
    WILLIAM COX v. THE UNITED STATES AND THE BANNOCK INDIANS.
    [Indian Depredations,
    7912.
    Decided May 21, 1894.]
    
      On the Proofs.
    
    The claim is examined and allowed by the Secretary of the Interior. The defendants in effect elect to reopen the case, but submit it iupon the single fact, admitted by the claimant, that the Indian defendants were at war with the United States when the depredation was committed.
    I. That a depredation was an act of war is a good defense in any Indian depredation case, whether the claim was or was not examined and allowed by the Secretary of the Interior.
    II. When an allowed case has been reopened at the election of either party, there is nothing in the act 1891 which prevents the defendants from setting np any defense which they may set np in other cases.
    III. The only difference between preferred cases reopened and other cases is, that the party electing to reopen assumes the burden of proof.
    IV. When the defendants elect to reopen a case, they may set up any defense which might have been set up in the Interior Department.
    
      The Reporters’ statement of the case:
    The stipulation upon which this ease was submitted is set forth in the opinion of the court.
    
      Mr. John W. Ciarle for the claimant:
    The extent of the application of the phrase in amity in the Indian depredation law o'f March 3,1891, has been a source of difficulty to the court and of contention between counsel for claimants and counsel for the Government.
    In this discussion I shall refer to the first paragraph, giving jurisdiction to this court, as the amity paragraph, and the second paragraph as the treaty paragraph.
    The generic division of claims coming tinder this law is, first those claims which were allowed by the Secretary of the Interior, and second, those claims which have never been allowed by the Secretary of the Interior (26 Stat. L., 851, sec. 1). These allowed claims may again be divided into two classes: First, those in wbieb either parties plaintiff or parties defendant elect to reopen the case; and, second, those in which neither parties plaintiff nor parties defendant elect to reopen the case. (Id., p. 851, sec. 4.)
    The case at bar conies under the division of allowed claims, and it is maintained on behalf of counsel for claimant that no election was made on behalf of either the attorney for the Government or the attorney for the claimant to reopen this case.
    Counsel for the Government has taken two distinct positions since these claims have come' before this court: First. It was contended by the Government that the treaty paragraph was simply an enumeration of a class of cases, and that the phrase “in amity” applied to that as well as to the amity paragraph. Second. That, admitting that the treaty paragraph gave this court jurisdiction independently of the amity paragraph, yet no liability of the defendants attached under this law. 'This latter position is urged in the brief of counsel for the Government in this case.
    It is contended on behalf of claimant that the treaty paragraph is an extension of the jurisdiction of this court over- and above and independent of the amity paragraph, and that liability of the defendants attaches under it.
    We first examine the first position taken by the Government, that the treaty paragraph is not an extension- of jurisdiction, and that all ,the jurisdiction of this court is confined to the amity paragraph.
    It is argued on behalf of claimant that if such a construction were to be given to this law, then the treaty paragraph isa superfluity or surplusage, having no reasonable existence, a mere useless enumeration of a class of cases, which even the counsel for defendants would not contend was n.ot as effectually covered by the absence of the treaty paragraph as by its presence in this law. But it is an elementary rule of statutory construction that every paragraph, sentence, phrase, even word of a statute must be given effect if possible. (Enlich Interpretation of Statutes, secs. 22 and 23, and cases cited.)
    This rule of construction must bind this court, unless it appears plainly and unmistakably that Congress intended to give this treaty paragraph no effect in this law, and to presume such an intent would be to stultify Congress. Some ffect must therefore be given to this treaty paragraph. Mr. Justice Blackstone, in Ms Commentaries (Bk. 1, p. 86, Cooley’s'edition), lays down tbe following rules for tbe direction of judges in tbe construction of remedial statutes: First, an inquiry into tbe old law; second, tbe defects of tbe old law; and, third, tbe remedy sought by tbe new law.
    Tbe attention of tbe court is asked therefore to a brief review of tbe old laws in pari materia, and especially to tbe old laws .existing and having vital force when this law was passed.
    Tbe law of June 30,1834 (4 Stat. L., sec. 17, p. 731), was tbe last of a series of laws, beginning from tbe foundation of / the Government, which provided for indemnity for property taken by Indians in amity with tbe United States, and a guaranty on tbe part of tbe Government to pay tbe same. The Act of February 28, 1859 (11 Stat. L., p. 401, sec. 8), repealed the guaranty, of eventual indemnity on tbe part of tbe United States, but did not impair tbe obligation of the Indians.
    Tbe Act of June 25,1860 (32 Stat. L., 12), protected tbe right of indemnity in actions which bad occurred before tbe act of 1859 was passed. Tbe Act of July 15,1870 (16 Stat. L., 340)? provided that claims agáinst tbe Indians'for depredations committed should not be paid out of their annuities, etc.
    cThe Act of May 29,1872 (.17 Stat. L., sec. 7, p. 190), was tbe first that recognized tbe obligations of treaties with tbe Indians as binding upon them. This act of 1872 made it tbe duty of tbe Secretary of Interior to prepare rules for tbe presentation of Indian depredation claims “ arising under tbe laws and tbe treaties, and for tbe investigation of all such claims in tbe light of such evidence as be should deem necessary.” ■ This section of tbe law of 1872 is reenacted in Revised Statutes, section 466.
    Tbe Act of 1885 (25 Stat. L., 375), provided only for claims for depredations “chargeable against any tribe of Indians by reason of any treaty- between' such tribe and tbe United States,” omitting entirely tbe word laws, found in tbe act of-1872. The acts of 1886,1887, etc., were of tbe same effect with that of 1885, so far as this case is concerned.
    Tbe laws then standing upon tbe statute books, and having vital force when tbe law of March 3, 1891, was enacted, were section 2156, Revised Statutes, providing for amity claims reenacting thelaw of June 30,1834, and the law of 1885,1886, etc,, providing for treaty claims.
    
