
    APOLONIO DURAN, Administrator, v. THE UNITED STATES AND THE NAVAJO INDIANS.
    [Indian Depredations, 9276.
    Decided March 1, 1897.]
    
      On the Proofs.
    
    The court examines the official reports relating to the Navajo Indians at the time of the alleged depredation, September 12,1863, and passes only upon the question of amity.
    I. Hostilities with the Navajo Indians began July 21, 1863, and continued until sometime subsequent to December, 1863.
    II. Though murders and depredations were frequent, the military were not operating agáinst the Indians, whose purpose appears to have been robbery and plunder rather than war. In this condition of tribal relations, the court will hold the tribe responsible as being in amity.
    
      
      The Reporters’ statement of tbe case:
    The depredation alleged in this case was committed September 12,1863, in San Miguel County, N. Mes., by Indians of the Navajo tribe. The documentary and official evidence upon which the case was considered will be found in the opinion of the court.
    
      Mr. J. B. Agnew and Mr. G. P. Montague for the claimant.
    
      Mr. G. W. Russell for the defendants.
   Peelle, J.,

delivered the opinion of the court:

This action is prosecuted under the Act March 3,1891 (26 Stat. L., 851), for a depredation committed by the defendant Indians — the Navajo — in San Miguel County, in the Territory of New Mexico, on the 12th September, 1863.

The only controverted question is, Were the Indians as a tribe in amity with the United States on the date named?

In the cases of Julian Aragon, administrator (No. 2387), and Juan Sais (No. 2550), the court has heretofore found tli at these Indians were in amity on the 10th and 15th March, 1863.

In view of the numerous murders and depredations reported to have been committed by these Indians at and prior to the dates last named, the court was by no means free from doubt in reaching the conclusions it did, but inasmuch as these Indians were not then being operated against by the military authorities, and their purpose, evidenced by their acts, appears to have been robbery and plunder rather than war, the court is disposed to adhere to the conclusions it then reached. (Beport on Condition of the Indian Tribes 1867, p. 104 et seq.)

True, that report shows (p. 106) that at the time of the deiire-dations in these two cases and for some months prior thereto the troops under General Oarleton, then in command in that locality, were too busily engaged against the Mescalero Apache Indians to operate against the Navajoes.

But in December, 1862 (p. 103), a delegation of eighteen Navajo chiefs petitioned for peace, indicating that the Indians as a tribe were not hostile to the United States.

March 16,1863, General Carleton, in a communication to General West, speaks of the war “ about to be inaugurated against the Navajoes.” (Ibid., pp. 105,106.) And three days later to Adjutant-General Thomas he says : “Now that the Mescaleros are subdued, I shall send the whole of Colonel Carson’s regiment against the Navajoes, who still continue to plunder and murder the people. This regiment will take the field against them early in May.” (Ibid., p. 106.)

In April, 1863, preliminary steps were taken by General Carleton to gather information for a campaign against the Navajoes, and in June following the organization of the expedition for that jmrpose was approved by the War Department (pp. 108, 112).

Some days later Colonel Carson was ordered by General Carleton to take charge of the expedition, and did so; and on June 23,1863, General Carleton, in a communication to Colonel Chavez, inclosing him the General Orders, No. 35, organizing the expedition referred to, says (p. 116) that “ as soon as the troops take the field, the small bands of Navajo robbers now infesting the settlements will doubtless return to their country to look after their women and children.”

This indicates that as late as June 23, 1863, General Carle-ton regarded these “small bands” as robbers and not as war parties. In this same communication he says “ that all those Navajoes who claim not to have robbed and murdered the inhabitants must come and go to the Bosque Bedondo, where they would be fed and protected until the war was over; ” not “ the war ” then in progress, but the expedition then in readiness to begin a campaign against them, for in the same communication he says to Colonel Chavez, “tell them (certain Navajo chiefs) they can have till the 20th day of July of this year to come in, they and all those who belong to what they call the peace.party; that after that day every Navajo that is seen will be considered hostile and treated accordingly; that after that day the door now open will be closed. Tell them to say all this to their people, and as sure as the sun shines all this will come true.”

If the Indians had come in by that time, or indicated through their chiefs a desire to do so, there would have been no war, but the friendly admonition thus conveyed to avoid a military conflict was not heeded, and the consequence was that hostilities began immediately thereafter, and a vigorous campaign was prosecuted, involving the whole tribe.

The “small bands” of “robbers” who up to this time had “ infested the settlements,” and committed many murders and outrages, may or may not have done so with the knowledge and consent of the responsible tribe; but after that date all those belonging to what “ they call the peace party” who failed to come in were treated as hostile, so that whatever the relations of the Indians were to the United States theretofore, they were “considered hostile” as a tribe after that date. They were not only considered as hostile, but they manifested hostility by resisting the military authorities until nearly the whole of the tribe were made captives and removed to the Bosque Eedondo on the Pecos Eiver long after the depredation in this case.

Only three days later, July 24, Colonel Carson asked Ceneral Carleton what disposition he should makeof captured Navajoes.

By August following General Carleton reported to Adjutant-General Thomas that nearly 1,100 troops were engaged in active operations against the Navajoes. (Ibid., 122.)

August 7 he stated to Colonel Chav-ez that “every male Navajo able to bear arms will be attacked and destroyed or captured wherever he may be found unless he came in before the 20th of last July.” (Ibid., 126.)

In September following, beginning on the 2d, when Major Cummings was killed by these Indians, some fifty or more Indians — men, women, and children — were sent to Fort Sumner at the Bosque Eedondo.

In his report dated October 16,1864, the superintendent of Indian affairs for New Mexico reported that at the time of his previous annual report these Indians were at war, and that there was then little change except that about 7,000 of the tribe had surrendered and were held as prisoners of war at Fort Sumner, on the Pecos Eiver; that “the remainder of the tribe are still at war and commit frequent and daring outrages.”

He further reported that more than half the tribe were still at war, and that it would be necessary to make another campaign to reduce them. (Eeport Secretary of the Interior for 1864, pp. 327, 329.)

That report as to the nrimber of Navajoes still at war is, perhaps, inaccurate, but it shows the probable number held as captives at that time.

On February 27, 1864, General Oarleton, in his report to Adjutant-General Thomas, says:

“That with the Navajoes I have captured and those who have surrendered we have now over 3,000, and will without doubt soon have the whole tribe. I do not believe they number much over 5,000, all told. We have doubtless seen the last of the Navajo war — a war that has been continued with but few interruptions for one hundred and eighty years.” (Ooudition Indian Tribes, 1867, p. 160.)

In that communication General Oarleton congratulates the country that the Indians have been made to succumb.

From July 20,1863, numerous reports and communications will be found in the Beport on the Condition of the Indian Tribes, 1867 (p. 104 et seep), showing the hostility of the defendant Indians, which continued without material change or interruption, except as the Indian forces were diminished by capture, until after the year 1863.

In the case of Bomero (No. 7292) against these same Indians, we held that they were not in amity December 16,1863.

Hence we hold that the hostilities on the part of the Navajo Indians began July 21,1863, and continued until some time after December, 1863.

As that covers the period of the depredation in this case, it follows that the court is without jurisdiction, and the petition is therefore dismissed.  