
    MARY A. GARRISON ET AL. v. THE UNITED STATES AND THE CREEK INDIANS.
    [Indian Depredations, 2075.
    Decided April 22, 1895.]
    
      On the claimants’ Demurrer.
    The Creeks take part with the Confederate States during the civil war. In 1866 a treaty is made, the preamble of which indicates that its purpose is to restore peaceful relations, interrupted by the late war. One article declares a general amnesty. The defendants plead this in bar in a suit where the depredation was committed in 1836.
    I.A preamble to a treaty may be consulted when doubt exists; but its function is to state only the general objects of the treaty or the reasons therefor, and not to limit its provisions.
    
      II.A general amnesty of all past offenses committed by any member of the Creeh Nation against the lam of the United States is hereby declared, being clear and eonrprehensible language, the preamble can not be consulted to ascertain its meaning.
    III. Amnesty, by the very nature of peace, is necessarily included in it. A special provision of amnesty for “allpast offenses” must be held to include all prior offenses without regard to time, and not merely those committed during a recent war.
    IV. The term amnesty comprehends every crime and misdemeanor, whether indictable or not, and must be held to include in an Indian treaty an Indian depredation.
    V. A “ general amnesty of all past offenses ” declared by an Indian treaty blots out a depredation, so that in the eye of the law the Indian offenders are as innocent as if the depredation had never been committed.
    VI.The liability created by the act of 1834, and the guarantee given by the United States, did not constitute a vested right.
    VII.A treaty which relieves an Indian nation from penalties that have accrued to the United States does not leave a citizen free to pursue them.
    VIII.Under the Indian depredation act the court can not render judgment against the United States alone in a case where the claimant has identified the Indians.
    
      The Reporters’ statement of the case:
    The following is the preamble of the Greek treaty, 1866 (14 Stat. L., p. 785). The plea in bar filed by the defendants is stated, in effect, in the opinion of the court.
    
      “ Whereas existing treaties between the United States and the Greek Nation have become insufficient to meet tbeir mutual necessities; and whereas the Greeks made a treaty with”* the so-called Gonfederate States, on the tenth of July, one thousand eight hundred and sixty-one, whereby they ignored their allegiance to the United States, and unsettled the treaty relations existing between the Greeks and the United States, and did so render themselves liable to forfeit to the United States all benefits and advantages enjoyed by them in lands, annuities, protection, and immunities, including their lands and other property held by grant or gift from the United States; and whereas in view of said liabilities the United States require of the Greeks a portion of their land whereon to settle other Indians; and whereas a treaty of peace and amity was entered into between the United States and the Creeks and other tribes at Fort Smith, September tenth, eighteen hundred and sixty-five, whereby the Greeks revoked, canceled, and repudiated the aforesaid treaty made with the so-called Confederate States; and whereas the United States through its commissioners, in said treaty of peace and amity, promised to enter into treaty with the Greeks to arrange and settle all questions relating to and growing out of said treaty with the so-called Gonfederate States: Now, therefore, the United States by its commissioners, and the above-named delegates of the Greek Nation, the day and year above mentioned, mutually stipulate and agree, on behalf of the respective parties, as follows, to wit.”
    
      Mr. John W. Clark, for the demurrer.
    (1) There were two treaties which had amnesty clauses in them made between the Greek and Seminole Indians and the United States, or rather the treaty of 1856 was made between the United States, the Greek and Seminole, and the treaty of 1866 was made between the United States and the Creek Indians. It is manifest from the preamble of both of these treaties that the amnesty granted to these Indians did not effect the depredations committed in Florida, Alabama, and Georgia during the years of 1836 and 1837.
    It is to the preamble of a treaty that we should particularly look for its scope and meaning. The preamble of the treaty of 1856 shows very plainly, as also does the twenty-second article, which is the amnesty article of that treaty, that the amnesty granted was between different portions of the Greek tribe, and between the different portions of the Seminole tribe, andbetween the Greeks and the Seminóles. It had no reference whatever to mi amnesty between tbe United States and tbe Creek Indians, or tbe United States and tbe Seminole Indians, or any member or portion of tbem. Tbe United States is not named in tbe twenty-second article, and tbe first clause of tbe preamble shows that there bad been a controversy between tbe Creeks and Seminóles, which bad given rise “to unhappy and injurious dissensions and controversies.” Tbe clause of tbe preamble is as follows: .
    “ Whereas tbe convention heretofore existing’ between tbe Creek and Seminole tribes of Indians west of tbe Mississippi has given rise to unhappy and injurious dissensions and controversies among them, which render necessary a readjustment of their relation to each other, and to tbe United States,” etc.
    Tbe twenty-second article, which is tbe article of amnesty, is as follows:
    
