
    SAMUEL MARKS ET AL. v. THE UNITED STATES. PIUTE AND BANNOCK INDIANS.
    [Indian Depredations 3105.
    Decided February 27, 1893.]
    
      On the Proofs.
    
    The cause of action is a claim for property tpken by Indians in Happy Valley, Malheur County, Oregon, during the Bannock war in 1878. The - legal questions involved relate to amity, treaty obligations, and jurisdiction.
    I.No formal declaration of war by Congress, nor proclamation by the President, is necessary to define and characterize an Indian war. It is sufficient that hostilities exist and military operations are carried on.
    II.The hostilities with the Bannocks in 1878 constituted an Indian war.
    III. The Indian Depredation Act, 1891, provides that this court shall have jurisdiction of claims for property taken or destroyed “by Indians belonging to any band, tribe, or nation in amity with the United States.” Treaty relations are not equivalent, within the meaning of the statute, to amity.
    IV. The Act Sd March, 1885 (23 Stat. L., p. 376), provides that the Secretary of the Interior shall report to Congress Indian depredation claims “chargeable against any tribe of Indians by reason of any treaty between such tribes and the United States;” and the Bannock treaty, Sd July, 1868 (15 Stat. L., p. 673), provides that “if bad men among the Indians” shall commit a depredation, the Bannocks “will, on proof made to their agent and notice by him, deliver up the wrongdoer;” “and in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them.” A claim for property taken or destroyed during the general hostilities of the Bannock war does not come within these provisions.
    V.Where amity did not exist and no treaty made, a tribe responsible for property taken or destroyed; the court is without jurisdiction of a suit brought under the Indian Depredation Act, 1891.
    
      
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimants are and were citizens of the United States on the first day of January, 1878.
    II. In the month of June, 1878, the said claimants were possessed of a ranch in the Grant Canon, Malheur County, State of Oregon, on which ranch they had cattle and horses. In the month and year aforesaid the Bannock and Piute Indians made a raid in and through said county, and in and upon the ranch of claimants, in which raid through said county they destroyed property consisting of horses, cattle, and dwellings, and killed some of the citizens. The Indians numbered between 500 and 600, and were in a body or band moving in concert, having the form of an Indian military organization. The citizens of said county, in consequence of said raid, petitioned the military authorities for protection against the depredations of said Indians. The military operations which ensued are attached to finding V.
    III. In said raid the said Indians killed and stole the cattle and horses of said claimants upon the ranch aforesaid. The amount in value of the property taken and destroyed was at the time the sum of $5,450.
    IV. No part of the property included in said amount was returned or paid for. The claim for said property was presented to the Commissioner of Indian Affairs, but no final adjudication thereon has been made. The said taking and destruction of said property were without any provocation on the part of the claimants or their agents in charge of it at the time.
    V. The following are the correspondence and reports in relation to the condition of said Indians before, at, and subsequent to said raid.
    [Extract from the Report of the Commissioner of Indian Affairs, 1878.}?
    “THE OUTBREAK OE THE BANNOCKS.
    ####**
    
      u Excited by what they heard of the war, irritated by what they esteemed to be bad faith in the issuance to them of scant rations, annoyed by the encroachments of the whites upon tlieir reservation, and cherishing a chronic dislike for the Shoshones, with whom they were, associated at Fort Hall Agency (the friendly and peaceable character of the latter rather aggravating their hostility to them), they became more and more restless until, during the summer of 1877, a Bannock Indian under the influence of whisky and war paint started out from the agency, armed with Winchester rifle and revolver, and- shot and seriously wounded two unoffending teamsters who Avere passing the agency. On the 23d of November the perpetrator of this deed was arrested and handed over to the civil authorities through the instrumentality of the agent without resistance or opposition. On the same day, as an outcome of the excitement and bitter feeling resulting from this arrest, another Bannock, a friend of the prisoner, shot and killed the agency butcher, Alexander Bhodan.
    “Troops were immediately called for. On the 20th of December, Colonel Smith, of the Fourteenth Infantry, arrived at the agency, and on the 9th of January, 1878, the murderer of Bhodan Avas arrested by the military at a point some 60 miles distant from the agency; subsequently he was tried and hanged.
    “The excitement and threatening demonstrations on the part of the Bannocks, consequent upon this arrest, were such that Colonel Smith, reenforced by cavalry, on the 16th of January surrounded two Bannock villages at the agency and captured 53 warriors with 32 guns and about 300 ponies. The prisoners, except the father and two brothers of the murderer were released, after admonition by Colonel Smith, and Avere suffered to return to their people, and in April the captured ponies, being of but little value, were returned to them. The arms, although worthless, were retained. Their best arms had been secreted and their valuable ponies moved to places of safety before the military surrounded their camp. The failure of this attempt to disarm and dismount the Bannocks served to arouse and exasperate the Indians, and was followed, as the agent predicted that it would be, by retaliation as soon as the grass was in condition to feed the Indian ponies.
    “Chicago, November 29,1877.
    