      Section 4G6 of the Bevised Statutes, which related to claims both under the laws and treaties, was covered by section 2156, which related to claims under the laws only, and by the laws of 1885 and 1886, etc., which related to claims under the treaties only.
    The Secretary of the Interior could not under the acts of 1885, etc., examine claims under the laws — amity claims — for he was confined to treaty obligations only.
    Congress found then upon the statute books, when it was contemplating the enactment of the law which gives- this court its jurisdiction, two separate and distinct classes of claims, distinguished from each other by several acts of Congress. On the one hand there were amity claims, preserved in all their vital force in section 2156 of the Bevised Statutes. These were the old obligations of the Government contracted as far back as 1796. This obligation did not grow out of treaty, but out of the promise of the Government signified in acts of Congress. On the other hand were treaty obligations, recognized as binding upon the Indians in the acts of Congress of 1872, and reenacted in the acts of 188o, 18S6, etc.
    The House in which this act originated desired to give jurisdiction to this court over all claims for property of citizens of the United States taken or destroyed by Indians. The Senate added the phrase “ in amity,” and gave us the first paragraph-or amity paragraph of this law. There was no provision for treaty claims, and the second paragraph was therefore enacted to cover treaty claims. It could well and forcibly be argued in the conference committee that this law should cover treaty claims as well as amity claims. This treaty paragraph is based upon sound reason and justice and the obligation of contract.
    That the amity paragraph and treaty paragraph- are separate and distinct} that they are each independent of the other, as were the sources of the obligations; that the two jurisdictional paragraphs are based upon two distinct obligations; one that of the laws; the other that of treaty. That it was the intent of Congress to give to this court two classes of jurisdiction, one covering the amity-obligations and the other covering treaty obligations, can not be refuted. After recalling these two different and distinct laws, the reason for the two jurisdictional paragraphs is apparent. Without this treaty jurisdiction the existing laws would not have been covered and the demands of justice satisfied. This is a natural, plain, and legitimate interpretation and construction of these two jurisdictional paragraphs by the settled rules of construction laid down by courts from the earliest history of the common law. (1 Blackstone, p. 86, Cooley’s edition, 3 Bep. 7 Co., Litt., 11-43.) It is now admitted that this court has jurisdiction in treaty claims as prescribed by the second paragraph and by reason of treaty, but that amity is a defense in treaty claims.
    It would be absurd to maintain in support of such an argument that amity furnished a jurisdictional defense, that to complete the treaty paragraph the words “in amity” must be read into it, for that is equivalent to saying that the treaty paragraph does not give jurisdiction to this court. Furthermore, if the want of amity takes away this court’s jurisdiction when it had been obtained under th'e treaty paragraph, would it not be just as logical for the counsel to argue that the' want of treaty took away this court’s jurisdiction when it has been obtained under the amity paragraph. Thus by making amity a jurisdictional defense, where jurisdiction was obtained under the treaty paragraph, and treaty a jurisdictional defense where j urisdiction was obtained under the amity paragraph, this court would logically be without jurisdiction, except where both amity and treaty concurred, and this court would neither have jurisdiction in all amity claims nor all treaty claims, but this, too, counsel for the defense denies.
    But it is said that amity can be made a defense in the case upon the merits; this certainly can not be true. Amity in this law is made jurisdictional, and it is maintained on behalf of claimant that the only questions which could arise upon the merits in these cases is, first, whether claimant actually suffered the loss alleged at all; second, whether the property lost at the time alleged belonged to the claimant; third, what the value 'of the property lost, and fourth, whether the Indians took or destroyed the property. The defenses upon the merits must go to some one or more of those questions to defeat the case after jurisdictional questions have been determined.
    “Without just cause or provocation” and “property not returned or paid for,” are negative propositions, and the affirmative and the burden of the proof rests upon the United States and Indians, and is properly set up as defenses in the nature of a plea of confession and avoidance. It is contended still further that amity is not only a defense to tlie jurisdiction, and defense on the nierits, but that there is no liability of the United States or Indians either, primarily, jointly, or severally, unless amity be shown. That though this court has obtained jurisdiction through treaty, yet it has no power to find the defendants or either of them liable under that jurisdiction.
    Let us look at this position. Amity appears but once in this law. There is nothing in this law or any law enacted from the foundation of the Government, down to the present time, whereby the Indiaus obligated themselves to pay one cent for depredations committed by them on account of being in an amicable or friendly relation with the United States. It is only by, through, and in their treaties that the Indians obligate themselves to pay for the depredation committed by members of their tribes.
