allowed upon this sum it would have so provided, and without such specific provision such intention can not be inferred. When we remember, as already stated, that it was within the power of Congress to have kept these lands out of the market indefinitely, this conclusion will appear all the more clear. In considering this question it should also be borne in mind that if these lands had never been withdrawn from the market, but a small percentage of them would have been sold before the passage of the jurisdictional act. This is shown by the fact that in the 24 years elapsing between 1880 and 1904, after which date the greater number of these reserves were created, less than 9 per cent of the total area of the reservation had been sold for cash. If Congress had intended to have this court consider the whole area of these forest reserves to have been sold as of the date when withdrawn from the market and to place their value ($3,835,323.75) to the credit of the plaintiffs as of such dates, it would have said so in unmistakable terms. In making up this account, therefore, no interest has been allowed upon the value given to the lands within the forest reservations.

As before stated, it is contended by the plaintiffs that they should be allowed compound interest upon the separate sums which appear quarterly to have been received by the defendants for the lands sold within the reservation from the date of receipt, and also upon the value of the lands withdrawn from sale and set apart in the forest reservations, reckoned from the time of such withdrawal, without allowing the defendants any credit for annuities and other sums paid by the defendants under the agreement of 1880. We have already disposed of the question of interest upon the value of the lands set apart in forest reservations, and that question requires no further consideration here. The jurisdictional act provides:

"That to carry into effect the agreement between the Confederated Bands of Ute Indians of Colorado and the United States, ratified by the act of Congress approved June 15, 1880, being 'An act to accept and ratify the agreement submitted by the Confederated Bands of Ute Indians in Colorado for the sale of their reservation in said State, and for other purposes, and to make the necessary appropriations for carrying out the same (21 Stats., p. 199), jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and render final judgment, with right of appeal as in other cases, on the claims and rights of said Indians under said agreement," etc.

Hence we are to find what sum is legally due to the plaintiffs under said agreement, subject only to such modifications as were made further on in the act as to credits to be allowed the defendants. The agreement of 1880 provides that after the United States shall have been reimbursed "for all sums paid out or set apart" under the act, "the remainder, if any, shall be deposited in the Treasury * * * and the interest thereon shall be distributed annually to them in the same manner as the funds provided for in this act."

As to the contention regarding interest, that no credit should be allowed the defendants under the agreement of 1880, as we interpret the jurisdictional act, it forbids this method of computing interest. We are instructed to set off against any sum found due the Indians certain payments made to them by the defendants. When these sums are credited to the defendants, they, obviously, should be credited as of the date when paid. It appears from the account, as stated in Finding IX, that at no time before the passage of the jurisdictional act did the cash receipts of the defendants for lands sold within the reservation exceed the amount paid out for the benefit of the claimants under the act of 1880. Hence, having decided that the claimants are not entitled under the jurisdictional act to any interest upon the value of the lands withdrawn from sale and set apart in forest reservations, no interest whatever appears to be due to the claimants. This being our conclusion, the discussion of the question of compound interest, as contended for by the claimants, is somewhat academical, but will be briefly considered.

No interest, either simple or compound, can be collected from a sovereign except by its consent (United States v. North Carolina, 136 U. S., 211). In the case at bar the sovereign has agreed to pay interest, and that means simple interest only. But the plaintiffs seek to charge the defendants with compound interest in this case, on the ground that the money so received constituted a trust fund, and that in such cases, where the fund has been improperly withheld, the trustee is penalized with compound interest. It is elementary as a general proposition, in the absence of a contract to that effect, that interest upon interest is not recoverable for the detention of money, and that is a gen

eral rule either at law or equity. (Perley on Law of Interest, 159, 160; In re Ward's estate, 73 Mich., 220, 228.) It is only where a trustee, guardian, or executor has acted in bad faith, in abuse of his trust, or has been guilty of such gross negligence as to be evidence of a corrupt intention that compound interest will be charged against him. (Barney v. Saunders, 16 How., 535; Perrin v. Leper, 72 Mich., 446; Vaughan v. Bibb, 46 Ala., 153; Smith v. Kennard, 38 Ala., 695.)

The Government only acts through its officers and agents and thus in law can never be guilty of fraud, bad faith, or negligence; hence it can never be penalized by being charged compound interest.

As already stated, the account herein between the plaintiffs and defendants, as directed to be made under the jurisdictional act, is stated up to June 30, 1908, as that is the latest date to which full returns have been made by the proper Government officials. The jurisdictional act seems to contemplate that this account should be stated up to the date of the entry of judgment herein; hence, before entrance of judgment further returns will be necessary. This supplemental account will be made in accordance with this opinion and will be a mere matter of computation.

Judgment, therefore, will be entered herein for the claimants for the sum of $3,408,611.40, with the modification hereafter to be made as above indicated.

[Court of Claims of the United States. No. 30360. Decided February 13, 1911] THE WHITE RIVER UTES, THE SOUTHERN UTES, THE UNCOMPAHGRE UTES, THE TABEGOUCHE, MAUCHE, CAPOTE, WEEMINUCHE, YAMPA, GRAND RIVER, AND UNITA BANDS OF UTE INDIANS, KNOWN ALSO AS THE CONFEDERATED BANDS OF UTE INDIANS, of Colorado, v. THE UNITED STATES.

