The fact that Congress, by several special acts, has made
provision for the payment of several claims, part of a class of
claims upon which the respective claimants could not have recovered
in an action in the Court of Claims in the exercise of its general
jurisdiction, furnishes no reason for holding the United States
liable in an action in that court for the recovery of such a claim
which Congress has made no provision for. The fact that the Court
of Claims has rendered judgment against the United States at
various times upon claims of a particular class, from which
judgments the Executive Department of the government took no
appeal, furnishes no reason why judgment should be given against
the
Page 121 U. S. 90
United States in an action in the Court of Claims on another
claim of the class if the United states are not otherwise liable
therefor.
No statute of the United States, either in express terms or by
implication, authorized the Executive, in holding treaties with the
Indians, to make contracts of the character sued on in this
action.
No officer of the government is authorized to so bind the United
States by contracts for the subsistence of Indians not based upon
appropriations made by Congress that a judgment may be given
against them in the Court of Claims in the exercise of its general
jurisdiction, and this rule is not affected by the fact that the
United States were greatly benefited by the contracts.
No opinion is expressed upon the point whether a claim presented
to an Executive Department, after the expiration of the period
within which it would have been cognizable by the Court of Claims
(had suit been brought thereon without first filing it in the
Department), and by the Department referred to the Court of Claims
under the provisions of Rev.Stat. § 1063, is barred by the
statute regulating the limitation of suits in that court.
This was an appeal from a judgment rendered by the Court of
Claims against the United States in favor of the appellee as
administrator of the estate of George McDougall, deceased. The
Court of Claims made the following finding of facts:
"I. This claim has been pending in the Interior Department and
before Congress for many years, but has never been finally disposed
of."
"II. Under the Act of September 28, 1850, 9 Stat. 519, Redick
McKee, George W. Barbour, and Oliver m., Wozencraft were duly
appointed agents for the Indian tribes within the State of
California. On October 9, 1850, Oliver M. Wozencraft, George W.
Barbour, and Redick McKee were appointed commissioners 'to hold
treaties with the various Indian tribes in the State of
California,' as authorized by the Act of 3Oth September, 1850. Upon
the passage of the Act of February 27, 1851, 9 Stat. 586, they were
informed that their offices and functions as commissioners were
abrogated and annulled. They were at the same time directed not to
suspend negotiations, but to enter upon their appointments as
agents, and were as such designated under the act of 1851 to
negotiate with the Indians of California, under the instructions
already given."
"The instructions referred to did not extend to and embrace
Page 121 U. S. 91
contracts for the subsistence of the Indian tribes, but only
authorized such commissioners to hold treaties with such
Indians."
"III. Among the instructions given the said commissioners under
date of October 15, 1850, were the following:"
" As set forth in the law creating the commission, and the
letter of the Secretary of the Interior, the object of the
government is to obtain all the information it can with reference
to tribes of Indians within the boundaries of California, their
manners, habits, customs, and extent of civilization, and to make
such treaties and compacts with them as may seem just and
proper."
" On the arrival of Mr. McKee and Mr. Barbour in California,
they will notify Mr. Wozencraft of their readiness to enter upon
the duties of the mission. The board will convene, and after
obtaining whatever light may be within its reach, will determine
upon some rule of action most efficient in attaining the desired
object, which is by all possible means to conciliate the good
feelings of the Indians and to get them to ratify those feelings by
entering into written treaties, binding on them, towards the
government and each other. You will be able to judge whether it is
best for you to act in a body or separately in different parts of
the Indian country."
"Again , on May 9, 1851, the Commissioner of Indian Affairs
wrote to the commissioners, using the following words:"
" What particular negotiations may be required it is impossible
for this office to foresee; nor can it give any specific directions
on the subject. Much must be left to the discretion of those to
whom the business is immediately entrusted."
"IV. When the commissioners arrived in California, they found
open hostilities existing between the Indians and the whites, and a
general war had been agreed upon by the Indians. The Governor of
California had, at the request of Adam Johnston, the Indian agent,
called out a portion of the militia of the state and had organized
a military force to operate against the Indians. To avoid the
threatened, and quell the actual, hostilities, the commissioners at
once began
Page 121 U. S. 92
to negotiate treaties with the Indians by which they were
required to leave their mountain resorts, to abandon their lands to
the whites, to descend to the plains, and reside peaceably upon a
tract of land selected for them. In return, the commissioners
promised the Indians that the United States would give them seeds
to plant and implements to work with, establish schools, and
appoint persons to teach them how to cultivate their lands and
provide for their own wants."