    TLe second paragraph of the first section mentions specifically that the obligation of the Indians is based upon treaty stipulations. Itwas for “fulfillingtreaty stipulations with the various Indian tribes” that the laws of 1885,1886, etc., were enacted, and those laws are in effect carried into this law giving this court jurisdiction. We find the treaty obligation of the Indians made use of in this law in the second paragraph of the first section, in the fourth section directing the court’s action in allowed cases. And in the sixth section this same treaty obligation of the Indian tribes furnishes a source ofrecoupment to the United States from the tribe of Indiaus charged. The Indians’ annuities came from their treaty obligations prior to 1871 and other contract since 1871 (Revised Statutes, section 2079). The funds from their lands came from the same source, from contract only, either treaty or otherwise. There are no appropriations due the Indians of right, except those arising from treaty or contract. None on account of the peaceful condition of the Indians alone. Hence the only source of recoupment which the United States has from the tribes charged is on account of treaty and contract obligations of the Indians. No such means of repayment obtains in amity claims where treaty does not exist. The only obligation of the Indians in amity claims where a treaty does not also exist, is the naked promise of the Government that the Indians shall indemnify citizens and inhabitants for their depredations. The Indians took do part in making those laws, nor did they give any formal assent to them. They were fastened upon the Indians by the United States by reason of its sovereignity over its dependent Indian tribes. There is no way for the United States to recoup themselves from the Indians where amity alone exists, but by the enforcement of laws to which the Indians never assented, or had no voice in their making; because there is nothing-passing from the Indians totheUnited States as a consideration as in treaty obligations, where the Indians surrender certain rights, privileges, and lands, from which, and for which, they receive compensation from the United States in the shape of annuities, etc., and these form the only source of recoupment of the United States.
    Trea/ty obligation runs all through the law, it is a tangible, binding obligation upon the Indians, in the creation of which the Indians had a voice at least. Amity obligation is an intangible, inchoate, ex parte obligation, binding only by the edict of law upon a tribe of Indians having no voice in the creation of the law.
    True, the words peace, friendship, friendly relation, or amity appear in all the treaties with the Indians so far as counsel has examined, an d it is urged that those words bind the defendant Indian tribes to keep the peace or pay for the consequence of the infraction of the treaty. But it is the agreement that binds the Indians, not the condition of peace or friendship, and these are the only obligation of the Indians in which the tribes took any part, all other obligations were forced upon them. It would seem that Congress recognized this in the law of 1870, before referred to, which exempted the “annuities ” of the Indian tribes from the payment of Indian depredations. Congress knew that the annuities due the Indian tribes were derived from treaty, not from the friendly relation of the Indians. But the law of 1891 makes those annuities the first source out of which the United States may recoup itself. It taps this source of revenue derived from treaty first. Does not the sixth section of this law itself refute the argument that no liability rests upon the defendants by reason of treaty, since treaty is the only source from which payments are made where the Indians have money'? The United States owes the Indians no annuities for their peace and friendship, but it does owe them for their surrender of rights and lauds under treaty and contract, and these annuities, etc., they must surrender to pay for their depredations.
    Counsel for claimant submits that a want of treaty is a more potent defense so far as the liability of defendants is concerned, where jurisdiction is acquired under the treaty paragraph, or at least so far as the defendant Indians are concerned.
    There is nothing in the decision of this court or of the Supreme Court of the United States, so far as counsel has been able to find, which forms a precedent for this court’s finding no liability of defendants, where treaty alone is relied upon. The principle enunciated in Ford’s Oase (101 U. S., 341), that the United States was not liable either for its own torts or those of its officers, does not in the remotest degree affect the reasoning in this case. It is a contractual, not a tortious liability that obtains in treaty claims. (Oower’s Oase, 16 C. Cls. K., at p. 381; Gibson’s Oase, 8 Wall., 275.)
    In the Gibson Case the court pronounced a law unconstitutional which gave that court jurisdiction of a case, but took away that jurisdiction again, if when proceeding with the case it found certain facts, on the ground that it prescribed a rule for the decision in a particular way. Counsel fails to see anything in the position urged by counsel for the Government that this court has jurisdiction, but that no liability attaches to the defendants either jointly or severally under, this treaty paragraph. From the act passed in 1859, above referred to, repealing the eventual indemnity clause, until this act passed in 1891, there was no legal liability of the United States to pay either as guarantor or otherwise any Indian depredation claim. This law giving this court jurisdiction differs from the old laws repealed by the act of 1859, so far as the liability of the United States is concerned. 'Ey the old law the United States guaranteed the “ eventual indemnity ” to claimants. By the new the United States became one of the parties defendant and assumes a primary liability.
