
    THE SISSETON AND WAHPETON BANDS v. THE UNITED STATES.
    [No. 22524.
    Decided January 18, 1904.]
    
      On the Proofs.
    
    The act 3d March, 1901, confers jurisdiction upon the court “to hear, ascertain, and report to Congress what members of the Sisseton and Wahpe-ton bands of Dakota or Sioux Indians remained loyal to the Government of the United States and were not directly or indirectly concerned in the depredations of certain bands of Sioux Indians,” and “to hear, ascertain, and report to Congress what annuities would now be due to 
      
      the loyal members of said bands,” if a certain act of Congress had not been passed. The claimants do not offer evidence to identify the persons who remained loyal, hut contend that it being impossible for them to prove, or for the court to ascertain by name the members of the bands who remained loyal in the outbreak of 1862, the true méaning of the act is that the court shall find the proportion of the members of the bands who remained loyal.
    The Act 3d March, 1901 (31 Stat. L., 1078) for the relief of the Sis-seton and Wahpeton Indians, in effect, requires the court to ascertain the individual members of the bands who remained loyal, so that they or their descendants can be identified as individuals. It ■ will not be a compliance with the statute for the court merely to ascertain the proportion of those who were loyal or disloyal. Howry, J., and Nott, Ch. J., concurring in this only.
    II.IE the court were authorized to find the proportion that the loyal bore to the whole number, the evidence should then be sufficient to indicate individual persons in order that they might be counted.
    III. It is intended by the statute that the distribution, if any, of unpaid annuities shall be only to loyal persons, and not to loyal and disloyal alike.
    IV. Where individual Indians, capable of identification, were at times faithful to the Government and at other times aided and abetted or encouraged depredations and massacres, they must be regarded as wholly disloyal.
    
      The Reportens’ statement of the case:
    The following are the facts of the case as found by the court:
    I. It does not appear who, if any, were the individual members of the Sisseton and Wahpeton bands of Dakota or Sioux Indians who remained loyal to the Government of the United States, or who were not directly or indirectly concerned in the depredations mentioned in the act of Congress approved Februarjr 16, 1863.
    The court finds that at times certain individual Indians capable of identification were, by verbal expression in council and otherwise, loj^al, but who at other times, bjr acts and conduct, aided, abetted, assisted, or encouraged the depredations and massacres referred to in the act of Congress aforesaid.
    II. The court finds that a large majority, if not all, the responsible members of the Sisseton and Wahpeton bands of the Sioux Indians were not lojml to the Government of the United States, and that with few exceptions, such exceptions being incapable of designation as individuals, all the responsible members of the Sisseton and Wahpeton bands of Sioux Indians aided, abetted, assisted, and encouraged the depredations and massacres to which the act of February 16, 1863, refers. That the proportion of such members, if there were any, who were not so concerned in the said depredations, or some of them, does not appear, and it is impossible from the evidence to find such proportion. If such proportion could be pointed out, there could be no proper distribution of the annuities to loyal members, for the reason that the individual members who were loyal, or who were not so concerned in said depredations, and who would be entitled to such distribution, do not appear, as stated in finding x. If such finding of a proportion could be made, the effect would be that distribution of such annuities would be made to the loyal aud disloyal members alike, or not at all.
    
      Mr. George 8. Chase and Mr. W. Ií. Robeson for the claimants. Messrs. Maxwell c& Chase were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Wright, J.,

delivered the opinion of the court:

The act of Congress approved March 3, 1901, confers full jurisdiction upon this court to hear, ascertain, and report to Congress what members of the Sisseton and Wahpeton bands of Dakota or Sioux Indians remained loyal to the Government* of the United States and were not, directly or indirectly, concerned in the depredations of certain bands of Sioux Indians named in the act of Congress approved February 16, 1863, entitled “An act for the relief of persons for damages sustained by reason of depredations and injuries by certain bands of Sioux Indians,” and other acts upon the subject.

No questions of law are involved in the consideration of the case except the interpretation to be given to the act by which jurisdiction is conferred upon this court to hear the case and report to Congress.

The insistence of the defendant is that the court is required by the law in question to ascertain by name the Indians that were loyal to the Government during the outbreak of 1862 and 1863. On the other hand, the claimants contend, as stated in the argument of counsel, that it is impossible that they could prove or the court could ascertain by name the members of the bands who preserved their loyalty. Bjr the petition and the theory upon which the case was tried the court has not been moved to find the individual names of the members of the bands who may have been loyal, and as a consequence such a finding was and is an impossibility under the petition and evidence as submitted to the court. It is insisted by claimants, however, that the true meaning of the act is that the court should find the proportion of the members of the bands which was loyal to the Government. If it were possible for us to make this finding as requested, that possibility would demonstrate that the individuals who were loyal, if there were any, could be identified. While it might be impracticable to find the names of all such persons, still to find the proportion they would bear to the whole number constituting the respective bands, the evidence should be sufficient to indicate individual persons, in order that they might be counted, to ascertain the proportionate number of the loyal persons. The probative quality of the evidence does not enable us to do this, and therefore such proportion does not appear. If the state of the proof renders it impossible to identify loyal members from others, as it does, and we should by any means still find a certain proportion existing as loyal, the distribution of the annuities that would be due would be incapable of accomplishment to the loyal persons, who alone are entitled, for the want of identification, and the consequence would be that such distribution would remain unaccomplished, or it would be made alike to the loyal and disloyal — a consummation never intended by Congress. It not having been made to appear who the individual members were who remained loyal, and nothing appearing to identify them, no finding to specify them could be made upon either theory, that of the Government or of the claimants.

