
    VINCENTE MASCARINAS v. THE UNITED STATES AND THE CHEYENNE, ARAPAHOE, KIOWA, AND COMANCHE INDIANS.
    [Indian Depredations, 1256.
    Decided December 6, 1897.]
    
      On the Proofs.
    
    On the 19th June, 1874-, Indians of the Cheyenne and Arapahoe tribes steal a number of horses from the claimant in northwestern Texas, near the New Mexican line. The question in the case is whether those tribes were at that time in amity.
    I. The Cheyennes and Arapahoes were in amity with the United States on the 19th of June, 1874.
    II. The official records from the date of the treaty 19th August, 1868 (15 Stat. U., p. 593), reviewed.by the court.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. At the time of the depredation hereinafter found the claimant was a citizen of the United States, residing in Taos County, in the Territory of New Mexico.
    II. On the 19th day of June, 1874, the claimant, was the owner of tbe horses and mares described in the petition, then and there reasonably worth the sum o'f $480. On said date, in the northwestern part of Texas, near tbe line of the Territory of New Mexico, Indians belonging to'the Cheyenne and Arapahoe tribe, band, or nation, stampeded, took, and drove off said i>roperty without the claimant’s consent and without any cause or provocation on the part of said claimant or his agent in charge, and which property has never been returned or paid for.
    III. At the time of the depredation aforesaid the Cheyenne and Arapahoe Indians were in amity and in treaty relations with the United States.
    IY. On the 2d day of July, 1890, the claimant filed a claim for said property in the office of the Commissioner of Indian Affairs, and evidence was filed in support thereof.
    
      Mr. William B. King for the claimant.
    
      Mr. Harry Peyton (with whom was Mr. Assistant Attorney-General Thompson) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

In the original petition herein the Cheyenne and Arapahoe Indians only were made defendants, but later an amended petition was filed making the Kiowa and Comanche Indians parties def: dant as well.

The findings, however, show that the depredation complained of and as found by the court was committed by the Cheyenne and Arapahoe Indians June 19, 1874, in the northwestern part of Texas, near the line of the Territory of. New Mexico.

The defendants contend that the depredating Indians were not in amity with the United States at the time of the depredation, and this presents the question we are called upon to consider.

The Cheyenne and Arapahoe Indians were under treaty relations with the United States by treaty proclaimed August 19, 1868 (15 Stat. L., 593), and they are therefore entitled to the presumption of amity.

In the case of Toney Meloche, No. 1900, wherein a depredation was committed by the Cheyenne Indians in Colfax County, N. Mex., July 5,1874, we found that the presumption of amity was overcome and that they were not in amity with the United States at that time.

Indian Agent Miles, in his report of September, 1874 (Report Commissioner of Indian Affairs for 1874, p. 233 et seep), estimates the number of Arapahoes at 1,600 and of the Cheyennes at 2,080, of which latter he estimates about 1,800 absent and supposed to be hostile.

In that same report the agent, in referring to the Cheyenne Indians, speaks of tlie loss of ponies from the herd of Little Robe while on his reservation at the hands of horse thieves, and assigns this as the cause of the open outbreak in May, 1874, to which he refers.

The outbreak, however, was encouraged not by the tribe or a majority thereof but, as the agent says, by “ some of the worst disposed,” so that while' the tribe as such was not in fact hostile it appears to have broken away with the “ worst disposed” and thereby acquiesced in their acts.

The “open outbreak” to which the agent refers evidently means away from their reservation in violation of treaty obligations and with hostile intent, for in the same report, as before stated, he speaks of some 1,800 Cheyennes being absent without leave and supposed to be hostile.

The outbreak of itself, however, is not sufficient to constitute a want of amity on the part of the tribe toward the United States, as it might have been merely for the purpose of plunder and pillage; so to determine the intent of the Indians by their outbreak we must look to their acts thereafter.

In the report of General Pope (found in the Report of the Secretary of War for 1874, p. 29 et seq.), he says:

“Up to the 1st of March, 1874, there were no difficulties of a general character with the Indians since the date of my last annual report; but during the month of March it became manifest that the small incursions of Indians into the frontier settlements common to our experience every spring were certain to be made. Along the Medicine Lodge Creek, in southern Kansas, several persons were killed in March, and from that time to July 1 small forays info that part of Kansas continued to be made.”