    That the United States assumed a primary liability in the law giving this court jurisdiction is ajiparent from an examination of the different sections of this law. The first mention which looks toward the fixing of the liability under this law is in the fourth section, and provides (1) that “ Service of the petition shall be made upon the Attorney-General of the United States.” This would indicate the opposite to the contention of counsel for the United States, to wit, that if anyone was made secondarily liable under this law it was the Indian. (2) “It shall be the duty of the Attorney-General of the United States to appear and defend the interests of the Government and the Indians,” etc. (3) “He shall file any plea, etc., of the Government and Indians,” and (4) “Give notice of any defense of the Government and the Indians.” (5) In section 5 we find any claimant or party in interest may be examined on the part of the Government. The Indians are not mentioned here. (6) “Judgment shall be rendered * * * against the United States always and against the said tribe committing the wrong, when such can be identified.” (7) “ Section 6 provides that if no annuities are due, then the amount of judgment shall be paid from the Treasury of the United States.” (8) And in section 8 it is provided that all final judgments rendered against the United States and not paid as provided in the sixth section shall be transmitted to Congress, etc., and shall be appropriated for, etc. There are other mentions of the United States showing a primary liability assumed by the law as the right of appeal of the United States or tribe of Indians in the tenth section — the appointment of an additional assistant attorney-general to prosecute these claims. There is no getting away from the conclusion that the United States assumed a primary liability under the. law of March 3, 1891, and that the defendants are jointly and severally liable. The United States may recoup itself as it pleases. That is a matter of bookkeeping between guardian (the United States) and ward (the Indians), and has no effect upon the liability of the defendants or either of them.
    Counsel for the claimant submits that if the foregoing argument is well taken, that if the amity paragraph and the treaty paragraph of the first section separately and distinctly give this court jurisdiction, the want of amity can not be used as a defense to take away the jurisdiction given under the treaty paragraph, and if the liability of defendants attach under the treaty paragraph, then this court has jurisdiction in this case, and the existence or nonexistence of amity in the defendant Indians can not affect it, even though the stipulation be held by the court to be an election on the part of the Government to reopen this case, a position which counsel for the claimant denies; for even though claimant were to admit that the Indians were not in amity, this court has jurisdiction under the treaty paragraph, and the liability of the defendants attaches under it.
    Furthermore, it is urged that amity, no matter what facts are necessary to be shown to constitute that condition, is nevertheless a legal question. It is a condition, a deduction, a judgment of the judicial mind derived from the comparison of certain facts and circumstances; it is in no sense a fact, but a conclusion. It being such, then, in allowed cases, it can not be set up as a defense in any event, for the fourth section of this law provides for a trial of the case only. “Beopen the case and try the same,” are the words of the statute. The word “try” refers to a determination of the fact only; never to a conclusion of law upon these facts. We have trial by jury, and a trial by the court when the facts are presented to a court. If amity had been intended to have been used as a defense in allowed cases at all, it would have been provided for, itbeing an entirely new defense and not contemplated under the laws of 1885,1886, etc. But counsel for the Government argues that if all this be true, then no liability attaches, because the defendant Indians in this case were at war, and because the Indians are not liable the United States is not liable as a guarantor. On the supposition that the above argument is well taken, if the United States is not a guarantor under this law, as it is submitted this law plainly discloses, and if the defendant Indians are not liable for depredations committed in war, why would not the several liability of the United States attach in treaty claims 1 Or if the United States is not liable for the property of its citizens destroyed by Indians in an Indian war, why are not the Indians severally liable under this law under the treaty clause, they being now within the power of the United.States and subject to their control, and not an independent nation in any sense of the word.
    The reason given by counsel for the Government for exempting the Indians and the United States from the payment of depredations committed by the Indians at war, is because it is contrary to the policy of the nation to pay for property of its subjects taken or destroyed by a nation in open war. Granting that this be so, does this principle apply to the Indian tribes? To mate counsel’s argument logically true, he should first prove that the United States pursues the same policy with the Indian tribes that it pursues with other nations, a proposition which can not be maintained.
