INDIAN AFFAIRS: LAWS AND TREATIES

Vol. III, Laws     (Compiled to December 1, 1913)

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1913.


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PART VI.—Title “Indians” from Cyc (reprinted with new cases)

“Indians”
      Cross References
      I. Definition.
      II. Status and Disabilities
      III. Indian Lands.
      IV. Government of Indians and Indian Country.
      V. Indian Depredations.

Notes From New Cases

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V. INDIAN DEPREDATIONS.

A. Jurisdiction and liability1. In general(a) Jurisdiction.—The United States court of claims has jurisdiction over claims against the United States and Indian tribes for depredations committed by members of the tribe upon the property of citizens of the United States.4 The statute is jurisdictional only, and does not create new liability.5 Jurisdiction as to depredations committed by others upon the property of certain members of the Pottawatomie Nation of Indians is conferred by statute upon the United States Court of Claims, and under this statute are included depredations by other Indians as well as by whites.6


      426 U. S. Stat. L., 851. See Vincent v. U. S., 39 C. Cls., 456. And see Courts, 11 Cyc., 971, 978.
      Construction of statute: This statute must be strictly construed, both as being in derogation of the sovereignty of the United States and as enforcing an obligation of the wards of the nation. Marks v. U. S., 161 U. S., 297; 16 S. Ct., 476; 40 L. Ed., 706; Leighton v. U. S., 161 U. S., 291; 18 S. Ct., 495; 40 L. Ed., 703; Wilson v. U. S., 38 C. Cls., 6. It was not, however, the intention of Congress to impose technical defenses, but rather that the claims should be considered on their merits. Brown v. U. S., 32 C. Cls., 432. The claims are not gratuities, but legal demands. McKinzie v. U. S., 34 C. Cls., 278.
      5Brown v. U. S., 32 C. Cls., 432; Welch v. U. S., 32 C. Cls., 106; Love v. U. S., 29 C. Cls., 332.
      6U. S. v. Navarre, 173 U. S., 77; 19 S. Ct., 326; 43 L. Ed., 620.

(b) Basis of liability.—The liability of the tribe and of the United States for depredations committed by Indians depends upon statutes prior to the jurisdictional act.7 Such liability may, however, be assumed under a treaty by a tribe to which the statutes would otherwise not apply.8


      712 U. S. Stat. L., 120; U. S. Rev. Stat. (1878), § 2156. And see Corralitos Stock Co. v. U. S., 178 U. S., 280; 20 S. Ct., 941; 44 L. Ed., 1069 [affirming 33 C. Cls., 342]; Welch v. U. S., 32 C. Cls., 106; Garrison v. U. S., 30 C. Cls., 272.
      8Pino v. U. S., 38 C. Cls., 64; De Baca v. U. S., 37 C. Cls., 482.
      A treaty obligation to cease all hostilities against the United States is not an obligation to pay for damage by individual depredators. Leighton v. U. S., 29 C. Cls., 288.
      Delivery of offender as substitute for indemnity: The making of treaties with 13 of the principal tribes in 1867-68, whereby the election was given them to surrender the wrongdoer or to reimburse the injured party, was intended to be the institution of a new policy; but that policy was never instituted in fact. The wrongdoer was never demanded as provided by the treaty, and no tribe ever offered or refused to surrender one. Therefore it must be inferred that that provision of the treaties has been abandoned by both parties, and it is not necessary to show that a demand was made upon the tribe in order to establish liability. U. S. v. Hood, 172 U. S., 641; 19 S. Ct., 882; 43 L. Ed., 1181; U. S. v. Kemp, 169 U. S., 733; 18 S. Ct., 948; 42 L. Ed., 1215; Brown v. U. S., 32 C. Cls., 432.

[151] (c) Amnesty.—A general amnesty declared in a treaty bars the prosecution of a claim for a prior depredation committed by members of the tribe.9


9Garrison v. U. S., 30 C. Cls., 272.

