
    BERNARDO VALENCIA v. THE UNITED STATES AND THE APACHE INDIANS.
    [Indian Depredations 3829.
    Decided June 22, 1896.]
    
      On the defendants' Motion.
    
    The claim having been allowed by the Secretary of the Interior, judgment is entered withon fc objection. The defendants now move to vacate-it because it appears that the depredation was committed by a band of the Apache Indians, not in amity.
    I.The court is inclined to accept the status of Indians for peace or war as defined by the Interior Department. But these Indian wars and hostilities are so frequent, changeable, and ill dofined that-this can not always be done.
    II.Where a band of Indians entered into an agreement with the authorized representative of the United States, ceased to make war, awaited the fulfillment on the part of the United States of an agreement which would make peace permanent, it must be held that they were then in amity.
    III.The Mimbres Apaches were in amity from October 10, 1869, until at-least January 18, 1870.
    IY. Where a judgment has been entered against the Apache Indians and it appears that the depredation was committed by the Mimbres Apaches, a band of the Apache race, the judgment will not be vacated, but will be made definite and certain without disturbing it by filing an additional finding of fact for the information and guidance of the Executive Departments.
    
      The Reporters statement of tbe case:
    Tbe facts and circumstances relating to tbe motion will be found set forth in tbe opinion of tbe court.
    
      Mr. Lincoln B. Smith (with whom was Mr. Assistant Attorney-General Bowry) for tbe motion.
    
      Messrs. Bads Burnett and Bulloch opposed.
   Nott, J.,

delivered tbe opinion of tbe court:

Tbe claim in this case was one of those allowed by the Interior Department. Neither party moved to reopen tbe adjudication of the Secretary and judgment was entered for tbe amount allowed by him, $1,800, January 4th, 1893. Tbe judgment followed in form tbe title of tbe case and was against tbe United States and tbe Apache Indians.

The defendants now move to vacate and set aside the judgment upon several grounds, only two of which need be considered.

The first of these is that the depredation was committed by the Mimbres Apaches, a band of Apache Indians who were not in amity with the United States at the time of the depredation.

The depredation was committed in January, 1870, near Fort Bayard, New Mexico.

The Commissioner of Indian Affairs, in his annual report for 1869, says:

“As more than one-third of the Indians in Arizona are at war with the whites, there are necessarily many complaints of depredations committed by Indians, who, when the facts are known in time, are habitually pursued, and sometimes overtaken, though success seldom attends the efforts made to recover stolen stock.

“As already narrated, there have been instances of whites committing outrages on Indians, but the latter seldom complain, considering it of no use, but, when able, retaliate by murdering and plundering indiscriminately.”

The agent for these Indians reported in August, 1869, and his report has the sanction of being attached to the annual report of the Secretary of the Interior, as follows:

“The Mimbres Apaches, all told, number about eight hundred souls, and have about one hundred and fifty to two hundred warriors; and, I believe, since 1861 have done more harm and committed more depredations than the same number of Indians in any part of the United States.

“ The Gila and Mogollon Apaches — taking their names from the localities they infest — are of the same general nature aud habits as their Mimbres congeners, but being more remote from the present settlements are less destructive to life and property. I should estimate their number as about the same as the Mim-bres band.

“ The condition of these Indians is the same as at the date of my last report. Their leading men have represented to different parties that their people were tired of war, and if the Government would protect and look our for them as it does for other tribes of Indians they would make peace.

“ I would respectfully recommend that this peace be made, and that they be placed upon a reservation, as recommended by Major William Clinton, U. S. Army, superintendent of Indian affairs for the Territory of New Mexico. The mode of warfare now carried on against them is costly and futile. It costs the Government more to keep troops, animals, etc., for tbe pursuit of these Indiaus in one year than it would to feed them for three years. * * *

"The Government has, during the past six years, spent at. least one hundred thousand dollars and lost many valuable lives in this warfare with these Indians, and actually nothing has been accomplished. Experience has taught us that, owing-to their peculiar mode of warfare and knowledge of the country, where one Indian is killed there are ten whites killed; not soldiers, but hardy pioneers, who come to further civilization and develop the resources of the country.”

The court is inclined to accept the status of Indiaus for peace- or war as it is defined by the Interior Department. The Secretary of the Interior has much the same official relations with them which the Secretary of State has with foreign nations j. and in political matters the judiciary follows the determinations of the political departments of the Government. These Indian wars and hostililties, however, are so frequent, changeable, and ill defined that this can not always be done, the knowledge of the Secretary being i n fact the reports of Indian agents in the field, and the belligerent Indians being often unidentified and a subject of conjecture or infereuce. Affairs, moreover, change rapidly in the Indian country, and the annual report of the Secretary or Commissioner of Indian Affairs, bearing date of November 1st and prepared for the ensuing-session of Congress really refers to transactions which may have occurred months before the report is written. Thus, in the present case, while the Commissioner of Indian Affairs-was writing his annual report in Washington the following, events were occurring in the mountains of New Mexico:

“ Fort McBae, N. M., September 3,1869.

