Marks v. United States

• Decision Date: 02 March 1896
• Docket Number: No. 352,352
• Parties: MARKS et al. v. UNITED STATES et al
• Court: U.S. Supreme Court

161 U.S. 297

16 S.Ct. 476

40 L.Ed. 706

MARKS et al.

v UNITED STATES et al.

No. 352.

March 2, 1896.

C. A. Keigwin and A. H. Garland, for appellants.

On July 8, 1891, appellants, as claimants, filed their petition in the court of claims, under the act of March 3, 1891 (26 Stat. 851),¹ to recover the sum of $11,800, the value of certain personal property charged to have been taken and destroyed by the Bannock and Piute Indians during the month of June, 1878, in Happy Valley, in the state of Oregon. Subsequently they filed an amended petition. In that it was alleged that the Bannock and the Piute Indians were 'in amity with the United States' at the time of the taking and destruction of the property; that they were 'chargeable for said depredation, and under an obligation to pay for the same, by reason of the provisions of the treaty of July 3, 1868, between the United States and the Shoshone (Eastern band) and the Bannock tribes of Indians'; and, further, that petitioners 'presented their said claim to the hon. commissioner of Indian affars (No. 4,915), July 27, 1888, for payment, but the same has not been returned or paid for.' A traverse having been filed by the government, the case was submitted to the court, which on February 27, 1893, made a finding of facts, and thereon entered judgment dismissing the petition. 28 Ct. Cl. Rep. 147. The seventh finding of fact was as follows:

'From these facts, the court finds the ultimate fact—so far as it is a question of fact—that the tribes or hands of Piute and Bannock Indians were not in amity with the United States at the time the depredations complained of were committed.'

From the judgment thus entered in favor of the defendants the claimants duly appealed to this court.

Asst. Atty. Gen. Howry, for appellees.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

This case, like that of Johnson v. U. S., 160 U. S. 546, 16 Sup. Ct. 377 (recently decided), involves a construction of the Indian depredation act of March 3, 1891. The particular language to be considered is that found in the first clause of the act, which grants to the court of claims jurisdiction over claims for property 'destroyed by Indians belonging to any band, tribe, or nation, in amity with the United States.' The seventh finding negatives the existence of amity, and if this stood alone there would be no room for discussion. But, as appears from its terms, it is based upon a series of facts stated in detail in prior findings, and is also to be taken in connection with the treaty entered into between the United States and the Bannock tribe of Indians, of July 3, 1868 (15 Stat. 673), which contains, among other provisions, the following:

'If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, on proof made to their agent and notice by him, deliver up the wrongdoer to the United States, to be tried and punished according to its laws; and in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the president, on advising with the commissioner of Indian affairs, shall prescribe such rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no such damages shall be adjusted and paid until thoroughly examined and passed upon by the commissioner of Indian affairs, and no one sustaining loss while violating or because of his violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor.'

Turning to the prior findings, it is stated in the second that 'the Bannock and Piute Indians made a raid,' in which the property in controversy was destroyed, and also that 'the Indians numbered between five hundred and six hundred, and were in a body or band, moving in concert, having the form of an Indian military organization.' Other findings (which consist largely of telegrams and reports from various officers of the army and other officials, narrating at length a series of military operations during the years 1877 and 1878, which documents are, by section 4 of the act of 1891, made competent evidence, and which are too voluminous to be copied into this opinion) show that what was done by the Indians was done by them as tribes, and not by a single individual, or a few in opposition to the will of the tribes. They show that these Indians were actually engaged in hostility, and that they were finally conquered and captured only by the military forces of the United States. Indeed, counsel for the claimants practically admit this, for in their brief it is stated 'that at various times in the spring of 1878 small bands left the reservation for the sake of obtaining food, until finally the majority of the tribe were absent; that in the month of June, 1878, the absentees began killing white people, after which date the several bodies of Indians carried on a raid over a large area in Idaho and Oregon, which was finally checked by the efforts of troops of the United States; that the troops were more or less actively engaged in suppressing the outbreak until the latter part of August, 1878; and that the Indians were captured and returned to their reservation shortly after the last-named date.'

Their contention is, rather, that actual hostilities may exist without war between two nations; that war is a political status, and to be determined by the political department of the government, by matter of record, and never by oral testimony; that it is not pretended that there was ever any formal declaration of war by either the Bannock tribe of Indians, or the United States government; that, therefore, the political relations established by the treaty of 1868 continued during all these hostilities, and the tribe was 'in amity with the United States'; and, further, that subject and dependent people, like the Bannock Indians, are not capable of making war with the United States. In support of this contention are cited a number of declarations of publicists and decisions of courts, such as the following from Chancellor Kent: 'But, though a solemn declaration or previous notice to the enemy be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.' 1 Kent, Comm. 55. And this from People v. McLeod, 1 Hill, 377, 407: 'A state of peace and the continuance of treaties must be presumed by all the courts of justice till the contrary be shown, and this is presumptio juris et de jure until the national power of the country in which such courts sit officially declares the contrary.'

Without questioning these declarations and decisions as applied to the relations between independent nations, we think they avail but little in the...