The moral obligations of the government towards the Indians are
for Congress alone to recognize, and the courts can exercise only
such jurisdiction over the subject as Congress may confer upon
them.
Under the Act of October 1, 1890, 26 Stat. 636, jurisdiction was
conferred upon the Court of Claims to hear and determine the rights
in law or equity of the tribes of the Shawnee and Delaware Indians
arising out of the subject matter referred to in the act, and there
is no grant of jurisdiction to hear or determine the rights of
individual members of those tribes. The claims of the Shawnee
Indians which under the Act of July 1, 1892, were to be presented
to the Court of Claims are those of a tribe or band of Indians, and
not of individual members thereof.
Statutes which extend the jurisdiction of the Court of Claims
and permit the government to be sued will be strictly construed,
and the grant of jurisdiction therein contained must be shown
clearly to cover the case, and if it do not, it will not be
implied.
The petitioner filed his amended petition in the Court of Claims
in August, 1892, in which he asked to recover from the United
States over five hundred and thirty thousand dollars on the grounds
therein set forth. There was a demurrer to the amended petition by
the United States on the ground that it did not allege facts
sufficient to constitute a cause of action. The demurrer was
sustained, and the plaintiff has appealed to this Court.
In his petition, the petitioner represents himself as a Shawnee
Indian by blood and descent, a member and the principal chief of
the Shawnee Tribe or Nation, and residing in the Indian Territory.
He states that he brings suit in the Court of Claims as such
principal chief of such Shawnee Tribe or Nation under the
provisions of two acts of Congress, the first of which is
entitled
"An Act to Refer to the Court of Claims Certain Claims of the
Shawnee and Delaware Indians and the Freedmen of the Cherokee
Nation, and for Other Purposes,"
approved October 1, 1890, 26 Stat. 636, and the second
entitled
"An Act Supplementary
Page 190 U. S. 369
and Amendatory to an Act Entitled 'An Act to Refer to the Court
of Claims Certain Claims of the Shawnee and Delaware Indians and
the Freedmen of the Cherokee Nation, and for Other Purposes,'
Approved October 1, 1890, Approved July 6, 1892,"
27 Stat. 86. These acts are set out in the margin.
*
Page 190 U. S. 370
The petitioner asks to recover and collect from the United
States the several amounts of money thereafter set out at length in
payment for the destruction, loss, forcible taking, carrying, and
driving away of livestock, farm products, household goods, money,
and other personal property of divers descriptions and kinds
belonging to, owned, and possessed by, and the property of, the
said Shawnee Indians, by white and United States citizens and
soldiers, in the State of Kansas and the Indian Territory at divers
times and places in the year 1861, and all the time up to and
including the year 1866. Reference is then made to a schedule which
is made part of the petition, and in which appear the names of
between three and four hundred Indians, and the schedule gives
their individual claims, varying in amounts from as high as $7,000
down to $75, and aggregating $530,945.14.
It is contended that the claims arise out of treaty relations
with the United States (mentioned in the foregoing acts of
Congress),
Page 190 U. S. 371
particularly articles 11 and 14 of the treaty of May 10, 1854,
10 Stat. 1053, 1057, between the United States and the Indians, and
also out of sections 2154 and 2155 of the Revised Statutes of the
United States. The articles of the treaty are as follows:
"ARTICLE 11. It being represented that many of the Shawnees have
sustained damage in the loss and destruction of their crops, stock,
and other property, and otherwise, by reason of the great
emigration which has for several years passed through their
country, and of other causes, in violation, as they allege, of
guarantees made for their protection by the United States, it is
agreed that there shall be paid in consideration thereof, to the
Shawnees, the sum of twenty-seven thousand dollars, which shall be
taken and considered in full satisfaction not only of such claim,
but of all others of what kind soever, and in release of all
demands and stipulations arising under former treaties, with the
exception of the perpetual annuities, amounting to three thousand
dollars, hereinbefore named and which
Page 190 U. S. 372
are set apart and appropriated in the third article hereof. All
Shawnees who have sustained damage by the emigration of citizens of
the United States, or by other acts of such citizens, shall, within
six months after the ratification of this treaty, file their claims
for such damages with the Shawnee agent, to be submitted by him to
the Shawnee council, for their action and decision, and the amount
in each case approved shall be paid by said agent:
Provided, The whole amount of claims thus approved shall
not exceed the said sum stipulated for in this article.