      u That this convention may conduce, as far as possible, to tbe restoration and preservation of kind and friendly feelings among the Creeks and Seminóles, a general amnesty of all past offenses committed within their country, either west or east of tbe Mississippi, is hereby declared.”
    It will be seen by an examination of this treaty that a portion of tbe Seminole Indians who bad remained in Florida bad agreed to be removed to tbe West and settled among their brethren who bad emigrated in 1836 and 1837. There bad also been dissensions and controversies among tbe Creeks and Sem-inóles who inhabited west of tbe Mississippi, and it was to restore good feeling and friendship between tbe united portions of tbe Seminole Indians, and between tbe Creeks and Seminóles, who were not only closely related in blood, but inhabited tbe same country west of tbe Mississippi, that this article of amnesty was inserted in tbe treaty of 1856. (See Rev. Ind. Treaty at pp. 105 and 113.)
    It is submitted that this is tbe only interpretation that can be given to this amnesty clause in consonance with reason and settled principles of international law. Tbe differences between tbe United States and tbe Indians were settled by a money consideration, as set forth in articles 5 and 6 of this treaty of 1856.
    (2) It is also to tbe preamble of tbe treaty of 1866 between tbe United States-and tbe Creek tribe of Indians that we must look for tbe interpretation of this treaty of amnesty. (Treaty of 1866, 14 Stat. L., 785.) That preamble makes it very plain what this treaty of amnesty was meant to cover.
    It sets forth that the Creek tribe of Indians had ignored its allegiance to the United States by making a treaty with the Confederate States on the 10th day of July, 1861, and had thereby made itself liable to a forfeiture of its lands and all benefits and advantages derived from the United States by former treaty. And it was for acts committed since the time of this treaty with the Confederate States, and those acts alone, that this treaty of amnesty was made, so far as the United States and these Indians were concerned; but this treaty also included an amnesty between the different portions of that tribe; those loyal on the one side and those disloyal on the other side, as well as between the Creek tribe and the United States.
    It is a well-settled principle of international law that the effect of amnesty can not be extended to things which have no relation to the war, which is terminated by the treaty of peace. (Yattel, Law of Nations, p. 439.) It is true that it is possible that the controversy which induced hostilities may have grown out of differences of long standing, but if such were the case, in order that they may be covered by a treaty of amnesty it would be necessary that such difficulties be specifically named, and the claims growing out of them be expressly covered in such treaty. (See Vattel, Law of Nations, p. 439; Knote v. The United States, 10 O. Ols. B., 407.) It is plain, therefore, upon well-settled principles of law that the amnesty treaties of 1856 and 1866 with the Creek Indians could by no possibility affect the claims arising in 1836 against those Indians.
    The defendant, the Creek Indians, were made liable to pay for all depredations committed by them under th eAct of May 19, 1796, section 14 (1 Stat. L., 472); Aet of March 3, 1799, section 14 (1 Stat. L., 747); Act of March 30,1802, section 14 (2 Stat. L., 142); Aet of June 30,1834, section 17 (4 Stat. L., 731), and the substance of these various statutes were reenacted in the Bevised Statutes, section 2156.
    True, this court has said that the Act of March 3,1891 (26 Stat. L., 851), is a jurisdictional act and creates no new liability. (Leighton’s Case, 29 O. Ols. B., 288.) Granting this to be the law, it must not be overlooked tbat the act of March 3, 1891, gave a remedy where the statute of limitation had obliterated all remedy in Indian depredation claims, and thus gave a remedy where a liability had ever attached under any prior law or treaty.
    The Court of Claims, therefore, having obtained jurisdiction of this case, and liability having attached under prior existing laws, has the power and is under obligation to give a remedy under the provisions of the act of March 3, 1891, at least against the United States, and it is believed equally against the defendant, the Creek Indians, even though the United States had intended (which we do not concede) to have taken away the obligation to indemnify claimants for losses against the defendant Indians in 1836. For it is perfectly competent for Congress to pass a law repealing the treaty with these Indians. And the act of March 3, 1891, although a general act, repeals any prior treaty of the Creek Indians in so far as such treaty is not in harmony with that act. (See Oherolcee Tobáceo Case, 11 Wall., 616.)
    