    “Gen. Thomas M. Vincent,
    “ Assistant Adjutant- General, Washington, D. C.”
    “Your telegram of this date received. Information from commanding officer at Fort Hall, forwarded to Washington yesterday’s mail, led me to belive the Bannock agent is stampeded. Beenforcements from Camp DouglasleftbyrailforFort Hall yesterday morning. Should arrive to-day. It seems to me the agent should consult with the commanding officer about disturbances, which he neglected to do. .
    “P. H. SHERIDAN,
    “ Lieutenant- General. ”
    
    “Fort Hall Ag-eNCt,
    “ Idaho, December IS, 1877.
    
    “Sir: I have the honor to transmit herewith, for your official action, a petition from the resident citizens of this vicinity-praying that a sufficient number of mounted troops be stationed here to protect them from the Bannock Indians; also affidavits of Fred. S. Stevens, Joseph Warren, Albert T. Stout, and Charles W. Cline, relative to the hostility of the Bannocks.
    “Very respectfully, your obedient servant,
    “W. H. Danilson,
    “ United States Indian Agent.”
    
    “Boss Fork, Idaho, January 16,1878.
    
    “Commissioner oe Idian Aeeairs,
    “ Washington, D. 0.:
    
    “ Bannock Camp surrounded this morning; thirty two guns and three hundred ponies captured without disturbance; their best guns, ponies, and no pistols could be found. The three companies cavalry from Fort I). A. Bussell return on the eighteenth. I recommend that the Bannocks be sent with them and held there until you decide what to do with them. Unless removed, a sufficient military force will be required to keep them in subjection.
    “Danilson,
    “ U. S. Indian Agent.”
    
    “Headquarters Military Division Pacific “and Department of California,
    “ San Francisco, June 1, 1878. “To the Governor of Idaho,
    
      “Boise Oity:
    
    “Alarming reports have reached here of hostile attitude of Bannock Indians. So far as I can learn, this has been brought about by Indians firing on two whites whom they had ordered off the Big Camas Prairie. It would seem the Indians had looked on the whites as intruders and trespassers. Can you give me any light on the subject, and can you take any measures to allay hostile feeling, to see if the question can be met without an Indian war?
    
      m * m * • * * *
    
    “McDowell,
    ‘ ‘ Maj or-Genera lP
    
    “/Boise City, Idaho Ter., June 2,1878.
    
    “Maj.'Gen. Irvin McDowell,
    “ Commanding, San Francisco, Cal.:
    
    “The trouble grows out of the claim of the Indians to Big Gamas Prairie. The present treaty rights I will explain by letter. In addition to the shooting two men, King Hill Station, overland road, was raided and horses taken. This indicates a settled purpose. The sheriff of Owyhee telegraphs from Silver City that 150 are raiding on Jordan Valley stage road, without violence as yet, but threatening. I am enjoining caution, and have written Major Collins to avoid collision until inquiry. There is danger of general war.
    “M. BRAYMAN, .
    
      u.Governor P
    
    “Portland, Oreg-., June 4,1878.
    
    “To Adjutant-General,
    “ Division Pacific, San Francisco:
    
    “Everything communicated from Boise confirmed by official reports just received from Bernard and Collins, with additional particulars that Lemhi Indians and others are involved, and that the numbers in the field are at least 500; that aman, and probably a woman, killed, south of Snake River. Several large herds of horses captured, and evident purpose of Indians is to move westward. Have set in motion troops for quickest possible concentration.
    “Howard,
    - “ Commanding.n
    
    “Portland, Oreg-., Jume 6,1878.
    
    “Adjutant-General,
    
      “Division Pacific, San Francisco:
    
    “Dispatch concerning Fort Hali received. Will take every precaution. The following from Captain Collins just at hand:
    “ ‘Big Bend, Snake River, June 5.
    
    
      “1 Scouts sentyesterday to south of river returned; they went to Bruneau Valley; found the people fortified; much property-destroyed. One man missing, supposed to be killed. Indians going' soutli toward Juniper Mountains; tliey are believed to be Pak-Utes and Bannocks. All stock about Bruneau Valley .is taken by the Indians; they are reported to be from 150 to 200 warriors; the command will cross the river to-day, and will follow their trail. Have four days’ rations on their horses, and will be cautious, and keep close to the Indians. I start to Boise City to-day to make some arrangements about supplies.
    “ ‘ Collins.7
    “Howard,
    “ Commanding?
    
    “White Horse, Grant County, Oregon,
    
      “June 14,1878.
    