And
provided, That if such amount shall exceed that sum, then a
reduction shall be made
pro rata from each claim until the
aggregate is lowered to that amount. If less than that amount be
adjudged to be due, the residue, it is agreed, shall be
appropriated as the council shall direct."
"ARTICLE 14. The Shawnees acknowledge their dependence on the
government of the United States, and invoke its protection and
care. They will abstain from the commission of depredations and
comply as far as they are able with the laws in such cases made and
provided, as they will expect to be protected and to have their
rights vindicated."
Section 2154 of the Revised Statutes, which is part of the Act
of June 30, 1834, 4 Stat. 731, reads as follows:
"SEC. 2154. Whenever, in the commission by a white person of any
crime, offense, or misdemeanor within the Indian country, the
property of any friendly Indian is taken, injured, or destroyed,
and a conviction is had for such crime, offense, or misdemeanor,
the person so convicted shall be sentenced to pay such friendly
Indian to whom the property may belong, or whose person may be
injured, a sum equal to twice the just value of the property so
taken, injured, or destroyed."
Section 2155 of the Revised Statutes, which is also part of the
Act of June 30, 1834, 4 Stat. 731, reads as follows:
"SEC. 2155. If such offender shall be unable to pay a sum at
least equal to the just value or amount, whatever such payment
shall fall short of the same shall be paid out of the Treasury of
the United States. If such offender cannot be apprehended and
brought to trial, the amount of such property shall be paid out of
the Treasury. But no Indian shall be entitled to any
Page 190 U. S. 373
payment out of the Treasury of the United States for any such
property if he or any of the nation to which he belongs have sought
private revenge, or have attempted to obtain satisfaction by any
force or violence."
It is also stated that, at the time the property was taken, the
Indians were in amity with, and had always been loyal to, the
United States. Judgment was asked in favor of the Indians mentioned
for the respective sums set opposite their names, and that ten
percentum of the amount might be allowed the attorneys for their
services.
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
The duty of this Court is simply to construe the acts of
Congress of 1890 and 1892. The Court of Claims has no jurisdiction
of the subject matter of this petition unless it is conferred by
one or the other of the above acts. The moral obligations of the
government toward the Indians, whatever they may be, are for
Congress alone to recognize, and the courts can exercise only such
jurisdiction over the subject as Congress may confer upon them.
Upon examination of the act of 1890, it appears that
jurisdiction is conferred upon the Court of Claims to hear and
determine what are the just rights in law or in equity of the
Shawnee and Delaware Indians, who are settled and incorporated into
the Cherokee Nation, under the provisions of article 15 of the
treaty of 1866 between the United States and the Cherokee Nation,
and also under articles of agreement between the Cherokee Nation
and the Shawnee Indians, made June 7, 1869, and articles of
agreement made with the Delaware Indians, April 8, 1867, and also
of the Cherokee freedmen settled, etc., under provisions of article
9 of the treaty of 1866.
Page 190 U. S. 374
The language of the first section, in our opinion, confers
jurisdiction upon the Court of Claims to hear and determine the
rights in law or equity of the tribes of the Shawnee or Delaware
Indians, arising out of the subject matter provided for in the
subsequent parts of the act, and there is no grant of jurisdiction
to hear or determine the rights of individual members of those
tribes. It is true the statute speaks of the Shawnee and Delaware
Indians, but the words "Shawnee and Delaware Indians" mean the
tribes, and not individual members of those tribes of Indians. The
rights must be those which arise out of the subject matter which is
referred to in sections 2, 3, and 4 of the act. This is stated in
terms in the first section. The subsequent sections of the act
show, as we think, that Indian tribes, and not individual members
thereof, are intended. And no jurisdiction is granted to hear
claims such as are included in this case, whether they are made by
tribes or by individual members of a tribe.
The second section permits a suit against the Cherokee Nation
and the United States government to recover from the Cherokee
Nation moneys due and unpaid to the Shawnees, etc., which the
Cherokee Nation have before paid out, or may hereafter pay per
capita in the Cherokee Nation, and which the Cherokee Nation had
refused or neglected to pay to the other Indians. The suits are in
reality against the Cherokee Nation, and the recovery is from that
nation. The separate or joint suit mentioned in this section is a
separate or joint suit of the tribes and of the freedmen, and not
of the individual members thereof. In either event, it does not
include such a case as this.
