
    FELICIANO MONTOYA, Administrator, v. THE UNITED STATES AND THE CHEYENNE AND KIOWA INDIANS.
    [Indian Depredations, 5497.
    Decided December 21, 1896.]
    
      On the Proofs.
    
    Tbe Secretary of tbe Interior recommends tbe allowance of $1,920 to the claimant February 5, 1891, for depredations committed by tbe Cheyenne and Kiowa Indians. The defendants reopen tbe case under section 4 of the Indian Depredation Act, 1891, and submit it to the court upon the same evidence, and no other, upon which it was determined by the Secretary of the Interior.
    I.The intent of the provision in the Indian Depredation Act, 1891, “that the party electing to reopen the ease shall assume the harden of proof," is that he may have a new trial if he will, but on condition that he shall establish by evidence such facts as will lead the court to a different conclusion than that of the Secretary of the Interior. It contemplates not a re-trial, but a new trial, and places the burden of proof on the party seeking it.
    II.The party electing to reopen an Indian depredation case must concede that the award is prima facie right and must show by proof that it is wrong.
    III. The proof required to set aside an award need not be new. Suf-fficient proof may be found in the record of the case. But the court will not take up conflicting evidence and draw different conclusions from it than those reached by the Secretary of the Interior.
    IV. The court can not review a decision- of the Secretary, but it may inquire as to its own authority. The jurisdictional facts of amity and citizenship must appear on the record. If the Secretary has found facts from which the court may infer its own jurisdiction, the burden of proof is on the defendants to show want of jurisdiction.
    
      The Reporters'1 statement of tbe case:
    Tbe following are the facts of tbe case as found by tbe court:
    I. Tbe claimant presented this claim to tbe Secretary of tbe Interior February 13,1871. Tbe Commissioner of Indian Affairs reported adversely to tbe allowance of tbe claim, but on the 5th February, 1891, the Secretary of tbe Interior recommended an allowance in favor of tbe claimant for tbe depredation committed by Cheyenne and Kiowa Indians in treaty relations with the United States of $1,920.
    
      II. At tbe time of tbe depredation hereafter found tbe deceased claimant, Jose de Burjos Montoya, was a citizen of tbe United States, residing in tbe Territory of New Mexico. Tbe depredation was committed without bis consent and without any cause or provocation on bis part or that of any agent of bis, and tbe property has never been returned or paid for. And at tbe time of tbe depredation tbe defendant Indians were in amity and treaty relations with tbe United States.
    III. Tbe case having been reopened by tbe defendants under tbe Indian Depredation Act, 1891, section 4, has been submitted to tbe court upon tbe same evidence, and no other so far as relates to tbe cause of action, upon which it was determined by tbe Secretary of tbe Interior. The court, without passing upon the'evidence, as if tbe case were res nova, finds that tbe evidence was sufficient to sustain tbe award of tbe Secretary of tbe Interior, if be placed full faith and credence in tbe testimony of tbe claimant’s witnesses, and that tbe facts established by such evidence to tbe satisfaction of tbe Secretary of tbe Interior were: That tbe Indians who committed tbe depredation were the defendant Indians — tbe Cheyennes and Kiowas; that tbe depredation was committed as alleged; that tbe deceased claimant was tbe owner of tbe property, and that tbe property taken and destroyed by tbe defendant Indians was of tbe value of $1,920. Tbe court therefore finds, tbe defendants not having produced any evidence to tbe contrary, that tbe property of tbe claimant was so taken and destroyed by tbe defendant Indians, and was of the value as found by tbe Secretary of tbe Interior, to wit, $1,920.
    And upon tbe foregoing findings of fact tbe court decided as conclusion of law:
    Tbe defendants not having produced new evidence upon tbe trial in regard to the fact of tbe depredation having been committed or tbe loss and value of tbe property taken and destroyed, and tbe evidence before tbe Secretary of tbe Interior not being inconsistent with or contrary to bis award in favor of tbe claimant, but being sufficient to support tbe same, this court is thereby authorized to find tbe facts in accordance with the award of tbe Secretary of the Interior; and tbe claimant should recover, accordingly, tbe amount allowed by tbe Secretary, to wit, $1,920, from the defendants, tbe United States and the Kiowa and Comancbe Indians, of wbicb sura there shall be paid Bads, Burdett, and'Bullock, claimant’s attorneys of record, the sum of $275.
    
      Messrs. Eads, Burdett, and Bulloek for the claimant.
    
