
    O. T. WELCH, Administrator, v. THE UNITED STATES AND THE CHEROKEE INDIANS.
    [Indian Depredations, 4886.
    Decided January 11, 1897.]
    
      On the Proofs.
    
    The claimant in April, 1861, occupies a house and farm in the Cherokee ■ Strip without authorization from the Cherokee government. In July he abandons his stock and young crops and removes, under threats from the Indians. All the personal property is destroyed and suit is brought for its value.
    I.The Indian Depredation Act is strictly jurisdictional. It affords a remedy for existing- claims, hut does not define them nor create new liabilities against Indians. The words in the statute, “mth-out jti-st cause or provocation,” do not operate retroactively, either as to the claimants or defendants.
    II,At the time of this depredation, July, 1861, the liabilities of the Indians and of the United States were defined and regulated by the Act 30th June, 1834 (4 Stat. L., 729, § 17), as modified by the Act %8th February, 1859 (11 id., 401), and the Joint Resolution %5th June, 1860 (12 id., 120).
    III.Under the act 30th June, 1834, it is necessary either that the wrong was committed by Indians off of their reservation, or if on the reservation that the person injured was lawfully there.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts in. tbe case as found by tbe court:
    I. O. T. Welch is tbe administrator of tbe estate of Aaron Decker, deceased.
    II. Tbe deceased claimant, Aaron Decker, was a native-born citizen of tbe United States, residing at tbe time of bis death in Bourbon County, Kans. Tbe defendant Indians were at tbe time of tbe depredation, hereinafter set forth, in amity and treaty relations with tbe United States.
    III. At tbe time of tbe taking effect of tbe act of March 3, 1891, entitled “An act to provide for tbe adjudication and payment of claims arising out of Indian depredations,” tbe claim bad been presented to tbe Secretary of tbe Interior, with evidence in its support.
    IY. No part of the property charged in bis petition has ever been returned or paid for, and there are no counter claims or set-offs due from tbe said Aaron Decker to tbe said defendants.
    
      Y. In April, 1861, tbe claimant’s decedent, Aaron Decker, entered upon lands lying within that part of the Indian country known as the Cherokee Strip, belonging to the Cherokee Nation. He occupied a farm and the dwelling-house and barn thereon, which had previously been erected by some other person. Whether he acquired this property by purchase from the former occupant does not appear. He had no license or permission or lease from the Cherokee government.
    YI. In July, 1861, a body of Indians appeared and threatened the white settlers in the vicinage of the claimant with personal injury and the destruction of their property if they did not remove from the Cherokee country. In the next month the same or a second body of Indians reappeared, and so intimidated the decedent and the white settlers, his neighbors, as to compel them thereby to remove. The decedent was not actually injured or threatened by the Indians, but he abandoned his residence and farm and left the Cherokee country under the stress of intimidation and in the belief that he would be killed by the Indians if he did not so withdraw.
    YII. The claimant’s decedent left behind him when he so removed one cow and a number of swine, and growing crops upon his land. In 1865 he returned to the Cherokee Strip, and found that his house, barn, fences, and crops had been burned. The court finds the ultimate fact that the Indians who intimidated him were Cherokees, and that the destruction of property as above set forth was done or caused by them.
    
      Mr. G. A. Keigwin for the claimant:
    1. The fact of the trespass, if it be a fact, does not bar recovery. This would be so even if the claimant’s settlement were without license, and if the expulsion were the act of the Nation, and if the Nation had authority to expel intruders.
    A trespasser may be removed, but he can not be robbed, and in an action by him for excessive violence or other tort it is no defense to say that he was acting unlawfully or even engaged in the commission of a misdemeanor. (The Richmond v. United States, 9 Cr., 102.)
    A seizure within the limits of a foreign power is an offense against that power, but does not prevent condemnation. (See also The Merino, 9 Wheaton, 391.)
    
