its dealings with the Tribe the defendant kept the only records of these transactions as a self-imposed duty to its illiterate and incompe- tent wards and thereby became accountable to them for the manner in which it discharged its treaty, other assumed and Congressionally im- posed obligations.’ The Commission has erroneously placed great reliance on the mistaken view that denial of certiorari by the Supreme Court constitutes approval of the decision of the case wherein certiorari is denied. Moreover. I am of the opinion the Commission has not followed 30 the principles of the decided cases nor the rules of this court with respect to burden of proof where the Government sets up and relies on the affirmative de- fense of payment (Rule 15(b) of the Rules of ihe Court of Claims). Finally, the per curiam opinion of this court falls far short of meeting the obligation of an appellate court to give guidance to the court below (the Indian Claims Commission) and to the litigants in an appeal on a novel and important mat- ter, an obligation which, until this time, the court has conscientiously fulfilled. The appeal by the In- dians in this case is in no sense frivolous and I am of the opinion that the litigants are entitled to an opinion showing that the court has not disregarded or overlooked the very serious arguments of counsel on both sides. Furthermore I believe that the ma- jority mistakes this court’s function in claims ap- pealed from the Indian Claims Commission to be like that of the Circuit Courts of Appeals in appeals from the District Courts. 28 U.S.C. $1291. Section 20(b) of the Indian Claims Commission Act is quite ex- licit with regard to the manner in which this court is to review final determinations of the Commission. eee In the instant case there are serious objections earn- estly and fully argued by the appellant regarding the findings of the Commission and lack of findings by the Commission. For these reasons I am forced to state my views in some detail.” “The dissenting opinion then reviewed the decisions of this Court and those of the Court of Claims holding that a fiduciary relationship does exist between an Indian tribe and the United States; that this relationship is sufficiently similar to the relationship between a guardian and its ward to impose upon the United States the burden of accounting clearly for amounts disbursed in fulllment of its Indian treaties; that the relationship is not one of debtor-creditor, or of parties on an equal footing deal- ine at arms’ length with one another; that the United States has the burden of proving affirmatively the credits 31 its claims against the balances shown by its own aecoun: ing to be due the Indian tribe: and that the denial of s writ of certiorari by this Court has no bearing on the merits of the claim presented in the petition for a writ of certiorari. The dissenting opinion then analyzes the issues relating to the claims of petitioner under the several treaties in question, applying the law thereto in the light of the decisions reviewed. With respect to the petitioner's claim for the unpaid balance of $98,857.50 under the Treaties of 1802 and 1805, the dissenting opinion pointed out that some of the un- allocated amount of $99,461.45, which was credited against the $98,857.50 claimed, could be attributed to disburse- ments under the Treaty of 1790, for it is clear from the face of that treaty that there was an obligation of the United States of at least $1,500.00 a vear due petitioner; that for the years 1790 through 1797, and 1800 through 1809, a total of 18 vears, the Government's records do not specifically show payment of this $1,500 annuity, and that at least $27,000 of the payments made from 1803 to 1818 were made in fulfillment of the 1790 treaty obligation: and, therefore, at most $72,461.45 of the unallocated amount of $99,461.45, could properly be credited to the Government as fulfillment of its obligations under the Treaties of 1802 and 1805, leaving $26,396.05 which is not shown to have been paid under the 1802 and 1805 treaty balances (R. 306-308). The dissenting opinion then states (R. 307): “In addition, I think that appellant should be per- mitted, upon a remand to the Indian Claims Com- mission, to show any other obligations of the United States, in addition to the $1,500 under the 1790 Treaty, for which the payments shown for 1803 through 1818 could have been intended, so that the amounts of such obligations could be subtracted from the $72,461.45 which I find to be the maximum allow- ~ 32 able to the Government against its 1802 and 1805 treaty obligations, given the state of its