
    THE NORRIS CASE. Samuel Norris v. The United States.
    
      On the Proofs.
    
    
      The claimant enters into a contract with O. M. Wozencraft, Commissioner and Indian Agent for California, and authorized to make treaties with the Indians, for the delivery of beef cattle at the rate of twenty-jive cents a pound, and wheat and toheat flour at fifteen cents a pound, for the purpose of feeding the Indians. In compliance with this contract, Wozencj’aft, as Indian Agent, draws twenty drafts on the Commissioner of Indian Affairs — amounting in all, to §102,460 65 which are protested for the want of an appropriation to pay them. The claimant brings his suit in the Court of Claims for the above stem, and the court decides that he is not entitled by law to recover, and so report to Congress. Congress, by a joint resolution, refer the case bach to the Court of Claims "for examination and allowance,” with instructions “that in fixing the amount to be paid the claimant, the rule shall be the actual value of the supplies furnished at the times and places of delivery, of which due proof shall be made.” Resolution 22, June, 1866. 14 Statute L, —.
    Under a resolution making it the duty of the court to ascertain and fix the actual value of supplies furnished by the claimant under a contract, the claimant cannot recover the contract price. The only question for the court to pass upon is, the “ amount and actual value of the supplies furnished.’*
    Messrs. Hughes, Denver, and Peck for the claimants :
    The action of the Congress of the United States shows that it is the intention of Congress that this class of claims shall be paid. On the 29th day of July, 1854, Congress • passed an act to pay General John Charles Frémont $183,850, with interest thereon from the first day of June, 1851, at the rate of ten per centum per annum. (Stat. at L., vol. 10, p. 804.) On the 9th day of June, 1860, Congress passed an act to pay Samuel J. Hensley for a similar claim. (Stat. at L., vol. 12, p. 847.) Both of these claims were similar to this of Norris, growing out of contracts with the Indian agents of California. General Fremont’s was made with Mr. Barbour, and Mr. Hensley’s with Mr. Wozencraft. Their action in the above eases shows the reasons why this claim was referred to this court for examination and allowance by the resolution of Congress of June 22, 1866.
    The delivery of the cattle, flour, and wheat, and the value thereof “at the times and places of delivery,” being fully established, as we conceive, by the evidence, we respectfully request -(¡hat the claimant he awarded judgment for the full amount claimed by him in his petition.
    The Assistant Solicitor, for the defendants:
    I. This suit is instituted to recover the sum of one hundred and twenty-seven thousand four hundred dollars, and comes into.this court in virtue of the provisions of the joint resolution approved 22d June, 1866.
    II. The only questions submitted to the court, under said joint resolution, are those of fact, and they may be stated as follows :
    1st. What amount of supplies did the claimant furnish to the Indians of the State of California, under contracts made by him with certain commissioners, or either of them, sent to that State to negotiate treaties with the Indians ?
    2d. What was the value of the supplies so furnished by the claimant, at the time and place of their delivery ?
    An examination of the testimony adduced on behalf of the defendant will, we think, conclusively establish the following propositions :
    1st. That the supplies which it is claimed were furnished by the claimant were neither needed nor used by the Indians for whom it is claimed they were purchased.
    2d. That the cattle furnished by the claimants were of inferior qual ity, and not worth the price which it is now insisted the United States shall pay for them.
    3d. That Wozencraft conducted his part of the business of this transaction in such a manner as to suggest a suspicion that he was not acting in good faith towards the United States in purchasing these supplies, and that he may have been interested in the profits which it was expected would result from their purchase.
   Loeing, J.,

delivered the opinion of the court:

This action is brought to recover payment for beef, wheat, flour, &e., supplied by the petitioner under contracts made by him with 0. M. Wozencraft, commissioner and Indian agent for the United States in California. We find the facts to be, that—

To put an end to the devastating strife then raging between the In clians of California and the white population which had poured into that country on the discovery of gold there, Congress, by act of September 30, 1850, (9 Stat., 519,) appropriated $25,000 “ to enable the President to hold treaties with the various Indian tribes in the State of California,’' and by the act of February 27, 1851, (9 Stat., 572,) $25,000 more were appropriated to the same purpose.