      Mr. Assistant Attorney-General Howry opposed.
    It will be seen that there are no limitations in the declaration of the general amnesty extended to the Creeks for all past offenses against the laws of the United States; the amnesty extends to all past offenses committed not merely by the Creeks as a tribe, but also by any member of the tribe. In this respect it is an extension of the general amnesty extended to the Creeks and Seminóles by article 22 of the treaty of 1856 with the Creeks and Seminóles. In the treaty between the United States and these Indians, proclaimed August 28, 1856, article 22, it is declared:
    
      u That this convention may conduce, as far as possible, to the restoration of kind and friendly feelings among the Creeks and Seminóles, a general amnesty of all past offenses committed within their country, either east or west of the Mississippi, is hereby declared.”
    The first treaty in itself, although not as full as the last, would seem to be sufficient for the purpose of relieving the defendant Creek Indians from the consequences of an act quasi criminal in its nature; but whatever be the effect of the first treaty, it is certainly true that the Creek Nation as a treaty-making power can not now be held responsible for depredations committed by any member of the tribe upon tlie property of the United States or any of its citizens. The language of the treaty extends to all past offenses committed by any member of the tribe, and language can not make the declaration of amnesty more effective for any purpose. It is without qualification or limit.
    What is amnesty? The dictionaries define it to be forgetfulness ; oblivion; an act of oblivion; and specifically, a general pardon or conditional offer of pardon of offenses or of a class of offenses against the government. It is the act of the sovereign power, granting oblivion or a general pardon for a past offense, as to subjects concerned in an insurrection. It is a freedom from penalty granted to those guilty of some crime or offense. It is an act of the sovereign power, the object of which is to efface and cause to be forgotten a crime or misdemeanor ; the abolition of the offense. According to Wharton, the act of pardon or oblivion by which crimes against the government up to a certain date are so obliterated that they can never be brought into charge. Unlike a pardon, amnesty is more general than pardon. It extinguishes the offense as to all participators. Amnesty is a political decision that acts that might by their motive and effect be treated as crimes shall not, for reasons of state policy, be so considered. Vattel says (Law of Nations, p. 439) that even if a treaty of peace is wholly silent on this head, the amnesty, by the very nature of the peace, is necessarily implied in it; that all damages caused during the war are likewise buried in oblivion, and that no action can be brought for those of which the treaty does not stipulate the reparation. They are considered as having never happened, although the effect of the compromise of amnesty can not be extended to things which have no relation to the war that has terminated by the treaty, yet those things which happened during the war are obliterated by the ordinary treaty for future peace.
    Amnesty belongs to the domain of international law. In all cases it means only oblivion, and never expresses or implies a grant. (Knote v. The United States, 10 C. Cls. R., 407.)
    That pardon includes amnesty, blotting out the offense pardoned and removing all its penal consequences, was also declared in the two subsequent cases of Pargoud and Klein. For these interpretations of the effect of pardon and amnesty upon the rights of individuals, the court is referred to the decisions. {Ex parte Garland, 4 Wall. (U. S.), 380; Armstrong’s Foundry, 6 Wall. (U. S.), 769; United States v. Padelford, 9 Wall. (U. S.), 542; PargouWs Case, 13 Wall. (U. S.), 156; United States v. Klein, 13 Wall. (U. S.), 128.)
    The term “pardon” is not used in any of the treaties with the Greeks, it is true, but amnesty to a nation of people includes pardon to all the individuals of the nation to whom the amnesty extends. Abbott says that amnesty differs from pardon in being more general, and extinguishes the offense as to all participators, while pardon exonerates the individual from a punishment he has incurred. Amnesty is a measure of state policy. Pardon is given to one who is certainly guilty or who has been convicted; amnesty to those who may have been so. Bouvier says their effects are also different, pardon being a remission of a whole or a part of the punishment awarded by the law, the conviction remaining in effect when only a partial pardon is granted; amnesty, on the contrary, has the effect of destroying the criminal act so that it is as if it had not been committed, as far as the public interests are concerned.
    If amnesty has the effect of destroying the criminal act so that it is as if it had not been committed, so far as the public interests are concerned, I submit that the obligation of Congress is even greater to give full effect to the amnesty of a treaty; subsequent legislation can not impair the value of the amnesty. As a principle of international law, as respects the rights of either government under it, a treaty is conclusive and binding. Vattel says: “Every treaty must be interpreted as the parties understood it when the act was' proposed and accepted.” (6 Pet., 754.)
    The political departments of the United States Government, by treaties, by acts of Congress, and by Executive action, have always recognized the Creek Nation “as a State and as a distinct political society separate from others and capable of managing its own affairs and governing itself,” and the courts are bound by these acts of the political departments of the Government. (Cherolcee Nation v. Georgia, 5 Pet., 1.) The Creek Nation has a distinct community, with boundaries accurately described, like the Oherokees. (Worcester v. Georgia, 6 Pet., 515.) “An alien though dependent power.” (Milán v. Willdns, 112 U. S., 643.)
    
