
    JAMES S. VALK, SURVIVOR, ETC., v. THE UNITED STATES AND THE ROGUE RIVER INDIANS.
    [Indian depredations,
    475.
    Decided February 12, 1894.]
    
      On the Proofs.
    
    The facts now found differ from those on. the former trial only in one particular. They show that the claimants at the time the depredations were committed were subjects of the King of Hanover, and entitled by the treaty 1847 to “free access to the tribunals of justice in their litigious affairs on the same terms which are granted by the law and usages of the coimtry to native citizens.”
    
    I. In the Indian Depredation Act, 1891, citizenship and amity relate to the same time. Hostile Indians were not to be made liable for past depredations by subsequently becoming “in amity,” nor were aliens to acquire new rights by subsequently becoming citizens.
    II. The omission of the term “inhabitants,” used in previous acts relating to Indian depredations, was regarded as significant by the Interior Department; and its construction of the act 1885 was adopted by Congress in the act 1891.
    III. A declaration to become a citizen did not make an alien a citizen within the intent of the act of 1891."
    IV. The treaty with Hanover 1847 refers only to ordinary litigation, and does not extend to the subsequent right of litigation against the Government.
    V. A treaty provision assuring to aliens “free aceess to the tribunals of justice” does not prevent this Government from giving subsequently special rights of action to its own citizens against itself to the exclusion of aliens.
    VI.A treaty is evidence of amity, in connection with other facts and circumstances, but is not conclusive.
    VII.War supersedes treaties, and makes the subjects- of contending sov-ereignties enemies in law.
    VIII.The Indian Depredation Act was framed in accordance with the general policy of all governments, nottopayforproperty destroyed in war.
    
      
      The Reporters’ statement of die case:
    The following are the facts as found by the court:
    I. In 1856 the claimant, James S. Valk and Moritz Valk (since deceased), were copartners, under the firm name of Moritz Valk & Bro., residing and in the business of mining for gold and silver at Gold Beach, in Oregon, at the time the depredations hereinafter mentioned were committed.
    II. Said Valks were both aliens at that time, being subjects of the King of Hanover. Thereafter said Moritz Valk was admitted to be a citizen of the United States of America by the court of common pleas for the city and county of New York on the 16th of February, 1859, and said James S. Valk was in like manner admitted to be such citizen on the 14th of October, 1859. Said James had declared his intention to become a citizen of the United States before the same court in due form on the 12th day of January, 1855. It does not appear whether or not said Moritz made any such primary declaration of his intention to become a citizen previously to February, 1859, unless it is to be presumed from his having subsequently received his final papers as aforesaid.
    III. In February, 1856, the Bogue Biver tribe of Indians was in armed hostility and war, making a general onslaught on the settlers and destroying their property. In this warfare the whole tribe was engaged. The relation of these Indians to the United States further appears from numerous public documents, of which the court takes judicial notice. (Ex. Doc., H. of B., No. 26, first session Thirty-fourth Congress; Ex. Doc., H. of B., No. 66, second session Thirty-fourth Congress; Ex. Doc., H. of B., No. 118, first session Thirty-fourth Congress; Ex. Doc., H. of B., No. 1, third session Thirty-fourth Congress; Beport of Secretary of the Interior, 1856, Ex. Doc. 1, third session, Thirty-fourth Congress; Beport of Secretary of War, 1856, Ex. Doc., No. 1, third session Thirty-fourth Congress; Beport of Secretary of War, 1856, Ex, Doc. 1, first and second sessions Thirty-fourth Congress.)
    From these facts the court finds the ultimate fact, so far as it is a question of fact, that the tribe of Bogue Biver Indians was not in amity with the United States at the time the depredations complained of were committed.
    IV. In said month, and while the war was flagrant, property of the firm of Moritz Yalk & Bro., described in the petition, of more than $3,000 in value, was taken and destroyed by Indians belonging to said tribe, without just cause or provocation on the part of the owner or agent in charge, and has not been returned or paid for.
    Y. The claim was examined in the Interior Department under the Act of March 3,1885, chapter 341 and amendments thereto, but did. not receive final action. (27 C. Cls. E., 321.)
    YI. In allowing claims for Indian depredations under the Act of March 3,1885 (ch. 341,1 Supp. Eev. Stat., 2d ed., p. 913, note), it has been the practice of the Interior Department to interpret the words “ citizens of the United States,” therein used, as meaning only those who were citizens at the time the depredations were committed.
    