    The courts of this country since the decision of the case of the GheroJcee Nation v. The State of Georgia (5 Peters, 1) have never considered the Indian tribes as independent nations. In that case the Supreme Court held that the Cherokee Nation could not sue in our courts, because dependent, and the uniform trend of decisions of that court and the legislation in respect to Indian tribes goes to show that the policy of our Government is to treat them as dependent and special wards of the Government, not as independent nations. If the Indian tribes were independent, and had in times of war the rights of other belligerents, then this court has no j urisdiction of these cases at all, for to deal with such questions belongs exclusively to the political or executive department of this Government. Any position which sustains in any degree the belligerent rights of Indian tribes tends to destroy the right of the judicial department of the Government to determine any question where an Indian tribe is involved.
    But we are not without precedent for holding the Indians liable under their treaties for depredations committed by them during an Indian war; for Congress in 1863, after abrogating the treaty of certain tribes of the Sioux Nation, so far as it affected the United States in future, appropriated the funds of the Indians in the Government’s hands to the payment for the damages done by Indians in that war. The Government ended its treaty and held the moneys of the Indians to pay for the war claims against them, thus tacitly recognizing the obligations of the Indians to pay for properties destroyed in time of war (12 Stat. L., 652). This certainly shows that the policy of the Government is to pay for damages done by Indians during hostilities. There are other cases where the annuities, etc., due the Indians have been withheld to pay damage done by the Indians, or for the surrender of the guilty Indians. It was a just and restraining penalty to mete out to the tribes. It gives them an object lesson both in justice and self-restraint.
    But if this does not show that the policy of the United States to pay for damages done in times of war by the Indians is different from that of other nations, then it is urged that tbe act of Congress passed in 1871 (Rev. Stat., 2079), providing that “ no Indian tribe or nation within the territory of the United States shall be recognized as an independent nation, tribe, or power with whom the United States can contract by treaty,’' does show that the Indian tribes are not independent, sovereigns whose belligerent rights can be recognized. But the law of 1871 was only the embodiment of the spirit of the decisions of the Supreme Court before rendered in respect to the rights of Indians, beginning with the decision in 1831 (5 Pet., 1). The Indian tribes, so far from being independent, are the most dependent subjects the United States has. Neither tbe tribes nor individual Indians can make a contract which will bind it without approval of the Commissioner of Indian Affairs and the Secretary of the Interior (Rev. Stat., sec. 2103). Can it be dona fide argued that subjects so dependent can not be compelled to pay for depredations committed by them when refractory1? It is absurd to maintain that an Indian tribe, which is a more dependent subject as such than any individual citizen of the United States, can not be held liable because it has become contumacious and unruly. No exemption would be urged by counsel for a refractory citizen on a conspiracy of citizens, and yet the citizen is the more independent subject of the United States. But if the above argument be not well taken, still it is urged with all earnestness that this stipulation is not an election on the part of the Government to reopen this case. The question in this case is whether the fact of an admission of war of itself reopens an allowed ease; and, if not, then counsel for the Government does not elect to reopen this case. No other interpretation can be given to this stipulation, and that being so, the stipulation of war is urged as mere surplusage, it in no degree interfering with the findings of the Secretary of the Interior.
    This court has nothing to do in this case now, it is urged, but to render judgment of law upon these facts, nor can this court go behind the findings of fact of the Secretary in this ease. There is only one way for this court to get behind those findings of facts, and that is by the election of either claimant or defendants to reopen the case and try it before this court. Where such election is not made, there is nothing to try. The court has a mere ministerial duty to perform, which is the same precisely that tlie court bas to perform when the jury has rendered its verdict upon the facts or referee has given an award. There are many analogous cases in the reports of the different States. (Exparte Dudley; 79 Ala., 187; 5Mass.. 435; 9 Mass., 388; '9 Kans., 6885 35 Tex., 1; 46Mo., 63; 76 Mo., 610; 98 Mo., 555, and 27 Wis., 433.)
    The United States comes into this court with no greater privileges and rights than any other suitor, and this court can not construe a law in their favor which otherwise would be favorably construed for the party opposing them. (United States v. Arredondo et al., 6 Pet., 711, and United States v. Kleim, 13 Wall., 144.)
    This suit must be determined as though the controversy was “between man and man,” and a favorable construction must be given for the claimants in these cases, because this is a remedial statute.
    
