Joseph McKenna

“ It will be observed that these provisions apply to Indians not citizens of the United States, and it is pointed out that the Eastern Cherokees became citizens March 3, 1901 (31 Stat. at L. 1447, chap. 868) . That may be true, but the foundation of Owen's right to the fee was under an agreement with John Vaile, and the latter's right to engage Owen depended upon a contract with the Indians, made in February and April 1900; that is, a contract which was made before citizenship had been confrred upon the Indians. ”

“ And in the contingeny of the fees not being provided for by legislation, as per the contract of the Eastern Cherokee Council aforesaid, but upon proof of services, then, and in that event, each of the parties hereto shall prove service independently of the other, and said Owen shall not be expected, out of fees collected for his personal service, to pay the fees to the said Dudley & Michener, but it is understood and agreed that he will, in such a contingency, do what he can to assist Dudley & Michener to collect the fee hereby contracted by them. ”

“ It is true that it was ratified by the Indians September the 4th, 1901; that is, after they had been made citizens; but the effect of that might be disputed, and there being elements of doubt about it, plaintiff in error and defendants in error well might have supposed the contract would be subject to the provisions of the Revised Statutes, quoted above. The fact that legislation was sought confirms such view. If the Indians, after March 3, 1901, had the same power to contract and the same extent of responsibility as white citizens, their contract would need no confirmation by legislation. ”

“ The final act was passed March 3, 1903. It made the Eastern Cherokees, so called, including those in the Cherokee Nation, a band or bands for all purposes of § 68 of the act of July 1, 1902 [32 Stat. at L. 726, chap. 1375] , and provided that the prosecution of the suit in the court of claims on the part of the Eastern Cherokees should 'be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the court of claims upon the termination of such suit.' 32 Stat. ”