      The Government is a trustee of the annuities of the Greeks under the treaties. The United States holds the proceeds of the property of the Creeks for their benefit. It is the duty of the Government as the trustee not to permit the fund to be wasted, and still less to open its courts at the suit of citizens for property taken or destroyed where a treaty subsequently extinguished the right of suit, according to the understanding of the parties.
    It has been suggested that the United States limited the amnesty to the infractions of its laws and that citizens of the United States may yet be indemnified from the annuities stipulated for in the treaties. There are several answers to this.
    (1) The payment of damages from the annuities of the Creek Nation for losses sustained by citizens of the United States at the hands of individual members of the tribe before the amnesty of the later treaties was not in contemplation of either party to the agreement.
    (2) The later agreements between the Creeks and the United States, and especially the treaty of 1866, covered all matters of difference between the contracting parties up to that time, not only for the Creek Nation as belligerent people, but for every member of the nation; and also for the United States and every citizen of the United States at that time.
    (3) The treaties were founded upon the cession of lands and valuable rights of property, and upon their ratification these treaties became the law of the land, which Congress has no power to change by any law which shall involve the diminution of the annuities derived under the treaties for occurrences before that time.
    I submit that the legislature can not change the effect of the amnesty any more than it can change the effect of a pardon or any more than the Executive can change a law.
   Peelle, J.,

delivered the opinion of the court:

The petition herein was filed under the Indian Depredation Act, March 3, 1891 (26 Stat. L., 851; 1 Supp. Rev. Stat., 2d ed., p. 913), to recover the sum of $1,000 for property therein described, alleged to have been taken by the defendant Indians, then in amity with the United States, from one George -A. Garrison, a citizen of the United States, residing in Paulding County in the State of Georgia, since deceased, on or about tbe 1st day of June, 1836, without just cause or provocation on the part of the owner or his agent in charge, and not returned or paid for.

The defendants filed a plea in bar to the action, averring in substance that subsequent to the depredation complained of the defendant Indians entered into a “ treaty with the United States, by the terms of which a general amnesty of all past offenses against the laws of the United States committed by any member of the Greek Nation was declared;” and by a further plea the defendants set forth in extenso article 1 of the treaty of August 31, 1866 (14 Stat. L., 785), in these words: •