Section 3 permits the bringing of "the said suit or suits" in
the name of the principal chief or chiefs of the said Shawnee and
Delaware Indians, and for the freedmen, in their behalf and for
their use, in the name of some person as their trustee, to be
selected by them with the approval of the Secretary of the
Interior. The exercise of this jurisdiction is not to be barred by
any lapse of time heretofore, nor are the rights of the Indians to
be impaired by any acts passed and approved by the Cherokee
National Council. The right given by the third section is to
commence a suit or suits which had already
Page 190 U. S. 375
been spoken of in the second section of the act. The second
section gave no right to commence this suit, as we have seen.
Neither section includes the rights of individual Indians.
A perusal of section 4 shows that the right to bring a suit
against the United States therein provided for was limited to the
purpose of collecting from the United States government any amount
of money that in law or equity may be due from the United States
"to said tribes in reimbursement of their tribal fund for money
wrongfully diverted therefrom." We think that individual Indians
had no right to commence such an action as this under the act of
1890, even though it be assumed that the tribe had such right under
that act for the recovery of the value of property taken from the
tribe. Such a suit as the one before us is plainly not included in
the grant of jurisdiction in this section.
By the act of 1892, it is provided that
"the Shawnee tribe or band of Indians, whose claims and demands
against the Cherokee Nation and the United States were referred to
the United States Court of Claims for adjudication [under the act
of 1890] shall present to the said court all their claims against
the United States and the Cherokee Nation,"
etc.
The result is that this act does not grant jurisdiction to the
Court of Claims to hear and decide the questions arising under this
petition. The grant of jurisdiction is to hear and determine all
the claims of the Shawnee tribe or band of Indians.
The claims are those of a tribe or band, and not those of the
individual members of the Shawnee tribe or band. The reference in
the act of 1892 shows that Congress assumed that, whatever their
nature, it was the claims of the Shawnee tribe or band that had
been referred to the Court of Claims for adjudication by the act of
1890, and not claims of the individual members thereof. The act of
1892 enlarges the scope of the act of 1890 so as to include all
claims of the tribe or band, instead of claims of the nature
provided for in sections 2, 3, and 4 of the act of 1890, but the
claims must be claims of a band, and not of an individual.
These acts have been before this Court on a previous
occasion.
Page 190 U. S. 376
In
United States v. Blackfeather, 155 U.
S. 180,
155 U. S. 194,
MR. JUSTICE BROWN, speaking for the Court, said:
"While there may be a moral obligation on the part of the
government to reimburse the money embezzled by the Indian
superintendent, and, in fact an appropriation appears to have been
made for that purpose, Act of July 7, 1884, c. 334, 23 Stat. 236,
247, it is by no means clear that, under the acts of 1890 and 1892,
the Shawnees were authorized to recover and collect from the
government any other moneys than those which they claimed in their
tribal relation or capacity. The money in question is not due the
tribe as such, but to certain individual orphans who claim to have
been defrauded. But whether this be so or not, there is nothing in
the record to indicate how much of this money was embezzled by the
guardians created by the Indian council and how much by the Indian
superintendent, so that there is in reality no basis for a decree
in their favor."
While the question in issue here was, as is seen, not decided in
the above case, yet the expression contained in the opinion shows
the court was not prepared to hold that the acts embraced claims of
individual Indians.
As these statutes extend the jurisdiction of the Court of Claims
and permit the government to be sued for causes of action therein
referred to, the grant of jurisdiction must be shown clearly to
cover the case before us, and if it do not, it will not be implied.
Statutes of this nature extending the right to sue the government
will generally be strictly construed. We concur with the following
remarks of Judge Weldon, contained in the opinion delivered by him
in this case in the Court of Claims:
"The act of 1892 seems to have been enacted for the purpose of
enlarging the scope of the right given under the act of 1890. But
is it sufficiently broad to embrace the individual right of each
Indian who may have suffered a depredation at the hands of the
persons alleged?"
"The statute [1890] is entitled 'An Act to Refer to the Court of
Claims Certain Claims of the Shawnee and Delaware Indians and the
Freedmen of the Cherokee Nation, and for Other Purposes,' and
provides, in substance, that they shall present to the
Page 190 U. S. 377
said court all their claims against the United States and the
Cherokee Nation, or against either or both of them, of any
description whatsoever, arising out of treaty relations with the
United States, rights growing out of such treaties, and from
contracts, expressed or implied, under such treaties, made and
entered into by and between the said Shawnees and Cherokees, and
between them, or either of them, and the United States."
