
    FRANCIS SALOIS v. THE UNITED STATES, THE NORTHERN CHEYENNE AND THE SIOUX INDIANS.
    [Indian Depredations, 4800.
    Decided March 21, 1898.]
    
      On the Proofs.
    
    In 1876 there is on the reservation near Fort Robinson a large body of Indians, made np of different tribes and bands in amity. At the same time, 250 miles distant, is another body made up in the same way, known as Sitting Bull’s band. During the summer of 1876 individual Indians from tbe reservation at Fort Robinson slip away and join Sitting Bull. Depredations are committed by Indians who remain on the reservation.
    I.Tribal action can not be determined by the surreptitious action of individuals. A majority may be decisive when it is on a question for tribal determination.
    II.Indians who go away individually from their reservation and join a hostile force are to be regarded as soldiers belonging to the enemy,
    III. "Where the Government elects to regard individuals of a tribe as tbe tribe, and treats tbe tribe so recognized as being at war, the courts are concluded by the Executive action. Conversely, where the Government regards the Indians remaining on a reservation as tbe tribe by entering into a treaty with them, the courts rnus't regard the tribe as in amity. The liability of war will attach to the one and tbe obligations of peace rest on the other.
    IV. In 1876 the Ogalallas were divided by events into two bands, 250 miles apart, one at war and one in amity — that of Crazy Horse operating with Sitting Bull and the band of Red Cloud on the Pine Ridge Reservation.
    V.The general principle under the Indian depredation act is that a tribe in amity cannot be made responsible for the depredations of a band at war; and, conversely, that a band in amity can not escape responsibility for depredations committed by some of their own number because another band of the tribe is not in amity.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court: I. Tbe claimant is a citizen of tbe United States and was at tbe time of tbe depredations hereinafter referred to, and tbe depredations were' without just cause or provocation on the part ot' the claimant or his agent in charge of the property, which has never been returned or paid for.
    II. In July, IS76, on Weasel Greek, near Fort Eobinson, certain Indians took and destroyed property belonging to the claimant of the aggregate value of $800. The tribe or baud to which said depredating Indians were members is unknown, but the court at the same time finds that they were members of either the Ogalalla Sioux or the Northern Cheyennes, then on the Eed Cloud Agency at Fort Eobinson.
    III. During the year 1870 Eed Cloud, the principal chief of the Ogalalla Sioux, and a considerable body of the Ogalallas were living upon the Eed Cloud Agency, at Fort Eobinson, Nebr., and were in amity during that year with the United States. In 1875 another body of this band had gone into the Yellowstone country to hunt under a lesser chief named Crazy Horse.
    On March 17, 1876, the Sioux war of 1876 was begun by the attack of General Eeynolds on the village of Crazy Horse, in the Tongue Eiver country. After the attack on Crazy Horse and' the destruction of his village he and his baud joined the hostile Sioux uuder Sitting Bull and fought and cooperated with them. They were present and took part in the battle on the Eosebud on June 25, 1876, known as the Custer massacre. Subsequently they separated from Sitting Bull and in May, 1877, came into the reservation and surrendered.
    In like manner a considerable body of the Northern Cheyennes were upon the Eed Cloud Agency during the year 1876, and in amity with the United States. There does not appear to have been a principal chief of the Northern Cheyennes exercising the same authority as Eed Cloud did over the Ogalallas. There were likewise hunting parties of Northern Cheyennes in the Big Horn and Yellowstone country who, in the spring of 1876, joined the hostile forces of Sitting Bull. These subsequently separated from him, and the last of them, under Tah-me-la-pash-me, or Dull Knife, and Oh-cum-ga-che, or Little Wolf, were attacked by General McKenzie in the Big Horn Mountains on the 24th November, 1876, and their village was destroyed. They came in and surrendered at the agency in January, 1877.
    The scene of hostilities in the Big. Horn and Yellowstone country was about 250 miles distant from Fort Eobinson. Prior to the hostilities which began in the spring of 1876 a majority of the Ogalallas and Northern Cheyennes were on the reservation. During the spring and summer individuals and parties of the tribes surreptitiously left the reservation and joined the hostiles. At the time of the depredation in July a majority of the fighting men of each tribe were with the hostiles. Whether the Indians remaining on the reservation amounted to a majority of each tribe — i. e., of the men, women, and children of each tribe — can not be ascertained to the satisfaction of the court.
    The Ogalallas and Northern Cheyennes who entered into and, through their chiefs and headmen, executed the agreement of the 26th September, 1876, set forth in the Act of 28th February, 1877 (1.9 Stat. L., p. 254), belonged exclusively to those bodies of the Ogalallas and Northern Cheyennes who were upon the reservation at the lied Cloud Agency. The hostile Ogalallas and Cheyennes who were or had been in the Yellowstone and Big Horn country did not enter into or execute the agreement.
    