2. Nature of depredations(a) In general.—A depredation, within the meaning of the statute, is a voluntary and wilful act; and where there was neither malice nor gross negligence on the part of the Indians causing the damage there can be no recovery.10 The term “depredation” involves one or more of the following conditions: Force, trespass, violence, a physical taking by force, or destruction.11 No remedy is afforded for the conversion of property not in the legal possession of the owner or his agent;12 nor for the acts of Indians done under the direction of an officer of the United States.13


      10Davidson v. U. S., 34 C. Cls., 169; Jaeger v. U. S., 33 C. Cls., 214; 29 C. Cls., 172.
      11Ayres v. U. S., 35 C. Cls., 26. Delivery of goods under duress: Where the chief of a large body of Indians demanded possession of certain supplies from a few whites, the transfer will be deemed to have been made under duress, and to constitute a depredation. McKinzie v. U. S., 34 C. Cls., 278.
      12Ayres v. U. S., 35 C. Cls., 26.
      13Wilson v. U. S., 38 C. Cls., 6; Davidson v. U. S., 34 C. Cls., 169.

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(b) Property losses only.—The statute contemplates indemnity only for property taken or destroyed. It does not include compensation for consequential damages,1 or for personal injuries.2


      1Davidson v. U. S., 34 C. Cls., 169; Swope v. U. S., 33 C. Cls., 223; Price v. U. S., 33 C. Cls., 106; Brice v. U. S., 32 C. Cls., 23.
      2Swope v. U. S., 33 C. Cls., 223; Friend v. U. S., 29 C. Cls., 425.

3. Place of depredation.—The offense must have been committed within the territorial limits of the United States,3 and, if within the Indian country, upon the property of one who was lawfully there.4


      3Corralitos Co. v. U. S., 178 U. S., 280; 20 S. Ct., 941; 44 L. Ed., 1069 [affirming 33 C. Cls., 342]. The Kickapoo Indians were liable for depredations committed by them in the United States while they were temporarily residing in Mexico. Lowe v. U. S., 37 C. Cls., 413.
      4McCoy v. U. S., 38 C. Cls., 163; Welch v. U. S., 32 C. Cls., 106.
      Established trail: One who is traveling with his property over a lawfully established trail through the Indian Territory is entitled to recover for a depredation committed upon his property. U. S. v. Andrews, 179 U. S., 96; 21 S. Ct., 46; 45 L. Ed., 103; Merchant v. U. S., 35 C. Cls., 403.
      Where a person occupies the public domain and builds thereon with material obtained therefrom, he will not be regarded as a trespasser; and he may recover for such improvements if destroyed by Indians, but not for the value of the material. Osborn v. U. S., 33 C. Cls., 304.

4. Limitations.—All limitations prescribed by previous statutes are waived. Claims must be filed within three years from the date of the statute; but no claim is to be considered which accrued after the date of the passage of the act.5 A claim accruing prior to July 1, 1865, is barred, unless it has been presented, with evidence to support it, before the date of the jurisdictional act.6


      526 U. S. Stat. L., 852. And see Tryon v. U. S., 32 C. Cls., 425.
      6Nesbitt v. U. S., 186 U. S., 153; 32 S. Ct., 805; 46 L. Ed., 1100; Weston v. U. S., 29 C. Cls., 420. And see Barrow v. U. S., 30 C. Cls., 54.
      Evidence as to claim and presentation: Where a claim was presented to an Indian agent or subagent it was his duty to report it to his superior officer, and to submit the claim to the Indians in council. Where no records of his office can be found, the court will consider other evidence of presentation. Stevens v. U. S., 34 C. Cls., 244. The claimant’s own sworn declaration filed in the Interior Department is not sufficient to take the case out of the bar of the statute; nor the signatures of attesting witnesses who do not state that they know the facts; nor the hearsay affidavit of one witness. Nesbitt v. U. S., 186 U. S., 153; 22 S. Ct., 805; 46 L. Ed., 1100; Butler v. U. S., 38 C. Cls., 107; Weston v. U. S., 29 C. Cls., 420.

