
    ELIJAH W. DOBBS v. THE UNITED STATES AND THE APACHE INDIANS.
    [Indian Depredations, 1428.
    Decided March 21, 1898.]
    
      On the Proofs,
    
    The CJiirieahuas are in amity on September 30, 1881, living within the San Carlos Reservation. On October 1 they leave the reservation. On the 2d there is a collision between some of them and United States troops. On the 3d they attack wagon trains, destroy prop-erty, and kill teamsters. They are in their war paint, and on subsequent days are pursued by the troops. In eight days from the outbreak they take refuge in Mexico.
    I.If Indians exercise their natural right and escape from a reservation and make their way to Mexico without hostile demonstration or acts of violence, except in self-defense, they are still in amity; hut if their conduct is that of a retreating enemy, they are not in amity.
    II.The Chiricahua outbreak of 1881 was a war of only eight days. It terminated not by a voluntary return to peace, but by the interposition of an international barrier.
    III. Where a party of bad white men or bad Indians engage in rapine or murder and the rest of the community or tribe do not take np arms it is crime, not war; but where every man on the one side is ready to kill any man on the other and military operations take the place of peaceful intercourse, amity ceases to exist and the purpose of the statute allowing indemnity is at an end.
    IV. A “tribe, band, or nation," within the meaning of the statute, is the Indian entity which is entitled to receive annuities, which is recognized as such by the Interior Department, and is liable to respond in damages. Such a band, however insignificant or unorganized, has an interest in a suit and a legal right to defend,
    V.If a tribe or band, in its political relations with the Government, was not in amity it is not subject to the jurisdiction of the court.
    VI.The Southwestern tribes during the last fifty years have had no definable tribal entity and have been little more than robber bands.
    '■VII. In applying the rule.in Tally v. The Apache Indians (32 C. Cls R., 1) the court has had to recognize bands which simply existed without recognition either by the Interior Department or the tribes from which the members of the bands came. Victoria’s was a combination of individuals from different bands without geographical home or habitat; Black Hawk’s, a combination associated for plunder.
    
      YIII. The principle which governs in such cases is that a tribe in amity can not he held responsible for the acts of its members who sepa- ' rated from it to engage in organized warfare.
    IX. The Chiricahua Apaches were an isolated mountain band with a distinct habitat, and in their outbreak and escape from a reservation, in 1881, retained their tribal distinctiveness. They can not be regarded as an integral part of all the Indians on the reservation; and the Indians on the reservation can not be regarded as a new distinctive Indian tribal organization responsible in damages for the depredations of the Chirieahuas.
    
