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one of 7,000,000 acres and one estimated at 800,000 acres, also some other rights or privileges with reference to other land. This constituted all the property of the Cherokee Nation, and, as we shall see, all the property in which the Cherokees by blood were interested and to which they now set up a special claim or allege they have a special interest therein.

The treaty of 1866 (14 Stat. 799) with the Cherokee Nation provides, among other things, in Article IX, that

"They [the Cherokee Nation] further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees."

Article XV also provided in substance for the settling of civilized Indians on unoccupied land within the Cherokee country, in which event "they shall be incorporated into and ever after remain a part of the Cherokee Nation, on equal terms in every respect with native citizens."

Article XXIII, among other things, provides for the disposition of the funds due the nation.

The claim on which the suit is brought is set out in the petition on page six as follows:

"The claim asserted herein against the defendant is for the value of lands and funds, which, plaintiff alleges, were owned exclusively by the Cherokee Indians, and which were by defendant's officers and agents wrongfully, without the consent and over the protest of, and without compensation to, the Cherokee owners, allotted and paid by defendant's officers to certain freedmen and free colored persons, described in articles 4, 5, 6, and 9 of the treaty of July 19, 1866 (14 Stat. 799), * *

It will be noted that the claim in the petition is in substance that certain land and funds were owned exclusively by the Cherokee Indians and allotted and paid by the "defendant's officers to certain freedmen and free colored persons, described in the treaty of July 19, 1866." But there is nothing in the petition that shows that after the execution of these treaties, which disposed of all of the

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property which the Cherokee Indians had, there was in fact any lands and funds "owned exclusively by the Cherokee Indians", nor is there anything to show that any funds or moneys were allotted to the freedmen or their descendants in a manner which did not accord with the provisions of the treaty. Such a statement, unsupported by any recital of facts, is merely a legal conclusion, and even as a matter of law we think the allegation finds no support in any authority. The contention of the plaintiff is, in effect, that the ownership and title to all of the Cherokee tribal funds and lands at the time of making the treaty of 1866 were in those members and citizens of the Cherokee Nation designated as Cherokees by blood to the exclusion of all other members of the Cherokee Nation. That this contention is not well founded we think is settled by the case of Journeycake v. Cherokee Nation and the United States, 28 C. Cls. 281, 155 U. S. 196; and Whitmire v. Cherokee Nation, 30 C. Cls. 138, 30 C. Cls. 180.

In the Whitmire case, often referred to as the Freedman case, this court said:

"In the case of the Delaware Indians v. The Cherokee Nation [Journeycake case] (28 C. Cls. 281; 155 U. S. 196) three things were determined. The first was that the lands of the nation are public property in the same sense that the lands of the United States are public property, and not communal property of native Cherokees. The second was that the Delawares were entitled as citizens by adoption to participate in the distribution of the proceeds of the public domain equally with native Cherokees." (P. 148.)

In the Whitmire case the court held that by virtue of the provisions of the Constitution of 1866 the freedmen became citizens equally with the Cherokees, equally interested in the common property, and equally entitled to share in its proceeds when distributed per capita. It is true that this court said, in the opinion in the Freedman case:

"It is possible that there still exists, or hereafter may be revived, a species of property which is an exception to the previously expressed conclusions of the court.

* * *

"The court is not informed whether there still exists funds or annuities which were originally treated as communal by distribution per capita and not as national by

Opinion of the Court

being set apart for school purposes, charitable uses, etc. * Over them the Cherokee government has no legitimate control, and in them the freedmen have no estate or interest." (Pp. 158–159.)

But this part of the opinion has no force or effect in the case at bar unless the fact appears that there are still in existence some funds or annuities originally treated as "communal" and that such funds still remain in such form that over them the Cherokee government has no control and the freedmen have no estate or interest.