B. Parties1. Claimants(a) In general.—The Indian Depredation Act authorizes an action by, and judgment for, the owner of property taken or destroyed.7


      7De Jaramillo v. U. S., 37 C. Cls., 208, holding that where a contract in partido in New Mexico provided that at the end of five years double the number of cattle delivered should be returned, the title passed and the party in possession was the owner within the meaning of the statute.

[152] (b) Citizenship.—The claimant must have been a citizen of the United States at the time of the depredation.8 The primary declaration of intention to become a citizen is not sufficient, although naturalization was afterward completed.9


      8Contzen v. U. S., 179 U. S., 191; 45 L. Ed., 148 [affirming 33 C. Cls., 475]; Yerke v. U. S., 173 U. S., 439; 19 S. Ct., 441; 43 L. Ed., 760; Johnson v. U. S., 160 U. S., 546; 16 S. Ct., 377; 40 L. Ed., 529 [affirming 29 C. Cls., 1]; Valk v. U. S., 29 C. Cls., 62 [affirmed in 168 U. S., 703; 18 S. Ct., 949; 42 L. Ed., 1211].
      A corporation organized under the laws of a State is a citizen of the United States within the meaning of the statute. U. S. v. Northwestern Express, etc., Co., 164 U. S., 686; 17 S. Ct., 206; 41 L. Ed., 599.
      Squaw man: One who marries an Indian woman and is domiciled, with his property, among the Indians, can not recover for a depredation committed upon his property. Janis v. U. S., 32 C. Cls., 407. Citizenship acquired under the act admitting Nebraska into the Union does not relate back to the date of the enabling act. Hosford v. U. S., 29 C. Cls., 42.
      9Yerke v. U. S., 173 U. S., 439; 19 S. Ct., 441; 43 L. Ed., 760; Johnson v. U. S., 160 U. S., 546; 16 S. Ct., 377; 40 L. Ed., 529 affirming 29 C. Cls., 1].

(c) Partners.—The interests of partners are separable under the statute, and a partner who was a citizen may maintain suit for his interest, although the other partners were aliens.10 Where suit is brought for the same property by a surviving partner and the heirs of the deceased partner, the surviving partner is entitled to recover for the whole amount.11


      10Rhine v. U. S., 33 C. Cls., 481; Hosford v. U. S., 29 C. Cls., 42.
      11McKinzie v. U. S., 34 C. Cls., 278. And see Labadie v. U. S., 33 C. Cls., 476.

(d) New parties by amendment.—When an action arising from the loss of partnership property has been erroneously brought by one partner in his own name, the other partners may come in by amendment, although the time for filing new claims has expired.12 A claim “presented to the court by petition” as required by statute, within the jurisdictional period, by an attorney in ignorance of the death of the party in whose favor the claim existed, is not a cause pending and can not be used as a basis for reviving the case in the name of the administrator after the expiration of the jurisdictional period. The common-law rule that a suit begun in the name of a dead man is a nullity is applicable to cases under the Indian Depredation Act.13 Where an Indian depredation suit was instituted in due time by the children of a deceased owner, they being the parties really in interest, but not authorized by the law of the State in which they resided, to maintain an action, the administrator of the estate may be substituted, at their consent, as party plaintiff, after the jurisdictional period has expired.14


      12Garcia v. U. S., 37 C. Cls., 243.
      13Gallegos v. U. S., 39 C. Cls., 86.
      14Davenport v. U. S., 31 C. Cls., 430.

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2. Defendants(a) Indians(1) In general.—The Indian tribe, members of which are charged with the commission of a depredation, is a necessary party to the suit.1 Where, however, the tribe is unknown, suit may be maintained against the United States alone.2 Where there is no tribal organization there is no liability under the statute.3


      1U. S. v. Martinez, 195 U. S., 469; 25 S. Ct., 80; 49 L. Ed., 282; Dobbs v. U. S., 33 C. Cls., 308; Woolverton v. U. S., 29 C. Cls., 107.
      Service upon defendant Indians is unnecessary: They are in court through the service of the petition upon the Attorney General. Jaeger v. U. S., 27 C. Cls., 278.
      2 Gorham v. U. S., 29 C. Cls., 97 [affirmed in 165 U. S., 316; 17 S. Ct., 382; 41 L. Ed., 729].
      3 Bell v. U. S., 39 C. Cls., 350.