      Mr. Charles Brownell for the claimant.
    
      Mr. Assistant Attorney-General Howry for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The facts in this case as now presented differ from those found on the former trial (27 C. Cls. R., 241) only in one particular. Finding n shows that the claimants at the time the depredations were committed were subjects of the King of Hanover, and were entitled to all the rights and privileges acquired by the treaty between the United States and the King of that country, A. D. 1847. (Treaties and Conventions between the United States and'other powers from July 4, 1776, to 1887, p. 523.)

As to the law arising upon the other facts in the case, we have but to repeat substantially what we said before.

In February, 1856, the claimants owned property which was taken and destroyed by Indians belonging to the tribe of Bogue Eiver Indians, and this action is brought to recover damages for the same under the Act of March 3, 1891 (chapter 538, 1 Supp. Rev. Stat., 2d ed., p. 913), which provides that the court shall have jurisdiction, among other cases, of—

“ 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 the part of the owner or agent in charge, and not returned or paid for.”

The defendants resist the claim on two grounds:

First. Because the claimants, aliens by birth, were not citizens of the United States at the time the depredations were committed, though they had become such long before this action was brought. The statute confers jurisdiction on the court to inquire into and finally adjudicate “all claims for property of citizens of the United States taken or destroyed by Indians,” etc., without declaring specifically whether the claimants must have been citizens at the time of the commission of the depredations, or such only when the act was passed or when their suits are brought.

It is evident that the whole paragraph relates to but one period of time, and that period was when the depredations were committed. It never has been questioned, and nobody can doubt, that it is the amity of the band, tribe, or nation at that time which must be proved.

The words “citizens of the United States” and “Indians belonging to any band, tribe, or nation* in amity with the United States” are so closely connected in the same paragraph, that they must refer to the same time. ■ The status of the Indians as to amity and of the persons whose property was taken or destroyed as to citizenship both or neither must be determined as of the time the depredation took place. Their rights and liabilities were fixed at that date, and could not be changed by their future acts. Hostile Indians were not to be made liable for past depredations by subsequently becoming in amity, nor were aliens to acquire new rights by subsequently becoming citizens.

If there be doubt or ambiguity on this point, much light is thrown upon it by the intention of .Congress, made apparent from the course of legislation and the practice of the Interior Department in connection therewith.

Before 1885 every Indian depredation act provided for indemnity for property destroyed by Indians to any “citizen or inhabitant” of the United States. (Act of 1796, May 19, ch. 30, sec. 14, 1 Stat. L., 472; Act of 1799, March 3, ch. 46, sec. 14, 1 Stat. L., 747; Act of 1802, March 30, ch. 13, sec. 14, 2 Stat. L., 143; Act of 1834, June 30, ch. 161, sec. 17, 4 Stat. L., 731; Rev. Stat., sec. 2156.)

The Act of 1885, March 3 (ch. 341), referred to in the Act of 1891, March 3 (ch. 538), set out in 1 Supp. to Rev. Stat., 2d ed., p. 913, note), provided for tbe continuation of tbe examination, allowance, and approval of Indian depredation claims on bebalf of “citizens of tbe United States,” omitting tbe words “or inhabitants, ” used in former acts.

This was regarded by tbe Interior Department as significant of tbe intention of Congress to limit allowances in sucb cases to citizens of tbe United States at tbe time tbe depredations were committed, and it bas ever since been tbe practice of tbe Department to find, in allowed cases, that tbe claimants were citizens of the United States at tbe time of tbe commission of tbe depredations.