records.” The dissent did not take into consideration the further amounts paid by the United States under the secret article of the Treaty of 1790, which petitioner also believes should have been considered. With respect to the balance of $10,061.01 claimed to be due petitioner under Article XIII of the Treaty of March 24, 1832, the dissenting opinion pointed out that the Indian Claims Commission did not find any additional credits due the Government on this obligation, and that the Commission failed to make any finding as to whether or not the Government’s obligation undé@r the 1832 Treaty was fulfilled (R. 308); and further stated (R. 308): “I think that the Commission’s failure to find whether the 1832 Treaty obligation was fulfilled re- ee us to remand this portion of the case to the ommission for such a finding. On its fact, the Com- mission’s ‘finding’ is merely a restatement of the Government’s contention, and not a finding at all. “The Commission’s ‘ultimate’ finding that there was not sufficient evidence in the record to show that any of the indebtedness claimed by appellant had not been discharged does not remedy its failure to make a material finding of fact. Where required findings are not made by the Commission, the court will set aside the Commission’s final determination and re- mand the case so that such findings may be made. Snake or Piute Indians v. United States, 125 Ct. C1. 241, 255.” With respect to the balance of $29,404.55 claimed to be due petitioner under Article V of the Treaty of 1833 the dissenting opinion pointed out that the United States did not claim credit for more than the $76,285.45 which its records show it had paid on this treaty obligation ($2,710 per year for 39 years, or a total of $105,690.00), but took the position that the size of the obligation under the 1833 33 __ treaty was_not-adequately established; and further stated Sey (R. 309-310) : “The Indian Claims Commission concluded that it was unnecessary for it to determine whether the basis for establishing the treaty liability as contended for by a was correct, in view of its holding that appellant had ‘not proven the alleged failures of the appellee tdé& fulfill its obligations * * **’. 7 Ind. Cl. omm., 138. Since I would conclude that appellant has laid sufficient basis for a conclusion that appellee failed to fulfill its obhgations, I think that it was necessary for the Indian Claims Commission to de- termine the amount of the Government's obligetion under the 1833 Treaty. [| would therefore remand this portion of the case to the Commission for such determination.” With respect to the balance of $29,000 admittedly due petitioner as interest at 5 per cent per annum on the $260,000 trust, fund, during the period of the fiscal vears 1857 through 1861, which the Treaty of 1856 required the United States to apply annually for education of the Creeks, the Government before the Commission and Court of Claims had contended (1) that under Article XLI of its Treaty of 1861 with the Creek Nation the Confederate States agreed to pay the $29,000.00 and did so on or about January 28, 1862, and that such payment discharged the obligation of the United States to the Creek Nation in this amount; and (2) that under the Civil War Resolution of February 22, 1862, 12 Stat. 614, authorizing the use of Creek annuities which had not been disbursed, for the benefit of refugee Indians in Kansas, that the $29,000 in question was so used, and that this diversion of annuities was ratified and confirmed by petitioner by Article XI of the Treaty of June 14, 1866, 14 Stat. 785, 789-790; 2 Kapp. 931. The dissenting opinion of Judge Littleton reviewed the ——== ° record, and answered the first contention of the Govern- ment pointing out that there was no evidence in the record 34 te show that this balance was paid to the Creek Nation as such (R. 311, 313); that the evidenee showed that soon after the Civil War began the Creek Nation was about evenly divided in its sympathies, and divided into two independent and opposite factions—those in sympathy with the North, and those in sympathy with the South; that the Northern faction, under the leadership of Chief Opoeth-le-yo-ho-la, met in convention on August 5, 1861 in the Creek Nation, and declared that the Creek chiefs who had signed a treaty with the Confederate States had done so without action of the Creek Council, the governing body of the Creek Nation, and had thus forfeited their administrative rank; that the Union-minded Creeks, esti- mated to number 6,000, or from one-half to three-fourths of the Creeks, fought several battles with the Confederate forces