29 Ct. Cl. 107 | Ct. Cl. | 1894
delivered the opinion of the court:
On the 13th of September, 1877, the United States were engaged in a somewhat celebrated Indian war with a body of Indians known as Joseph’s band of the Nez Perce''Indians. At that time the Indian defendants in this case were not only at peace with the United States, but acting as their military allies.
The international character of the band was this: In 1855 they were directly or indirectly parties to the treaty with the Nez Perces. (12 Stat. L., p. 957.) It appears by the treaty that one of the chiefs who signed it was named Joseph, and it
At the same time the agent having charge of the Nez Perces, the defendants in this suit reported as follows:
“As soon as the war broke out the Indians living on the reservation, with but very few exceptions, and those living outside immediately took sides with the Avhites and rendered valuable assistance to the army as scouts, carriers of dispatches, keeping the different commands informed as to the movements of the hostiles, and in furnishing horses. The exceptions referred to above were not treaty Indians. I do not know of a single Christian Indian having left his home and joined the hostiles.”
It is clear, therefore, that at the time when this depredation was committed, first, that Joseph’s band were, in fact, a separate tribe or band or Indian organization; second, that the United States had recognized their separate existence or autonomy, and had accorded to them the belligerent rights of surrender as prisoners of war; third, that the Nez Perces Indians who are defendants in this suit did not commit the
By the Act 30th June, 1834 (4 Stat. L., p. 729, § 17), it was provided as follows: “The United States guarantee to the parties so. injured an eventual indemnification.” But this provision was repealed by the Act 28th February, 1859 (11 Stat. L., p. 388, § 8), and there was no subsequent assumption of liability by the United States until the Indian Depredation Act of 1891.
Under that statute the United States are responsible to claimants only in two classes of cases: First. Where the Indian defendants are responsible but are without funds to respond in damages. Second. Where the depredations were committed by Indians whose tribal relations can not be ascertained. In this case the claimant has not complied with these conditions. The defendant, Indians are not liable, because they did not commit the depredation. The United States are not liable, because the Indians who committed the depredation, and who were perfectly well known, have not been made parties to the suit. It is a fatal nonjoinder of the responsible party.
There is also a question relating to the quantum of damages, which may bo of importance as affecting the claimant’s right of appeal. This is one of those cases which were investigated and allowed by the Secretary of the Interior, and it has been reopened at the election of one of the parties. That party was the claimant, and the statute provides (§ 4) “that the party electing to reopen the case shall assume the burden of proof.”
The claim was presented to the Interior Department by ex parte affidavits on the part of the claimant, and it was reconsidered on ex parte affidavits taken on behalf of the Government. Upon the uncontradicted affidavits of the claimant the Secretary of the Interior allowed $6,500; upon the reconsideration of the case he allowed $285. The two sets of affidavits presented a case of conflict of evidence, and the Secretary ascribed credibility to those on behalf of the Government and discredited those on behalf of the claimant. That he had sufficient grounds for doing so; i. e., that his conclusion was not unsupported by the evidence, is apparent from an inspection of the record. It was a case where a jury might believe the testimony of either party, and the verdict, whichever way it went, would not be disturbed as against the weight of evidence.
In these Indian depredation cases a wider latitude of investigation exists than in tbe Southern Claims Commission and Quartermaster-General cases. Yet where a case is opened by a party on no other ground than tbe question of damages, and be submits it on no other evidence than that on wbicb it was considered by the Secretary of tbe Interior, tbe court will not lightly disturb tbe award. In tbe present case, tbe court is satisfied from an examination of tbe evidence that tbe amount allowed was substantially correct; that the damages alleged were grossly exaggerated. Aceordin gly, the value of tbe property destroyed is fixed at tbe amount of tbe award, $285.
Tbe judgment of tbe court is that tbe petition be dismissed.