“There shall be perpetual peace and friendship between the parties to this treaty, and the Greeks bind themselves to remain firm allies and friends of the United States, and never to take up arms against the United States, but always faithfully to aid in putting down its enemies.
“ They also agree to remain at peace with all other Indian tribes; and,in return, the United States guarantees them quiet possession of their country, and protection against hostilities on the part of other tribes.
“In the event of hostilities, the United States agree that the tribe commencing and prosecuting the same shall, as far as may be practicable, make just reparation therefor.
“To insure this protection, the Greeks agree to a military occupation of their country, at any time, by the United States, and the United States agree to station and continue in said country, from time to time, at its own expense, such force as may be necessary for that purpose.
“A general amnesty of all past offenses against the laws of the United States, committed, by any member of the Greek, Nation, is hereby declared.
“And the Greeks, anxious for the restoration of kind and friendly feelings among themselves, do hereby declare an amnesty for all past offenses against their government, and no Indian or Indians shall be proscribed, or any act of forfeiture or confiscation passed against those who have remainedfriendly to, or taken up arms against, the United States, but they shall enjoy equal privileges with other members of said tribe; and all laws heretofore passed inconsistent herewith are hereby declared inoperative.”

And it is averred that by reason thereof the Greek Indians “were relieved from liability for the depredation which claimants hath alleged.”

To the pleas thus filed the claimants interposed a demurrer.

The question presented, therefore, is as to the sufficiency in law of the pleas in bar.

Both in the oral argument and in the respective briefs of counsel article 22 of the treaty between the United States and the defendant Indians and the Seminole Indians, proclaimed August 28, 1856 (11 Stat. L., 699-705), is referred to and out of caution relied upon by the defendants in support of the pleas, as well as the provision of the treaty of 1866 (supra).

Article 22, trea,ty 1856, is as follows:

“That this convention may conduce, as far as possible, to the restoration and preservation of kind and friendly feelings among the Creeks and Seminóles, a general amnesty of all past offenses committed within their country, either west or east of the Mississippi, is hereby declared.”

This latter treaty, as appears from its preamble, was negotiated for the purpose of settling controversies which had arisen not only between the Creek and Seminole tribes, caused by a previous treaty between them, but also between the United States and the Creek Indians, which latter were persistently urging various claims against the United States.

In furtherance of the objects and purposes of the treaty, article 22, above set out, was inserted.

The claimants contend that inasmuch as the purpose of the article, as therein expressed, was for the “ restoration and preservation of kind and friendly feelings among the Creeks and Seminóles,” the general amnesty therein declared “ of all past offenses committed within their country either west or east of the Mississippi” was intended to apply only as between the tribes, and that the language used is not sufficiently definite and clear to warrant the construction contended for by the defendants.

The general amnesty therein declared is limited by express words to “all past offenses committed within their country either west or east of the Mississippi,” and in this respect differs materially from the provisions of the treaty of 1866.

The language used would seem to justify the interpretation that the tribes, as between themselves, declared a general amnesty of all past offenses committed by the members of either tribe against the other within their country; and perhaps also a general amnesty on the part of the United States of all past offenses committed by the members of either tribe against the laws of the United States within their respective territory.

But we will not stop to inquire as to whether or not- the depredation complained of was committed within the territory of either or whether the court could take judicial knowledge thereof, as the provisions of article 1 of the treaty of 1866, on which the defendants mainly rely, is couched in clear and definite language without limitation or qualification; and we will, therefore, proceed to consider and determine the legal effect thereof in respect of the depredation alleged to have been committed by the defendant Indians June 1, 1836.

As preliminary to this inquiry we will say that during the late civil war the defendant Indians, as set forth in the preamble to the treaty of 1866, entered into a treaty with the so-called Confederate States, thereby ignoring their allegiance to the United States, unsettling treaty relations therewith, and rendering themselves liable to forfeit to the United States the benefits enjoyed by them in lands, in annuities, and of protection, etc. But by a treaty of peace and friendship entered into between them and the United States September 10, 1865, they revoked, canceled, and repudiated their treaty with the so-called Confederate States, at which time the United States, through their commissioner, promised to enter into a treaty with them to “ arrange and settle all questions relating to and growing out of said treaty with the so-called Confederate States.”

Although the treaty of 1866 purports, in the preamble thereto, to have been entered into for the purposes therein set forth, there can be no well-founded contention that the provisions of the treaty are limited thereby, as the function of the preamble was to state only the general objects of the treaty or the reasons therefor; and, like a preamble to a statute, may be consulted perhaps for the purpose of solving ambiguity, or for the purpose of ascertaining the meaning of words when doubt exists'. (Bndlich on Interpretation, etc., secs. 62-66.)