      Mr. Assistant Attorney- General Howry (with whom was Mr. W. H. Robeson) for the defendants:
    The effect of the stipulation filed in this cause is to admit, on the part of the defendants, all facts deemed to be jurisdictional and all facts deemed to be necessary to judgment but the existence of amity between the Indians and the United States; and on the part of the claimants, to admit the hostility of the Indians who committed the depredation.
    The case stands in the same attitude, therefore, as if reopened by the defendants upon the question of the want of amity alone, except that the burden of proof that would otherwise be upon the defendants to establish that want of amity is lifted by the claimant’s admission of hostility.
    The question, then, is: Is the want of amity a defense to claims which have been examined and allowed by the Secretary of the Interior or under his direction?
    It is insisted for the defendants that the effect of an allowance by the Secretary of the Interior was simply to raise a presumption of the validity and justice of the claims rebut-table upon any legal ground, and to give preference of consideration to the cases to which such presumption had attached, and that such allowance gave a claim no superior quality to one which the Secretary was authorized to examine, and conferred upon the- claimant no right and no remedy which is not given to other claimants by the act of- March 3, 1891, save the riglit of priority of consideration by the court.
    Neither in the act providing for an examination of Indian depredation claims nor in any subsequent act relating thereto is there any promise of payment.
    The act of May 19, 1796, promising indemnification for dep redations committed by Indians belonging to a band or tribe in amity with the United States, is the only act in which there is such promise.
    In support of defendant’s position the following propositions are offered:
    (1) The right of recovery against the United States under the act of March 3, 1891, depends upon its special promise to pay for depredations by Indians in amity, and not upon an implied guaranty of compliance by the Indians with the stipulations of their treaties.
    (2) The liability of the United States is by all legislation on the subject made secondary to the liability of the Indians, the United States being merely a guarantor.
    If Indians were not in amity, but were at war with the United States, there was no liability for depredations arising from their treaty stipulations.
    (3) If the act of March 3, 1891, considered in connection with all other statutes in pari materia, can bei ntelligibly and effectively construed, it is not permissible to consider extraneous facts or circumstances for the purpose of effectuating the supposed intention of Congress; nor is the construction of a Department of the Government charged with the enforcement of a law binding upon a court to whom the jurisdiction has been transferred.
    (4) The act of March 3, 1891, gives the subject a remedy against the Government, and should be strictly construed against the subject.
   Bichaedson, Oh. J.,