      The Reporters’ statement of the case:
    „ The facts relating to the depredation and the acts of the Indian outbreak are thus narrated by the claimant in his testimony and the agent of the Chirieahuas in his official report:
    “About October 2, 1881, I dispatched one of my teams, consisting of 10 mules and 2 horses with 3 wagons loaded with about 17,000 pounds of commissary stores for the United States military post of Camp Thomas, about 65 miles north of Will-cox, under charge of my nephew, George Dobbs. After teams had left Willcox some hours I had information that certain Indians from San Carlos Indian Beservation were out upon a hostile raid and moving in a southern direction and might cross the road my teams must take; sent a messenger after my nephew with orders to stop at Hudson’s ranch, about 12 miles from Willcox, and remain there until the movements of the Indians were certainly known. Hudson’s ranch buildings occupied a position in entirely open level ground, where view is unobstructed for miles in every direction, and there were there besides my nephew several men on thewatch. My animals were allowed to graze in immediate vicinity of buildings and .not allowed to get out of sight and gunshot. In afternoon of October 3 Indians approached said ranche buildings in such large numbers and so well armed that men stationed there were unable to prevent them from seizing and driving away such animals as they choosed. They took and drove away of my property 1 horse, value $125; 8 mules, value $125 each; 2 mules, value $175 each, besides a number of animals of A. J. Hudson. These Indians were a part of a tribe of Chiricahua Apache Indians, who had resided on San Carlos Indian Bes-ervation as reservation Indians, and were then under the charge of United States Indian Agent J. C. Tiffany and resided at the subagency, 15 miles distant east of San Carlos, and who on the night of September 30,1881, left said place of residence, about 90 men armed with guns and ammunition, and with their women and children and personal effects made a hostile and predatory march across that part of the Territory of Arizona lyin g between said subagency and the State of Sonora, Mexico; killed many persons; captured and took into Sonora large numbers of horses, mules, and cattle stolen from settlers and teamsters found along tbeir line of march. Previous to arrival at Hudson’s ranch the Indians had been followed by a portion of the military forces of the United States, and on Sunday, October 2, had a skirmish with the military. • In night of October 2 Indians moved through western side of Sulphur Springs Valley and into the foothills of Gil ero Mountains, while the military moved to the eastern side of said valley to Fort Grant. Indians then on October -3, after sending women and children to the western side of Geniero Mountains, ravaged the ranch of II. 0. Hooker, and then came to Hudson’s ranch, 17 or more men, the remainder driving captured stock along the eastern basis of the mountains toward Point of Mountains. When Indians were leaving Hudson’s ranch with my animals, Lieutenant Overton, U. S. A., arrived with a company of United States cavalry, upon which the persons gathered there, and especially Hudson, urged Overton to go at once in pursuit of Indians and themselves offered to go with them; but orders of his superior officer compelled Overton to refuse and march with his command to Willcox. Same night at Willcox, I am informed, citizens, and especially H. 0. Hooker and A. J. Hudson, urged the commander of the United States military forces in Arizona, Gen. O. B. Willcox, to take positions at the line of the Southern Pacific Railroad, where Indians would have to cross, and might be intercepted and stock recovered. But no movement of troops was made until afternoon of October 4, when Indians had already crossed railroad with their women, children, and animals. I was upon a train on railroad and witnessed the crossing of Indians, who had with them several hundred head of animals. I arrived at Willcox in time to take up pursuit of these Indians with a detachment of troops under Burnard Carroll, and remained' with them two days,, until Indians had got so far ahead that I considered further pursuit useless.”
    January 23,1882, United States Indian Agent J. C. Tiffany, in a detailed report of the losses of traders.and settlers at the hands of the Chiricahua Apache Indians generally, states in reference to this claim as follows:
    “The Chiricahua Apaches, then numbering about 74 men and 200 women and children, were located on the San Carlos Indian Reservation in Arizona, at what was known as the sub-agency, on the south side of the Gila River, and distant 15 miles east of the San Carlos agency and about 20 miles westerly from the military post of Camp Thomas. These Indians were under my care, as agent, and under the immediate supervision of Issue Clerk Ezra Hoag, who resided there with them. They comprised the remains of the tribe of the celebrated Chief Cochise and inTSeptember last numbered about 74 men and 200 women and Children. Up to this time they were quiet, remained on the reservation, and gave no more trouble than any other Indians. Some of the young men, however, were charged with participating in the difficulties at Cibicu on the White River Canyon, in the early part oi September, and in connection with the matter of their arrest. * * * Owiug to the movements of the military in their sight and neighborhood, the Ohiricahuas having, as j. believe, no intention of leaving the agency, on the 29th and 30th became greatly alarmed and determined to break out and leave in the night following: about 11 o’clock p. m. they left their huts and moved away about 12 miles, where they made a temporary camp. They owned some stock, but did not take time to collect it or but a portion of it. At the above-mentioned hour in the night, as nearly as I can ascertain, they had their effects all packed up, and started off at once with all of their women and children. Their intention from the start was evidently to escape entirely from the jurisdiction of the United States and into the State of Sonora, Mexico. For this reason, and because they expected to be followed rigorously, they set about seizing horses and mules. * * * And by the middle of the afternoon (October 3) those on the east side of the mountains had made their way with their largely increased herd of animals nearly or quite to the lower end of the Galurio ranch, to an old station known as Point of Mountains, except a small body of 15 or 20 bucks who rode farther eastward, quite to the middle of Sulphur Springs Valley and to Hudson’s ranch. * * * Here they got more stock and, in full view of Hudson’s men, fired upon the horses and got off with their plunder. As they were leaving the ranch for their main body at Point of Mountains and when they were about 4 or 5 miles distant Lieutenant Overton arrived with his company of soldiers. The Indians were a short distance in advance and Lieutenant Overton was about to pursue them, when deeming it advisable under orders from his superior officer at Willcox, he proceeded to that place.”
    
      Mr. A. J. Willard and Mr. W. B. King for the claimant:
    The action of the Indian Office should be regarded as conclusive as to the Indians by whom the depredation was committed and their relations with the United States at the time.
    It seems that the Indians were afraid of punishment by the military for some past act or supposed misconduct, and, seeing the troops near their reservation, started for Mexico. It is evident that they had no idea of antagonizing the United States military, but, on the contrary, were flying from them. It is equally clear that the military were not active in resisting their movements or these depredations could not have been committed. It was the work of fifteen or twenty Indians separated from the main body, showing that they were not in the presence of or fearing the United States troops, for if they had, the plundering band would not have separated from the main body.
    Lieutenant Overton arrived with a company of soldiers immediately after the depredation was committed, when the Indians were but a short distance in advance, but was unable to pursue them, being under orders to go to Willcox. These circumstances show conclusively that the military did not recognize the state of war with the Indians, for if such had been the case Lieutenant Overton would have been relieved from his orders to report at Willcox by an emergency that superseded orders of a general character.
    The case is simply one of a party of Indians attempting to leave the country and plundering by taking stock as they went. It is evident that this is a state of amity, and that the act of the Indians was a depredation and not an instance of the state of war.
    