      Kidnaping a fugitive. (Her v. Illinois, 119 U. S., 436; P., W. & B. B. R. Go. v. P. & H. &e G. Toioboat Or., 23 How., 209.) The fact that the steamer was sailing in violation of the Sunday laws is no defense to an action for tort.
    “We should work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he, too, is a public offender.” (Molmey v. Ooolc, 26 Pa. Lt., 342.)
    
      2. The claimant was in the country under an implied license. He was at least a tenant at will, and, under the common law doctrine of emblements, was entitled to his growing crops.
    3. The expulsion was not the act of the Cherokee Nation. No connection is shown between the depredators and the tribal authorities. It was the act of a mob.
    4. Even were the expulsion the act of the nation, it would still be a tort. The treaty of 1835, article 6, provides that intruders shall be removed “ by order of the President of the United States.” This leaves no power in the Cherokee Nation to expel intruders. That is in the discretion of the Interior Department. (16 Opinions, 404; Ex. Doc. No. 56, 52d Cong., 1st sess., pp. 22,34,36.)
    
      Mr. Harry Peyton (with whom was Mr. Assistant Attorney-General Iloiory) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

In July, 1861, Aaron Decker, the original claimant, was an intruder upon the lands of the Gherokees. In that month a considerable body of Indians appeared and threatened the white settlers in the neighborhood of the claimant with injury and destruction of property if they did not remove. In the next month they reappeared and, it is believed, killed some of the settlers and compelled all of them to remove. The claimant was not actually injured or threatened, but he left under the stress of intimidation, carrying with him the most of his stock and some of his personal property. One cow and a number of swine were left behind, and it subsequently appeared, after the lapse of some years, that his house and barn and fences and crops had been burnt and destroyed. It does not appear whether the Cherokees were acting officially — that is to say, by authority of the Cherokee government — or whether they were a mere mob. The court, however, is satisfied that the Indians were Cherokees, and that their acts amounted to intimidation and compulsion.

The Indian Depredation Act, 1891 (§ 1), imposes the jurisdictional condition that a depredation must have been committed “ without just cause or provocation on the part of the owner” of the property. Intrusion on the lands of the Indians, it was argued by the defendants, was “ provocation” within the intent of the statute. On the part of the claimant it was contended that this intrusion was not “provocation5” that the provocation which the statute intends must be provocation known to the law as such; that trespass does not authorize the destruction of property, and that under the Cherokee treaty, 1835, article 6, intruders can only be removed “ by order of the President of the United States,” and therefore can not be removed by either an Indian mob or Cherokee authority.

As has been repeatedly said by the court, the Indian Depredation Act, 1891, is strictly jurisdictional. It affords a remedy for already existing claims, but neither defines them nor creates new liabilities against Indians. The words “ without just cause or provocation ” may impose a new limit upon the new remedy given by the statute, but do not operate retroactively upon the rights of the claimant or the liabilities of the defendants.

The Indian Trade and Intercourse Act 30th June, 1834 (4 Stat. L., p. 729, sec. 17), as modified by the Act 28th February, 1859 (11 id., 401), and the Joint Resolution 25th June, 1860 (12 id., 120), is the statute which created and defined and regulated the liabilities of the Indians and of the United States at the time when this depredation was committed. It provided as follows:

“ And be it further enacted, That if any Indian or Indians, belonging to any tribe in amity with the United States, shall, within the Indian country, take or destroy the property of any person lawfully within such country, or shall pass from the Indian country into any State or Territory inhabited by citizens of the United States, and there take, steal, or destroy any horse, horses, or other property belonging to any citizen or inhabitant of the United States, such citizen or inhabitant, his representative, attorney, or agent may make application to the proper superintendent, agent, or subagent, who, upon being furnished with the necessary documents andproofs, shall,under the direction of the President, make application to the nation or tribe to which said Indian or Indians shall belong for satisfaction; and if such nation or tribe shall neglect or refuse to make satisfaction in a reasonable time, not exceeding twelve months, it shall be the duty of such superintendent, agent, or subagent, to make return of his doings to the Commissioner of Indian Affairs, that such further steps may be taken as shall be proper, in the opinion of the President, to obtain satisfaction for the injury; and, in the meantime, in respect to the property so taken, stolen, or destroyed, the United States guaranty, to the party so injured, an eventual indemnification: Provided, That if such injured party, his representative, attorney, or agent, shall, in any way, violate any of the provisions of this act, by seeking or attempting to obtain private satisfaction or revenge, he shall forfeit all claim upon the United States for such indemnification: And provided also, That unless such claim shall be presented within three years after the commission of the injury the same shall be barred. And if the nation or tribe to which such Indians may belong receive an annuity from the United States, such claim shall, at the next payment of the annuity, be deducted therefrom and paid to the party injured; and if no annuity is payable to such nation or tribe, then the amount of the claim shall be paid from the Treasury of the United States: Provided, That nothing herein contained shall prevent the legal apprehension and punishment of any Indians having so offended.”

The term “ without just cause or provocation” of the jurisdictional act may refer to the limitations, express or implied, in this section, or may include them or may be exclusive of them; but nevertheless the subject of liability must be measured by the terms of the act of 1834. When that statute said that if Indians of a tribe in amity with the United States “ shall, within the Indian country, take or destroy the property of any person lawfully within such country,” the injured party (that is, the party “ lawfully within such country”) shall have against the Indians the redress subsequently prescribed, and the United States will “ guarantee to the party so injured an eventual indemnification,” it necessarily excluded from its benefits such persons as should not be “lawfully within such country.” The defining of one class of persons excluded other classes of persons from its intendment. Usspressio unius, ex-olusio alterius. The act said in effect to Indians, if you “ pass from the Indian country into any State or Territory inhabited by citizens of the United States, and there take, steal, or destroy,” you shall be held liable for your depredation; and if, within the Indian country, you “take or destroy the property of any person lawfully within such country,” you shall likewise be held liable. But the statute assured indemnity to white men only in these two classes of cases, viz, where the Indians were intruders in the white man’s country, and where the white man was lawfully within the Indians’ country. The statute did not change the law of trespass, or make it lawful for Indians to kill and rob and destroy, or authorize Indians forcibly to eject white intruders. What it did do was to create a liability on the part of the Indians and a responsibility on the part of the United States, and at the same time prescribe the limitations within which this liability and responsibility only should arise.

The facts of this case, then, present the question whether the claimant was at the time of the depredation lawfully ‘"within the Indian country.” The statute which makes this lawful entry a condition to redress, the act of 1834, likewise prescribes that the military may apprehend “every person who shall or may be found in the Indian country” and turn him over to the civil authority “to be proceeded against in due course of law,” and that the military may be used “in preventing the introduction of persons and property into the Indian country contrary to law.” (§ 23.) The statute also defines “ all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana, or the Territory of Arkansas,” as “the Indian country.” (§ 1.) It also provides that if any person “shall make a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe” “such offender shall forfeit the sum of $1,000. And it shall, moreover, be lawful for the President -of the United States to take such measures, and to employ such military force, as he may judge necessary to remove from the lands as aforesaid any such person as aforesaid.” (§ HO

It therefore seems to the court that this statute, which limited the liability which it created to persons who are lawfully within the Indian country, itself defined what was unlawful. The claimant was an intruder contrary to the terms of the statute, liable to be driven off by the military and prosecuted by tbe civil authorities. The Indians may not have been jus tilled in taking the law into their own hands and driving the settlers off by force or intimidation, but that was a matter between them and the Government of the United States. The Cherokee Nation was not.liable to the person who was unlawfully within its territory, and the Government is not responsible to him for the consequences of his unlawful acts.

The judgment of the court is that the petition be dismissed.  