delivered the opinion of the court:

The jparties filed the following stipulation May 29,1893:

“It is hereby stipulated and agreed on the part of the claimant in the above-entitled cause, by John Wharton Clark, attorney of record, and on the part of the Government by L. W. Colby, Assistant Attorney-General, in charge of Indian depredation cases, that the following facts are shown by the original papers, evidence, records, and reports from tbe Government Departments on file in the office of the clerk of said court:
“1. That William Cox, the original claimant, was at the time of the commission of the depredations complained of a citizen of the United States.
“2. That on the-day of July, 1878, at or near Boesley Hill, Umatilla County, Oregon, certain Indians belonging to the said Bannock tribe, band, or nation took or destroyed property belonging to the said original claimant without just cause or provocation on the part of the owner or agent in charge, and that the same has not been returned or paid for, and was at the said time and place of the value of $1,306.50.
“ 3. That the said Bannock tribe, band, or nation of Indians were at war with the United States at the time of the commission of said depredations, but were in treaty relations with the United States.
“ 4. That on the 9th day of February, 1891, a claim for said property so taken or destroyed was examined, approved, and allowed by the Secretary of the Interior, or under his direction, in pursuance of the act of Congress making appropriations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1886, and for other purposes, approved March 3, 1885, and subsequent Indian appropriation acts, in the sum of $722.50 in favor of said William Cox, and thereafter reported with such allowance to Congress by Executive Document No. 277, of the second session of the Fifty-first Congress of the United States as Claim No. 3228.
‘ ‘ 6. That neither the said claimant nor the United States elects to reopen said case and try the same before the court, provided the foregoing facts entitle claimant to judgment under the act of March 3, 1893; but the claimant is willing to accept said allowance in full satisfaction and settlement of said claim, and asks to have judgment rendered therefor by said court under the act of Congress approved March 3,1891, entitled ‘An act to provide for the adjudication and payment of claims arising from Indian depredations.’
“JohN Wharton Olaric,
“Attorney for Claimant.
“1. W. Colby,
“Assistant Attorney-OeneraV’