    “Major-General McDowell,
    “ Commanding Pacific Coast, San Francisco:
    
    “We have had to all concentrate at this place to protect our lives, leaving our homes and property in the possession of the hostile Indians, and for God’s sake help us if you can and we will be thankful.”
    [This is signed W. J. Earns and 25 other persons.]
    “Boise City, Idaho, June 20,1878.
    
    “ Colonel Kelton,
    “ San Francisco, Cal.:
    
    “ Tour telegram received relative to the number of Indians. I will start in a few moments to join General Howard at Eldorado, about 80 miles from here. I expect to join him to-morrow. I will take your dispatch to him and send in an answer by coiirier. From best source of information at present there is probably not less than 500 or 600 hostiles together in camp at Stein’s Mountain. They are reported to have women and children with them. If they escape northward they will probably be joined by Upper Columbia Eiver Indians. Eunners have been passing during the winter and spring between the various bands of the Upper Columbias, Umatillas, Malheurs, Piutes, and Bannocks, and other renegade bands in this section. All information leads to the belief that a general uprising is contemplated. General Howard may have particular information not in my possession.
    “Mason.”
    
      [Extracts from report of the Secretary of War, 1878.]
    “REPORT OE MA.JOK-GENERAL M’DOWELL.
    “Headquarters Division Pacific and
    . “DEPARTMENT OF CALIFORNIA,
    “ October 24,1878.
    
    “ Sir : Absence from duty at my headquarters at the time designated for sending yon my annual report, and tbe failure at tins date to bear from tbe general commanding tbe Department of tbe Columbia, prevent me from making this report as full as I wish, and will make it necessary to send you a further report as soon as I get one from General Howard.
    “ I transmit herewith the following papers concerning this department and the Division of the Pacific, viz: Annual report of the chief quartermaster; annual report of the chief commissary of subsistence; annual report of the medical director; annual report of the engineer officer; a statement of the movement of troops to and from the department since my last report.
    “I also send copies of all the telegrams and orders issued in relation to the hostilities commenced at Big Camas Prairie, Idaho, last May, and which spread all over Idaho, northern FTevada and Oregon, commencing with the Bannocks, and involving the Pi-Utes, Snakes, and affecting the river tribes to the south of the Columbia -Biver, and causing great anxiety for fear the trouble might extend- to the larger tribes to the north of the Columbia.
    “ I will, as I have before said, defer till I get General Howard’s report, going into the question of the movement of troops under his command. .
    “In order to not have to call on the general of the Army for troops from the eastern commands — being warned not to do so save in an extremity — I sent to General Howard all the troops from the Department of California, save a handful at Alcatras, and called on the Department of Arizona for every man that could be made available, even at the risk of having trouble in that department.
    “The campaign lasted till late in the summer; was a very fatiguing one, and caused much loss of life and property to the inhabitants, the troops, and the Indians. The latter have been subdued, and now await the action of the proper authorities as to their future.
    “I have the honor to be, very respectfully, your most obedient servant.
    “Irvin McDowell,
    
      “Major-General, Commanding Division and Department.
    
    “The Adjutant-General,
    “ Washington, D. CP
    
    
      YX. The.owners of the stock alleged to have been lost were H. Wollenberg, S. Marks, and B. J. Sideman. Their partnership was dissolved in 1879 or 1880, after the commission of the alleged depredation.
    VII. From these facts, the court finds the ultimate fact, so far as it is a question of fact, that the tribes or bands of Piute and Bannock Indians were not in amity with the United States at the time the depredations complained of were committed.
    