Tbe Jurisdictional Act of 1891, March 3 (ch. 538), which we are now considering, adopted the language of tbe act of 1885, to which it refers, and in our opinion Congress intended to use therein tbe words “ citizens of tbe United States” in tbe sense that bad been given by tbe Interior Department to tbe same words-in. tbe act of 1885 for tbe past six years, which it must be presumed- was known to Congress. In this we do but adopt and follow tbe ruling of tbe Interior Department under said act of 1885, tbe general policy of which, except as to jurisdiction, Congress seems to have intended to continue.

The-claimants contend that, if that interpretation be correct, they, or tbe survivor, who brings this action, having duly made tbe primary declaration to become citizens before tbe depredations were committed, were in law citizens for tbe purposes of tbe act. Tbe authorities are against them on this point, and we can not adopt tlieir construction.. (Richards v. McDaniel, 2 Nott & McCord, 361, and 1 McCord, 187; In re Desty, 8 Abb. N. C. (N. Y.), 250; In re An Alien, 1 Hill, 141; Dryden v. Swinburne, 20 W. Va., 89; Long v. Randall, 4 Dill., 425.)

Tbe same interpretation bas been followed by tbe Executive in treaties and public documents.

Tbe claimants further contend that if they were not citizens they were subjects of tbe King of Hanover, between whom and tbe United States there existed a treaty, which contained tbe following provisions:

They [tbe citizens or subjects of sucb party] shall have free access to the tribunals of justice in their litigious affairs on tbe same terms ivhich are granted by tbe law and usages of tbe country to native citizens or subjects, for which purpose they may employ in defense of their rights sucb advocates, attorneys, and other agents as they may judge proper (p. 527).”

This treaty was made in 1847, many years before the Court of Claims was established and before the United States had consented to be sued in any court. The organic act provided under what circumstances aliens might sue in the Court of Claims. (Act of 1868, July 27 (ch. 276, sec. 2, 15 Stat. L., 243, now Rev. Stat., sec. 1068.)

In our opinion such a treaty provision in the treaties with numerous countries does not prevent the United States from giving special rights of action to its own citizens in particular cases to the exclusion of some or all aliens. It applies only to ‘‘litigious affairs” of aliens with each other and with citizens, given by the law and usage of the country to its native citizens or subjects in ordinary cases.

Moreover, the statute upon which this action is founded was passed more than forty years after the treaty with Hanover was promulgated, and the Supreme Court has decided that when there is a conflict between the provisions of a treaty and those of a statute the latest in date must govern. (The Cherokee Tobacco Case, 11 Wall., 516.)

Second. Another defense against the claim is that the tribe or band of Bogue Biver Indians was not in amity with the United States at the time the property was taken and destroyed; amity being a condition precedent to the right of recovery. The tribe was in armed hostility and war, making a general onslaught on the settlers and destroying their property.. In this warfare the whole tribe was engaged.

Tribes, bands, or nations who raid on their neighbors, wage war upon them, and commit depredations can not be held to be in amity with the country whose citizens are thus injured.

The tribe was in treaty relations with the United States at the same time (10 Stat. L., 1018, 1119), but this warfare and these hostilities prove conclusively that the tribe was not in amity with the United States within the meaning of the word as defined by this court in the case of Samuel Marks amd Hyman Wollenberg v. The United States and the Bannock Indians (28 C. Cls. R., 147), and so far as it is a question of fact the court has found the fact so to be.

A treaty is some evidence of amity, to be considered with other facts and circumstances, but is not conclusive. It is at most but prima facie evidence.

Besides, war supersedes treaties of peace and friendship and makes the subjects of contending sovereignties enemies in law. Such, sovereignties and their subjects can not be regarded as in amity with each other, notwithstanding previous agreements.

The jurisdictional act, as we interpret it, is in accord with the general policy of the Government and of all governments, not to pay for property destroyed in war. (See Act of 1887, March 3, ch. 359, § 1, first proviso, 1 Supp. Rev. Stat., 2d ed., p. 559), and Loranger’s Case; opinion of Court of Claims, by Judge Blackford, A. D. 1857 (35th Congress, first session, Rep. C. C. R., No. 96).

The conclusion of the court is that the claimant has no cause of action, and his petition must be dismissed.  