(II) Band, tribe, or nation(a) In general.—The suit is to be brought against the "band, tribe, or nation"4 to which the depredating Indians belonged. [153] In construing this provision the court will recognize such subdivisions of Indians as are indicated by treaty,5 by act of Congress,6 by Executive recognition,7 or as have been adopted by the Indians themselves.8 If a suit is commenced against a tribe, all the separate bands composing that tribe are in court, and judgment may be rendered against the particular band responsible for the depredation, or against the tribe, if the particular band to which the depredators belonged can not be identified.9


      4 Nation, tribe, and band distinguished: The word "nation," as applied to Indians, indicates little more than a large tribe or a group of affiliated tribes possessing a common government, language, or racial origin. By a "tribe" we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular, although sometimes ill-defined, territory. A "band" is a company of Indians not necessarily, although often, of the same race or tribe, but united under the same leadership in a common design. How large a company must be to constitute a band, it is unnecessary to decide. It may be doubtful whether it requires more than independence of action, continuity of existence, a common leadership, and concert of action. Montoya v. U. S., 180 U. S., 261; 21 S. Ct., 358; 45 L. Ed., 521.
      A "band" may be composed of Indians of different tribes: Allred v. U. S., 36 C. Cls., 280; Herring v. U. S., 32 C. Cls., 536: Montoya v. U. S., 32 C. Cls., 349 [affirmed in 180 U. S., 261; 21 S. Ct., 358; 45 L. Ed., 521].
      Bands which may be sued see Scott v. U. S., 33 C. Cls., 486; Conners v. U. S., 33 C. Cls., 317 [affirmed in 180 U. S., 271; 21 S. Ct., 362; 45 L. Ed., 525]; McKee v. U. S., 33 C. Cls., 99; Herring v. U. S., 32 C. Cls., 536; Montoya v. U. S., 32 C. Cls., 349 [affirmed in 180 U. S., 261; 21 S. Ct., 358; 45 L. Ed., 521]; Woolverton v. U. S., 29 C. Cls. 107.
      5 McKee v. U. S., 33 C. Cls., 99; Tully v. U. S., 32 C. Cls., 1; Graham v. U. S., 30 C. Cls., 318; Woolverton v. U. S., 29 C. Cls., 107.
      6 Graham v. U. S., 30 C. Cls., 318; Leighton v. U. S., 29 C. Cls., 288.
      7 Tully v. U. S., 32 C. Cls., 1.
      8 Scott v. U. S., 33 C. Cls., 486; Herring v. U. S., 32 C. Cls., 536; Montoya v. U. S., 32 C. Cls., 349; Tully v. U. S., 32 C. Cls., 1.
      9 Tully v. U. S., 32 C. Cls., 1; Graham v. U. S., 30 C. Cls., 318.

(b) Amity(1) In general.—The court is without jurisdiction, and there can be no recovery under the statute, unless the band, tribe, or nation to which the depredators belonged was in amity with the United States at the date of the depredation.10 An engagement by treaty to pay for depredations committed by members of the tribe does not extend to acts of war committed with the sanction of the tribe.11


      10 Montoya v. U. S., 180 U. S., 261; 21 S. Ct., 358; 45 L. Ed., 521; Leighton v. U. S., 161 U. S., 291; 16 S. Ct., 495; 40 L. Ed., 703 [affirming 29 C. Cls., 288]; Dobbs v. U. S., 33 C. Cls., 308; Salois v. U. S., 32 C. Cls., 68; Tully v. U. S., 32 C. Cls., 1; Cox v. U. S., 29 C. Cls., 349; Ross v. U. S., 29 C. Cls., 176; Marks v. U. S., 28 C. Cls., 147. And see Valk v. U. S., 29 C. Cls., 62 [affirmed in 168 U. S., 703; 18 S. Ct., 949; 42 L. Ed., 1211].
      11 Leighton v. U. S., 161 U. S., 291; 16 S. Ct., 495; 40 L. Ed., 703 [affirming 29 C. Cls., 288]; Litchfield v. U. S., 33 C. Cls., 203.
      To avoid liability, however, it must be shown that the taking or destruction of property was in the exercise of a belligerent's right to wage war. Love v. U. S., 29 C. Cls., 332.

