Mahlon Pitney

“ The contention of claimant that the Court of Claims erred in not making a pecuniary award for the members of the Omaha Tribe killed by the Sioux is covered by what we have said to show that there was error in making an allowance for the horses stolen by the Sioux; the same treaty provision governing both claims. ”

“ As to the item of $4,560 allowed as the value of horses killed by the Sioux Indians, we conclude that the objection of the government is well founded. The obligation of the treaty was to protect the Omahas from the Sioux and other hostile tribes 'as long as the President may deem such protection necessary.' The obligation depended upon an exercise of discretion by the President. There is no finding of a failure to provide any protection deemed by the President to be necessary; hence nothing to create a liability, legal or equitable, under the treaty clause. ”

“ Upon the cross-appeal, assignments of error are based upon the disallowance of interest. As to the $94,739.54 awarded for the land north of the dividing line in excess of 300,000 acres, it is contended that payment of this consideration was a concurrent condition of the passing of title to the United States, and as equity considers that as done which ought to be done the purchase money was, potentially, in the Treasury of the United States as a trust fund, and ought to be treated as if invested for the benefit of the Indians at 5 per cent. ”