"V. The policy adopted by the commissioners included the
'subsistence' of the Indians, and large quantities of beef and
other provisions were stipulated for in the various treaties, and
the office was notified that the same policy would have to be
pursued throughout the whole state, and that this system was
thought much better than the system of annuities. The letters in
which these statements were made were written on May 1, 1851, and
May 13, 1851."
"On June 27, 1851, the Indian Office wrote to the commissioners
suggesting to them"
"that when the appropriation of $25,000 for holding treaties was
exhausted, they should close their negotiations and proceed with
the discharge of their duties as agents simply, as the Department
could not feel itself justified in authorizing anticipated
expenditures beyond the amount of the appropriation made by
Congress."
"On the 16th July, 1851, the office wrote to Barbour, one of the
commissioners, saying:"
" In the copies of treaties made with the several Indian tribes
heretofore transmitted to this office, there are provisions for
delivering them sundry articles in 1851 which cannot be complied
with, as Congress will not be in session in time to make the
necessary appropriations. Should you conclude other treaties, you
will fix the time and payments, under any stipulation, at a period
sufficiently in the future to allow of Congressional action to meet
the requisitions,"
"and on the 9th July, 1851, the office wrote to Wozencraft,
speaking of the 'treaties you have concluded or may hereafter
negotiate' and directing him to transmit in every case the estimate
of money that will be required, &c. On August 9, 1851, after
the Indian Office had notified the commissioners that the
'appropriation for holding treaties,' was exhausted,
Page 121 U. S. 93
the commissioner wrote to Redick McKee acknowledging the receipt
of the joint letter of the commissioners in which they stated that
the policy of furnishing 'subsistence must be pursued throughout
the whole state,' and in this letter of acknowledgment he made no
complaint and gave no advice or instruction to the contrary. And on
September 15, 1851, he wrote to Wozencraft acknowledging copies of
treaties 'and return of expenditures, contracts, and
disbursements.'"
"On May 17, 1852, the Indian Office wrote Agents WcKee and
Wozencraft saying:"
"I have therefore to request that at the earliest practicable
period, you make a full and detailed report directly to this office
of all contracts, debts, and liabilities made and incurred by the
agents of the Department in California."
"Agent Wozencraft negotiated over one hundred treaties."
"No disapproval or complaint of the actions of the
commissioners, agents, or sub-agents who were connected with the
foregoing transactions, either by the President, Secretary of the
Interior, or Commissioner of Indian Affairs, appears."
"The agent, Wozencraft, without specific instructions so to do,
made and entered into the following articles of agreement with the
late George McDougall, who died May 14, 1872, and whose
administrator now brings this suit:"
"Articles of agreement entered into this fifth day of April,
A.D. eighteen hundred and fifty-two, between O. M. Wozencraft,
United States Indian agent for California, of the first part, and
George McDougall of San Francisco, of the second part."
" The said party of the first part agrees to contract with the
party of the second part for two thousand and five hundred head of
cattle, to be delivered as follows,
viz., one thousand
head to be delivered to Stephen Hutchinson, United States Indian
trader, resident at San Gorgonia, for the Cohaulla tribe of
Indians, five hundred head to be delivered to J. T. Ruckle, United
States Indian trader, resident at Tamacula, and one thousand head
to be delivered to the Indians at Aqua Callienti, near Womer's
Ranche. "
Page 121 U. S. 94
" In consideration for which, the party of the first part is to
pay the party of the second part at the rate of twelve and one-half
(12 1/2) cents per pound (weight net), the weight to be estimated
and agreed upon between the United States Indian traders and the
party of the second part."
" It is further understood that if there should be no
appropriation by Congress this present session for the payment of
this contract, then the parties of the second part are to receive
fifteen and one-half cents per pound."
" It is also further understood that one-half of the cattle
contracted for may be 'torones,' at the option of the party of the
second part, and it is further understood the cattle are to average
five hundred pounds in weight each, if not, the weight to be made
up by additional cattle, so that the original estimate may be
complete."
" It is further understood that the delivery of the cattle is to
commence on the first of May next ensuing."
" San Francisco, April 5, 1852."
"O. M. WOZENCRAFT [Seal]"
"GEORGE McDOUGALL [Seal]"
" Witness:"
" J. T. RUCKLE"
"VII. In pursuance of this contract, this decedent delivered to
J. S. Buckle and Stephen Hutchinson, United States Indian traders,
one thousand head of cattle averaging 650 pounds each, and took
from them the following receipt:"
"LOS ANGELES, May 17, 1852"
" Received of George McDougall, the contracting party for
supplying the 'Cow-we-ha,' 'San Louis,' and 'Dieganian' tribes of
Indians with beef cattle, one thousand head of cattle, averaging
six hundred and fifty pounds weight each."