"The right to sue, by the phraseology of this statute, is in the
assertion of rights growing out of treaties, and for contracts,
expressed or implied, under treaties made and entered into by and
between the said Shawnees, Cherokees, and the United States. Can it
be said that there has been a treaty, a contract, expressed or
implied, between the United States and the individual Indians, who,
through the medium of the principal chief, are now prosecuting
these claims?"
"The attention of the court is called to the fourteenth article
[of the treaty of 1854], which provides that"
"the Shawnees acknowledge their dependence on the government of
the United States, and invoke its protection and care. They will
abstain from the commission of depredations and comply, as far as
they are able, with the laws in such cases made and provided, as
they will expect to be protected and to have their rights
vindicated."
"Does this phraseology establish contractual or treaty
relations, having the effect of contracts, with each individual
Indian composing the Shawnee tribe? Or, rather, is it not a general
clause, limited in its effect to the parties to the treaty, to-wit,
the United States on one side and the Shawnee tribe upon the
other?"
"The plaintiff, by the allegations of the petition, has asserted
an individual obligation existing between the United States and
each of the claimants, and, in order to recover, it must appear
that such a relation exists."
"The United States, as the guardian of the Indians, deal with
the nation, tribe, or band, and have never, so far as is known to
the court, entered into contracts, either expressed or implied,
compacts, or treaties with individual Indians so as to embrace
within the purview of such contract or undertaking the personal
rights of individual Indians. "
Page 190 U. S. 378
"The acts of Congress referred to by the allegations of the
petition and the argument of counsel for the claimant are not
applicable to the claim made by this petition. The condition upon
which remuneration to the Indian is to be made under section 2154,
Revised Statutes, is not shown to exist in this case. And so it may
be said of section 2155 of Revised Statutes that the condition upon
which the Indian is entitled to remuneration out of the Treasury is
not shown to exist in the claims made in this proceeding."
"The act of 1892 specifies that the Shawnee tribe or band of
Indians, whose claims and demands against the Cherokee Nation and
the United States were referred to the United States Court of
Claims for adjudication under the Act of Congress passed and
approved October 1, 1890, shall present to said court all their
claims against the United States. The claims referred to this Court
under the act of 1890 were the claims of the Shawnee tribe or band
of Indians, and not the personal claims of the individual Indians
belonging to said tribe or band of Shawnees."
"The evident object of the act of 1892 was to enlarge the
jurisdiction of this Court with reference to the same class of
claims as were cognizable under the act of 1890, to-wit, the claims
of the Shawnee tribe or band of Indians."
We think it clear that no jurisdiction over this case is granted
by the language of the sections of the Revised Statutes above
referred to.
We see nothing in the Act approved May 9, 1860, 12 Stat. 15,
appropriating moneys for the payment of "claims of certain members
of the Shawnee tribe of Indians," which affects the conclusion we
have reached that the acts of 1890 and 1892 refer to tribes, and
not individuals. The act of 1860 appropriates, in terms, money to
pay claims of certain members of the tribe. It is apparent that,
when Congress intends to include individuals, as distinct from
tribes, it does not speak of them as Shawnee Indians, but as
"certain members" of the Shawnee tribe.
Congress may, of course at its pleasure, still confer
jurisdiction upon the Court of Claims in such terms as shall,
without
Page 190 U. S. 379
doubt, cover claims of the nature set forth in this record. In
our judgment, it has not done so as yet. The judgment of the Court
of Claims must be
Affirmed.
*
"
Act of 1890, 26 Stat. 636"
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That full
jurisdiction is hereby conferred upon the Court of Claims, subject
to an appeal to the Supreme Court of the United States as in other
cases, to hear and determine what are the just rights in law or in
equity of the Shawnee and Delaware Indians, who are settled and
incorporated into the Cherokee Nation, Indian Territory, east of
ninety-six degrees west longitude, under the provisions of article
fifteen of the treaty of July nineteenth, eighteen hundred and
sixty-six, made by and between the United States and the Cherokee
Nation, and articles of agreement made by and between the Cherokee
Nation and the Shawnee Indians, June seventh, eighteen hundred and
sixty-nine, approved by the President June ninth, eighteen hundred
and sixty-nine, and articles of agreement made with the Delaware
Indians April eighth, eighteen hundred and sixty-seven, and also of
the Cherokee freedmen, who are settled and located in the Cherokee
Nation, under the provisions and stipulations of article nine of
the aforesaid treaty of eighteen hundred and sixty-six, in respect
to the subject matter herein provided for."