This claim having been examined, approved, and allowed by the Secretary ofjihe Interior, in pursuance of the act of Congress of March 37 1885, is entitled to priority of consideration and to judgment for the amount therein found due, unless either the claimant or the United States elects to reopen the Case and try the same before the court according to the terms of the last two provisos of the Jurisdictional Act March 3, 1891, chapter 913, section 4 (1 Supp. Rev. Stat., 2d ed., p. 915), as follows:

“Provided, That all unpaid claims which have heretofore been examined, approved, and allowed by the Secretary of the Interior, or under his direction, in pursuance of the act of Congress making appropriations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and subsequent Indian appropriation acts, shall have priority'of consideration by such court,
‘‘And judgments for the amounts therein found due shall be rendered, unless either the claimant or the United States shall elect to reopen the case and try the same before the court, in which event the testimony in the case given by the witnesses and the documentary evidence, including reports of department agents therein, may be read as depositions and proofs:
“Provided, That the party electing to reopen the case shall assume the burden of proof.”

By the stiimlation of the parties the claimant has specifically elected not to reopen the case, and as to the defendants, according to our interpretation, 'they do elect to reopen the same, and to submit it upon the single fact admitted by the claimant, that the defendant Bannack tribe, band, or nation of Indians was at war with the United States at the time of the commission of the depredation, but were in treaty relations with the United States.

It is contended on the part of the defendants that such war is conclusive proof that the tribe, band, or nation was not in amity with the United States, and by reason thereof the court is without jurisdiction of the case within the terms of the Indian depredation act, which provides:

“Be it enacted, etc., That in addition to the jurisdiction which now is or may hereafter be conferred upon the Court of Claims, said court shall have and possess jurisdiction and authority to inquire into and finally adjudicate, in the manner provided in this act, all claims of the following classes, namely:
“First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on tbe part of tlie owner or agent in charge, and not returned or paid for.-
“Second. Such jurisdiction shall also extend to all cases which have been examined and allowed by the Interior Department.
“And also to such cases as were authorized to be examined under the act of Congress making appropriations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject, however, to the limitations hereinafter provided.”

In two cases we have already held that want of amity is a good defense. (Marks Case, 28 C. Cls. B., 147; Valks Case, 29 C. Cls. R., 62.)

Besides other grounds fully stated in the opinion in the Marks case we saidin the Valk case, “War supersedes treaties of peace and friendship and makes the subjects of contending sovereigns enemies at law. Such sovereignties can not be recognized as in amity with each other whatever may have previously been agreed upon.”

Those decisions were in cases not examined, approved, and allowed by the Secretary of the Interior under the act of 1885, and the claimant’s counsel, contends that the same rule does not apply to cases so examined, approved, and allowed. We are unable to see any distinction. The defendants have a right to reopen cases, and there is nothing in the statute which prevents them from setting up any defenses when opened which they might avail themselves of in cases not examined and allowed.

Proof of citizenship, the depredation, the value of the property destroyed, amity of the tribe, band, or nation, and other facts necessary to be proved are alike as necessary in one class of cases as in the other, the only difference being that the party reopening assumes the burden of proof. In no other particular is there any difference in the proof required.

It is argued that because the jurisdiction of the Secretary of the Interior in allowing claims for Indian depredations under the act of 1885 and previous acts was not limited to cases in which the Indians were in amity with the United States, and because as the jurisdiction of this court over cases allowed by the Secretary is conferred by the second clause of section 1 of tbe Indian Depredation Act of 1891, in order to admit tbe defeüse of tbe want of amity we must bring down tbe words of tbe first into tbe second clause.

It seems a more reasonable construction that when tbe defendants elected to reopen tbe case, tbe allowance by tbe Secretary of tbe Interior and all tbe proceedings by the Interior Department were set aside and tbe claim was no longer to be regarded as one examined and allowed by tbe Secretary of tbe Interior. It then became one of tbe class named in tbe first clause and subject to all tbe terms of that clause, among others to tbe citizenship of claimants and amity of tbe tribe, band, or nation of Indians committing tbe depredations. We can not bold that it was not one of tbe objects of Congress in allowing tbe defendants to reopen cases to give them an opportunity to make such defenses as could not have been made in tbe Interior Department.

Tbe judgment of the court is that tbe petition should be dismissed. In this we all concur, although tbe result is reached by different reasoning.  