(2) What constitutes.—The presumption of amity arising from the existence of a treaty, or its continued recognition by the officers of Indian affairs, is not conclusive upon the court.12 The inquiry is whether the tribe was in a state of actual peace with the United States.13 Actual engagements with troops of the United States are not necessary.14 The fact that a band or tribe is engaged in general hostilities with settlers is sufficient to establish a state of war.15 The [154] cause or occasion of carrying on hostilities is immaterial as to the question of amity.16


      12 Marks v. U. S., 161 U. S., 297; 16 S. Ct., 476; 40 L. Ed., 706 [affirming 28 C. Cls., 147]; Leighton v. U. S., 161 U. S., 291; 16 S. Ct., 495; 40 L. Ed., 703 [affirming 29 C. Cls., 288]; Valk v. U. S., 29 C. Cls., 62 [affirmed in 168 U. S., 703; 18 S. Ct., 949; 42 L. Ed., 1211].
      Executive or legislative recognition of amity: The court is concluded by the recognition of a state of amity by the legislative or executive departments of the Government, but such recognition to be conclusive must have been contemporaneous. Salois v. U. S., 33 C. Cls., 326; Conners v. U. S., 33 C. Cls., 317.
      13 Marks v. U. S., 161 U. S., 297; 16 S. Ct., 476; 40 L. Ed., 706.
      The extermination of a band of Indians by the military authorities on the ground that they were escaping prisoners of war refutes the supposition of a preexisting condition of amity. Conners v. U. S., 33 C. Cls., 317.
      Although escaping from their reservations, Indians are in amity where they make no hostile demonstration; but where their acts are those of a retreating enemy they are not in amity. Dobbs v. U. S., 33 C. Cls., 308.
      14 Allred v. U. S., 36 C. Cls., 280; Luke v. U. S., 35 C. Cls., 15; Painter v. U. S., 33 C. Cls., 114.
      15 Montoya v. U. S., 180 U. S., 261; 21 S. Ct., 358; 45 L. Ed., 521; Marks v. U. S., 161 U. S., 297; 16 S. Ct., 476; 40 L. Ed., 706
      Engagements with organized settlers: A band carrying on predatory warfare with the inhabitants of a territory for a series of years, during which battles are fought between the band and organized military forces of the inhabitants, is not in amity with the United States. Herring v. U. S., 32 C. Cls., 536.
      Where every man on one side is ready to kill any man on the other side, and military operations take the place of peaceful intercourse, it is war. Dobbs v. U. S., 33 C. Cls., 308.
      16 Leighton v. U. S., 161 U. S., 291; 16 S. Ct., 495; 40 L. Ed., 703; Luke v. U. S., 35 C. Cls., 15; Painter v. U. S., 33 C. Cls., 114.
      Plunder and robbery: The fact that the paramount purpose of the band was plunder and robbery, and not hostility, does not establish a condition of amity. Allred v. U. S., 36 C. Cls., 280.

(3) Beginning and termination of hostilities.—No formal declaration is necessary to mark the beginning of an Indian war. It is sufficient that hostilities exist.17


      17 Marks v. U. S., 28 C. Cls., 147. An attack on a military train by Indians does not in itself necessarily imply war, but, taken in connection with prior declarations and subsequent hostile acts, it is sufficient to fix the time when the war began. Carter v. U. S., 31 C. Cls., 441.