"Sir : I have the honor to state that, in compliance with instructions received from Major William. Clinton, United States Army, superintendent of Indian affairs for New Mexico, I proceeded toward Fort Bayard, New Mexico, to endeavor to communicate with the Southern Apache tribe of Indians.

# & * * -X: # =&

“I immediately proceeded to Fort McBae, and with the assistance of the commanding officer of the post, Brevet Lieutenant-Colonel J. O. Gilmore, Thirty-eighth United States Infantry, I found some Mexicans who were willing to go to the chief and endeavor to bring him in. After three days, Loco, chief of the Mimbres tribe, came, accompanied by three warriors and four squaws. I then, through the méans of interpreters, had a talk with them, at which the officers of the post were present. From this interview I learned that he (Loco) is willing to abandon tbe warpath, and says he can speak for all of his tribe. He says that they want peace, and good peace, and no lie (as he expresses himself). Loco also says that Lopez, one of the chiefs of the Gila Apaches, who range in the Burror Mountains, is at his camp, and that Lopez’s tribe are willing to come in after they see what becomes of Loco. Lopez could not be persuaded to come in and have a talk, but said Loco could speak for him.

“In speaking of what they wanted, Loco says they want to plant near the Cuchio Negro, where they used to plant before they were driven away; also to hunt on the east side of the Mimbres Mountains as far south as old Fort Thorn, and as far as the mountains east of the Rio Grande, known as the Sierra del Caballos, and to a distance of twenty miles north of Fort McRae. They want to have the fort left here for their protection. They appear very willing to make peace, and I think that with proper care and by treating them honestly and justly, the whole of the Apache tribes may be brought in from the warpath. I am conñclent that this Loco and his tribe are the ones that have been committing the depredations north and southwest of this point, as some of the ivarriors are wounded.

“In my opinion, no better place could be had to negotiate with them from than this, for should you go to them with troops they will hide, and if you go alone you are not apt to return. Loco has promised to remain camped where he now is until I hear from this letter and know your wishes. Not having any funds or goods, and no authority to promise anything, it is impossible to carry out my instructions.

“I would also strongly recommend that immediate action be taken, as we can now communicate with all the tribes from this point, which I deem the most practicable one, and perhaps save many valuable lives and much property.

“ If this opportunity is lost it will be almost impossible to again allay their suspicion, and I would beg that if anything is to be done with them, it be done as soon as possible.

“ I would request an answer to this communication as soon as practicable.

“ All of which is respectfully submitted.

“ I am, sir, your obedient servant,

“Chas. E. Deew,

First Lieutenant, TJ. S. A., Indian Agent.

“Hon. E. S. Pabkeb,

Commissioner of Indian Affairs,

Washington, JD. CP

“ Fobt MoRae, N. M., October 11,1869.

“Sib: I have the honor to make the following report of a council on the 10th with the following-named chiefs of the Apaches, viz-: Loco, Victoria, Lopez, Ghastine, and one whose name I can not write or pronounce.

“ Tlie first three I have met twice before. The last two are of the tribe known as the Mogollon Apaches.

“There were some forty warriors, and. I saw lookouts on almost every hill, besides a guard over their animals about half a mile distant.

“ The council was held on the outskirts of a small Mexican town called Canada Alamosa, which is the northern boundary of what they want for a reservation. Loco seems to be the head of all, and does all the talking. Previous to my going to see them this time he sent four of his men to me for rations to enable them to cross the country to get some chiefs of the Mescaleros to come and see me. I gave them five days; they expected to be gone twelve. All the tribes mentioned were once under one chief called Mangus Colorado, who was killed by the California troops while a prisoner. The son of this chief was at the council, but is not a chief. Since his death they separated and are under different chiefs, and take their name from the mountains where they range. They only know themselves as Apaches. Loco says they will all come in from tlie warpath if their Great Father will give them food and clothing.

“ I can not make them understand ivhy I can not give them blankets and tobacco now; they say it is much cold and they need them. I told them their Great Father was long way off, and it would take a long time to get them, and they say they will wait until I hear from their Great Father. They say I must hear pretty soon. * * *

“ Chas. E. Drew,

First Lieut., TJ. 8. A., Indian Agent.

“ Major Wm. Clinton, TJ. S. A.,

Superintendent of Indian Affairs, New Mexico.”

“ Fort McRae, New Mexico, Feeeniber 1,1869.

“Sir: I have the honor to report that I have visited the Indians of my agency twice this month, and find that they still wish to be placed on a reservation, and not be disturbed by anyone. On niy first visitthey were only five miles from Canada Alamosa; within the past ten days they have broken up their former camp and moved to the Hot Springs, twenty miles from their former camp. I was in their camp two days this week, and find them in a destitute condition. I have given them some corn, but as yet no meat. I hardly know what to do. It is certain they must be fed regular, or they must steal or starve. I believe they would do as near right as any of them do if placed on a reservation. At present they stay together in one place, willing to make peace, but in danger of being attacked by any scout that takes a notion to go there, as every one of this section of the country knows where they are, and the commanding officers of all the posts near have been informed of the fact by letter.

“The position I am in is very unpleasant — not being able to

Opinion of the court.

promise anything to them — and they, like a lot of children, always expecting something.