"J. S. BUCKLE"
"
United States Indian Trader for the"
"
'San Louis' Indians and 'Dieganians'"
"STEPHEN HUTCHINSON"
"
United States Indian Trader for the"
"
'Cow-we-has' Tribe of Indians"
Page 121 U. S. 95
"The parties to whom the property was delivered were those
nominated in the contract, and were licensed United States Indian
traders, and the weight of the beef was agreed upon by the parties
designated by the contracting parties,
viz., McDougall and
Ruckle & Hutchinson. It was customary at this time to estimate
the weight of cattle, and not to sell them by actual weight."
"The price for beef at that time is shown to have been
frequently as high as twenty cents per pound, by wholesale."
"VIII. Claims similar to the one at bar have been paid by the
United States government as follows: John C. Fremont, 10 Stat. 804,
$183,025, with interest at ten per centum per annum from June 1,
1851; Samuel J. Hensley, 12 Stat. 847, $96,576 ; Samuel Norris,
$69,900, 2 Ct.Cl. 155; Fremont's case, $13,333.33, 2 Ct.Cl. 461;
Fremont & Roache's case, 4 Ct.Cl. 252, $46,666; Belt's case, 15
Ct.Cls. 92, $10,715.19."
"The drafts upon which Samuel Hensley recovered were drawn by
Wozencraft upon the Secretary of the Interior, and were dated
February 11, 1852, and the agreement under which the said drafts
were drawn was dated February 10, 1852. The contract with Samuel
Norris was made by same party on December 31, 1851. The contracts
upon which Belt & Co. recovered were entered into between Belt
and Subagent Johnston at various times from August 5, 1851, to
January 31, 1852, and on August 12, 1851, the Interior Department
approved 'of the motive which prompted him (Agent Johnston) to
furnish additional subsistence to the Indians,' and informed him
that an appropriation would be made."
"Wozencraft reported the amount of the government's indebtedness
to McDougall as amounting to $101,500."
"IX. The Indians who were dispossessed of their lands under
these treaty stipulations ceased their warfare and ever after
remained peaceable, but never recovered possession of their lands,
although the treaties were not ratified by the Senate, but the
United States assumed title to said lands and disposed of them in
the same manner as other portions of the public domain have been
disposed of. "
Page 121 U. S. 96
MR. JUSTICE HARLAN delivered the opinion of the Court.
The only question discussed by counsel is as to the liability of
the United States, under the written agreement between McDougall
and Wozencraft of April 5, 1852, for the cattle delivered by the
former. The argument in support of the judgment below proceeds
mainly, if not altogether, upon the ground that the allowance by
special acts of Congress of claims similar to the one here in suit,
in connection with the failure or refusal of the proper officers to
prosecute appeals from judgments in the Court of Claims against the
United States upon contracts like the one in suit, constitute a
sufficient basis, in law, for a recovery in this case.
Tracing the history of the claims referred to, we find that, by
an act approved July 29, 1854, the Secretary of the Treasury was
directed, out of any money not otherwise appropriated, to pay to
John C. Fremont the sum of $183,825, with interest at the rate of
ten percent per annum from June 1, 1853, "in full of his account
for beef delivered to Commissioner Barbour for the use of the
Indians of California in 1851 and 1852." 10 Stat. 804.
In Hensley's case, the Court of Claims delivered an opinion,
which was transmitted to Congress February 2, 1850. H.R. 35th
Cong.2d Sess. R.C.Cls. No. 189. It is immaterial to the present
inquiry that that court had no power at that time to give a
judgment for money against the United States, for if it had been
then invested with all the jurisdiction it now has, the government
would have succeeded. Its conclusion, upon the whole case, was that
"the United States are not legally liable upon the contract claimed
upon, because it was not made by their authority." At the same
time, the court disposed of McDougall's case, involving the
identical claim presented in
Page 121 U. S. 97
this case, and held, upon the ground stated in Hensley's suit,
that the United States came under no legal liability to McDougall
by reason of his agreement with Wozencraft, or of anything done
under it. Congress nevertheless made provision, by Special Act of
June 9, 1860, to pay Hensley's claim, 12 Stat. 847, but failed or
refused to make an appropriation to pay McDougall.