A careful analysis of the whole evidence of the case, however, compels us to say'that all of the responsible members of the bands in question at some time during the perpetration of the outrages in one way or another aided, abetted, assisted, or encouraged therein, or in some of them, if they did not actually participate therein.

Wo are confirmed in this conclusion by the letter of General Sible}7, then commanding the United States forces operating against the Indians in question, written to the Secretary of the Interior December 19, 1862, while the facts were fresh in his mind, in which he said, inter alia:

“In reply to your inquiry whether Wahpetons and Sisse-tons have been involved with the other bands in the late murder and massacres, I beg leave to state that both should be held responsible for participation. The former were to a great extent equally guilty with the lower bands, and the Sissetons, with some of the Cut Head and Ejrauktona Sioux, made the attacks on Fort Abercrombie and committed murders and depredations in that quarter.”

Whether such aiding, abetting, assisting, or encouraging was voluntary, or induced by coercion or threats by those who actively organized and carried on the hostilities, it may be immaterial to inquire, for the same reason that identification of individuals does not appear. The belief is well founded, however, that at certain periods of these hostilities certain headmen at times appeared friendly and at other times hostile, and this variety of conditions and change of minds can not be reasonably accounted for save by the influence of association among the Indians with each other; and whether such changes were from a feeling of friendliness toward one another or from fear is a fact very difficult to ascertain, but it is safe to believe from both these causes that all the responsible members of the bands adhered to the enemies and destroyers of the civilized people in their midst and surrounding them, thereb}7 encouraging the purpose and intention of the instigators of the outrages to reduce the community to a state of barbarism. The effect of these outrages perpetrated by the Indians during the period of time in question was, with few exceptions, the obliteration of the white people of that locality of Minnesota, and included in its awful accomplishment the crimes of brutal murder of men, women, and children, and the rape of young females by use of the most cruel and barbarous force conceivable to a bestial imagination, too horrible to describe.

Nott, Ch. J.,

concurring:

I find the facts generally to have been as stated by Senator Davis, of Minnesota, in his speech in the Senate February 8, 1899:

“One of these bands went to war with the United States, and a scene of great devastation and slaughter was exhibited in my own -State. * * * Now, the fact was (and nothing is better known in the history of my own State, where the tragedy occurred) that three of these bands took no part in the massacre. It was perpetrated entirely by the Santees, and as public opinion and knowledge have become better acquainted with the subject the conscience of those States, and my own State especialljq has been aroused to the conviction that reparation shall be made and justice be done. ”

And I find the facts more specifically to have been, in the language of the man who best knew them of all men at the time of the outbreak, Samuel J. Brown, who, besides being a prisoner in the hands of the insurgents, was a son of the Indian agent of the Sissetons and Wahpetons:

“ While a few of the young men of the upper bands joined in the hostilities, the bands, as bands, were hyal to the Government. They were principally instruments in bringing about the final release of the captives, joined and did good service with the expeditions sent against the hostile Indians, rendered most valuable and efficient service as ‘avenging angels’ of Fort Wadsworth or To tanka Republic, killing many Indians who were on hostile raids, and finally, by the terror they inspired among the hostile Indians, stopped all hostile expeditions against the whites. The number of persons, according to the census, upon which the upper bands were paid their annuity money in 1861 — last payment — was 4,524, and of this number 17 were condemned to death. The number of persons, according to the census, upon which the lower bands were paid their annuity money in 1861 — last payment previous to outbreak — was 3,213, and of this number 286 were condemned to death. ’ Of the upper bands, 2 were hung, and of the lower, 36.”

As to the proportion of the Sissetons and Wahpetons who engaged in the insurrection, I find that the whole number of persons belonging to those bands at the time of the outbreak was 4,524, and that the number of men engaged in the revolt was 124. If the claimants are entitled to recover a proportionate part of the unpaid annuities founded upon the number of men actually engaged, then the proportion will stand as 4,524 to 124. If the turpitude of the individuals engaged in the insurrection attached to their wives and children, then the proportion will stand as 4,524 to 620’.

I concur with the majority of the court that the statute requires the court to report to Congress what members of the bands remained loyal to the Government and were not directly or indirectly concerned in the insurrection, and that it is impossible for the court to do so.

Howry, J.,

concurring:

I concur in the result concerning the requirements of the statute and the impracticability of reporting to Congress what members of the bands, if any, remained loyal to the Government and were not directly or indirectly concerned in the insurrection. I express no opinion upon any other matter involved in the case, because it is unnecessary to do so.  