      Mr. James A. George, Mr. William B. King, and Mr. W. 11. Robeson for the .claimant.
    
      Mr. Fppa Hunton was heard for the claimant in the case of Hunton, submitted at the same time.
    
      Mr. Lincoln B. Smith (with whom was Mr. Assistant Attorney - General Thompson) for the defendants:
    The evidence cited would seem to be conclusive that the Ogalalla, Sioux, arid Northern Cheyenne tribes of Indians, as such, were in open and avowed hostility to the United States in 1876-77. The only argument against this view is that the small portion of each tribe remaining on the reservation was recognized as being in amity by the agreement for the sale of the Black Hills, negotiated with the Indians on the reservation through the commission appointed by the President in the summer of 1876. The making of this agreement is probably to be viewed as an act of policy to conciliate those Indians who had been unable or unwilling to join the hostiles, and to extinguish their right to that land, the seizure of which was to be the logical outcome of the war. In form it is an agreement with the tribes. It is without doubt unusual for the United States to make an agreement which purports on its face to be made with a certain tribe of Indians at a time when, as a matter of fact, that tribe by an overwhelming majority of its members was in open and armed hostility to the United States, yet that this was done in the case of the Northern Cheyennes is beyond cavil. It is proven, by evidence which can not be gainsaid nor rebutted that at the time that this treaty was signed practically all the Northern Cheyenne tribe was in armed hostility, had been so for several months, and continued so for an equal time thereafter. This fact is admitted and officially confirmed, not only by the War Department, but by the Secretary of the Interior and the Commissioner of Indian Affairs. Yet we have here an agreement providing for the cession of a large territory in which the tribe, as such, had undisputed rights, signed by five men, not one of whom can be shown to have been a chief of any prominence in the tribe; negotiated at a council at which out of 2,138 less than 400 were present — and those, in all human probability, old men and women and children who were unable to fight — negotiated at a time when, to use the words of the commission representing the United States, “we were fighting, their relatives and friends.”
    Neither the doctrine of estoppel nor any argument in analogy to it has any application here. It does not avail the claimant to say that, since the United States recognized the tribe as qualified to make an agreement the United States can not be heard to say that such tribe was not in amity. This defense of want of amity is made on hehalf of the tribe itself. It is the tribe of Northern Cheyennes and the tribe of Ogalalla Sioux who are the primary defendants in this case and whose annuities will be charged with any judgment rendered in favor of the claimant. If, as a matter of fact, a state of hostility existed, they are entitled to set up that fact as an answer to any claim for a depredation committed by any member of their tribes, at whatever place, during the progress of such hostilities. They are not estopped by the fact that an insignificant portion of their people, consisting entirely of those who were unable to fight and who therefore remained on the reservation, signed an agreement to give up the lands their brothers were fighting to keep. This was not an act of the tribe, and by it the tribe is not bound. Nor are they estopped by the fact that after the war was over, and they were beaten and humiliated and compelled to surrender at discretion and to obey the orders of the Government, they accepted per force whatever disposition was made of them.
    