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Amity is restored from the date of any authorized and observed agreement to cease hostilities, although the formal treaty may be of later date.1


      1 Valencia v. U. S., 31 C. Cls., 388.
      On the day of the treaty, although there may have been a collision between the troops and the Indians, the tribe must be held to have been in amity. Ashbaugh v. U. S., 35 C. Cls., 554.
      Separate treaties with bands: Where treaties of peace were made with several different bands, the whole constituting the Sioux Nation, the relation of amity began with each band on the day the treaty was signed by that band; and the amity of the Sioux Nation dates from the day when the last treaty was signed. Litchfield v. U. S., 33 C. Cls., 203.

(4) Liability for hostile bands.—A tribe in amity with the United States is not responsible for depredations committed by a distinct band previously a part of that tribe, which is at war with the United States;2 nor for depredations committed by individual members of the tribe who have affiliated with another band or tribe which is at war.3 But a band which is in amity is liable for depredations committed by its members, although another band of the same tribe be at war.4


      2 Conners v. U. S., 180 U. S., 271; 21 S. Ct., 362; 45 L. Ed., 525 [affirming 33 C. Cls., 317]; Scott v. U. S., 33 C. Cls., 486; Dobbs v. U. S., 33 C. Cls., 308; Tully v. U. S., 32 C. Cls., 1: Woolverton v. U. S., 29 C. Cls., 107.
      Geronimo’s Band of Apaches in 1886, although consisting of but few men, was recognized by the Government as a military entity capable of surrendering as prisoners of war. It constituted a hostile band and there can be no recovery for depredations committed by its members. Scott v. U. S., 33 C. Cls., 486.
      A band of disaffected Indians from different tribes, confederated for the purpose of hostility against the United States without the consent of their respective tribes, and maintaining that status for several years, constituted a band within the meaning of the statute, and there can be no recovery for depredations committed by its members while the hostility continued. Montoya v. U. S., 32 C. Cls., 349.
      3 Conners v. U. S., 180 U. S., 271; 21 S. Ct., 362; 45 L. Ed., 525 [affirming 33 C. Cls., 317]; Montoya v. U. S., 180 U. S., 261; 21 S. Ct., 358; 45 L. Ed., 521 [affirming 32 C. Cls., 349].
      4 Salois v. U. S., 33 C. Cls., 326.

(III) New parties by amendment—A tribe of Indians not named in the petition can not be substituted as defendants by amendment after the expiration of the time for filing new petitions; and a petition naming the wrong tribe, or one naming no tribe, must be dismissed if the tribe is known.5


      5 U. S. v. Martinez, 195 U. S., 469; 25 S. Ct., 80; 49 L. Ed., 282.

(b) The United States.—The liability of the United States was rescinded by statute in 1859,6 but was reassumed in certain cases by the jurisdictional act.7 The United States is solely liable only where the tribe to which the depredating Indians belonged is unknown.8


      6 11 U. S. Stat. L., 388. And see Love v. U. S., 29 C. Cls., 332.
      7 26 U. S. Stat. L., 851. And see Love v. U. S., 29 C. Cls., 332; Woolverton v. U. S., 29 C. Cls., 107.
      8 U. S. v. Martinez, 195 U. S., 469; 25 S. Ct., 80; 49 L. Ed., 282; U. S. v. Gorham, 165 U. S., 316; 17 S. Ct., 382; 41 L. Ed., 729 [affirming 29 C. Cls., 97]; Garrison v. U. S., 30 C. Cls., 272; Woolverton v. U. S., 29 C. Cls., 107.

C. Allowed claims1. In general.—In the case of claims which had been allowed by the Secretary of the Interior, but not paid, prior to the passage of the jurisdictional act, the claimant is entitled, with the consent of both parties, to a judgment for the amount allowed. The court determines no question applicable to the original controversy, but simply enters judgment upon the award of the Secretary.9


