KENDALL V. UNITED STATES, 74 U. S. 113 (1868)

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U.S. Supreme Court

Kendall v. United States, 74 U.S. 7 Wall. 113 113 (1868)

Kendall v. United States

74 U.S. (7 Wall.) 113


A claim which has never received the assent of the person against whom it is asserted and which remains to be settled by negotiation or suit at law cannot be so assigned as to give the assignee an equitable right to prevent the original parties from compromising or adjusting the claim on any terms that may suit them.

A. and J. Kendall made an agreement in the year 1843 with persons representing a branch of the Cherokee tribe of Indians called the Western Cherokees to prosecute a claim chanrobles.com-red

Page 74 U. S. 114

which these Indians set up against the United States. It was a part of the agreement that the Kendalls were to receive, directly from the United States, 5 percent upon all sums that might be collected on the claim.

The justice of this claim, which it was thus agreed that the Kendalls should prosecute, had never been acknowledged by the United States, and the amount of it was uncertain. A treaty was finally made in 1846, not with the Western Cherokees, who were but a part of the Cherokee tribe, but with the whole tribe, and it embraced not only the claim set up by the Western Cherokees, but many other matters, setting matters between the United States and the tribe, as also between the Western Cherokees and the main body. The treaty, as finally ratified by the Senate and by the tribe, provided that the sum of money found due (and which included moneys to the main tribe), should be held in trust by the United States and paid out to each individual Indian, or head of a family, and that this per capita allowance should not be assignable, but should be paid directly to the person so entitled. On the 30th September, 1850, Congress made an appropriation of the amount necessary to fulfill this treaty, and the act contained a provision that no part of the money should be paid to any agents of said Indians, or to any other person than the Indian to whom it was due.

The Kendalls having thus failed to get anything from the appropriations, presented a petition to the Court of Claims. They set forth in it the fact and history of the treaty, the great labor which they had had, and the value of which their services had been in procuring the treaty and appropriation (with interest, about $887,000); all, as they alleged, due to those services. That they had repeatedly given specific notice to Congress and to its committees, and to all proper officers of the government, of the contract made by them with the Indians, and of their claim under it, and of the justice of the same.

There was no answer or evidence produced on the other side.

The Court of Claims dismissed the petition. chanrobles.com-red

Page 74 U. S. 116


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