      So far is this agreement from proving tbe amity of the tribe that it furnishes strong proof of their hostility. This agreement ceded the Black Hills and the country west of that section to the United States. It was signed, as we have seen, by an utterly insignificant portion of the tribe. The majority of the tribe has never in any manner signified its assent to that act, yet the United States has taken and retained possession of the lands. This act on the part of the United States could be justified only by the existence of a state of war between the United States and the tribe or tribes who owned the land. Otherwise it would have been an act of robbery perpetrated upon a friendly tribe. What is stated of the Northern Cheyenne tribe is clearly true of the other tribes concerned.
    The court has heretofore held that by the course of events a hostile band might be constituted whose status would be considered regardless of that of the larger band or of the various bands to which its members formerly belonged and from which they had transferred their allegiance. No such condition exists here. The Northern Cheyenne tribe was an entity which had never been divided. When the war broke out the warriors left in smaller or larger bands from time to time, to join the hostiles, until but 300 or 400 were left on the reservation, presumably those who were unable to go. This smaller number of Indians remained on the reservation during the whole time when the soldiers were fighting the hostiles, aiding and encouraging the latter up to the time when they were prevented from so doing by the act of the military in taking possession of their agency. Aside from the fact that they were not in the field there is nothing to distinguish them from the hostiles. When the hostiles were defeated, they returned to the reservation. Some of them were returning from time to time even as early as August, 1876; as they returned they became merged again with those who had remained; and when the hostilities were over the whole tribe was again united. The Indians who had remained on the reservation never had formed a separate band; there was no ethnic or other line of distinction between them and the other' members of the tribe; they had no leaders distinct from the leaders of the tribe; they did not transfer their allegiance from the tribe to any other tribe; there was no new organisation; they did not form a political entity.
    It may be said that the agreement of 1876 recognized the Indians on the reservation as a peaceable band; but this con-teution proves too much. The recognition, if any, was the recognition of a tribe or tribes who' had the legal right to dispose of the great Sioux Reservation; the only bodies of Indians who had a right to participate in such an agreement, except the Arapahoes, were the Cheyenne and Ogalalla tribes, as such. If, therefore, the making of this agreement was the recognition of the Indians with whom it was made as a separate band, it was the recognition of them as the Cheyenne tribe and the Ogalalla tribe, and to make this contention is fatal; for it is to contend that the.United States Government accomplished a fact that was beyond its power; that the commission took a part and made it equal to the whole. If any fact is clearly established by the evidence in this case, it is that the Cheyenne tribe and the Ogalalla tribe were not at the Red Cloud Agency and did not, as tribes, participate m the agreement in question.
    Again, the only insignia by which we might know that any Indian belonged to this hypothetical friendly band was his presence on the reservation. The Indian who left the reservation thereby declared himself a member of the other portion of the tribe; he indicated his willingness, under the proclamation of the United States Government, to be considered and treated as hostile. Several engagements with hostile Indians actually took place on the reservation itself. It is manifestly impossible, then, to say that an act committed off the reservation, as was this depredation, was committed by a member of a friendly band whose sole distinguishing characteristic was the fact that he remained on the reservation.
    There is another objection which is fatal to the claimant’s case, in that there is no existing entity against whom judgment can be rendered. The “ peaceable band,” if it ever existed, did not outlast the war. The Indians who committed the depredation are not “ unknown Indians,” and any judgment in claimant’s favor must be charged against the tribe; but the tribe' was not in amity.
   Nott, Gh. J.,

delivered the opinion of the court:

In 1876 there was on the reservation near Fort Robinson a large body of Indians made up of different tribes and bands. Depredations were committed by individual members of this body, but the body as a whole, if not the tribes and bands which were parts of it, was virtually in amity with the United States. No such condition of affairs existed as would warrant one in saying that every Indian was the enemy of every white man and every white man the enemy of every Indian. If the settlers, whose property was taken or destroyed, had organized and taken up arms and proceeded in military fashion against the Indians, the authorities of the United States, civil and military, would quickly have interposed and disarmed the insurgents and protected the Indians.