composed partly of the Southern Creeks. along the shores of the Arkansas and Verdegris Rivers through- out November and December of 1861, and had withdrawn farther north toward the southern border of Kansas, and were then treating with United States agents for relief for their refugees, and arranging for rendering military assistanere by the Creeks to the United States (R. 139- 151, 157, 161-185); that in view of the fact that the Creek Nation thus became divided into two independent entities it cannot be said that the portion which remained in the South constituted after November 1861, the Creck Na- tion; and any payment by the Confederate States near Little Rock, Arkansas, after January 28, 1862, to the Southern portion encamped there “cannot be said to have been payment of the obligation which was owed to the Creek Nation”. (R. 310-313). Judge Littleton analyzed the Government's second claim of credit for the payment of $29,000.00 (R. 313-315), and pointed out that there was no substantial evidence in the record of this case to support a finding that “the $29,000 im issue was in fact paid to refugee Indians”: that the Commission did not so ‘find. but found only “that the 35 United States Congress had approved such payment for the benefit of refugee Indians, ‘which expenditure the plaintiff Indians approved and ratified in the Treaty of June 14, 1866 (14 Stat. 785, 790)"; that the Treaty of 1866 approved and confirmed only “erpenditures made” by the United States for that purpose; and that. there was no evidence to show that this particular $29,000.00 was ever so disbursed. The dissenting opinion then eon- cluded (R. 314): “Unless, upon remand to the Indian Claims Com- mission, appellee could show that the $29,000 due under the 1856 Treaty was among the sums disbursed in 1862-1867, cither by pointing to an explicit account- ing for that obligation, or by showing that the total of the treaty obligations payable to the Creeks was not greater than the amount of 1862-1867 expendi- tures in excess of current obligations, or otherwise, I think that appellant is entitled to recover the $29,000.” SUMMARY OF ARGUMENT 1. _The holding of the Indian Claims Commission, af- firmed by the per curiam statement of the majority of the Court of Claims—that the relationship between the United States and the Indian tribes, in this case the Creek Nation, is that of debtor and creditor, or one in which the parties were dealing as equals and at arms length—is contrary to the many decisions of this Court and of the Court of Claims. This Court has held in a long line of decisions that a fiduciary relationship exists between the United States and the Indian tribes, and that this relationship resem- bles that of guardian and ward. Cherokee Nation vy. Georgia (1831), 5 Pet. 1, 16-17; United States v. Kagama (1886), 118 U.S. 375, 383: Choctaw Nation v. United States (1886), 119 U.S. 1, 27-28; United States v. Payne (1924), 264 U.S. 446, 448: Quick Bear v. Leupp (1908), 910 U.S. 59, 80-81: United States v. Creek Nation (1935), 36 295 U. S. 103, 109-110; Seminole Nation v. United States (1942), 316 U. S. 286, 296-297; Creek Nation vy. United States (1943), 318 U. S. 629, 642. In Seminole Nation v. United States (1942), 316 U.S. 286, 296-297, this Court held that in carrying out its treaty obligations with the Indian tribes the United States is “something more than a mere contracting party,” and that its dealings with the Indians should therefore be “judged by the most exacting fiduciary standards”. In United States v. Creek Nation (1935), 295 U.S. 103, 109-110, this Court held that the Creek Nation was under the guardianship of the United States, that it was in a state of tutelage and entitled to rely on the United States, its guardian, for needed protection of its interests. In Quick Bear-v. Leupp (1908), 210 U.S. 50, 80-81. this Court held that treaty annuities due an Indian tribe had “exactly the same characteristics” as a “trust fund.” and that “they are monevs belonging really to the Indians”. The Court of Claims has held in Menominee Tribe v. United States (1944), 101 C. Cl. 10, 19-20, that the United States is “a debtor who stands in the position of a trustee or fiduciary toward his creditor’, when the creditor is an Tndian tribe, and that it would “test the conduct of the Government, in its handling of the funds of the plaintiff Indians, by the standards applicable to a trustee”. In United States vz Seminole Nation (1959), 146 C. C1. 