But the language of the treaty “A general amnesty of all past offenses committed by any member of the Creek' Nation against the laws of the United States is hereby declared,” being clear and comprehensive, there is no need, even assuming it to be permissible, to consult the preamble for its meaning.

The claimant contends that inasmuch as the purpose of the treaty was to settle the questions growing out of the defendant Indians’ late treaty relations with the so-called Confederate States, that therefore, although the amnesty granted is couched, in general terms as to all past offenses, it applies only to offenses committed during and growing out of the late civil war. But if this were the only effect of the amnesty so declared, then no more was accomplished thereby than if the treaty had been silent on the subject, as “ amnesty, by the very nature of peace, is necessarily included in it.” (Yattel’s Law of Nations, sec. 20, p.439.)

The language “a general amnesty of all past offenses,” not only includes such offenses as may have been committed during and growing out of the late civil war, but all offenses prior thereto, as the words “all past offenses” clearly mean alL offenses against the laws of the United States committed by any member of the Creek tribe or nation prior to. the execution of the treaty.

Was an offense committed by any member of the Creek Nation prior to the execution of the treaty?

By the Intercourse Act, June 30, 1834, section 17 (4 Stat. L., 731), it is provided in substance that if any Indian or Indians belonging to any tribe in amity with the United States, shall; within the Indian country or in any State or Territory inhabited by citizens of the United States, take, steal, or destroy any property belonging to any citizen or inhabitant of the United States, application for satisfaction was to be made therefor; and it is averred in the petition that June 1,183G, there was taken from the claimant’s decedent, a citizen of the United States, without his consent, by Indians belonging to a band, tribe, or nation known as the Creek Indians, then in amity with the United States, certain x>roperty valued at $1,000, for which it is averred a claim was presented, with evidence therein, to the Commissioner of Indian Affairs.

So that an offense was committed by Indians belonging to the Creek Nation, tribe, or band; and by section 25, act 1834 (supra), the laws of the United States providing for the punishment of crimes committed within the sole and exclusive jurisdiction of the United States included crimes committed within the Indian country, excejff as to “crimes committed by one Indian against the x>erson or proj>erty of another Indian.”

Witli tliis condition of things existing the treaty of 1856, (supra) was entered into, whereby to conduce to the restoration of kind and friendly feelings among the Creeks and Seminóles a general amnesty of all past offenses committed “within their country, either west or east of the Mississippi,”-was declared* The amnesty here declared contained words of limitation, i. e., “ within their country, either west or east of the Mississippi.”

But after the close of the late civil war the United States was not only-desirous of effecting a treaty of peace and friendship with the defendant Indians, and of settling all questions growing out of their treaty relations with the so-called Confederate States, but was desirous of procuring lands upon which to locate other Indians andfreedmen; and for this purpose the defendant Indians, by article 3 of the treaty of 1866, ceded to the United States the west half of their entire domain, amounting to over 3,250,000 acres of land, at 30 cents per acre. This cession followed the “general amnesty of all past offenses against the laws of the United States committed by any member of the Creek Nation.”

It is immaterial for the purposes of this case into which grade or class of offenses the depredation complained of falls, as the word is comprehensive, and includes, says Wharton, “ any crime or act of wickedness. The word is used as a genus, comprehending every crime and misdemeanor, or as a species signifying a crime not indictable, but punishable summarily, or by the forfeiture of a penaltyand the word is similarly defined by Bouvier.

An offense is charged to have been committed against the laws of the United States, i. e., the taking of property from the claimant, a citizen of the United States, without his consent, by Indians belonging to the Creek Nation, then in amity with the United States, of the value of $1,000, on June 1, 1836; and that by reason of such taking a claim accrued in favor of the claimant’s decedent for the value of the property so taken.

So that whatever legal right or claim may have existed against the defendant Indians in favor of the claimant’s decedent, aside from any claim which may have arisen under international law, was by virtue of a law of the United States, i. e., the act of 1834; but no remedy was given in any court to enforce payment, or even to secure satisfaction, except by means of an investigation through the medium of the Executive Department; and if treated as a claim arising under international law the claimant had no power of enforcing payment except through the United States.

