The party who, under the provisions of § 4 of the act of
March 3, 1891, c. 538, 26 Stat. 853, elects to reopen before the
Court of Claims a case under that act heard and determined by the
Commissioner of Indian Affairs, thereby reopens the whole case,
irrespective of the decision by the Commissioner, and assumes the
burden of proof.
The jurisdiction conferred upon the Court of Claims by the first
jurisdictional clause in the first section of that act is confined
to property taken by Indian tribes in amity with the United States,
and as it appears in this case that the Indians who committed the
injury to the claimant were at the time engaged in hostilities
against the United States, the Court of Claims was without
jurisdiction to render a judgment against the United States, even
though the hostilities were carried on for the special purpose of
resisting the opening of a military road.
The same result is reached practically if the claim is regarded
as within the jurisdiction of that court under the second
jurisdictional clause of the first section of that act.
There is nothing in the legislation prior to the act of 1891
which binds the government to the payment of this claim.
This case is before us on appeal from a judgment of the Court of
Claims dismissing the claimant's petition. The amended petition on
which the case was tried, after stating the facts of the
depredation, the citizenship of the claimant, and the amity of the
Indian tribe, alleged that the claim had been filed in the Interior
Department, allowed on December 5, 1873, for $3,025, and reported
to Congress March 27, 1874, and again, on November 29, 1887,
allowed for $2,500, and reported to Congress. It further alleged
that the property was worth $5,005, and for that sum prayed
judgment.
After the commencement of the suit in the Court of Claims, the
claimant filed this election to reopen:
"Now comes the claimant, Alvin C. Leighton, and elects to reopen
the claim set forth in the petition in this cause, and try the same
before the court."
"And he avers that the allowance made in said claim was
Page 161 U. S. 292
erroneous in this respect: that the Commissioner of Indian
Affairs and the secretary made an allowance of $2,500 by fixing the
value of the mules on account of which claim is made in said
petition at $125, and of the horses at $100 each, whereas the
allowance should have been for $5,005, the value of the mules being
$255 each and of the horses $185 each."
"And the claimant refers to the evidence taken under the rules
of this court, as well as that presented to the Interior
Department, in support of this allegation of error."
"The claimant does not seek to disturb the findings or award of
the Commissioner of Indian Affairs and Secretary of the Interior in
any other respect than as above set forth, but admits that the same
are correct in all other respects."
This was done under authority of the last part of section 4 of
the Act of March 3, 1891, c. 538, 26 Stat. 851, which reads:
"All unpaid claims which have heretofore been examined,
approved, and allowed by the Secretary of the Interior or under his
direction . . . shall have priority of consideration by such court,
and judgments for the amounts therein found due shall be rendered
unless either the claimant or the United States shall elect to
reopen the case and try the same before the court, in which event
the testimony in the case given by the witnesses, and the
documentary evidence, including reports of department agents
therein, may be read as depositions and proofs."
The United States having filed a traverse, the case was
submitted to the Court of Claims, by which court findings of fact
were made, and among them that the property was taken and carried
away by Indians belonging to the Ogallalla band of the Sioux tribe;
that at this time, the Ogallalla band
"was in separate treaty relations with the United States, under
treaty dated October 26, 1865, proclaimed March 17, 1866, 14 Stat.
747, and were receiving annuities thereunder,"
and that such band,
"under its principal chief, Red Cloud, was at the time of said
depredation in armed hostility against the United States in
resisting the military authorities in the opening of a military
road, and the establishment thereon of military posts and
maintaining the same along what was known
Page 161 U. S. 293
as the 'Boazman Road,' extending from Fort Laramie, in Wyoming,
to Fort Smith, in Montana,"
and was "not in amity with the United States."
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first matter to be considered is the effect of the
claimant's election to reopen the case. On his part it is contended
that it only permitted a new inquiry as to the amount and value of
the property taken and carried away; that the liability of the
government had been settled by the award and allowance of the
Secretary of the Interior, and was no longer a matter of dispute.
On the other hand, it is claimed by the government that it opened
for consideration and judgment both the amount of the depredation
and the fact of liability, precisely as though there had been no
action on the part of the Secretary of the Interior. We think the
contention of the government is correct. The statute gives either
the claimant or the United States the right to reopen the case and
try the same before the court -- not a part, but the whole, of the
case. If neither party had elected to reopen, the claimant would
have been entitled to a judgment for the amount of the allowance,
such judgment to be paid as ordinary judgments of the Court of
Claims. He would not have been required to furnish any further
proof than the action of the secretary, which action would have
been sufficient, both as to the liability of the government and the
amount of the loss. But when he elected to reopen, it was not
within his power to reopen the case only partially, and, accepting
the determination of the secretary as conclusive upon the question
of liability, ask simply an inquiry as to the amount of his loss
and
Page 161 U. S. 294
judgment for a larger sum. There is no suggestion in the
statute, and no warrant therein for a partial reopening of the
case. When reopened, it stands a new case, to be considered and
determined by the court. Of course, it is for the interest of the
claimant to consider the question of liability settled, and have
the case opened only as to the amount of the loss. So, on the other
hand, it might in any case be for the interest of the government to
have the amount concluded by the action of the secretary, and the
question of liability only opened for examination, but no such
limitation is named in the statute. The case, when opened, is
opened as a whole, and the only difference between this and any new
case which has never been filed in the department and considered by
the secretary is that the party electing to reopen has the burden
of proof.
