Swygert, Fairchild and Cummings, Circuit Judges.
In this diversity action, the estates of two deceased Oklahoma attorneys have sought a declaration of their right to legal fees pursuant to a 1955 contract with a Chicago law firm. The District Court held that the contract entitled the plaintiffs to 35% of fees awarded in a case decided by the Indian Claims Commission of the United States. This same ruling was extended to various other cases pending before that Commission. The cases covered by the contract involved certain claims of two branches of the Delaware Nation of Indians. One branch of Delaware Indians joined the Cherokee Nation in northeastern Oklahoma and is termed Cherokee Delawares herein; the other branch settled in western Oklahoma and is known as the Absentee Delawares. Both sought compensation from the United States for ceded lands or, in a pair of cases (Dockets 72 and 298), a general accounting by the Government of its treaty obligations to the Delaware Indians.
In a contract approved in October 1947 by the Commissioner of Indian Affairs and the Department of the Interior, Wesley E. Disney and Charles B. Rogers, both residents of Oklahoma, were retained by the Cherokee Delawares to present claims against the United States before the Indian Claims Commission and courts. They were authorized to prosecute those claims to a final determination. The contract provided for a fee of 10% of the gross recovery and was to continue for ten years. The contract also provided that surviving counsel would be entitled to proceed with the claims.
Pursuant to their contract with the Cherokee Delawares, Disney and Rogers filed 7 claims with the Indian Claims Commission. The contract expired in October 1957. The Assistant Commissioner of Indian Affairs so advised Disney in January 1960. When he learned of its expiration, Mr. Disney attempted to renew the contract but died before a new contract could be executed.
Similarly, in a contract approved by the Commissioner of Indian Affairs in March 1950, the defendant law firm was retained to represent the Absentee Delawares with respect to their claims against the United States. This contract was extended until March 1965 and also provides for a fee of 10% of the sums recovered by the defendants. They have filed 6 claims on behalf of the Absentee Delawares. Most of the claims of both tribes were for the benefit of the entire Delaware Nation.
After the execution of these two contracts, a dispute developed as to whether both the Cherokee Delawares and the Absentee Delawares had a right to file claims and participate in recoveries for lands taken by the United States. The Indian Claims Commission decided that each group was entitled to maintain claims. After the Indian Claims Commission's decision on the question of the claimants' standing was affirmed by the Court of Claims,*fn1 Disney, the estate of Rogers,*fn2 and the defendants negotiated the contract which is the subject of this lawsuit. The contract was executed by Disney and Rogers' Executrix in August 1955 and by defendants on September 1 of that year and was approved by the Commissioner of Indian Affairs about two months thereafter.
In one of the contractual recitals, the parties stated that the best interests of the Cherokee Delawares and the Absentee Delawares would "be advanced and better protected by a unified presentation" of their claims pending before the Indian Claims Commission. The contract then provided in pertinent part:
"The parties of the second part [defendant firm] assume full responsibility for the preparation and prosecution of the cases listed in Schedules A and B through all trial and appellate stages, Provided that if contrary to present expectation, a conflict should arise between the interests of the Absentee Delaware Tribe and those of the [Cherokee] Delaware Tribe, the parties of the second part shall call upon Wesley E. Disney, Esq. to represent the interests of the latter tribe and said Wesley E. Disney, Esq. shall then discharge that responsibility, and Provided, further that said Wesley E. Disney, Esq. shall have the right to appear at any time in any of the aforementioned cases and introduce such evidence and make such argument on behalf of the [Cherokee] Delaware Tribe as he may deem proper.
"The parties of the second part shall assume the cost of the preparation and prosecution of the aforementioned cases to the extent to which such preparation and prosecution take place under their responsibility.
"Wesley E. Disney, Esq. agrees to make available to the parties of the second part the results of his research of the cases and the parties agree to consult with each other fully as to ...