In accordance with the opinion of the court herein and the jurisdictional act of March 3, 1909, under which this suit was brought the court makes the following supplemental finding of fact, and the former conclusion of law and judg ment is modified accordingly:

SUPPLEMENTAL FINDING OF FACTS

The following additional sums have been received by the United States from the sale of lands ceded by the plaintiffs to the United States under the act of June 15, 1880:

For the fiscal year ending June 30, 1909.
For the fiscal year ending June 30, 1910...

Total

The following sums have been expended of the annuity of $50,000 per annum under section 5 of the act of June 15, 1880:

For the period from July 1. 1908, to June 30, 1910___

$70, 628. 23 136,826. 98

207, 455.21

99, 835. 56

Leaving a balance due the plaintiffs for said period of 107, 619. 65

CONCLUSION OF LAW

Upon the previous findings of fact and including the above supplemental finding, the former judgment is set aside and the court now decides as a conclusion of law that the plaintiffs are entitled to judgment against the United States in the sum of three million five hundred and sixteen thousand two hundred and thirty-one dollars and five cents ($3,516,231.05), as and for the sum due to them up to and including June 30, 1910, out of which judgment, as provided by the jurisdictional act and the stipulation of the parties, there shall be paid to Josiah M. Vale, Esq., attorney of record in said cause, for himself and all other attorneys and counsel interested in the prosecution of said cause before committees of Congress and this court 6 per centum thereof, amounting in the aggregate to two hundred and ten thousand nine hundred and seventy-three dollars and eighty-six cents ($210,973.86).

Per CURIAM:

OPINION

This is a motion of the claimants' attorneys to have the court fix the amount of fees to be allowed to them for services in this case. The jurisdictional act provides that such fees are to be allowed for services before committees of Congress in the matter of this claim as well as for services before the courts.

It appears that the principal services rendered in this matter were before committees in Congress. Such services can hardly be allowed for on the basis of the professional services of a lawyer, and this fact renders it somewhat difficult to determine the amount properly to be fixed. The fact also should be noted that there was no appeal from the decision of this court in this suit, which would necessarily involve conisderably more labor and expense; neither were any witnesses examined on either side. In fact the whole case was tried upon the record as made up by official reports and public documents. The jurisdictional act by which the suit comes to this court provides that upon the rendition of judgment herein the payment to the claimants of the annuity of $50,000 per annum shall cease, and the fund of $1,250,000 set apart for them in the Treasury shall no longer exist as a trust fund for their benefit. This fact materially reduces the actual benefit which the claimants are to receive by virtue of the judgment.

The claim of the Ute Indians depended upon the contract of 1880, and there would have been but little controversy as to the amount due them under that contract had it not been for the setting apart of the forest reserves within the territory, the proceeds of the lands within which they were to receive. It doubtless took considerable patient and persistent work on the part of the claimants' attorneys to impress upon the committees of Congress the justice of a law which would regard such reservations as land actually sold. Notwithstanding this fact, we think the allowance to the claimants' attorneys should be rather upon a basis of fees for a collection of moneys actually due than upon the basis of a doubtful claim or a claim for unliquidated damages.

After due consideration of the matter, we have concluded to allow 6 per cent of the amount of the judgment, or $210,973.86, to the attorneys for the claimants for their services in this matter. Accordingly, the judgment heretofore rendered in this cause is modified as provided by the supplement finding and the oponion respecting said fees this day filed.

Representative TAYLOR. I ought to say to you this, gentlemen, that the Government of the United States is going ahead with the disposition of oil and coal and mineral on those Ute Indian lands. But whenever it does it it pays the Ute Indians $1.25 an acre. And my judment is that we will have to pay $1.25 an acre for those 60.000 acres of oil shale that have been set aside. Some ingenious attorney will wake up some morning and start a case of that kind. And under that decision, if it is not changed-why that will create jus as much of a claim as putting the land in the forest reserve.

Mr. ROBINSON. How are you going to change the Ute Indian treaty that we had in 1879 of $1.25 an acre for this land, and the benefits derived therefrom, in that treaty?

Representative TAYLOR. Mr. Robinson, it says the $1.25 an acre shall be paid when the Government of the United States sells the land, when it is sold for cash. And we are giving them $1.25 an acre for every acre we have sold.

Mr. ROBINSON. Are you going to confiscate it?

Representative TAYLOR. We have not confiscated it. Those Indians have been paid millions of dollars. They have got what is coming to them. And there is no disposition to avoid anything. If we sell the land we pay them $1.25 an acre.

Mr. ROBINSON. But how are you going to take it off the market, according to the treaty?

