Oliver Wendell Holmes, Jr.

“ Or, striking out the middle term and looking to the result, the payments were made because the annuities had been confiscated; that is to say, so far as appears, they would not have been made except for that cause. But, if so, then, when the annuities are restored, the sums paid on the footing that the annuities were lost must be taken into the account. It does not matter whether the Indians had a demand in conscience against the United States for their cession or not, or whether or not such demands were settled by subsequent treaties ”

“ As to the payments for support charged in item 6, they are to be considered in the light of the act of forfeiture and the attitude of Congress indicated in article 6 of the treaty just discussed. The Indians were in the position of people having no recognized claim. They were dependents because of the forfeiture. Payments made for their support in such circumstances cannot be compared to those that may have been made to tribes in good standing. ”

“ The successful party to a war is apt to demand indemnity, and when that party is doing an act of grace and restoring annuities forfeited because of damage done it is absurd to ask that it should leave consideration of the charge for damage out of account. ”

“ The words 'in consideration of' do not import a technical consideration, such as is needed in a private bargain not unedr seal, but the inducement that led Congress to make the promise. It indicates the only inducement, and a different one cannot be substituted in its place, on the ground that assumpsit would not lie on the one named.
By the words of the treaty, then, the 6th article promised the payments in question because the claimants were in want because their annuities had been confiscated. ”

“ Article 6 was as follows: 'And further, in consideration of the destitution of said bands of Sisseton and Wahpeton Sioux, parties hereto, resulting from the confiscation of their annuities and improvements, it is agreed that Congress will, in its own discretion, from time to time, make such appropriations as may be deemed requisite to enable said Indians to return to an agricultural life,' etc. Payments under article 6 make up item 7. ”

“ To amounts paid under agreement of December 12, 1889........................................ 581,978. ---------- $3,196,028. ------------- Leaving a balance due of.............................. $788,971. ”