9 Price v. U. S., 33 C. Cls., 106; Hyne v. U. S., 27 C. Cls., 113.
      Effect of allowance: The allowance by the secretary has not the sanctity of a judicial finding, binding upon the rights of the parties. Its only effect is that where made with authority it may be made, by the consent of both parties, the basis of a judgment. Crow v. U. S., 32 C. Cls., 16.
      When the claimant has accepted payment of the amount allowed by the secretary, although it was less than the amount claimed, he can not maintain suit in the Court of Claims for the remainder. Brice v. U. S., 32 C. Cls., 23.
      Reopening claim: When defendants have not signified their election whether they will reopen the case, a motion for judgment on the secretary’s award is premature. Mitchell v. U. S., 27 C. Cls., 316. When both parties have elected not to reopen and submitted the case to the court, it will not be remanded for the purpose of argument. Wynn v. U. S., 29 C. Cls., 15.
      Jurisdiction can not be conferred by consent, and the Attorney General’s election not to reopen does not estop him from moving for a new trial on grounds going to the jurisdiction of the court. McCollum v. U. S., 33 C. Cls., 469.

[155] 2. Basis of allowance.—An allowance upon which judgment can be rendered under this provision of the statute must have been made by the secretary under the provisions of the act of 1885,10 and his jurisdiction under that act extended only to cases in which the tribe was liable under a treaty.11 Such liability arises only from an express undertaking to pay for depredations; a general stipulation to keep the peace did not authorize the secretary to make awards.12


      10 23 U. S. Stat. L., 376. And see Hegwer v. U. S., 30 C. Cls., 405.
      What constitutes allowance: A claim allowed under a prior statute, but subsequently reëxamined and allowed under the statutes referred to in the jurisdictional act, is an allowed case. And a claim allowed on the merits, but disallowed because barred, is also an allowed case within the meaning of the law. Mitchell v. U. S., 27 C. Cls., 316. The transmission of a list of cases, after the passage of the act (March 3, 1885), which had been allowed prior to that date, without reëxamination, was not an allowance under that statute. Buchanan v. U. S., 28 C. Cls., 127. Where the secretary refers a case to Congress without recommendation, the case is not an “allowed” one within the meaning of the statute. Hegwer v. U. S., 30 C. Cls., 405.
      Consequential damages: The secretary had no power under this statute to allow a claim for consequential damages. Brice v. U. S., 32 C. Cls., 23.
      11 Moore v. U. S., 32 C. Cls., 593; Crow v. U. S., 32 C. Cls., 16; Labadi v. U. S., 31 C. Cls., 205.
      Where a tribe was not identified, the secretary could make no allowance. Price v. U. S., 28 C. Cls., 422.
      12 Crow v. U. S., 32 C. Cls., 16; Mares v. U. S., 29 C. Cls., 197.
      Where an award was made against two tribes, and the secretary had jurisdiction as to one but not as to the other, judgment will be rendered against the former. Crow v. U. S., 32 C. Cls., 16.

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3. Effect of reopening.—If either party elects to reopen the award, the whole case is thereby reopened, and must be tried de novo.1 The party electing to reopen assumes the burden of proof.2


      1 Leighton v. U. S., 161 U. S., 291; 16 S. Ct., 495; 40 L. Ed., 703 [affirming 29 C. Cls., 288]; Cox v. U. S., 29 C. Cls., 349.
      Defendants may demur to the petition, or file a plea of set-off, without electing to reopen. Price v. U. S., 33 C. Cls., 106; Labadie v. U. S., 32 C. Cls., 368; 31 C. Cls., 436. 2 Montoya v. U. S., 32 C. Cls., 71; Cox v. U. S., 29 C. Cls., 349.
      New evidence not necessary: The statute does not imply that the party assuming the burden of proof must introduce new and additional evidence. Sufficient proof may be found in the record. But the court will not lightly disturb the award of the secretary; and will not take up conflicting evidence which was before the secretary and from it draw conclusions different from those reached by him. Price v. U. S., 33 C. Cls., 106; Montoya v. U. S., 32 C. Cls., 71; Woolverton v. U. S., 29 C. Cls., 107.
      When the allowance was made without authority, defendants are not required to reopen the case and assume the burden of proof. Labadie v. U. S., 31 C. Cls., 205; Mares v. U. S., 29 C. Cls., 197.