      Mr. W. H. Roleson (with whom was Mr. Assistant Attorney-General Howry) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The claim in this case was allowed by the Secretary of the Interior. The claimant rested content therewith, but the defendants elected to reopen the case, which is now submitted, except as to the jurisdictional question of amity, upon the same evidence on which it was allowed by the Secretary, and no other.

As the Secretary of the Interior and the Commissioner of Indian Affairs differed in their views of the claim, the latter reporting adversely to its allowance and the former overruling the Commissioner’s objections and allowing it, it is not improbable that if the case were coming .before the court »de¡novo, the court might reach another conclusion than that of the Secretary. The question presented by the case is as to the effect which should be given to that provision of the Indian Depredation Act (§ 4) which declares that judgments for the amounts found due by the Secretary of the Interior “shall be rendered, unless either the claimant or the United States shall elect to reopen the case and try the same before the court,” with a proviso, “that the party electing to reopen the case shall assume the burden of proof.”

The statute, it will be seen, does not give to either party a right of appeal and retrial upon the original record. It does something more than make the determination of the Secretary an allowance subject to the approval of this court. It contemplates not a retrial but a new trial, and couples with this new trial the obligation that the party obtaining it shall assume the burden of proof. It leaves such cases in this plight: That the defendants may have a new trial if they will, but upon the condition that they shall affirmatively establish, by evidence, such facts as will lead the court to a different conclusion than that of the Secretary of the Interior. Anything less than this would be simply a review of the Secretary’s decision, with authority to hold that it was erroneous. The burden of proof undoubtedly means something more than a review of proof; the party electing to reopen must do something; he must concede that the award of the Secretary is prima facie right, and he must show by proof, and not by argument, that it is wrong.

It is not to be understood, however, that this proof must in all cases be new. It is possible that the record of the case will contain such absolutely clear and convincing proof as to satisfy the requirement of the statute. If, for illustration, the claimant and all his witnesses should have testified that the value of the property destroyed was $500 and the Secretary should have found that it was $1,000, and the defendants should sub-mitithe case upon that proof, they would thereby have assumed the burden of proof. In that suppositional case there would be nothing for two minds to differ upon. It would be clear that the Secretary must have fallen into a mistake, and that his award is overthrown by the only proof in the case. But if three witnesses had testified that the property was worth $500 and a fourth that it was worth $1,000, and the Secretary had believed the fourth and disbelieved the other three, that would have been an exercise of the judicial function which the court is not authorized to review as such, and which would require the introduction of new evidence. The party electing toireopen such a case would thereby concede that there was a prima facie case against him* and that he must assume the burden of presenting stronger and more convincing proof than that which was before the Secretary. In a word, this court can not take up conflicting or differing evidence and draw from it different conclusions than those reached by the Secretary of the Interior.

In this case the decision of the Secretary was that a depredation was committed; that it was committed by Kiowa and Cheyenne Indians, and that the property taken or destroyed by them was of the value of $1,920. This award was made upon very slender evidence. It consisted of two ex parte affidavits and the reexamination of one of the witnesses by an agent of the Department. Between his ex parte affidavit and his deposition so taken some discrepancies exist which the defendants insist are material and sufficient to discredit tbe witness, but which the claimant insists are immaterial and reconcilable and leave the credibility of the witness unimpaired. The Commissioner of Indian Affairs agreed with the present view of the Attorney-General, but the Secretary of the Interior, on a review of the case, thought differently, and he entertained substantially the same view as that presented by the claimant’s counsel. The case, therefore, seems to the court one which can not be reviewed here; that the court can not say on the same record that the Commissioner was right and the Secretary of the Interior wrong; that the defendants have the burden upon them of doing something more than arguing the case and inviting the court to revise and change the award of the Secretary.

As to the jurisdictional facts of amity and citizenship, they must appear on the record. While the court can not review a decision of the Secretary of the Interior, it may nevertheless inquire as to its own authority. But here again, if the evidence before him shows facts from which the court must infer its own jurisdiction, a prima facie case is made out, and the burden of proof is upon the defendants to show that the facts found, expressly or impliedly, did not exist; to establish other and different facts by proof which will preclude the exercise of jurisdiction by the court. In this case the Secretary found that the depredating Indians were Cheyennes and Kiowas, and the new evidence produced by the defendants is not, in the opinion of the court, sufficient to overthrow the prima facie case and lead the court to a different conclusion.

The judgment of the court is that the claimant recover $1,920.  