      Mr. Lincoln B. Smith for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court.

The essential facts of this case are these:

On the 30th of September, 1881, the Ohiricahua Apaches were living at peace with the United States on the San Carlos Reservation in Arizona. On that day the approach of a body of troops awakened their suspicion, which increased into apprehension, that they wore to be attacked, punished, or removed. On the 1st of October they broke away from the reservation, like a nomadic tribe, carrying with them their wives and little ones and flocks and herds. On the 2d of October there was a collision between a portion of their number and a body of United States troops at a place called Cedar Spring, near Fort Grant. On the 3d the Indians attacked wagon trains, 12 miles north of Willcox, seizing and destroying the property and killing the teamsters. On subsequent days they were pursued by troops. They were in their war paint, the men of the band being in effect an armed rear guard. In eight days from the time-of their outbreak they crossed the line and took refuge in Mexico.

On these facts the position of the claimant is that these Indians were still in a state of amit.y with the United States; that they were not waging war; that they were exercising the right of removing to another country, of expatriating themselves ; that they sought no encounter with troops of the United States; that the collision at Cedar Spring was caused by the troops firing on the Indians, and not by the Indians attacking the troops; that the seizure of supplies was incidental to their forcible escape, and, though not lawful, was not belligerent; and, finally, that their show of armed resistance to the pursuing troops was a part of the same intention to leave the country by the use of force, if necessary, but was not an act of war.

If these Indians had exercised their natural right of escaping from the reservation and making their way to Mexico, with no hostile manifestations and no acts of violence except in self-defense, it might be said that they, in a negative way, were still in amity with the United States;' but where every act was that of a retreating enemy, not resisting in self-defense, but needlessly killing and destroying, and, as in civilized warfare, regarding every individual on the one side as the enemy of every individual on the other, it can not be said that they were in amity with the United States. It was a war of only eight days, but it terminated, not by a voluntary return to the condition of peace, but by the interposition of an international barrier.

The books hold that when war exists every citizen of one belligerent is the enemy of every citizen of the other. Conversely, this court holds that when every white man, at a given time and in a certain territory, is found to be the enemy of every Indian, and every Indian is found to be the enemy of every white man, a condition of amity does not exist within the meaning of the fifty statutes which employ the word “ amity” to prevent war upon the frontier. If a party of bad white men or a party of bad Indians engaged in rapine and murder and the remainder of the white community and of the Indian tribe did not take up arms, it was crime, but not war. If, on the contrary, the condition of affairs was such that every man on the one side stood ready to kill any man on the other side and military operations took the place of peaceful intercourse, hostility so far existed that amity ceased-to exist and the purpose of the statute in allowing indemnities was at an end.

It has been urged in this and other cases that when a num ber of Indian tribes have been removed to a reservation the tribal entity of each ceases; that they become in legal effect one tribe, and that the question of amity is to be directed to all of the Indians thus brought together. That is to say, the question to be considered is not whether a majority of the Ohiricahuas, or of the JVIescaleros, or of the Mimbres, remained in amity, but whether a majority of all the Indians on the reservation remained in amity.

This Indian depredation act has brought before the court two legal problems of extreme difficulty, which are closely related and yet which are not identical. The first is that oi a proper party defendant. What is a “tribe, baud, or nation'’ as party defendant within the intent of the statute? The answer to this question has been given before — that it is the Indian entity or body politic which may be entitled to receive annuities, which is or may be recognized as such in the Interior Department, and consequently which may be liable to respond in damages, if judgment goes for the claimant in the case. It is manifest that such a band, tribe, or nation, however insignificant or unorganized, has an interest in the suit and a legal right to defend.

The second legal problem to be solved is that of a tribe or band in its political relations with the Government. What is the tribe, within the intent of the statute, which must be in amity with the United States?