Whether or not the defendant Indians could have been prosecuted and punished for the offense at the time of the execution of the treaties, or whether the claim was then a valid and subsisting one against them, is not material here, for if the legal effect of the amnesty was to blot out the offense, if punishable, it would also blot out the possibility of exacting a penalty for an offense barred by time or by statute.

It is a well-settled rule of construction that treaties must be interpreted as they are understood by the parties at the time; and as to treaties with the Indian tribes it is well settled that favorable rules of interpretation should be applied, or, as was said by Justice Washington in a concurring opinion in the case of Worcester v. Georgia (6 Pet., 582), “The language used in treaties with the Indians should never be construed to their prejudice.”

What, then, was intended by the general amnesty so declared in the treaty of 1866, and, as preliminary to this, what is amnesty? Yattel’s Law of Nations, page 439, thus defines it:

“An amnesty is a perfect oblivion of the past; and the end of peace being to extinguish all subjects of discord, this should be the leading article of the treaty; and accordingly such is at present the constant practice. But though the treaty should be wholly silent on this head, the amnesty, by the very nature of peace, is necessarily implied in it. * * * All damages caused during the war are likewise buried in oblivion, and no action can be brought for those of which the treaty does not stipulate the reparation. They are considered as having never happened.”

There is no stipulation in the treaty in the case at bar for reparation for any damage done by the defendant Indians to any citizen.-

The Century Dictionary defines amnesty:

“A forgetting or overlooking; an act of oblivion; specific-, ally, a general pardon or conditional offer of pardon of offenses or of a class of offenses against the Government.”

Bouvier says:

“Amnesty and pardon are very different. The former is an act of the sovereign power, the object of which is to efface and cause to be forgotten a crime or misdemeanor; the latter is an act of the same authority which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed. Amnesty is the abolition and forgetfulness of the offense; pardon is forgiveness. A pardon is given to one who is certainly guilty, or who has been convicted; amnesty to those who may have been so.
“Their effects are also different. That of pardon is a remission of a whole or a x>art of the punishment awarded by the law — the conviction remaining in effect when only a partial pardon is granted; amnesty, on the contrary, has the effect of destroying the criminal act, so that it is as if it had not been committed, as far as the public interests are concerned.”

Wharton defines amnesty:

“The act of p>ardon or oblivion by which crimes against the Government up to a certain date are so obliterated that they can never be brought into charge.’”

By the terms of the amnesty, “all past offenses” means all offenses up to the date of the execution of the treaty.

Abbott’s Law Dictionary:

“Amnesty differs from x>ardon in being more general; it extinguishes the offense as to all xiarticrpators, while pardon exonerates the individual from a punishment he has incurred. Amnesty is rather a political decision that acts that might by their motive and effect be treated as crimes shall not, for reasons of state policy, be so considered.”

The definitions of amnesty as thus given are in harmony with each other, and are sustained by judicial interx>retation.

In speaking of the effect of a pardon by the President (whose power in this resxiect is unlimited except in cases of iitqjeacliment), in the case of Ex parte Garland (4 Wall., 333-380), the court says:

“A x>ardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full it releases the xranishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and cajiacity. There is only this limitation to its ox>efiation: it does not restore offices forfeited, or juoperty or interests vested in others in consequence of the conviction and judgment.”

In this case the court held, the pardon being a full pardon, that “to exclude him, by reason of that offense, from continuing in the enjoyment of a previously acquired right is to enforce a punishment for that offense, notwithstanding the pardon.”

In United States v. Padelford (9 Wall., 531-543), where a pardon had been granted by the President, the court held that the petitioner, by reason of the pardon, “ was purged of whatever offense against the laws of the United States he had committed by the acts mentioned in the findings and relieved from any penalty which he might have incurred.”

This was followed by the decision in the Klein Case (13 Wall., 128), where it was said: “Pardon includes amnesty; it blots out the offense pardoned and removes all its penal consequences.”