Counsel for claimant further contend that the second clause of
the first section of the act of 1891 gives jurisdiction to the
Court of Claims of cases which have been "examined and allowed by
the Interior Department;" that by section 5 it is provided:
"The court shall determine in each case the value of the
property taken or destroyed at the time and place of the loss or
destruction, and, if possible, the tribe of Indians or other
persons by whom the wrong was committed, and shall render judgment
in favor of the claimant or claimants against the United States,
and against the tribe of Indians committing the wrong, when such
can be identified."
No other measure or condition of liability is named. Hence,
given a case of which the Court of Claims has jurisdiction (and a
claim allowed by the Interior Department is one), the only duty of
the court is to ascertain the amount of the loss, the tribe of
Indians by whom the wrong was committed, and render judgment
against the United States and such wrongdoing tribe. In other
words, the fact of jurisdiction determines the question of
liability.
We cannot assent to any such construction. The anomaly which
would be created thereby demonstrates its incorrectness, for the
effect would be that if the claim had never been filed in the
department, it would be subject to the conditions
Page 161 U. S. 295
specified in the first clause of the section defining
jurisdiction. If it had been filed, and was either allowed or
pending for examination, on the 3d of March, 1885, none of such
conditions of liability would exist, and the simple inquiry would
be as to the amount of the loss. In other words, the mere act of
the claimant in filing his claim in the department establishes the
liability of the government. Of course, this is impossible.
Further, by section 4, and that applies to every case, the Attorney
General is required to "file a notice of any counterclaim, set-off,
claim of damages, demand, or defense whatsoever of the government
or of the Indians in the premises." Under this, every defense is
open to the government. The clause quoted from section 5 does not
determine the rule of liability, but only the duty of the court
when the liability has been established. What, then, is the
condition of liability in the case of an allowed claim, which
either party shall elect to reopen? It must be found in some act of
Congress, and is either that prescribed in the first clause of the
first section of this act or in some other statute.
The condition of liability prescribed in the first
jurisdictional clause of the first section does not exist, because,
by the finding, the Indians who committed the depredation did not
belong to a tribe "in amity with the United States." It is true,
counsel suggest, that the Indians were carrying on hostilities for
only a special purpose, to-wit, resisting the opening of a military
road. We fail to appreciate the argument that because hostilities
were carried on for only a single purpose, and not for the mere
sake of fighting generally, the tribe engaged in such hostilities
was nevertheless still in amity. Indeed, beyond the fact of
hostilities, the treaty between the different tribes of Sioux,
including the Ogallalla band, executed by said band on May 25,
1868, and proclaimed February 24, 1869, 15 Stat. 635, implies the
existence of war, for it commences with this declaration: "From
this day forward, all war between the parties to this agreement
shall forever cease."
Neither do we find in the legislation prior to the act of 1891
anything which binds the government to the payment of this
Page 161 U. S. 296
claim. The Act of June 30, 1834, sec. 17, 4 Stat. 731, and
Rev.Stat. sec. 2156, which provide for compensation for
depredations by Indians, each contains the limitation found in the
first jurisdictional clause of the act of 1891 of "amity with the
United States." The Act of May 29, 1872, sec. 7, 17 Stat. 190,
carried into the Revised Statutes as sections 445 and 466,
contemplates a report by the Secretary of the Interior of the
nature, character, and amount of claims presented "under laws or
treaty stipulations for compensation." The laws in force, as we
have seen, mention only depredations by Indians belonging to a
tribe "in amity with the United States." The last treaty with the
Ogallalla band of Indians prior to these depredations was that of
October 28, 1865, 14 Stat. 747, which contained, on the part of the
Indians, an engagement that they were subject to the exclusive
jurisdiction and authority of the United States and also bound and
obligated "themselves individually and collectively" "to cease all
hostilities against the persons and property of its citizens." Now
if this treaty was not entirely superseded by hostilities which
actually existed between the Ogallalla Indians and the United
States, as is undoubtedly the rule when war arises between
absolutely independent nations, it still is far from a promise on
the part of the Indians to pay for damages caused during any such
hostilities. While a breach of a contract similar to this between
individuals might very likely give rise to an action for damages,
yet no such rule can be enforced in reference to obligations
created by a treaty. It is a promise on the part of the tribe to
keep the peace, and not a promise to pay if the peace is not kept.
Especially should this be the construction in view of the fact that
many of the treaties between the United States and Indian tribes
contain not only a promise to abstain from hostilities, but also a
specific stipulation that, in case of a breach of such promise,
compensation shall be made out of the tribal funds or otherwise.
The absence of any such express provision in this treaty, the
Indians being under the care of the United States and its wards,
renders it improper to hold that, by its terms, the tribe had bound
itself to pay for all damages which it might cause during a
period
Page 161 U. S. 297
of actual hostilities. Nor is this a matter in which the
government is uninterested. In case of an award by the Court of
Claims, the United States become in fact, if not in form, the
primary and a solvent judgment debtor. The recourse provided over
against the Indian tribe, while it may be certain as to amount, is
uncertain as to collection; and, before any judgment should be
rendered binding the United States, it is familiar and settled law
that the statute claimed to justify such judgment should be clear,
and not open to debate.
If follows, therefore, that though, under the terms of the
second jurisdictional clause, the Court of Claims had jurisdiction
over this claim, yet, the case having been reopened by the
claimant, the Court of Claims properly proceeded to inquire into
its merits, and correctly found that there was no law or treaty
upon which to base a liability of either the United States or the
Indians.
The judgment is
Affirmed.
