delivered the opinion of the court.
The first section of the act of March 3,1891, c. 538, 26 Stat. 851, vests the Court of Claims with jurisdiction to inquire into
To sustain a claim under this section, it is incumbent upon the claimant to prove that the Indians taking or destroying the property belonged to a band, tribe or nation in amity with the United States. The object of the act is evidently to compensate settlers for depredations committed by individual marauders belonging to a body which is then at peace with the Gov-
The North American Indians do not and never have constituted “nations” as that word is used by writers upon international law, although in a great number of treaties they are designated as' “ nations ” as well as tribes. Indeed, in negotiating with the Indians the terms “ nation,” “ tribe ” and “ band ” are used almost interchangeably. The word “ nation ” as ordinarily used presupposes or implies an independence of any other sovereign power more or less absolute, an organized government, recognized officials, a system of laws, definite boundaries and the power to enter into negotiations with other nations. These characteristics the Indians have possessed only in a limited degree, and when used in connection with the Indians, especially in their original state, we must apply tq the word “ nation ” á definition which. indicates little more, than a large tribe or a group of affiliated tribes possessing a common government, language or racial origin, and acting for the time being, in concert. Owing to the natural infirmities of the Indian character, their fiery tempers, impatience-of restraint, their mutual jealousies and animosities, their nomadic habits, and lack of mental training, they have as-a rule shown a total want of that cohesive force necessary to the making up of a nation in the ordinary sense of the word. As they had no established laws, no recognized method of choosing their sovereigns by inheritance or election, no officers with defined powers, their governments in their original state were nothing more than a temporary submission to an intellectual or.physical superior, who in some cases ruled with absolute authority, and in others, ivas recognized only so long as he was able to dominate the tribe by the qualities which originally enabled him to secure their leadership. In short, the word “ nation ” as applied to the.uncivilized Indians is so much of a misnomer as to be little more .than a compliment.
Whether a collection of marauders shall be treated as a “ band ” whose depredations are not covered by the act may depend not so much upon the numbers of those engaged in the raid as upon the fact whether their depredations are part of a hostile demonstration against the Government or settlers in general, or are for the purpose of individual plunder. If their hostile acts are directed against the Government or against all settlers with whom they come in contact, it is evidence of an act of war. Somewhat the saihe distinction is applicable here which is noticed by Hawkins in his Pleas of the Crown, and other ancient writers upon criminal law, as distinguishing a riot from a treasonable act of war. Thus it is said in Wharton on Criminal Law, section 1796, summing up the early authorities, (though never accepted as a definition of treason in this country): “ That constructive levying of war, by the old English common law, is where war is levied for the purpose of producing changes of a public and general nature by an armed force; as where the object is by force to obtain the repeal of a statute, to obtain the redress of any public grievance, real or pretended; to throw down all enclosures, pull down all bawdy houses, open all prisons, or attempt any general work of destruction; to expel all strangers, or to enhance the price of 'wages generally; ” but if these acts were , directed against a particular individual they would amount to nothing more than an assault or riot.
In determining the liability of the United States for the acts of Indian marauders, the fifth and sixth sections of the Indian Depredation Act should be considered as well as the first. By the fifth section “ 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.” Of course, if the
It is not altogether easy to reconcile the language of these sections, which seem to contemplate that the government may be liable for depredations committed by a tribe, with that of section one under which the jurisdiction of the Court of Claims is limited to the acts of “ Indians belonging to any band, tribe or nation, in amity with the United States; ” but the main objects of sections five and six would seem to be to impose upon the tribes the duty of holding their members in check or under control, and for a failure so to do to fix upon the tribe the responsibility for the acts of individual members acting in defiance of the authority of their tribe or band, upon the same principle that, by sundry statutes in England and in several of the United States, the hundred or the municipality is made responsible in damages for the acts of rioters. Like the English statutes, too, many of. the Indian treaties provide that if the property be restored or the guilty members be delivered up for punishment,, no pecuniary indemnity shall be required. On the other hand, if the marauders are so numerous and well organized as to be able to defy the efforts of the tribe to detain them, in other words, to make them a separate and independent band, carrying on hostilities against the United States, it. would be obviously unjust to hold the tribe responsible for their acts. ■ It can hardly be supposed that Congress would impose a liability upon tribes in amity with the United States, for the acts of an independent band, strong enough to defy the authority of the tribe, although it would not be inequitable to hold the tribe liable for individual members whom it was able, but had failed, to control.
Gauged by these considerations it is clear, that the Court of
It appears that prior to 1876 the Chiricahua Apache Indians, who .numbered from three to five hundred warriors of a particularly savage type, were living on a reservation of their own in Arizona; and that during that year the department determined to remove these Indians and locate them upon another reservation, where they could be more easily restrained from, hostile acts. A part of them resisted, and about four hundred, under the leadership of Yictoria, began roaming about Old and New Mexico, committing depredations and killing citizens. These ■ hostile demonstrations continued until •December, 1878, soon-after which Yictoria made an offer of surrender on a condition that was not performed, and in the following 'spring he again took the field, pursued by the military forces into Arizona, and subsequently escaped into Mexico. Soon thereafter he was indicted in New Mexico for murder and horse stealing, when he went west and began marauding, destroying property and killing citizens, and so continued during the latter part of the winter and early spring of 1880. The operations against them continued until they were' driven by the troops across the Rio Grande River, where a severe engagement ensued ánd a number of Indians, including a son of Yictoria, were killed. The band appears to have been of sufficient strength and consequence to have been made the object of a military expedition, which operated upon both sides of the Mexican line, and finally resulted in a battle in Mexico in the autumn of 1880, where Yictoria and most" of his followers were killed. The Indians constituting this band seem to have belonged to different tribes of Apaches, and were about two
As it appears that the Mescaleros who committed the depredation were a part of Victoria’s band, operating with them, and that such band was carrying on a war against the Government as an independent organization, we think they were the band — the unit, contemplated by.the act, and not the Mescalero tribe then living in peace upon their reservation near Fort Stanton, although the particular marauders in question had belonged to that tribe before they joined Victoria’s band. If the Mescalero tribe were held responsible for their acts it would follow that every tribe, members of which allied themselves with Victoria and shared in his acts of hostility, would be pecuniarily liable for all damages inflicted by a band over whom they cpuld have no control. Such consequences would be so inequitable we cannot suppose them to have been contemplated by Congress.
The judgment of the Court of Claims is
Affirmed.