      Messrs, William B. Matthews and Charles A. Keigwin, for the claimants,
    filed an elaborate and exhaustive brief, of which an abstract is given below:
    Counsel first criticised the definition of amity, proposed by the Government, as inaccurate. While conceding that that definition was supported by high lexicographic authority, they insisted that popular dictionaries are altogether too comprehensive in their scope to meet the exigencies of forensic definition. The inadequacy of such works to the needs of judicial duties was illustrated by reference to Webster’s definitions of abatement, deraign, etc.
    As showing that this particular word, amity, must have another meaning than the synonyms proposed by the Government, such as peace, friendship, affection, and the like, counsel mentioned the well-known state of sentiment between the English and Russian, and the French and German, peoples. Between the nations mentioned there could be no question that amity exists, yet the popular feeling and the governmental policies could not be called amicable in the sense of friendly, affectionate, or harmonious. The armed demonstration made by the English fleet to prevent the entrance of the Russian army into Constantinople in 1878, and the armed neutrality of Russia and the Scandinavian powers in 1780, were not indicative of friendly disposition, yet in these and similar instances there was certainly no breach of amity. So embargoes, retaliatory tariffs, discriminating duties, and the mobilization of troops are frequent occurrences, denoting feelings distinctly unfriendly and resentful, but quite consistent with the continuance of amity.
    Nor is actual war, in the popular sense of the word war, as signifying hostile military operations, inconsistent with amity. Upon this point counsel cited Woolsey, International Law, section 163; Wheaton, International Law, sections 424 and 279; Kent, 1 Commentaries, 61; and Wharton, Digest International Law, section 318; as showing that reprisals and retorsions do not necessarily constitute war, and that even the furnishing of troops and subsidies to one belligerent, in accordance with ante bellum treaty stipulations, does not make the nation furnishing such aid at war with the enemy of her ally. As illustrative of the proposition that actual hostilities, may occur without impairing the status of amity, cpunsel mentioned the battle of Copenhagen, in which the Danish fleet was destroyed by an English force, but which was not war, and did not lead to war, the subsequent treaty evincing a mutual purpose to avoid any implication that a state of war had existed. So the incursions made by General Jackson in 1814, and in 1818, into the Spanish territory of Florida, were certainly hostile operations, but certainly did not amount to a breach of amity between Spain and the United States.
    But the most striking' and significant instance of extensive and protracted hostilities held to be consistent with a continuance of amity is that afforded by the maritime reprisals prosecuted against each other by the United States and France from 1798 to 1800. There was surely war, if by that term be meant only actual hostilities, and there was certainly no amity, if by that term is meant necessarily peace, good will, friendship, affection, and good understanding. Blood was shed and property was destroyed. Yet in Bas vs. Tingy (4 Dallas, 37), the Supreme Court, while holding that these operations were war in one sense of the term — a limited, qualified, partial war— went actually out of the case before them to state their opinion that it was not war in the legal sense; that war which carries with it the well recognized jural consequences which flow from a breach of amity. So the Court of Claims, in Gray, administrator, vs. the United States (21 Cls. B., 340), a case which turned upon the issue of war or no war, held that these hostilities* were only “a state of reprisals, straining the relations of the states to their utmost tension, daily threatening hostilities of a more serious nature, but still short of that war which abrogates treaties, and after the conclusion of which the parties must, as between themselves, begin international life anew.”
    From these and similar precedents counsel drew the inference that amity is a word which,’ in international law, has a definite technical use, to signify apolitical status. This status is, accurately speaking, the opposite of the status called enmity. While amity is usually recognized by the existence of peaceful relations, and while enmity is characterized by hostile military operations, yet these external and visible facts are not infallible criteria by which to determinenational status. Armies and navies may meet in bloody collisions while their governments remain in amity, and they may rest during protracted truces and armistices while the nations remain still at war or in enmity in legal contemplation.
    The importance of this distinction between amity and actual peace, and between enmity and actual hostilities, was insisted upon as supported by all the authorities, and as necessary because of the different legal consequences flowing from each. While amity endures there is free commercial and social intercourse between citizens of the two states, bills of exchange and remittances of money pass from one state to the other, the courts of each are open to citizens of the other, and treaties continue in force. When amity is displaced by enmity, or war in its legal sense, all this is changed; intercourse is criminal, debts are no longer paid, the plea of alien enemy bars suits, and all treaties are abrogated. A change of status involving so tremendous changes in the lives, business, and destinies of two peoples is not to be lightly declared by courts, and must not be inferred merely because of local, casual, or temporary hostilities. Because of this distinction, and because amity is not always and necessarily synonymous with actual peace nor inconsistent with actual hostilities, the evidence showing that the Bannocks engaged in certain military operations can not be allowed to be conclusive of the question of status. .