The petition in the case at bar merely states that the claim is for the value of lands and funds which plaintiff alleges were owned exclusively by the Cherokee Indians and were wrongfully allotted by defendant's officers to certain freedmen and free colored persons, that the "status of the Cherokee lands had not been changed by the treaty of 1866, and that the fee simple title remained in the original owners, the Cherokees by blood "; also that the ownership of title to the lands or the proceeds therefrom when sold were not changed by the provisions of the treaty but remained vested in the Cherokees by blood, and other similar statements are made which are merely legal conclusions and not statements of fact. Such statements will not support the petition against a demurrer. Neither are there any statements of fact set out in the petition showing that there still exist funds or annuities which were originally treated as not national.

It is insisted on behalf of plaintiff that the plaintiff, namely, the Cherokees by blood, is not concluded by a judgment against the Cherokee Nation. Possibly a case could be imagined in which the Cherokees by blood had some rights which the Cherokee Nation did not possess, but so far as appears from the petition the only property rights which the Cherokees by blood have possessed since the treaty of 1866, which bound not only the Indians of the original tribe but the freedmen and some Indians of other tribes, are the property and rights which they held by reason of being part of the Cherokee Nation, and therefore a judgment which bound the Cherokee Nation would bind the

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Cherokees by blood. The contention of the plaintiff is in effect that the treaty of 1866 and the prior treaties which we have mentioned are not binding on the Cherokees by blood. To so hold would practically nullify all of the transactions which the Government has had with the Cherokee Indians since the time when they were removed from the State of Georgia and require enormous payments to be made to Indians with whom the whole matter was believed to have been closed through treaties and settlements which involved the transfer of large tracts of land and large amounts of money. The only allegations in the petition that would support such a position are merely conclusions of law not supported by any statement of facts.

Many other propositions are argued in the brief for plaintiff, but the reasonable limits of an opinion forbid the discussion of all of them, and we can only say that in our judgment we think the demurrer should be sustained on both grounds, and it is accordingly ordered that the petition be dismissed.

WHALEY, Judge; WILLIAMS, Judge; LITTLETON, Judge; and BOOTH, Chief Justice, concur.

MEMORANDUM ON MOTIONS FOR REHEARING AND TO DISMISS

Per Curiam:

The plaintiff has filed a motion for rehearing of the case and a very elaborate argument in support thereof. This motion is equivalent to a motion for a new trial and has been considered as such. The principal ground of the motion is that the Journeycake case (28 C. Cls. 281, 155 U. S. 196) and Whitmire case (30 C. Cls. 138, 30 C. Cls. 180) have been in effect overruled by the Supreme Court so far as they pertain to the questions involved in the case at bar. With this we cannot agree, and we also think that the holding of the court on the question of former adjudication should be adhered to. The motion for rehearing is therefore overruled.

Reporter's Statement of the Case

The Eastern or Emigrant Cherokees and the Western or Old Settler Cherokees, sometimes called Cherokees by blood, have filed a motion for leave to file a motion to dismiss the plaintiff's petition. At the time the demurrer was sustained, an order was entered dismissing the petition and this order having been made and the petition dismissed, the motion for leave to file a motion to dismiss the petition becomes unnecessary and it is overruled.

FIRST NATIONAL BANK OF BEAVER FALLS, ADMR., D. B. N. C. T. A. OF THE ESTATE OF FREDERICK N. BEEGLE, DECEASED, v. THE UNITED STATES

[No. L-250. Decided June 18, 1934. Motion for new trial overruled April 8, 1935.]

On the Proofs

Income tax; interest on overpayment.-Where an overpayment of income tax for the year 1918 was allowed on July 8, 1924, and credited on an additional tax for 1917 assessed on March 11, 1924, interest was allowable under the Revenue Act of 1924 on the amount of the overpayment so credited, from the time of the overpayment to the date of the assessment of the additional tax.

The Reporter's statement of the case:

Mr. John E. Hughes for the plaintiff. Messrs. William Cogger and William A. Neacey were on the briefs.

Mr. John W. Hussey, with whom was Mr. Assistant Attorney General Frank J. Wideman, for the defendant. Mr. W. W. Scott was on the brief.

In this case plaintiff sues to recover statutory interest on $36,230.67, a portion of an overpayment allowed for 1918 on July 8, 1924, and credited on that date to an additional tax assessed for 1917 on March 11, 1924. ·