At the same time, in a part of the country 250 miles distant, was another body of Indians, composed in like manner of Indians of different tribes and bands, and the body was popularly known as Sitting Bull’s band. Sitting Bull was not an hereditary chief, and was not the leading war chief of this band of Indians, but he was the great intellectual power that ruled and led. It was he who incited them to war; it was he who led them into Canada; it was he who brought them back; it was he whom the United States thought it necessary to arrest in 1890; and it was his death that brought on the conflict which culminated in the battle of Wounded Knee. To all intents and purposes Sitting Bull’s band was like Victoria’s band or Black Hawk’s band. The three bands were made up of Indians of different tribes; the chiefs were not hereditary chiefs; the purpose of the first was to make war on the United States; the purpose of the second was plunder and rapine; the purpose of the third was to forcibly resist by arms all attempts of the Government to place them upon reservations.

During the summer of 1876 undoubtedly many individual members of the tribes on the reservation at Fort Bobinson slipped away individually and surreptitiously and joined Sitting Bull. It is probable that a majority of the fighting men of the Indian bands which are defendants in this case did so; it is doubtful whether a majority of all the members of any tribe — men, women, and children — remained upon the reservation. But the tribal action of a tribe can not be determined by the surreptitious actions of individual members. A majority may be decisive of a question when the majority act for the tribe on a question for tribal determination. In this case there was no tribal action whatever — nothing which was signified by the commands of a chief, by the resolution of a council, or by the vote of a tribe. The Indians who went away went as individuals, not to remove their tribe to a new habitat, but to join the hostiles. Under previous decisions of the court, when they joined the hostiles they lost their tribal character, and are to be regarded as hostile soldiers belonging to and fighting under Sitting Bull’s flag. The tribe, as a tribe, remained on the reservation, drawing rations, receiving annuities, avowing allegiance to the United States.

Furthermore, the United States so elected to treat and deal with the Indians who remained upon the reservation. The agreement of September 20,1876, for the purchase of the Black Hills was negotiated with them and executed by them, and they were recognized as being the tribes, notwithstanding that material portions of each tribe had fought under Rain in the Face on the fatal 25th of June, and were still absent from the reservation.

If the Government had elected to regard those individuals of a tribe who had joined Sitting Bull as the tribe, and had treated those who remained on the reservation as prisoners of war, and had seized the lands of the Indians in the Black Hills as conquered territory, the courts undoubtedly would be concluded by the executive action and be obliged to hold that the defendants were not in amity. Conversely the courts must regard the Indians who joined Sitting Bull as individuals, who for the time being had expatriated themselves, and the body of Indians with whom the Government made the treaty of 1876 as the tribe.

This court is bound, both by the facts of the case and the action of the political branch of the Government. The depre-dators here belonged to the body of Indians which remained upon the reservation. To exempt the tribe from liability for the depredations of these reservation Indians because other members of the tribe had practically alienated themselves and gone over to a belligerent band would be to defeat the purpose of the statute and to award to the tribe immunity for its dep--redations while it enjoyed the advantages of amity with the United States. The purpose of-all the Indian intercourse acts was to impose on Indians in amity the obligations of peace. It does not lie in the mouth of these defendants to say, “ We are exempt from those obligations because some of our young men or all of our young men went off, surreptitiously and individually, and joined a band at war with the United States.”

If a minority can separate themselves from a tribe and become a band at war, so that depredations committed by members of the band are not within the jurisdiction of the court, logically and reciprocally a minority which segregate themselves from a tribe at war, and remain under tbe protection of and in amity with the United States, must be deemed a band in amity as to depredations committed by their members. In the former case, Indians in amity can not be made responsible for the acts of Indians at war; in the latter, Indians in peace can not evade responsibility for their own acts by setting up the acts of Indians at war. If a minority can separate and become a band for the purposes of war, a minority can separate and become a band for the purposes of peace. The liability of war will attach to the one and the obligations of peace will rest upon the other.

