Eutemio Montoya v. United States

• Decision Date: 11 February 1901
• Docket Number: No. 43,43
• Parties: EUTEMIO MONTOYA, Appt. , v. UNITED STATES
• Court: U.S. Supreme Court

180 U.S. 261

21 S.Ct. 358

45 L.Ed. 521

EUTEMIO MONTOYA, Appt.,

v UNITED STATES.

No. 43.

Argued December 14, 17, 1900.

Decided February 11, 1901.

This was a petition by the surviving partner of the firm of E. Montoya & Sons against the United States and the Mescalero Apache Indians for the value of certain live stock taken in March, 1880, by certain of these Indians, known as Victoria's Band.

The court of claims made the finding of facts set forth in the margin.

Upon these findings of fact the court decided as a conclusion of law that the petition be dismissed. 32 Ct. Cl. 349. Claimant appealed. Messrs. Wm. B. King and Wm. H. Robeson for appellant.

Assistant Attorney General Thompson and Messrs. Kie Oldham and Lincoln B. Smith for appellee.

Mr. Justice Brown delivered the opinion of the court:

The first section of the act of March 3, 1891 (26 Stat. at L. 851, chap. 538), vests the court of claims with jurisdiction to inquire into and finally adjudicate: 'First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.'

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 government. If the depredation be committed by an organized company of man constituting a band in itself, acting independently of any other band or tribe, and carrying on hostilities against the United States, such acts may amount to a war for the consequences of which the government is not responsible under this act, or upon general principles of law. United States v. Pacific R. Co. 120 U. S. 227, 234, 30 L. ed, 634, 636, 7 Sup. Ct. Rep. 490.

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 to the word 'nation' a 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, was 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.

We are more concerned in this case with the meaning of the words 'tribe' and 'band.' 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 though sometimes ill-defined territory; by a 'band,' a company of Indians not necessarily, though often, of the same race or tribe, but united under the same leadership in a common design. While a 'band' does not imply the separate racial origin characteristic of a tribe, of which it is usually an offshoot, it does imply a leadership and a concert of action. How large the company must be to constitute a 'band' within the meaning of the act 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.

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 same 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, § 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 inclosures, 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.

While, as between the United States and other civilized nations, an act of Congress is necessary to a formal declaration of war, no such act is necessary to constitute a state of war with an Indian tribe. In his concurring opinion in Bas v. Tingy, 4 Dall. 37, 1 L. ed. 731, recognizing France as a public enemy, Mr. Justice Washington recognized war as of two kinds: 'If it be declared in form, it is called solemn, and is one of the perfect kind; because one whole nation is at war with another whole nation, and all the members of the nation declaring war are authorized to commit hostilities against all the members of the other, in every place and under every circumstance. In such a war all the members act under a gengeral authority, and all the rights and consequences of war attach to their condition. But hostilities may subsist between two nations, more confined in its nature and extent, being limited as to places, persons, and things; and this is more properly termed imperfect war, because not solemn, and because those who are authorized to commit hostilities act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force between some of the members of the two nations, authorized by the legitimate powers.' Indian wars are of the latter class. We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch a military force for their subjugation, is sufficient to constitute a state of war. Marks v. United States, 161 U. S. 297, 40 L. ed. 706, 16 Sup. Ct. Rep. 476.

In determining the liability of the United States for the acts of Indian marauders, the 5th and 6th sections of the Indian depredation act should be considered as well as th first. By the 5th 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 ant or claimants against the United States, and against the tribe of Indians committing the wrong, when such can be identified.' Of course, if the tribe to whom the Indians belong cannot be ascertained, this will not prevent a judgment against the United States, but if their connection with a particular tribe can be established, judgment shall also go against the tribe. By § 6 'the amount of any judgment so rendered against any tribe of Indians shall be charged against the tribe by which, or by members of which, the court shall find the depredation was committed, and shall be deducted and paid' from annuities or other funds due the tribe from the United States, or from any appropriation for the benefit of the tribe.

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 § 1 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...