“ I Avonld respectfully request that you lay this matter before the Department with the request that some action be taken immediately.

* * * * # #

“I am, sir, very respectfully, your obedient servant,

“Chas. E. Drew,

First Lieut., TJ. 8. A., Agent for Southern Apaches.

“Major Wi. Clinton, IT. S.'A.,

Superintendent of Indian Affairs, Santa Fe, F. ill.”

On the 2oth December, 1869, the commanding officer at Fort McRae reported as follows:

“ Headquarters Fort McRae, N. M.,

"Dec. 25,1869.

“ Sir: I have the honor to ask the consideration of the commanding general to the following statement of Indian affairs, as relates to the Apache Indians, now gathered in considerable numbers at, or near Alamosa, a Mexican town, twenty-eight miles north and west of Fort McRae. These Indians, through Loco, principal chief of all the Apaches, have been gathered together and kept near where they now are under the conditions of an agreement or treaty made with them by Lieutenant Drew, United States Army, Indian agent, on the 10th day of October last.

* * * * « ■ # #

“These Indians (who) I believe have faithfully kept every ■condition of the agreement made with them, and evince an earnest purpose of remaining permanently at peace and upon the reservation designated. But they expect the issues of clothing, blankets, &c., as was agreed upon, which ivas to be made before the expiration of three months from the time of treaty. This time is nearly passed.

* # * * * # #

“They are in an immediate need of an issue of blankets, &c., and I believe if the issue is not soon made it will be impossible to keep them together and at peace; they must scatter and as a necessity revive their old warfare, a condition of affairs for which I must think the Government would now be responsible. I am informed by Lieutenant Drew, and also by his interpreter, Mr. Patterson, a man of excellent character, that Loco assured them all the Apaches would come with him; that Cochise, chief of the Apaches ranging between Fort Bayard and Tucson, has sent him word that if the Government would give them as to the Navajoes, and protect them, that he and ail his warriors would join him. This would secure peace throughout southern Mexico. I have visited these Indians, and am fully persuaded that they will come upon the reservation and remain permanently at peace, if the conditions of agreement are complied with by the Government. In view of the above facts, and the Government interest at stake, and knowing, too, that very diverse statements are made in relation to these Indians, by parties more or less interested, and for the information of the district commander, I make this statement.

I am perhaps unwisely trusting these Indians as at peace with us, certainly not making war upon them, and I most respectfully ask instructions.

“I am, sir, very respectfully, your obedient servant,

“ Geo. Shoeicley,

Oapt. 15th Infantry and Brevet Major TJ. 8. A.,

“ Commanding Post.

The Acting- Adjutant-Geneeal,

Disteict oe New Mexico.”

It is therefore apparent that on the 25th December, 1809, the Mimbres Apaches had ceased to war against the United States, had entered into an agreement with the authorized representative of the United States, were in a state of at least temporary peace, and were awaiting the fulfillment of an agreement which would make that peace permanent. We have set forth these official reports, because they unhappily show what was the condition too frequently of our relations with these Indian tribes. Here were Indians who desired to be at peace, but but were not willing to purchase peace by starvation. All that the Government had to do to secure the continuance of that state of amity in which the Indians desired to remain was to fulfill the promises of its representative. On the 25th of December the supplies were nearly exhausted. On the 18th January, 1870, this depredation was committed. It was of a character that might be expected from starving Indians, the seizure of a herd of cattle. Between the two dates no act of war appears. The court is therefore of the opinion that the Mimbres Apaches, from the time of the council of October 10, 1869, until at least the 18th of January, 1870, were in amity with the United States.

The second ground upon which the defendants move to vacate the judgment is that it stands rendered against the Apache Indians as a tribe, when the depredation is fixed upon a particular tribe of the Apache Nation. The Mimbres, it is said, were an independent tribe, having no relations with the Mescaleros, the Ohiricahuas, the Jicarillas, and least of all with, tbe Apaches associated with the Kiowas and Comanches, who are the only Apacheshaving- annuities due them from the Government, and upon whom the loss will fall if the judgment stands.”

The case is to all intents and purposes like that of Graham (30 C. Cls. R., 318.) Our knowledge of these nomadic Western tribes has been exceedingly imperfect, and it has been generally supposed that names imported nationalities; that the term Sioux, Comanches, Cheyennes, or Apaches, included each an Indian nationality; an organic unity; a body of Indians who could be treated with, dealt with, and made defendants in one of these suits. In the Graham Case, it was found that these names were in fact generic or racial, and that each name embraced different tribes or bands.- The court there determined that these general or generic names must be deemed to include all Indians who were known as Sioux, etc., and that failing to describe the Indian defendants by their more proper names was a matter of indeñniteness and uncertainty, and not a misjoinder of parties. It was also held that where a judgment had been entered without objection against the Sioux Nation or the Sioux tribe it would be made definite and certain, without disturbing it, by filing an additional finding of fact for the information and guidance of the Executive Departments. The court accordingly now finds that the depredation described in the petition was committed by the Mimbres Apache Indians,” and this finding will be certified to the Treasury Department Avith the judgment.

It is further ordered that the motion of the defendants be overruled.  