Up to this time, therefore, it appears that the Indians were acting in “small incursions” and “ small forays,” but whether the tribe, as such, was engaged therein does not appear. But it does appear from the same report that “ early in July a general movement of the Cheyennes in small war parties was made all along the frontier of Kansas, Colorado, and New Mexico, and a considerable number of people, mainly herders and hunters, were killed.”

This shows that after July there was “a general movement of the Cheyennes,” and that they were divided up into “ small war parties.”

It appears from this same report that a trading post had been established without license or authority “ by some persons doing business in Dodge City at Adobe Walls, in the Panhandle of Texas” * * * “to trade with the Cheyennes and Arapahoes, and such other Indians as might come there, but mainly to supply the buffalo hunters, whose continuous pursuit and wholesale slaughter of the buffaloes, both summer and winter, had driven the great herds down into the Indian reservation,” and that the trading post had supplied the Indians with “arms and ammunition, whisky,” etc., and that the arms thus supplied had been “used to attack and break up this trading post, which was put there to enable the white hunters to invade unlawfully the Indian reservation.”

The Indians, “about thirty, attacked Major Compton, Sixth Cavalry, returning from Camp Supply, with a small infantry escort, but he charged the Indians rapidly, killed four, left on the field and wounded five or six others.”

This attack General Sheridan reports as having occurred at Buffalo Creek, iu the Indian Territory, June 21,1874. (Supra, p. 28, and Record of Engagements with Hostile Indians, 1868 to 1882, within the Military Division of the Missouri, p. 39.) This outbreak, General Sheridan says (Report Secretary of War, 1874, p. 28), may be dated from the attack on Major Compton’s party between Fort Dodge and Camp Supply, that being the attack of June 21.

General Pope in his report further states that the “ difficulties with the Cheyennes were mainly caused by the unlawful intrusion and illegal and violent acts of the white hunters,” and that the difficulties thus begun “ increased until the whole of the Cheyennes and most of the Comanches and Kiowas were involved in it, and it became necessary to make some general movement of troops against these Indians.”

But before the troops could move on to the Indian reservation he says it was necessary to have “the permission of the Interior Department,” which after some delay was telegraphed him on July 21, and that he “at once arranged an expedition under Col. N. A. Miles, Fifth Infantry, with three small field guns, to move against the hostile Indians on their reservations.”

About the same time other troops under Colonel Neill were sent to tbe Cheyenne and Arapahoe Agency, on the Canadian Kiver, with orders to “ seize all the hostile Indians who had been raiding and who might seek safety at the agency from the movement of Colonel Miles against them from Camp Supply.”

In this same report, as to the condition of affairs in New Mexico, General Pope says: “In New Mexico the year has been one of unusual quiet with the Indians, and no general difficulty, nor indeed any difficulty whatever beyond occasional thieving, is expected with them.”

The reports do not indicate any hostile acts on the part of the Arapahoes prior to the date of the depredation in this case; and as to the Cheyennes, the first encounter with troops appears to have been June 21, 1874, at which time General Sheridan dates the outbreak, though the reports show that it was not until after July 1 that there was “a general movement” of them “in small war parties.”

In the compilation of official records of “Engagements with Hostile Indians within the Military Division of the Missouri” for the years 1874 and 1875, it appears that subsequent to the attack on Major Compton, June 21,1874, the Cheyenne (Southern) and the Kiowa and Comanche Indians had frequent conflicts with the various military forces under the general command of General Sheridan, and committed horrible massacres.

This condition of things continued until the close of the year 1874, and General Sheridan, in his report for 1875, says: “In the Department of the Missouri, the campaign against the Cheyennes, Kiowas, and Comanches was finished early in the spring, and the ringleaders and worst criminals separated from the tribes and sent to Fort Marion, Fla.”

In the case of Gamel (31 C. Cls. R., 321) the court held that the Kiowa and Comanche Indians were hostile from June 1, 1874, to June 1,1875, and as to them we are not disposed to modify the conclusions reached in that case. But as to the Cheyennes and Arapahoes, the official reports do not appear to connect them as tribes with acts of hostility until the attack on Major Compton, June 21.

Hence we are of the opinion that at the time of the depredation in this case, June 19,1874, the defendant Cheyenne and Arapahoe tribes of Indians were in amity with the United States, and that the claimant is entitled to recover the sum of $480, as set forth in the findings.

As to tbe defendant Kiowa and Comanche Indians, tbe petition is dismissed.

Howry, J., was not present when this case was tried and took no part in the decision.  