Oliver Wendell Holmes, Jr.

“ The plaintiffs attempt to go behind this ascertainment by the Secretary. But here for a third time we are dealing, with a statute, not with a treaty. There is no intimation of an intent to change the terms of the treaties, by which the contracts were made not with individuals, but with the tribes. The statute neither changed nor conferred rights. It simply directed the Secretary of Interior how the contracts of the United States should be performed. ”

“ That, however, was a suit in equity, whereas the present case is more analogous to an action at law, to recover a fund from parties to whom it was paid under mistake of law or fact, or from the original contractor by whom the payment was made. We should hesitate to depart from the ordinary rule that we do not go behind the findings of the court of claims (United States v. Sisseton & W. Indians, 208 U.S. 561, 566, 52 L. ed. 621, 623, 28 Sup. Ct. Rep. 352) , if, in our view, the question needed to be decided. ”

“ The statute creates no new right beyond excluding the effect of the lapse of time, and, perhaps, the defense of res judicata and satisfaction under the acts of 1895 and 1869; it makes no admission, but simply provides for a trial on the merits. ”

“ Rep. 650, and as it is conceded by the contending Indians that it may, in my opinion the Secretary of the Interior, in apportioning the annuities from 1885 to date, committed error in taking the fixed, unvarying sum of 317 for the Sacs and Foxes in Iowa, and 505 for those in Oklahoma, disregarding any increase or decrease of the respective divisions of the tribe. The tribal rights of the claimant Indians had been recognized, and the jurisdictional act required that they should be given 'their proportionate shares according to their numbers . ”