On the 10th of October, 1850, O M. Wozencraft, Koderic McKee and George W. Barbour were appointed Indian agents by the President, under the act of September 28, 1850. But on the 15th of October,-1850, their functions as Indian agents were suspended, and they were appointed commissioners under the act of September 30,1850, to hold treaties with the Indians. In 1851, by act of February 27, (9 Stat, 586,) Congress directed that all treaties with Indians should be negotiated by such officers and agents of the Indian department as the President of the United States should designate for that purpose. And under this act the functions of Messrs. Wozencraft, McKee and Barbour as Indian agents were revised, and as such they were, by the President, “ designated to negotiate treaties with the Indians in California,” under instructions theretofore given them by the department, as commissioners.

By letter dated October 15, 1850, (S. Doc. 4, pp. 8 and 9,) the commissioners had been instructed as follows : “ As set forth in the law creating the commission, and the letter of the Secretary of the Interior, the object of the government is to obtain all the information it can with reference to tribes of Indians within the boundaries of California, their manners, habits, customs, and extent of civilization, and to make such treaties and compacts with them as may seem just and proper. On the arrival of Messrs. McKee and Barbour in California they will notify Mr. Wozencraft of their readiness to enter upon the duties of the mission. The board will convene, and after obtaining whatever light may be within its reach, will determine upon some rule of action which will be most efficient in obtaining the desired object, which is, by all possible means to conciliate the good feelings of the Indians, and to get them to ratify those feelings by entering into written treaties, binding on them towards the government and each other. You will be able to judge whether it will be best for you to act in a body, or separately in different parts of the Indian country.”

Thus empowered and instructed, the commissioners entered on their duties by convening and organizing at San Francisco, January 12, 1851, and after obtaining information from the governor of California and from the members of its legislature, then in session at San José, they proceeded to the Indian country, where active hostilities were then going on ; troops of' California were in the field, and the miners had driven the Indians from the localities they cultivated into the mountains, from which the Indians issued, as opportunities offered, to steal and drive off the cattle and mules, as the only alternative for starvation.

In this state of things, the commissioners adopted the measure of bringing the Indians from their homes in the mountains and mining regions, and placing them on reservations made for them by the commissioners from the unoccupied lands in the plains; and they proceeded to enter into treaties with the Indians, in which their removal into the reservations was made an indispensible condition, aud their subsistence then was provided for for the years 1851 and 1853. And this policy of removing the Indians into reservations was approved by the department.

In pursuance of this policy, the commissioners acted jointly until May, 1851, when, in consideration of the great extent of country to be traversed in carrying out their instructions, they determined to cease acting as a board or together, and to act individually. In execution of this plan of operations they divided the State into three districts, and assigned a district to each of the three commissioners. Of this they informed the department, which finally, on May 22, 1851, acquiesced in the arrangement.

The commissioners completed their work, and the treaties they made with the Indians were submitted to and rejected by the Senate.

When the State was divided into districts and allotted, one to each commissioner, as above stated, the middle district was allotted to Mr. Wozencraft, and in his official action in his district he made the contracts with the petitioner set forth in the petition, and on the execution of the contracts he made and delivered to the petitioner twenty drafts drawn by Mr. Wozencraft, “ as 'United States Indian agent” on the Commissioner of Indian Affairs in favor of the petitioner, for various sums, amounting together to $102,460 65, which were presented for payment but were not paid.

Afterwards, by petition in this court filed October 2, 1856, the petitioner brought suit against the United States for the sum of $102,460 65 on the said drafts and contracts, and upon the hearing had, this court then held, that for the reasons set forth in the decision of the case of Samuel J. Hensly v. The United States, the petitioner was not entitled to recover. And this decision, with the papers of the case, was reported to Congress.

On tbe '22d June, 1866, the ease was referred back to this court on the following joint resolution':

Resolved by the Senate and House of Representatives ■of the United States of America in Congress assembled, That the claim of Samuel Norris, of California, for supplies furnished the Indians of that State, under contracts made with certain commissioners, or either of them, authorized to negotiate-treaties with said Indians, and all papers relating thereto, be referred back to the Court of Claims for examination and allowance; and that in fixing the amount to be paid the claimant, the rule shall be the -actual value of the supplies furnished at the times and places of delivery, of which due proof shall be made by the claimant.

On this resolution, we hold our .duty to-be to ascertain and fix the amount of supplies furnished by the plaintiff under his said contracts with Mr. Wozencraft, and their actual value, and we find that the petitioner furnished to the United States—

1,000 beef cattle, of 450 pounds-weight each, at 15 cents per pound.'. $67;,500 00

1,600 pounds of flour and wheat, at 15 cents per pound, ■ 2,400 00

Making.■._ 69,900 00

For which judgment is to be entered for the petitioner, and a certificate to be issued' to him accordingly.  