Senator JONES of New Mexico. That is a question, of course,. which must be examined with a great deal of care. Your question

goes right to the crux of the whole problem. I think there is very much in what your question suggests, and I am not at all convinced that these Indians are not entitled to leave this open for public sale at that price, in accordance with the decision of the court of claims, but it is so important that it ought to be examined with great care. I doubt very much if the Congress of the United States would appropriate $1.25 an acre for the purpose of throwing the remainder of these lands in the forest reserve, or making them subject to a leasing system in any department. It is a very serious question.

Mr. SHERMAN. Might it not be possible to negotiate a new treaty whereby for a lump sum their equities might be liquidated?

Representative TAYLOR. I think that is true. I think that possibly we ought to do something of that kind, because I am sure that the Government of the United States is not going to pay $6,000,000 or $8,000,000 or $10,000,000 out of its pocket to these Ute Indians for the purpose of turning this land into a grazing reserve. I don't believe they will do that, and I don't think that we could present that matter to Congress and get the favorable consideration of any committee. These matters will be met this winter in the House, and that is the reason I raised the question here. because I can see in advance some stumbling block.

Mr. SHERMAN. On the other hand, it might be well worth while for the Indians to accept $1,000,000 in liquidation and for the Government to pay it and clean the matter up.

Representative TAYLOR. Yes; it might be well to do that, especially in view of the fact that some time in the future some of this land that is comparatively worthless might have oil or something else in it that would be worth while.

Senator CAMERON. Mr. Wilson.

STATEMENT OF CHARLES W. WILSON, RETIRED, GLENWOOD

SPRINGS, COLO.

Senator CAMERON (presiding). Mr. Wilson, will you give the reporter your full name, your residence, and your occupation, please. Mr. WILSON. Charles William Wilson, Glenwood Springs, Colo. My occupation is doing nothing. I am retired. I am a landowner. I am not here as a representative of any cattle association or any sheep association. I am here as a representative of land owned. My idea is to try and explain to you that we landowners down here in this country are victims of circumstances, and I have been able to get enough revenue from my land to live on, but the way things have turned out it looks as though I would not be able to continue to do so.

I ran cattle up to about 15 years ago. And the circumstances are these, that we had in about 1917 or 1918, a big lot of oil-shale men that came in and took up all of our range that was adjoining our land as oil-shale land. We all were very anxious to welcome them to take up the oil shale and make another industry in our country down there. At the time we were very anxious for them to do it. But immediately after they had deeded a portion of the land they turned it into a leasing propostion and leased it to Utah sheep.

The way that it has affected us, in one way anyhow, is that I had one ranch that I had sold, and the party that had bought this place became dissatisfied partially on that account, not only on account

of the low price obtained for the cattle. And then the oil-shale people said that they would lease all of that land to the sheepmen. Now, we are up against some leases that have been made by the oil-shale people, and, of course, it is discouraging our people until we can not sell our land and we can not do anything with it.

Also, I wish to state that we use the water from this creek that goes through the land that is used by the sheep, for our domestic use, and having the sheep on this land is sure to bring about a great deal of sickness, and in that way it does not look as if we would be able even to hold these lands or to pay our taxes, or to get renters or to use them for our children or anything else. It seems that those streams up on the top of the mountain range are from 1 mile to 6 miles long along the canyon walls. And when the sheep use these streams they pollute them until they are full of pollution.

The lands there are easily irrigated. Our maintenance expense for the water to keep it on the land is not more than 10 cents an acre in the portion where I live in the canyon. For that reason I want to try to get it before the people in the kind of shape that it appears to me, that we are going to be cut off from our homes for the purpose of putting it into a sheep range.

Senator JONES of New Mexico. You have no objection to the ranging of the cattle?

Mr. WILSON. Well, the ranging of the cattle that is done by the people who own that country there, and they do not pollute the water in the same manner that the sheep do. Because they are not held on the water nearly so much; or, at any rate, they do not range in such a way so as to pollute those small streams. Because when the sheep run on the head of those streams you can tell even in the canyon 5 or 6 miles below where the sheep range that they are up there; you can smell the sheep scent in the water as it flows down the creek.

Senator JONES of New Mexico. Have you presented that question to the Forest Service?

Mr. WILSON. Of course, this is not in the forest reserve. It is outside.

Senator CAMERON. In the public domain?

Mr. WILSON. Yes.

Senator CAMERON. Is the head of the water in the forest reserve? Mr. WILSON. No, sir; the east side is on the naval oil-shale reserve. The west side, as I understand it, is not laid out in the naval oil-shale reserve. And, of course, I want these lands for this purpose. I have paid taxes in this county for over 35 years. I have been here 40 years, came here in 1885, and I ran cattle up until 14 or 15 years ago. And I have been holding these lands. I have a boy who is 25 years old, and I expect him some time or other to take these ranches, or one ranch that I have reserved.

Senator JONES of New Mexico. Then there is nobody at the present time to control the grazing of those lands?

Mr. WILSON. Nobody to control the grazing. Nobody to control our water supply. The water supply is bound to be polluted if all these Utah sheep come in there until I won't be able to hold renters on it. If we can not work out some solution of getting domestic water in the creek that we have used, we won't be able to hold renters on the land. And, of course, I want to hold this land with the view of some time or other my boy using it.