The condition of the Ogalallas in 1876 illustrates the situation. Red Cloud, the principal chief, remained through all the vicissitudes of that eventful year upon the Red Cloud Reservation, adhering to the promise never to war upon the whites, which he had given when he signed the treaty of 1868. With him remained a considerable number of the Ogalallas, whether a majority or a minority is in dispute. Crazy Horse was a lesser chief of the Ogalallas at the head of a party who had gone into the Yellowstone country to hunt, and who were, in March, 1876, wintering in the recesses of the mountains on the head waters of the Tongue River. On the 17th of March the troops of the United States attacked the band of Crazy Horse, thereby beginning the war which culminated in the annihilation of Custer and his command in June, 1876, and ended with the surrender of Crazy Horse and the destruction of Lame Deer in May, 1877. During that period the Ogalallas living on the Red Cloud Reservation committed depredations, some of which are now the subject of the present action.

During that same period the Ogalallas under Crazy Horse continued to fight the troops of the United States. On the 26th of September, 1876, tbe Ogalallas under Red Cloud, on the reservation, entered into the agreement for the sale of the Black Hills country, and the first signature of the Ogalallas upon the agreement is Marpiya luta ” (Red Cloud). (19 Stat. L., pp. 254,257.) On the 24th November, 1876, General Mackenzie, operating against Crazy Horse, struck and annihilated the Cheyenne camp in the Big Horn Mountains. Some of the scouts fighting with him were Ogalallas from the reservation. “Dull Knife/’ says Captain Bourke, “called out to our Sioux and Cheyenne scouts: Go home — you have no business here; we can whip the white soldiers alone, but can’t fight you, too.’ ” Others of the Cheyennes cried, “ You have killed and hurt a heap of our people, and you may as well stay now and kill the rest of us.” It required all of the influence of the great Sioux chief, Sintiega leska (Spotted Tail), to induce Crazy Horse to come in and surrender; and it was not until the 6th of May, 1877, that he and his band came in and laid down their arms at the agency. When that surrender of the Ogalallas at war took place, the agreement of the Ogalallas in amity had been ratified by Congress by the Act 28th February, 1877 (19 Stat. L., p. 254).

It is therefore apparent that at the time when the depredations were committed tbe Ogalallas were iu fact really divided by events into two bands. It is immaterial with which was the majority, and immaterial as to which had the better title to the tribal name. There were two bands, in fact, 250 miles apart, the one at war, the other in amity. On the band of Crazy Horse fell the retribution of war, a retribution as terrible as was ever inflicted by the army of a civilized nation, smiting men and women and children. On the band of Eed Cloud none of the horrors of war fell; but bn them there continued to rest the obligations of peace, and one of those obligations was that they should pay for property taken and destroyed by individual members of their band.

It is not to be understood by anything in this opinion that where a tribe was at war and a minority of the tribe remained on a reservation, having none of the characteristics of a band and giving no professions or acts indicative of amity, they will be recognized by the court as a band or be regarded, as being in amity. Such a minority, on the contrary, may be regarded as having had the legal characteristics of resident alien enemies; and the fact that they committed depredations while under the control or in the custody of the United States may be held to be something less than a compliance with the jurisdictional condition of belonging to a tribe, band, or nation in amity with the United States. It is not easy to lay down a distinctive definition of what is and what is not a band of Indians within the meaning of the jurisdictional act, but the general principle is plain that a tribe in amity can not be made responsible for the depredations of a band at war; and, conversely, that a band in amity can not escape responsibility for depredations committed by some of their own number because another band of the tribe is not in amity with the United States. The characteristics of tbe present ease are that the Ogalalla and Northern Cheyennes were each practically divided into two bands, separate and apart, the one in amity on their reservation, the other at a great distance at war, and that the Government recognized the former as the tribe, or at least as a distinctive' band, and dealt with it accordingly.

In this case it is certain that the depredation was committed by either Ogalallas or Cheyennes of the Red Clond Agency, bat it is not certain of which tribe the depredators were. The evidence is insufficient to identify either. The petitions against the Sioux Indians and the Northern Cheyenne Indians will therefore be dismissed, and a judgment against the United States for the depredations of unknown Indians will be entered for $800. So much of the petition against the Sioux Indians as relates to depredations committed in the years 1866, Í867, and 1873 is dismissed under the previous decision of the court in this case (32 C. Cls. R., 68),  