To the same effect also is the decision in the Armstrong Case (Id., 154), where it was said: “The proclamation of the 25th .December granted pardon unconditionally and without reservation. This was a public act of which all courts of the United States are bound to take notice and to which all courts are bound to give effect.”

From these decisions we conclude that the “general amnesty of all past offenses against the laws of the United States, committed by any member of the Creek Nation,” as set forth in the treaty of 1866, blotted out the offense, “so that in the eye of the law the offender is as innocent as if he had never committed the offense.”

If, therefore, the offense out of which the claim grew is' blotted out and forgotten, how stands the claim of the citizen for the injury done him in the taking of his property?

Although the act 1834, in respect of the depredation committed by Indians belonging to any tribe in amity with the United States, ‘ created a liability against such tribe and guaranteed indemnity for the value of the property so taken or destroyed out of any annuity going to them from the United States, still there can be no successful contention that the claimant had acquired any vested right of property in such unliquidated claim. He had no contract rights. His claim had not even gone to an award by an Executive Department.

Whatever legal rights he had were acquired by virtue of the act of 1834 against the defendant Indians as a tribe or nation, and were therefore different from an ordinary claim between individuals, where their legal rights are fixed and the courts are open to them for the redress of their grievances and the enforcement of such rights.

Certainly the United States, a sovereign, acting through their political departments in the negotiation and execution of the treaty with a “domestic dependent nation,” did not intend by the language used simply to relieve the defendant Indians from any penalties which might have accrued to the United States, leaving the citizen to pursue them, aided by the United States, for the purpose of securing damages for the property the taking of which constituted the offense which the amnesty blotted out.

To do this, in view of the general amnesty of all past offenses against the laws of the United States, would, in our opinion, be an act of bad faith on the part of the United States, especially as at the time of the execution of the treaties the only legal right the claimant had against the defendant Indians was by virtue of a law of the United States; and the defendant Indians well knew that no claim against them for depredations could or would be prosecuted against them or satisfaction sought except with the consent of and through the United States.

The United States having by the solemnities of a treaty for ample consideration, if that were necessary, granted general amnesty to the defendant Indians for all past offenses, thereby relieving them from any and all penalties which had accrued by reason of the offense, and restored them to a condition of innocence, as though the offense had never been committed, have so blotted out the offense as to relieve them from all the legal consequences thereof, including the payment of damages to the claimants for the property so taken.

At the date of the depredation or offense complained of the United States, by the provisions of the act of 1834, section 17, guaranteed to the party injured eventual indemnification; and while by the Act of February 28, 1859 (11 Stat. L., 401), this provision or guaranty was repealed, yet by the Joint Resolution of June 25, 1860 (12 Stat. L., 120), it was provided that the repealing act “ shall not be construed to destroy or impair any right to indemnity which existed at the date of said repeal.”

So that if tbe claimant filed his claim within the time and in the manner provided by that section he has preserved whatever rights he had against the United States under the provisions thereof. But what such rights were or are as against the United States we need not now decide, as under the Jurisdictional Act of March 3, 1891 (supra), no judgment can be rendered against the United States except jointly with the defendant Indians, they being identified' by averment in the petition as having committed the depredation.

Under section 5 of the act of 1891 the court can not render judgment against the United States alone when the Indians committing the depredation have been identified, as by the claimants’ averments in their petition in ¿¡his case they have been.

In the Love and Leighton Cases (29 C. Cls. R., 332 and 288) the court held that the act of 1891 created no new liability against the Indians, and that the United States assumed jointly with the Indians, when they could be identified, only existing liability.

In other words, the act of 1891 is a remedial statute, whereby only existing claims against the Indians may be prosecuted to final judgment in this court.

And whether or not a judgment can be rendered against the United States, either jointly or alone, depends upon the citizenship of the claimant, the amity of the tribe, band, or nation to which the depredating Indians belonged at the time of the depredation, and whether or not the'defendant Indians, known or unknown, are liable fo'r the depredation complained of.

From what we have said it follows that judgment can not be rendered in the case at bar against the United States and the defendant Indians, or either, and the claimant’s demurrer to the pleas in bar must therefore be overruled, which is accordingly done.  