
    LUCY PARADIS v. THE UNITED STATES
    [No. C-658.
    Decided June 1, 1925]
    
      On the, Proofs
    
    
      Relief Act, February (>, 1923, .}2 Btal. J7fíS; destruction of diseased animals. — See Rousseau case, 45 O. Oís. 1.
    
      The Reporter's statement of the case:
    
      Mr. Webster Ballinger for the plaintiff.
    
      Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Herman Galloway, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff, Lucy Paradis, is now and was during all the times mentioned in these findings, and particularly during the years 1894, 1895, 1896, 1897, 1898, and 1899, a member of the Sioux Tribe of Indians and carried on the rolls of the United States Government at the Cheyenne River Agency, S. Dak., as a Sioux Indian, and resided upon said Indian reservation in said State, upon which reservation for a number of years theretofore she was lawfully engaged in the business of breeding and raising horses; that in the year 1923 and at the time of the commencement of this action she was 69 years of age and has always borne true allegiance to the United States.
    II. Following action taken in the year 1893 under the directions contained in a departmental letter dated April 3, 1895, the United States Indian agent at the Cheyenne River Agency, by letter dated March 21, 1897, addressed to the Commissioner of Indian Affairs, advised that office “that there are a number of horses on this reservation diseased with glanders, notwithstanding that strenuous efforts have been heretofore made to stamp it out,” and requesting authority to employ a veterinary surgeon to inspect all horses on the reservation “ with a view to killing all horses that may be found suffering with the glanders and to check the spread of the disease.” By letter dated April 6, 1897,. the then Commissioner of Indian Affairs recommended to the then Secretary of the Interior that the request of the agent be granted, and further recommended “ that the agent be granted specific authority from the department to destroy in the most humane manner all stock found on the reservation — whether belonging to the agency, the Indians, or to white persons — where the same may be infected or suspected of being infected, in order to check the spreading of and to effectually stamp out the said disease, * * *.” By letter dated April 9, 1897, signed by the then First Assistant Secretary and addressed to the Commissioner of Indian Affairs,, authority was granted said agent as recommended by the then Commissioner of Indian Affairs in the letter dated April 6,1897. The compensation to be paid the veterinarian and all expenses incurred were authorized to be paid out of the money of the United States. Whereupon the said agent employed one Dr. John W. Elliott, veterinary surgeon, of Aberdeen, S. Dak., to make said examination and inspection,, and on May 29, 1897, addressed to said Dr. John W. Elliott, the following communication:
    UNITED States Indian Service,
    Cheyenne River Agency, So. Dae.,
    
      May 29, 1897.
    
    Mr. J. W. Elliott, Y. S.,
    Aberdeen, S. D.
    
    Sir: By virtue of authority from the department under-date of April 14, 1897, you are hereby granted authority to destroy in. the most humane manner all diseased stock, whether belonging to the agency, the Indians, or white persons residing on the reservation, when said stock may be infected with the glanders, or suspicion of being infected, in order to' stamp out said disease, but no promise of compensation for stock so destroyed shall be made to any person.
    Very respectfully,
    Peter CouchmaN,
    
      Ü. S. Indian Agent.
    
    Thereafter and on November 30, 1897, the United States Indian agent at the Cheyenne Indian Agency wrote the Commissioner of Indian Affairs a letter, in which he transmitted a report of L. C. Karn, veterinary surgeon, of Webster, S. Dak., pronouncing the entire herd of horses branded with the letter “ E ” as being glandered and had ordered them destroyed. Said herd of horses so branded numbered more than 1,000 and ranged and intermixed daily with plaintiff’s horses.
    III. Prior to the 22d day of January, 1896, the said Dr. John W. Elliott and others, acting under the authority df the Department of the 'Interior set out in the preceding finding, and at the cost and expense of the Government of the United States, and without the authority or consent of the plaintiff herein, killed and destroyed, or caused to be killed and destroyed, 63 head of plaintiff’s horses, including 3 stallions, of the reasonable value of $4,180. Plaintiff’s horses so killed had for a long time theretofore ranged and intermingled constantly with the horses of the “ E ” brand, and their killings occurred under the same conditions and •approximately at the same times and places as did the killing of the horses of the “ E ” brand.
    IY. Upon protest of the owner -of the “E” brand of horses the Department of the Interior under date of January 22, 1898, acting through the Commissioner of Indian Affairs telegraphed the Indian agent for the Cheyenne Eiver Agency as follows: “ Suspend order to destroy glan-dered horses of £ E ’ brand until further order.” The killing •of all horses on the reservation was thereafter practically suspended and an investigation ordered. The Commissioner •of Indian Affairs on February 4,1898, requested permission of the Department of the Interior to request, the Secretary of Agriculture to detail a competent veterinary surgeon from bus department to act in conjunction with a similar detail from the Department of War for the purpose of making a rigid and careful examination of all horses on the reservation with the “ B ” brand with a view of determining accurately whether the previous recommendation for the destruction of the entire herd with the “ B ” brand should be carried into effect, which authority was subsequently granted, and -thereupon the Secretary of War detailed Veterinary Surgeon Corcoran, Eighth Cavalry, stationed at Fort Yates, N. Dak., and the Secretary of Agriculture detailed Dr. Bobert H. Treacy, in charge of the Bureau of Animal Industry of the United States, being in charge of the station of North and South Dakota and Montana, and stationed at Bismarck, N. Dak. In March, 1898, Doctors Treacy and Corcoran went to said Indian reservation, rounded up 319 head of horses bearing the “ B ” brand, as well as horses owned by plaintiff, and after applying the Maliein test and other scientific methods of diagnosis declared in a written report to the Department of the Interior that the horses bearing the “ B ” brand were free from glanders and that no glandered horses had been found on the reservation by them. The evidence further shows that during the application of the test as aforesaid the doctors examined and inspected several animals previously examined by Doctor Elliott and ordered killed, but each of whom had escaped after being seriously wounded by persons ordered to shoot them, and found each of these animals to be free from glanders. It further appears from the evidence in the case that said Doctors Treacy and Corcoran forwarded to the United States Department of Agriculture specimen of tissue taken from said animals for examination and inspection, and on May 6, 1898, received from the Chief of the Bureau of Animal Industry the following communication:
    U. S. DEPARTMENT OP AGRICULTURE,
    Bureau of- Animal Industry,
    
      Washington, D. <7., May 6,1898.
    
    Mr. Bobert H. Treacy,
    Bismarck, N. Dak.
    
    Sir: Your letter of April 4, accompanying specimens taken from a colt suspected of having had glanders, were. both received. Regarding the same will'say that, after a careful study of the tissues and inoculation of animals with material from the small vial sent, that we can not regard the case as glanders. Your statement to the effect that the colt did not react upon application of the Mallein test is also confirmatory evidence that the colt was not affected with glanders.
    Very respectfully,
    D. E. SALMON,
    
      0Mef of Bureau.
    
    V. It appears that the examination and inspection of plaintiff’s horses by the said Dr. John W. Elliott was not in accordance with known and scientific methods of diagnosing a suspicious case of glanders, and that he at no time during his examination subjected the animals to what is known as-' the “ Mallein test,” relying solely upon external appearances and personal observation.
    YI. None of plaintiff’s horses which were inspected, condemned, and shot by order of Doctor Elliott aforesaid were-at the time of said killing diseased with glanders.
    The court decided that plaintiff was entitled to recover..
   MEMORANDUM BY THE COURT

This judgment is rendered on the authority of the case of' Rousseau v. United States, 45 C. Cls. 1.

Graham, Judge, took no part in the decision of this case..  