Norris also sued upon a similar contract, but, for the reasons
given in Hensley's case, his claim was also rejected. Congress,
however, by joint resolution of June 22, 1866, referred that claim
back to the Court of Claims "for examination
and
allowance," and directed
"that, in fixing the amount to be paid the claimant, the rule
shall be the actual value of the supplies furnished at the times
and places of delivery, of which due proof shall be made by the
claimant."
14 Stat. 608. In obedience to that resolution, and not because
of any change of opinion in the court as to the legal rights of
Norris under his written agreement with Wozencraft, the Court of
Claims gave judgment against the United States at its December
term, 1866, for $69,900.
Norris v. United States, 2 Ct.Cl.
155.
Subsequently, in
Fremont v. United States, 2 Ct.Cl.
462, judgment was given against the United States upon one of this
class of claims. That judgment did not proceed upon the ground that
the claimant was entitled to recover if the case stood on the
contract there in question -- a contract similar to McDougall's --
but upon the ground that the foregoing acts of Congress constituted
a clear and distinct legislative recognition of the obligation of
the United States to pay the fair value of the subsistence
furnished for the Indians, as well under the contracts with
Fremont, Hensley, and Norris as under similar contracts with other
parties. This decision was followed in
Fremont v. United
States, 4 Ct.Cl. 252. Finally in
Belt v. United
States, 15 Ct.Cl. 106, upon a review of the circumstances
connected with this class of claims, the court below adjudged that
the United States were in law liable for the value of the
subsistence furnished to Indians in California under the agreement
there in suit, and which was similar to the
Page 121 U. S. 98
one of April 5, 1852, with McDougall. In none of the cases in
which judgments were rendered against the United States were
appeals prosecuted to this Court.
The judgment in the present case was not accompanied by an
opinion of the court below, for the reason, perhaps, that the claim
of McDougall's administrator is covered by the decision in Belt's
case. After a careful examination of the opinion in the latter
case, we are unable to find any solid ground upon which to hold the
United States legally liable upon the agreement between Wozencraft
and McDougall, or for the value of the cattle delivered under it.
That Congress, by special acts, made provision for the payment of
particular claims of the same class furnishes no ground whatever
for the assumption that the government recognized its legal
liability for the amount of such claims, much less for the amount
of all other claims of like character. Such legislation may well
furnish the basis for an appeal to the legislative department of
the government to place all claimants of the same class upon an
equality. But we are aware of no principle of law that would
justify a court in treating the allowance by Congress of particular
claims as a recognition by the government of its liability upon
every demand of like character in the hands of claimants. We may
properly take judicial notice of the fact that many claims against
the United States cannot be enforced by suit, but provision for
which may, and upon grounds of equity and justice ought to be, made
by special legislation. But the discretion which Congress has in
such matters would be very seriously trammeled if the doctrine
should be established that it cannot appropriate money to pay
particular claims, except at the risk of thereby recognizing the
legal liability of the United States for the amount of other claims
of the same general class.
The same considerations apply to the suggestion that the
liability of the United States to McDougall's administrator, as
upon contract, may arise from the failure or refusal of their law
officers to prosecute appeals from judgments against the government
in suits brought by other parties holding similar claims. The
question to be determined is not whether the
Page 121 U. S. 99
representatives of the government have heretofore been guilty of
neglect in not prosecuting such appeals, but whether in the case in
hand the plaintiff has a valid claim in law against the United
States.
Coming, then, to the inquiry whether the United States is
legally liable on the contract between Wozencraft and McDougall, we
are met at the threshold by the fact, found by the court below,
that, although the instructions to Wozencraft and his colleagues
did not extend to or embrace contracts for the subsistence of the
Indian tribes in California, they yet pursued the policy of
providing for such subsistence in advance of the ratification by
the Senate of treaties made with those tribes. That such a policy
was, under all the circumstances, vital to the ends which those in
charge of Indian Affairs desired to accomplish, may be conceded
under the facts found by the Court of Claims, and it may be that
information of the proceedings of Wozencraft and his colleagues in
making contracts for the supply of the Indians with provisions,
beef, etc., and in all other respects, was given to the proper
department at Washington, and that what they did was either
approved or was not repudiated. While all this may be admitted, the
question comes back upon us what statute, in express words or by
necessary implication, invested Wozencraft with power to bind the
United States by such a contract as that made with McDougall, even
had he been previously directed or authorized by the Interior
Department to make contracts of that character in holding treaties
with the Indians?