    Counsel then proceed to argue that the Bannock outbreak was not warfare in that sense which is incompatible with amity, for these reasons:
    First. A savage tribe like the Bannocks are incapable of waging war in the sense of international law. Such barbarous and loosely organized bands are incapable of attaining a status of belligerency. The least discriminating sense apprehends a difference between war against nations and military operations against gangs of pirates, bandits, and marauders. Our war against Great Britain and Mexico were clearly something different from the expeditions undertaken to pun-isb the pirates of Amelia Island and Barataría Bay. The operations of .the Bannocks were not war but brigandage. The operations of the Federal troops were rather the exercise of police duties than warfare.
    Second. This so-called war cannot be. recognized as legal warfare because no official announcement of it was made. Hot that a declaration of war is necessary, but an official manifesto is usual. This is necessary, not to warn the enemy, but to apprise our own citizens of their changed status. Such a manifesto is required by usage for the additional reason that it is needed to fix the date at which peace ends and war begins, to enable the citizens and the courts to ascertain the change of status. (Kent, 1 Comm., 55; Wheaton, Int. Law, sec. 297). As before remarked, the status of amity and the status of enmity or warfare carry with them widely different rights, and, unless the change is indicated, great confusion must arise in determining which class of rights shall obtain, especially when military operations are in progress. Therefore, a war is held to begin, not when military operations are instituted- or have reached a certain stage, but when an official announcement of war is promulgated. Thus the civil war did not begin with the assault on Fort Sumter, but when the proclamation of blockade apprised the world of the fact of war. {The Protector, 12 Wall., 700; Adgerv. Alston, 152d., 555; BatesviUe Institute v. Kaufmann, 18 2d., 151; Matthews v. MeStea, 91U. S. B.., 7.) In the case of the Bannock raid there was never any official pronunciamento to advise the public that a war was in progress. The court will find no record to show an alteration of status, or to'enable it to fix the point at which pilfering became plundering, or plundering became brigandage, or brigandage became révolt, or revolt reached the dignity of warfare. The mere fact that the Indians were stealing and killing does not indicate warfare; else every act of pillage would be war, and all robbery, rape, arson, and murder would justify themselves as legitimate hostility.
    Third. This was not war because it did not abrogate existing treaties. This is the necessary effect, according to all the authorities, of warfare. It is true that certain kinds of treaty stipulations survive a breach of amity, but in general, treaties are abrogated, especially executory treaties. In this instance, however, as soon as the outbreak was quelled, the savages were restored to tbeir reservation and tbe issue of rations to them under former treaties was resumed precisely as if nothing had happened. This is thoroughly inconsistent with the idea that a state of warfare had existed. No treaty of peace was ever made, and no record shows a reintegration of friendly relations. If the predatory foray of 1878 converced the Bannocks into public enemies, they have ever since continued to be so, and every one who has been concerned in distributing to them rations and subsidies, from the successive Secretaries of the Interior to the Indian agents, is guilty of treason in affording aid and comfort to enemies of the United States.
    Fourth. Indians can not become enemies, because they are subjects. As tribes, they have less measure of autonomy than the territories; as individuals, less personal liberty than citizens. They may be rebels or criminals, but enemies, never. No domestic violence can throw the participants out of amity with the sovereign against whom they rebel. Tn legal -contemplation rebels are still subjects dr citizens, indissolubly bound to allegiance by the laws, held firmly in this status by legal obligations above their own will. This status they can not alter by acts of their own. Forcible resistance may expose them to the penalties of municipal law, as refractory children are amenable to domestic discipline, but it does not translate the recalcitrant subjects into the status of public enemies.
    It is impossible, therefore, to call the Bannocks’ spasmodic resistance to authority a war. As well give that name to all sporadic outbreaks of popular violence, all rescues of prisoners, all lynchings, all collisions between whites and blacks headlined by newspapers as “ race wars,” all labor disturbances, and to every domestic act of violence from the Whisky Insurrection' to the last instance in which the sheriff has called out the posse comitatus.
    