171, 181-182, the Court held that the relationship hetween the United States and the Indian tribes in general is that of “a fiduciary relationship”. The Indian Claims Commission and the Court of Claims should have taken judicial notice of the decisions of this Court holding that a fiduciary relationship exists between the United States and the Indian tribes. and that this 37 relationship need not be proven in litigation under the Indian Claims Commission Act, which permits only Indian tribes, bands or other identifiable groups of American Indians to present their claims against the United States for final determination. Whether a general fiduciary relationship or a_tech- nica] and formal guardian and ward relationship exists between the parties, the remedies available to the injured party are the same. Dick v. Albers (1910, 243 IIl..231), 90 N.E. 683, 684-685; Memonime Tribe v. United States (1944), 101 C. Cls. 10, 19-20; Seminole Nation v. United States (1942), 316 U. S. 286, 296-297. Under the well settled principles governing the fiduciary relationship the United States, as the fiduciary, has the burden of accounting strictly to an Indian tribe for the amounts disbursed by it in the fulfillment of its treaty obligations to the tribe. Dillman vy. Hastings (1892), 144 U.S. 136, 140-142; Villa Site Co. v. Copeland (1920, N. J. Eq.), 111 A. 39, 43; Ingram v. Lewis (1930, C.C.A. 10), 37 F.2d 259, 260; Akin v. Warner (1945, Mass.), 63 N.E.2d 566, 569-570; Garrett v. First Nat. Bank & Trust Co..of Vicksburg, Miss. (1946, C.C.A. 5), 153 F.2d 289, 292; Stour Tribe v. United States (1946), 105 C. Cl. 725, 802; Bogert, Trusts and Trustees (1948 Ed.), Vol. 4, Pt. 2, Sec. 963, p. 243; Scott on Trusts (2nd Ed.). See. 172, pp. 1287-1288. 5 2. The burden of proof of petitioner with respect. to the claims herein presented was satisfied when the Creek Nation proved the total amount of the treaty obligations due it from the United States, and that the admissions in the Government’s own accounting showed that it had not disbursed the full amonnts due under said treaty obliga- tions, and that the balances elaimed by petitioner were due and owing to it. Bogert on Trusts and Trustees, (1948 Ed.) Vol. 4, Sec. 969, pp. 297, 299; McComb v. Frink (1893), 149 U.S. 629, 644; In re Tretheway’s Estate (1939, Cal.), 89 P.2d 679, 682; Florida Fruit Canners v. Walker 38 (1937, 5 C.C.A.), 90 F.2d 753, 758; Harrison v. Remington Paper Co. (1905), 140 F. 385, 402. 3. The United States as the fiduciary has the burden of proving the credits it claims on the unpaid balances shown to be due petitioner, the United States alone having kept the records of these transactions; and if the accounts are not clearly kept, or the records are lost or missing, all presumptions are resolved against the fiduciary, and it must stand the resulting loss. Smith v. Robinson (1914, 83 N.J. Eq. 384). 90 A. 1063, 1065; Bennett v. Weber (1926, 323 Ill. 283), 154 N. E. 105, 110; Talbot v. Auto- mobile Identification Underwriters, Inc. (1931, Tenn.) 43 S.W.2d 220, 221; Smith v. Tolversen (1934 Minn.) 252 N. W. 423, 425; Benbow v. Benbow (1934, 117 Fla. 37). 157 So. 512, 519; Florida Fruit Canners v. Walker (1937), 90 F.2d 753, 758; Sioux Tribe v. United States (1946), 105 C. Cl. 725, 802; Bogert, Trusts and Trustees (1948 Ed.), Vol. 4, Pt. 2, Sec. 962, pp. 239-242, 244-245 (foot- note), Sec. 971, p. 328; Restatement of Law of Trusts. Amer. Law Inst., Vol. 1, Sec. 172, pp. 445-446; Pomeroy’s Equity Juris. (4th Ed.), Vol. 2, See. 956, pp. 2038-2042. Wholly apart from the principles governing the fidu- ciary relationship, it is a general rule of evidence that when the subject matter of a negative averment lies pecu- liarly within the knowledge of the other party, the aver- ment is taken as true, unless disproved by that party; -and when petitioner’s case depends upon the establish- ment of a negative, as it does here, and the means of proving the facts are within the sole possession of the opposite party, the latter party must produce such proof; and upon his failure to do so, the presumption arises that it does not exist, which of itself establishes a nega- tive. United States v. Denver & R.G.R.R. Co. (1903), 191 U.S. 82, 92; Colorado Coal Co. v. United States (1887), 123 U.S. 307, 318-320; Rossi v. United States (1933), 289 U.S. 89, 91-92. This rule has been held to 39 a apply to accounting cases. Cliett v. Seott (CCA. Sth. 1939), 102 F.2d 725; Merriam v. Venida Blouse Corpora- tion (S.D.N.Y., 1938), 23 F. Supp. 659, 660-661; United States v. Bull Steamship Line, S.D.N.Y., 1956), 146 F. Supp. 210, 213. Furthermore, the United States has the burden of prov- ing the credits it asserts as payments made by the United States on the claims of petitioner, under Section 2 of the Indian Claiins Commission Act. Menominee Tribe v. United States (1951), 118 C. Cls. 290, 326; Kiowa, Co- manche and Apache Tribes, 5 Ind. Cl. Comm. 297, affirined United States v. Kiowa, Comanche and Apache Tribes (1958), 143 C.Cls. 534, 543. 