It is suggested that such authority may be found in the Act of
June 30, 1834, 4 Stat. 735, c. 162, the 13th section of which
provided that
"All merchandise required by any Indian treaty for the Indians,
payable after making such treaty, shall be purchased, under the
direction of the Secretary of War [afterwards changed to Secretary
of the Interior, 9 Stat. 395, c. 108, § 5], upon proposals to
be received, to be based on notices previously to be given, and all
merchandise required to the making of any Indian treaty shall be
purchased, under the orders of the commissioners, by such persons
as they shall appoint, or by such persons as shall be designated by
the
Page 121 U. S. 100
President for that purpose, and all other purchases on account
of the Indians, and all payments to them of money or goods, shall
be made by such person as the President shall designate for that
purpose. And the superintendent, agent, or subagent, together with
such military officers as the President may direct, shall be
present and certify to the delivery of all goods and money required
to be paid or delivered to the Indians."
The 7th section of the same act provides that
"It shall be the general duty of Indian agents and subagents to
manage and superintend the intercourse with the Indians within
their respective agencies agreeably to law; to obey all legal
instructions given to them by the Secretary of War [afterwards
changed to Secretary of the Interior] the Commissioner of Indian
Affairs, or the Superintendent of Indian affairs, and to carry into
effect such regulations as may be prescribed by the President."
These statutory provisions, it is argued, conferred authority
upon officers of the executive department to purchase, without
limit as to amount, "merchandise required to the making of any
Indian treaty," and invested the President, through others, with
power as well to make "other purchases on account of the Indians"
as to make "payments to them of money or goods."
This, in our judgment, is too broad a construction of the
statute. Congress did not intend to invest the President or the
head of a department, or any officer of the government, with
unrestricted authority in the making of treaties with Indians, or
in regulating intercourse with them, to purchase merchandise for
them, or to make payments of money or goods to them. I appropriated
certain sums to enable the President to hold treaties with the
various Indian tribes in California. To the extent of such
appropriations, the President, through persons designated by him,
could purchase merchandise, required in the making of a treaty, and
could make payment of money or goods on account of the Indians. But
no officer of the government was authorized to bind the United
States by any contract for the subsistence of Indians not based
upon appropriations made by Congress. It is not claimed that the
agreement between Wozencraft and McDougall
Page 121 U. S. 101
was made with reference to such appropriations. On the contrary,
Wozencraft and his colleagues were informed by a communication from
the Indian office, under date of June 27, 1851, that,
"when the appropriation for $25,000 for holding treaties was
exhausted, they should close their negotiations, and proceed with
the discharge of their duties as agents simply, as the department
could not feel itself justified in authorizing anticipated
expenditures beyond the amount of the appropriation made by
Congress."
The findings show that, when the written agreement with
McDougall was made, Wozencraft and his colleagues knew that the
appropriations had been exhausted. Besides, the contract on its
face shows that it was made with reference to appropriations to be
thereafter made. The parties evidently relied upon Congress
recognizing the wisdom and necessity of the policy adopted for the
pacification of the Indians in California, and, by legislation,
supplying the want of authority upon the part of Wozencraft and his
colleagues to contract, in behalf of the United States, for the
subsistence of the Indians in advance of the ratification of the
treaties negotiated with them. That the policy pursued by
Wozencraft and his colleagues was the only one that would have
given peace to the inhabitants of California; that the Indians were
induced by the promises of subsistence held out to them to abandon
their lands to the whites, and settle upon reservations selected
for them, and that the United States thereby acquired title to the
lands so abandoned, are considerations to be addressed to Congress
in support of a special appropriation to pay the claim of
McDougall's administrator. They do not, in our judgment, establish,
or tend to establish, a claim against the United States enforceable
by suit.
It appears from the finding of facts, that McDougall did not die
until after the expiration of nearly twenty years from the time his
claim accrued, nor until after more than nine years from the
passage of the act giving jurisdiction to the Court of Claims of
suits against the United States founded upon contract, express or
implied. It is stated that McDougall's claim was pending in the
Interior Department at the time of his death in 1872. When it was
presented to that department is not
Page 121 U. S. 102
stated. It may not have been so presented until after the
expiration of the period within which it would have been cognizable
by the Court of Claims had suit been brought thereon without first
filing the claim in the department. Whether, in that event, the bar
of limitation was removed by the mere fact that the claim was
transmitted to the court below by the Interior Department is a
matter upon which we express no opinion. No such question is
formally raised, and, in view of the conclusion reached, it is not
necessary to determine it. We rest our decision solely upon the
ground that the contract of April 5, 1852, imposed no legal
obligation upon the United States.
The judgment is reversed, with directions to dismiss the
petition.
