
    ALVIN C. LEIGHTON v. THE UNITED STATES ET AL.
    (29 C. Cls. R., 288; 161 U. S. R., 291.)
    
      On the claimants Appeal.
    
    On the 30th June, 1866, Indians belonging to the Ogalalla hand of the Sioux steal mules and horses. The Secretary of the Interior allows $4,075. The claimant elects to reopen the case. On the trial the claimant insists that he has reopened the case only on the question of damages; also that where treaty relations existed amity is not jurisdictional. The defendants contend that no treaty relations existed; also that if amity is not jurisdictional, it is nevertheless a condition to liability.
    The Court below decides:
    1. When an Indian depredation is reopened by either party, the whole case is reopened for trial de novo, subject only to the statutory provision coucerning the burden of proof. (§4, act 1891.)
    2. It has been the policy of the United States to protect the Indian tribes by legislation from the misapplication of their funds. (Rev. Stat., § 2097, 2098.)
    3. An Indian treaty providing for the payment of depredations committed by members of the tribe can not be construed to include acts of war committed by the tribe. Assuming or imposing such an obligation would be contrary to the general policy of the United States.
    4. Under the Act 30th June, 1884 (4 Stat. L., p. 731), the Indian liability arose from the taking or destruction of the property of a citizen or inhabitant by Indians belonging to a tribe in amity with the United States.
    5. A treaty obligation “to cease all hostilities against persons and property" is not an obligation to pay depredation claims.
    6. A treaty with an Indian tribe is a part of the law of the land, and where it prescribes a rule by which private rights can be determined a court will apply the rule.
    7. The United States may exact indemnity from an Indian tribe as a condition of peace or for property destroyed in war; but Congress has not conferred jurisdiction on the courts to do so at the suit of a citizen.
    8. The action of the Secretary of the Interior under the Act 39th May, 1873 (17 Stat. L., p. 190), was advisory to Congress. No right to compensation was created.
    S. The condition'of “amity" imposed by the first jurisdictional clause of the act 1891 extends to the second, i. e., amity is jurisdictional in cases “which have been examined and allotoed by the Interior Department" as well as in cases defined in the first clause. Davis and Nott, JJ., dissenting, for reasons set forth in the opinion in the next case.
    
      10. The act 1891 does not create claims nor impose new liabilities upon Indians; and the liability which the United States assume is only where the Indians are primarily liable.
    11. The act 1891 is a recognition of existing claims on the part of citizens and of liabilities 031 the part of the Indian tribes.
    12. The departmental construction of the statutes, viz, that when treaty relations existed amity was not jurisdictional was erroneous, and there being no ambiguity, it can not be adopted by the judiciary.
    13. A court can not inquire whether a treaty was properly executed or whether it was procured by undue influence.
    14. Where the political departments continued to recognize an Indian treaty, it must be inferred that the tribe was then recognized as in amity. But such a presumption is not conclusive.
    15. The amity required by the act 1891 is that of the band, tribe, or nation. Amity may exist, though individuals or a party within the tribe raid on citizens of the United States.
    16. Where the political departments of the Government have recognized a band of Indians for the purposes of a treaty, and provided therein for the payment of annuities to the band, irrespective of the nation or tribe of which it was a part, judgment may be rendered against it.
    The decision of the court below is affirmed.
    March 2, 1896.
   Mr. Justice Beewee

delivered the opinion of the Supreme Court,  