The court, in some of the cases heretofore decided which presented this question, applied to it the principles applicable to conditions of peace and war between civilized nationalities. In the cases of the well-defined Indian tribes with whom we have entered into separate and distinct treaties, with whom we have distinctively engaged in war, and wifh whom we have specifically made peace, this application of the principles of international law cleared the cases from obscurity and made the determination of the question involved comparatively easy. But as the litigation of these Indian depredation cases has gone on the fact has become more and more apparent that the Southwestern tribes during the last fifty years have had no defined or definable nationality or tribal entity, and that they were little more than robber bands dwelling in the fastnesses of the mountains or moving like Arabs on the arid plains. The Apaches, for illustration, supposed to be one people, were a unity only in race. In fact they consisted of bands having different habitats, with no common purpose, no semblance of government, tribal or confederate, occasionally cooperating in war against a common enemy, as civilized nations do, but being in their several entities each as distinct as if the others did not exist. They had no “long house,” like the Iroquois, in which the representatives of the Six Nations met to confer concerning the common welfare, and no several organization. These bands, too, were each of them paltry in numbers, so paltry that if they had appeared as rioters in one of our great cities the local police would have overcome them and restored order, without the aid of the military, in a single day. Their strength was not in numbers or organization, but in their incomparable bravery, hardihood, and military genius — a genius which, until General Crook made friends with a portion of them and organized Apache scouts to follow and fight Apache Indians, had successfully resisted and eluded the military forces of the United States and Mexico. More than a hundred years ago the Apaches required the presence of 4,000 Spanish dragoons to protect the Mexican frontier.

In dealing with the question of the amity of such a tribe as a band of the Apaches, the court has been more and more compelled to fall back upon the purpose of the earlier statutes which created a liability and gave to these claimants their right of action. That purpose, as has been said before, was to keep the peace — to prevent Indian warfare upon the frontier. The Government said both to the white man and to the Indian, “This depredation or this outrage is wrong, is indefensible, and you shall be indemnified for your losses so far as property is involved, provided always that you refrain from war.” If the frontiersmen and the Indians did not comply with this simple condition, if the purpose of offering the indemnity was not effective, the claimants have no right to seek it under the act of 1891.

The practical question, then, is, Who were the Indians whose amity was to be maintained1? Who were the Indians so affiliated with the depredators in fact that the depredators might reasonably be regarded as a part of them and they be regarded as a body whose amity it was desirable to maintain

In dealing with this question the court has held, first, that a nation, tribe, or band will be regarded as an Indian entity where the relations of the Indians in their organized or tribal capacity has been fixed and recognized by treaty; second, that where there is no treaty by which the Government has recognized a body of Indians, the court will recognize a subdivision of tribes or bands which has been recognized by those officers of the Government whose duty it was to deal with and report tbe condition of tbe Indians to the executive branch of the Government; third, that where there has been no such recognition by the Government, the court will accept the subdivision into tribes or bands made by the Indians themselves. (Tully v. The Apache Indians, 32 C. Cls. R., 1.)

But in the application of this rule the court has had to go further and recognize bands which simply in fact existed, irrespective of recognition, either by the Department of the Interior or the Indian tribes from which the members of the band came. Victoria’s band of Apaches was merely a combination of individuals from different bands associated together for the purpose of waging war against the United States. The band did not exist until its warfare began. It had no geographical home or habitat. A ferocious sense of injustice induced the Indians to prefer death to submission, and they fought the troops of the United States until the band and its members were extinct. (Montoya v. The Mescalero Apaches, 32 id., 349.) Black Hawk’s band was a combination of individuals from different bands associated for the purpose of ravage and plunder. Their predatory warfare continued during a period of three years, and when it was brought to an end, the band dissolved and its members merged in the bands whence they had come. (Herring v. The Ute Indians, ib., 536.) The principle which governed these cases was that a tribe in amity could not be made responsible for the acts of its members engaged in organized warfare, and that where there was a state of actual warfare there was no amity, and consequently no jurisdiction. Generally it maybe said that whenever it appears that the depredations complained of were not the exceptional acts of individual Indians, members of a tribe or band in amity, but were of such a general nature that they must be characterized as incidents of an existing Indian war, no liability on the part of the tribe can be maintained, and the jurisdiction of the court is at an end.

The Ohiricahuas were an isolated mountain band; they had their .own habitat in remote valleys distinct from the valleys or mountains of the other bands; they fought their own battles; they pursued their own policy; they were hunted down and captured as Ohiricahuas and were brought in and placed upon a reservation as a distinct and well-known military enemy. On the reservation they remained distinct, neither in fact nor in a legal sense merging with the other tribes. In their outbreak and escape from the San Carlos Eeservation, in 1881, they still retained their tribal distinctiveness. For the court to hold that they had become an integral part of all the Indians upon the reservation and that all of the Indians upon the reservation, little better than prisoners of war, had become a new, distinctive Indian nation or tribal organization would be to introduce a new and artificial element into this branch of litigation founded not on the facts of the case but on a speculative theory.

It must therefore be held in this case that the Ohiricahuas were the Indian tribe or band whose amity was essential to liability on the part of the Government, and that they were not in amity at the time when this depredation was committed.

The judgment of the court is that the petition be dismissed.  