    For these reasons it was contended by counsel that the Bannock uprising lacked the essential elements and indicia of a war, and could not, therefore, be held to constitute a breach of amity.
    
      Mr. William B. King (with whom was Mr. Charles King), representing other claimants interested in the same question,
    submitted an argument maintaining the following propositions:
    (1) That the words “in amity” in this law mean “in treaty relations.”
    
      (2) That the existence of war, if material, is to be ascertained only from the authoritative act of the Legislative or Executive -Department.
    (3) That the statute grants jurisdiction for losses chargeable by reason of treaty stipulations without regard to the existence of á amity,” whatever- be its meaning.
    The words “in amity” first appear in statute in 1796 (act of May 19, Sec. 14, 1 Stat. L., 472), and are repeated in many subsequent statutes (1 Stat. L., 747; 2 Stat. L., 143; 4 Stat. L., 731, and Sec. 2166, Eev. Sta-4).
    A settled construction of these words has prevailed in the Interior Department for many years that they mean “in treaty relations” and no discrimination has been made between losses during wars or while at peace.
    There is n'o safer guide .to the meaning of a statute than the long continued usage of a Department charged with its execution. (Stuart v. Laird. 1 Oranch, 299; United States v. Moore, 95 U. S. E., 760, 763.) This is one of the fundamental doctrines of statutory construction adopted by this court in a hundred cases. It is applicable to this question and should be followed. The settled interpretation of the past should not be overturned.
    But still stronger reasons exist for the adherence to the construction adopted by the Department. The words “in amity” occur in a succession of acts. It is presumed that Congress knew the construction adopted by the Department; each successive enactment of the same words thus became a ratification of the settled official construction.
    Enlich, On the Interpretation of Statutes, § 368, asserts this doctrine in these terms:
    “Where, indeed, the two acts in pari materia are almost precisely alike, in the provisions under construction, it is said that the decisions upon the earlier will be considered as authority in the interpretation of the latter-act. In other words, the reenactment of a statute which has received a. judicial construction, in the same, or substantially the same, terms, amounts to a legislative adoption of such construction.”
    See Duramus v. Harrison (26 Ala., 326); Myrielc v. Hasey, (27 Me., 9); Gota v. Boss (66 Me., 161, 165).
    See also Tuxbury’s App. (67 Maine, 267; Frinh v. Pond (46 N. H., 125); (following Tomson v. Ward, 1 N. H., 9); State v. 
      Swope (1 Ind., *91) -, Evans v. Boss (107 Pa. St., 231); Gould, v. Wise (18 Nev., 203); Woolsey v. Cade (54 Ala., 378); Be Murphy (23 N. J. L., 180).
    The settled official construction of tlie words “in amity,” tbus ratified by legislation, should not be departed from.
    Besides these implied ratifications by repeated enactment of the same words, the act of March 3,1891, contains a direct ratification of the construction of the law adopted in making awards under the act of March 3,1885.
    All claims approved since March 3,1885, contained a finding of treaty relations, but no finding of peace or war. These findings were before Congress and Congress provided a prima facie validity for the claims so allowed and directed their payment unless reopened' by either party. In that event “ the party electing to reopen the case shall assume the burden of proof.” “Burden of proof” is a term used only in regard to questions of fact. The claims are not to be disturbed upon matters of law. But had the Interior Department been acting upon a false fundamental theory of the law, Congress would not have provided for payment of the claims erroneously allowed in point of law and permitted correction only for errors of fact. The action of Congress is an absolute approval of the ruling of the Department in the allowed cases.
    It is not possible that Congress could have intended to make one fundamental rule for the allowed cases and an absolutely different rule for the other cases. This would be a legislative absurdity.
    Taking the whole act together, it is clear that no such revolutionary purpose was intended as would be involved in a departure from the settled construction of these words.
    It is certain that the allowed claims can not be reopened on questions of law alone, and must be paid, and yet losses at the same time and under the same circumstances which had not yet passed the Department, would have to be rejected.
    A construction of this act producing so senseless a result must not be held correct, unless absolutely required by the language of the law.
    The correctness of the construction of these words adopted by the Indian Office, becomes clear when examined in the light of their origin. They are first found in a statute of the United States in the Act of May 19 1796, (§ 14,1 Stat. L., 472). They have even earlier origin, occurring in the preamble to the ordinance of August 7, 1786, passed by Congress before the-Constitution (Am. State Papers, Indian Affairs, Yol. i, p.. 14). These words, continued in legislation, should have the meaning appropriate to them at their origin. (See also Am. State Papers, Ind. Aff., Yol. ii, p. 27.)
    In these early days, the Indians were not always inferior in power to the Federal Government. Treaties had been made with some tribes, but others had refused to acknowledge the white man as lawfully in the country and had declined to make any compacts. It was an object of primary importance to make friends of the Indians and the treaties in nearly every instance declared that friendship should exist between the two treaty powers. As a bond of peace, annuities were generally to be given by the United States.
    In order to assure peace with the Indians with whom treaties were made, Congress provided by act of May 19, 1796, that depredations committed upon the property of citizens of the United States by them and depredations committed by citizens upon their property should not become the subject of private dispute. The United States assumed the double responsibility of making payment for all unlawful acts on both sides.
    The treaties and the statute were parts of an entire system. The treaties uniformly provided for friendship and generally for annuities and the tribes were then said to be “ in amity.” The .statute preserved peace by destroying any motive for retaliation, either by or upon such tribes, but the offending na. tion answered for wrongdoers out of the annuities. Any construction varying from this leaves the system inharmonious.
    This meaning of the words “ Indians in amity” is apparent in the ordinance of August 7,1786, already referred to, which begins thus:
    “Whereas, the safety and tranquillity of the frontiers of the United States, do, in some measure, depend on the maintaining a good correspondence between their citizens and the several nations of Indians in amity with them.”
    The body of the ordinance is then taken up with provisions for Indian superintendents, trading and conventions, all applicable only to Indians in treaty relations.
    The entire course of the legislation on this subject aims to fix an ultimate responsibility on the Indian tribes for their depredations. (See acts of 1796, 1799, 1802, ,1834, and 1891, §6.) The United States indemnifies the individual sufferer but exacts a responsibility from the Indian tribe. The defendant’s brief concedes that this tribal responsibility exists for the depredations of individual members of the tribe, even if acting directly contrary to the tribal authority. But when the depredations are committed by the whole tribe acting together, the defendants claim that the tribal funds are no longer answerable. Such a reductio ad absurdum exposes the fallacy of the argument. This construction is inconsistent with the whole course of legislation.
    It would also largely destroy the remedial value of the statute. Few complaints have ever been made because of the casual depredations. The losses which Congress has been called upon to provide for, on account of the wards of the nation, are those committed by the tribes in periods of insubordination on wholesale careers of robbery and murder. There would be no substantial remedy if payment should be made only for losses by the casual depredators and denied to those who suffered by tribal raids.
    But if the court should think it proper to disregard the practice of the Department in this respect and to hold that this statute relieves the Government from responsibility where a state of war exists, the existence of war is not to be inferred by the judiciary. War is political, and its existence is determined by the acts of the legislative and executive departments. The judiciary can merely carry out their determination. The mere existence of tribal insubordination is no proof that a state of war exists. However serious this may be, if the President and Congress do not treat it as a war, involving the consequences of a war, the courts can not declare it to be a war.
    After the Indian massacre of 1862 in Minnesota, the Act of Congress of February 16,1863 (12 Stat. L., 662), declared all treaties abrogated with the bands of Sioux Indians concerned in the outbreak. - In the treaty with the Sacs of Bock Biver of May 13,1816 (7 Stat. L., 141). reference was made to a stipulation in the treaty with Great Britain to end “all hostilities with Indian tribes with whom they might be at war.” The treaty was made “for the purpose of restoring peace and friendship ” and the Indians were placed “ on the same footing upon which they stood before the war.” In the treaty with tbe Creek Nation of June 14,1866 (14 Stat. L., 785), there is a recognition of tbe existence of war and tbe forfeiture of treaty rights.
    Other similar examples might be produced where the legislature or the executive has authoritatively declared the existence of war. But where the political authority has regarded all treaties as still in force and has not formally given to temporary disturbances the character of war, the judiciary can not so regard it.
    