D. Evidence.1. In general.—The claimant must establish his case by competent and sufficient evidence. If the Attorney General fails to plead, the claimant is not entitled to judgment by default.3 Ex parte affidavits filed with the claim in the Interior Department are competent evidence under the statute, but they are received with caution and are entitled to little weight.4 Where the claimant has delayed for a long period before filing his claim, the court will not [156] render judgment on the unsupported testimony of the parties in interest, nor on the testimony of one witness.5


3 King v. U. S., 31 C. Cls., 304.
      The examination of the claimant under oath at the instance of the Attorney General, as provided by U. S. Rev. Stat. (1878), § 1080 [U. S. Comp. Stat. (1901), p. 743] is applicable to Indian depredation cases. Truitt v. U. S., 30 C. Cls., 19. 4 Jones v. U. S., 35 C. Cls., 36. 5 Gossett v. U. S., 31 C. Cls., 325; King v. U.S., 31 C Cls., 304; Stone v. U. S., 29 C. Cls. 111 [affirmed in 164 U. S., 380; 17 S. Ct., 71; 41 L. Ed., 477].

2. Official documents.—The Court of Claims may examine official documents on file in any of the departments of the Government, or the courts, to determine whether a tribe of Indians was in amity with the United States.6


6 Collier v. U. S., 173 U. S., 79; 19 S. Ct., 330; 43 L. Ed., 621.

E. Pleadings and judgment1. Jurisdictional facts.—The jurisdictional facts of citizenship of the claimant and amity of defendant Indians are put in issue by a general traverse.7 If either party asks for a severance of issues, these jurisdictional facts must be first tried and determined.8


7 Gamel v. U. S., 31 C. Cls., 321. 8 Gamel v. U. S., 31 C. Cls., 321.

2. Time for pleading.—If the Attorney General fails to file a plea within the 60 days prescribed by the statute, it is within the discretion of the court to allow him to file it afterward.9


9 Labadie v. U. S., 31 C. Cls., 436.

3. Judgment.—Where a judgment has been entered against a nation or tribe of Indians, and it appears that the depredation was chargeable to a band, a subdivision of that tribe or nation, the judgment will not be disturbed, but an additional finding will be entered, for the guidance of the executive departments.10 Where the Government recovers a judgment on its counter-claim, the court will not deduct the amount from the judgment rendered against the Indian tribe, but will certify both judgments.11


10 Valencia v. U. S., 31 C. Cls., 388; Graham v. U. S., 30 C. Cls., 318. 11 Labadie v. U. S., 33 C. Cls., 476.

F. New trial.—The statutory provision, authorizing the court to grant a motion for new trial, made by the Attorney General under certain circumstances, within two years after the final disposition of a case, is applicable to Indian depredation claims.12


12 U. S. Rev. Stat. (1878), § 1088 [U. S. Comp. Stat. (1901), p. 745]; McCollum v. U. S., 33 C. Cls., 469.

G. Attorney’s fees.—There must be a judicial finding and judgment upon the question of attorney’s fees in every case. An attorney can not waive the allowance of fees by the court, unless he waives all compensation from his client.13 Contracts for attorney’s fees made before the passage of the jurisdictional act, in excess of the amount awarded by the court, are void.14


13 Tanner v. U. S., 32 C. Cls., 192.
      Only attorneys who actually appeared in the case can be considered in allowing fees. The court can take no notice of assignees or creditors. Where successive attorneys have appeared at different times, fees will be apportioned. Beddo v. U. S., 28 C. Cls., 69.
      Contracts for fees: The parties can not regulate the fees by contract. In fixing the fees under the statute, the eourt will apportion them according to the actual services performed and their value to the claimant, disregarding contracts. Redfield v. U. S., 27 C. Cls., 473. 14 Ball v. Halsell, 161 U. S., 72; 16 S. Ct., 554; 40 L. Ed., 622.

[Copyright 1912, 1911, 1910, 1909, 1908, 1907, 1906, 1905, 1904, and 1902 by the American Law Book Company.]


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