Henry Billings Brown

“ Owing to laches or dishonesty, certain moneys due to orphan children under the treaty of 1854 with the Shawnees, to be distributed under the last clause of article 8 thereof, was lost to them. The president deemed best to pay their money over in severalty. The Shawnee council created certain so-called 'guardians' of the orphan children, and to them the defendants paid a portion of the orphans' money, which by laches or dishonesty never reached the orphans. ”

“ The finding does not show when the money was paid; but, from the fact that the obligation to pay arose in 1854, it may safely be assumed that the payments were made before the act of July 5, 1862, the sixth section of which, embodied in Rev. St. § 2108, prohibited money to be paid to any person appointed by any Indian council to receive money due incompetent or orphan Indians. There can certainly be no presumption that it was paid in the face of an act expressly inhibiting such payment. ”

“ Subtracting from this the amount paid to the Shawnees, as found in the sixth finding, $87,257.63, leaves $39,042 as the balance due in 1840.
3. Are the Indians entitled to interest upon this amount? By Rev. St. § 1091: 'No interest shall be allowed upon any claim up to the time of the rendition of judgment thereon by the court of claims, unless upon a contract expressly stipulating for the payment of interest.' The real question here is whether there was a contract expressly stipulating for the payment of interest, or is this a mere claim for unliquidated damages? ”

“ It is clear that the amount expended is not available as a set-off.
2. The second and principal assignment of error arises from an allowance of the sum of $260,999.24, based upon a treaty made August 8, 1831 (7 Stat. 355) , with a branch of the Shawnees residing in Ohio, under which they ceded to the United States their lands in Ohio, the government agreeing to give in exchange certain lands upon the western side of the Mississippi. ”