      Bose v. Jlimely, 4 Oranch, 241; Martin, v. Mott, 12 Wheaton, 19; Luther v. Borden, 7 How. 1,42-44; The Protector, 12 Wall., 700.
    . To attempt to determine a war from circumstances would be to involve this court in the greatest difficulty. Neither duration nor extent, nor the number of men involved, can fix the character of the hostilities. The irregularity of conflicts with savages.deprives them of any essential indicia of their character. The courts must depend upon the decision of the President and Congress.
    Upon a further examination of the statue, it very clearly appears that it was not the purpose of Congress to limit the jurisdiction of the court to claims for depredations committed by tribes “in amity,” whatever be the meaning of these words.
    The first section of the act of March 3,1891, gives jurisdiction in three distinct classes of claims for Indian depredations:
    (1) Claims of citizens for depredations by Indians in amity.
    (2) Claims which have been examined and allowed by the Interior Department.
    (3) Claims authorized to be examined by the act of March 3,. 1885, and amendments, subject to the limitations provided in the act of March 3,1891.
    The act clearly intends that the second and third classes shall form a subject of jurisdiction apart from the first. The limitation to tribes “in amity” does not apply to these classes.
    The Act of March 3,1885 (23 Stat. L., 376; 1 Suppl. Iiev. Stat. 2d. ed., 913, note 3), provides for the investigation of the following claims:
    (1) All claims heretofore filed and which have been approved in whole or in part.
    (2) All such claims pending but not yet examined, for depredations chargeable against any tribe by reason of treaty stipulations.
    The act of March 3, 1891, in this place again displays the desire of Congress to support the actign of the Interior Department by making the jurisdiction of the court dependent upon the jurisdiction exercised by the Interior Department under the act of March 3,1885.
    The rule of statutory construction that a reenactment of a statute is a legislative approval of the construction adopted by the constituted authority applies to the reenactment by the act of March 3, 1891, of the jurisdiction conferred by the act of March 3,1885. The jurisdiction of this court under tluat portion of the act of March 3,1891, is the jurisdiction actually exercised by the Interior Department under the act of March 3,1885. Congress knew the practice of the Department and desired its continuance. The only changes are those both exclusive and inclusive, imposed by section 2 of the act of March 3, 1891.
    The history of this bill in its passage through Congress confirms this position.
    The present form of the statute is the result of a compromise beween the House bill to pay all Indian depredation claims, whether arising “ in amity,” or heretofore recognized by statute, or chargeable by treaty stipulation or wanting in all these particulars, and the Senate bill to pay only those claims which had been cognizable under the early statutes for losses by tribes “ in amity.” The compromise effected was to preserve the restrictions of the Senate bill in the first paragraph, but to insert a second paragraph, not restricted to losses by tribes “ in amity.” This gives jurisdiction in all cases which the Department could consider under the act of March 3,1885, chargeable to treaty stipulation. It is evident that the paragraph was inserted as an addition to the jurisdiction conferred by paragraph “First,” and no construction could be adopted which fails to give an enlarging effect to it.
    The key to the construction of this act is to regard it as a complement to existing laws and treaties. It grants complete recognition to rights heretofore partially recognized in statutes and treaties and provides a means for the final disposition of all claims based upon such rights. No construction of this act can be sound wbicb denies jurisdiction and prevents a bearing of all such claims on their merits.
    