"SEC. 2. That the said Shawnees, Delawares. and freedmen shall
have a right, either separately or jointly, to begin and prosecute
a suit or suits against the Cherokee Nation and the United States
government to recover from the Cherokee Nation all moneys due,
either in law or equity, and unpaid to the said Shawnees,
Delawares, or freedmen, which the Cherokee Nation have before paid
out, or may hereafter pay, per capita, in the Cherokee Nation, and
which was, or may be, refused or neglected to be paid to the said
Shawnees, Delawares, or freedmen by the Cherokee Nation out of any
moneys or funds which have or may be paid into the treasury of, or
in any way have come, or may come, into the possession of, the
Cherokee Nation, Indian Territory, derived from the sale, leasing,
or rent for grazing purposes on Cherokee lands west of ninety-six
degrees west longitude, and which have been, or may be,
appropriated and directed to be paid out per capita by the acts
passed by the Cherokee Council, and for all moneys, lands, and
rights which shall appear to be due to the said Shawnees,
Delawares, or freedmen under the provisions of the aforesaid
articles of treaty and articles of agreement."
"SEC. 3. That the said suit or suits may be brought in the name
of the principal chief or chiefs of the said Shawnee and Delaware
Indians, and for the freedmen, and in their behalf and for their
use in the name of some persons as their trustee, to be selected by
them with the approval of the Secretary of the Interior. And the
exercise of such jurisdiction shall not be barred by any lapse of
time heretofore, nor shall the rights of such Indians be impaired
by any acts passed and approved by the Cherokee National Council.
Suits may be instituted within twelve months after the passage of
this act, and the law and practice and rules of procedure in such
courts shall be the practice and law in these cases, and copies of
the petitions filed in the case at the commencement of the suit
shall be served upon the Attorney General of the United States, and
on the principal chief of the Cherokee Nation, by the marshal of
the District Court for the Indian Territory, and that the costs of
the said suits shall be apportioned between the United States and
the other parties to such suits as to said court, law and equity
shall require. The Attorney General shall designate and appoint
from the Department of Justice a person who is competent to defend
the said Cherokee Nation and the United States. And the said
Shawnees, Delawares, and freedmen may be represented by attorneys
and counsel. And the court is hereby authorized to decree the
amount of compensation of such attorneys, and counsel fees, not to
exceed ten percentum of the amount recovered, and order the same to
be paid to the attorneys and counsel of the said Shawnees,
Delawares, and freedmen, and all judgments for any sum or sums of
moneys which may be ordered or decreed by such court in favor of
the Shawnees, Delawares, or freedmen, and against the Cherokee
Nation shall be enforced by the said court or courts against the
said Cherokee Nation by execution, mandamus, or in any other way
which the said court may see fit."
"SEC. 4. That the said Shawnee Indians are hereby authorized and
empowered to bring and begin a suit in law or equity against the
United States government in the Court of Claims to recover and
collect from the United States government any amount of money that
in law or equity is due from the United States to said tribes in
reimbursement of their tribal fund for money wrongfully diverted
therefrom. The right to appeal, jurisdiction of the court, process,
procedure, and proceedings in the suit here provided for shall be
as provided for in sections one, two, and three of this act."
"
Act of 1892, 27 Stat. 86"
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
Shawnee tribe or band of Indians, whose claims and demands against
the Cherokee Nation and the United States were referred to the
United States Court of Claims for adjudication under the act of
Congress passed and approved October first, eighteen hundred and
ninety, entitled"
"An Act to Refer to the Court of Claims Certain Claims of the
Shawnee and Delaware Indians and the Freedmen of the Cherokee
Nation, and for Other Purposes,"
"shall present to the said court all their claims against the
United States and the Cherokee Nation, or against either or both of
them, of every description whatsoever, arising out of treaty
relations with the United States, rights growing out of such
treaties, and from contracts, expressed or implied, under such
treaties, made and entered into by and between the said Shawnees
and Cherokees, and between them, or either of them, and the United
States."