4. The failure of the Indian Claims Commission to make essential findings of fact necessary to the proper disposition of the claims asserted by petitioner under the 1802, 1805, 1832, 1833, and 1856 Treaties in question, and also the payments made under the 1790 Treaty and the secret article thereof, and making findings not sup- ported by the substantial evidence in the record, are re- versible errors. Seminole Nation v. United States (1942), 316 U.S. 310, 316; Snake or Piute Indians v. United States (1953), 125 C. Cls. 241, 255. The failure of the Court of Claims to review the record when the findings of fact of the Commission are chal- lenged upon appea! as not being supported by substantial evidence, falls far short of its duty as an appellate eourt under the provisions of Section 20(b) of the Indian Claims Commission Act. When a nation is divided into two independent factions. who consider each other as enemies, and acknowledge no - common judge, the nation is dissolved, and neither one represents the nation, and the party in amity with the United States cannot be held responsible for the acts of the other adversary party. Vattel, Book IIT, Ch. XVIII, | 40 pars. 292, 293, Chitty Ed., pp. 424, 427; Conners v. United States (1898), 33 C. Cls. 317, 325, affirmed Conners v. United States (1901), 180 U.S. 271, 275-276; Montoya v. United States (1897), 32 C. Cls. 349, 361-362, affirmed Montoya v. United States (1901), 180 U.S. 261, 268. The majority of the Creek Nation as an ally of the United States during the Civil War cannot be held responsible for the action of that part of the Creek Nation that joined with the South, and waged war against the United States and the majority of the Creek Nation. The Creek Nation being thus divided into two independ- ent parties, payment of annuities by the Southern Con- federacy to that portion of the Creek Nation that joined the South, would not discharge the obligation of the United States to pay the balance of $29,000 due the Creek Nation under Article VI of the Treaty of August 7, 1856, 11 Stat. 699, here in issue. The ratification by the Creek Nation of the diversion of Creek annuities for the relief of refugee Indians during the Civil War period in Article XI of the Treaty of June 14, 1866, 14 Stat. 785, applied to amounts actually paid for such purpose, and would not apply to any Creek an- nuities that had not been proven by the respondent to have been paid for that purpose. 5. The denial of a writ of certiorari by this Court does not constitute an affirmance of the decision of the lower tribunal. United States v. Shubert (1955), 348 U.S, 222, 228-229; Sunal v. Large (1947), 332 U.S. 174, 181; Ffouse v. Mayo (1945), 324 U.S. 42, 48; Atlantic Coast Line R. Co. v. Powe (1931), 283 U.S. 401, 403-404; United States v. Carver (1923), 260 U.S. 482, 490; Hamil- ton-Brown Shoe Co. v. Wolf Bros. and Co. (1916), 240 U.S. 251, 258; Darr v. Burford (1950), 339 U.S. 200, 226- 228. 41 ARGUMENT The majority of the Court of Claims merely affirmed the findings and opinion of the Indian Claims Commission by a per curiam statement, and wrote no opinion analyz- ing the issues raised upon appeal to that Court. So we must review the dissenting opinion of Judge Littleton (Senior Judge now retired), joined in by Judge Madden (now also retired) which carefully, and we believe correct- ly, analyzed the issues raised upon the appeal in this case. A Fidcuiary Relationship Exists Between the United States and the Indian Tribes, Requiring the United States to Account Strictly to the Indian Tribes for the Disbursements Made by It in Fulfillment of Its Treaty Obligations With Them It is well settled by the many decisions of this Court and the Court of Claims that a fiduciary relationship does in fact exist between the United States and the Indian tribes, the Creek Nation in this case, and that this rela- tionship resembles that of guardian and ward. The dissenting opinion of Judge Littleton clearly re- views the settled law on this issue as follows (R. 297-301): “T think that the decisions of the Supreme Court of the United States, and the prior decisions of this court, establish that the relationship between the United States and an Indian tribe is sufficiently simi- lar to the relationship between a guardian and its ward to impose upon the United States the burden of clearly accounting for its fulfillment of its Indian treaties. . > . > . “The Supreme Court has on numerous occasions made clear that the duties owed by the Government of the United States to the Indian tribes with which it deals are of the most exacting nature, to ‘be judged 42 by the most exacting fiduciary standards.’ Seminolc Nation v. United States, 316 U.S. 286, 297. The basis for the high obligations owed by the Government was established as early as 1831, in Cherokee Nation v. Georgia, 5 Pet. 1, 16-17, where the Court, speaking through Chief Justice Marshall, stated: [The Indians} are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.® “With respect to the relationship between the Creek Nation and the United States, the Supreme Court has said, in Creek Nation v. United States, 295 U.S. 103, 109-110: *In Cherokee Nation v. Georgia, supra, this Court stated the reasons for its conclusion as follows: “* * The condition of the Indians in relation to the United States is unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the cther. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else. “* * They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing their affairs as they think proper; * * * “* * They may. more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of posses- sion ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. “They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father. * *” The Creek Nation, like the erokee Nation, acknowledged itself “to be under the protection @ #he United States of America” in Article II of the Treaty of August 7, 1790, 7 Stat. 35, the first treaty between the Creek Nation and the United States (stpra, pr. 11-12). 43 * * * the tribe was a dependent Indian commu- _— under the guardianship of the United States, and therefore its property and affairs were sub- ject to the control and management of that gov- ernment. * * * It was in a state of tutelage and entitled to rely on the United States, its guardian, for needed protection of its interests. “The Indian Claims Commission itself has recog- nized that a ‘fiduciary relationship’ exists between the Creek Nation and the United States. The Creek Nation vy. United States, 2 Ind. Cl. Comm. 66, 114. “The Supreme Court further defined and estab- lished the nature of the relationship between the Government and the Indian tribes as simitar to that of guardian and-ward in United States v. Kagama, 118 U.S. 375, where the Court said, ‘These Indian tribes are the wards of the Nation.’ 118 U.S. at 383. “Appellee places great reliance upon an 1886 deci- sion of this court, Choctaw Nation v. United States, 21 Ct. Cl. 59, where it was said that the cases ‘fall far short of holding that the rules of law as ap- “plicable to controversies between guardian and ward are to prevail in suits between the United States and the Indian tribes.’ 21 Ct. Cl. at 92-93. Appellee has overloeked the fact that the decision wa§ reversed by the Supreme Court, in Choctaw Nation v. United States, 119 U.S. 1, and that the Supreme Court said: As was said by this court recently in the case of the United States v. Kagama, 118 U.S. 375, 383: ‘These Indian Tribes are the wards of the Nation; they are communities dependent on the United States; °° °’ e . . . f The recognized relation between the parties to this controversy, therefore, is that between a superior and an inferior, whereby the latter is placed under the care and control of the former, and which, while it authorizes the adoption on the part of the United States of such policy as their H own public interests may dictate, recognizes, on the other hand, such an interpretation of their acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection. The parties are not on an equal footing, and that inequality is to be made good by the superior justice which looks only to the substance of the right, without regard to technical rules framed under a system of municipal jurisprudence, for- mulating the rights and obligations of private persons, equally subject to the same laws. 119 U.S. at 27-28. “The Court repeated, in United States v. Payne, 264 U.S. 446, that, with regard to the Indians, * * * the United States occupies the position and assumes the responsibilities of virtual guardian- ship, ° * *. 264 U.S. at 448. “Of particular importance is the Supreme Court's ruling in Seminole Nation v. United States, 316 U.S. 286, which involved the question of the handling of annuity payments to lediane. It is true that the treaty had set up a ‘trust fund’ out of the interest from which the annuities were to-be paid. But the Supreme Court did not base its conclusion upon the ‘trust nature’ of the particular fund involved. The Court stated: “