      Mr. 8. N. Pettis and Mr. John W. Clark were also heard for claimants.
    
      Mr. Assistant Attorney-General Colby for the defendant.
    Counsel for the defense submits the following general conclusions on the subject of amity:
    The word u amity,” as used in the act of March 3,1891, should be interpreted according to its ordinary use and meaning, which is peace, friendly relations, and good will, as opposed to war] hostility, and ill will.
    Amity is not synonymous with treaty relation; it is not necessarily a part of a treaty,-although generally included as a treaty condition.
    The condition of amity is required as a fact under the act of March 3, 1891, and must be proven by competent evidence to entitle claimant to relief.
    Where a treaty of peace and friendship exists between any Indian tribe and the United States the condition of amity is presumed prima facie ; but this presumption is not conclusive, and may be rebutted by proof of the actual existence of a hostile condition.
    Where the treaty does not contain provisions for peace and friendship, then the condition of amity must be proven to exist, and the burden of proof is upon the claimant.
    Where a treaty of peace and friendship exists, or where, in case there is no such treaty, the condition of peace and friendship is shown to exist between the tribe of Indians and the United States, this can not be changed to a condition of hostility by the acts of individuals of either party.
    Where the condition of amity is shown to exist by’the provisions of a treaty or by evidence aliunde, this condition is presumed to continue until a condition of actual war or hostility is proven, and is not changed by proof of individual depredations. Counsel for the defendants urges upon the attention of the court the establishment of the following propositions, based upon the entire record and the law as applicable to the case at bar, and which prevent a recovery by the claimant:
    (1) No definite amount of property is shown by the evidence to have been taken or destroyed by the defendant Indians, and the value thereof can not be ascertained by the court.
    
      (2) The claimant’s property is not shown by competent evidence to have been taken or destroyed by members of the defendant tribe, band, or nation of Indians.
    (3) It does not appear from the evidence that the taking or destruction of claimant’s property was without just cause or provocation on the part of the owner or agent in charge; ,
    (4) The evidence shows that the depredations charged in claimant’s petition were not committed by members of the Pi-Ute tribe, band, or nation, but, if committed by any Indians, they were chargeable to members of the Bannock Nation.
    (5) The defendant tribe, band, or nation of Bannock Indians was notin amity with the United States at the time of the commission of the depredation complained of.
   Weldon, J.,

delivered the opinion of the court:

This is a proceeding under the act entitled “An act to provide for the adjudication and payment of claims arising from Indian depredations” (1 Sup. B. S., 2ded.,p. 913). Claimants allege that in* the year 1878, they were the owners of a large amount of property, to wit, 29 head of horses and colts, and 400 head of stock cattle in Happy Yalley, in the county of Grant, now Malheur County, State of Oregon; that the Piute and Bannock Indians, then in amity with the United States, took and destroyed said property without just cause or provocation on the part of the owners; and that the claim was presented to the honorable the Commissioner of Indian Affairs; but was not paid or any part thereof.

The findings show, that in the month of June, 1878, the claimants were possessed of a ranch in said county and State, on which they had at the time horses and cattle; that, at that time the Bannock and Piute Indians made a raid in and through said county and upon the ranch of claimants; that in the raid through said county the Indians destroyed property consisting of horses, cattle, and dwellings; that the Indians at the time of the raid numbered between 500 and 600, and were in a body or band moving in concert, having the form of an Indian military organization. In said raid the Indians took and destroyed cattle and horses of the claimants amounting to tbe sum of $5,450, and no part of tbe property included in said amount was returned or paid for; tbat tbe claim was presented to the Commissioner as alleged and tbe destruction was without provocation on tbe part of tbe claimants or their agent in charge of tbe property at tbe time.

Tbe first clause of tbe act upon which tbe jurisdiction of this court is dependent is as follows:

“First. All claims for property of citizens of tbe United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with tbe United States, without just cause or provocation on tbe part of tbe owner or agent in charge, and not returned or paid for.
“Second. Such jurisdiction shall also extend to all cases which have been examined and allowed by tbe Interior Department.
“And also to such cases as were authorized to be examined under tbe act of Congress making appropriations for tbe current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for tbe year ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject however to the limitations hereinafter provided.”

The first question to be determined is, has the court jurisdiction of the cause? the raid having incident to it many of the characteristics of an Indian war.

It is contended on the part of some of the counsel in like cases that it is wholly immaterial as to what was the condition of the Indians at the timé of the alleged depredations, and the fact that they were in a state of hostility against the United States does not deprive the court of jurisdiction. On the part of others it is conceded that amity is essential in some cases; but though there be a state of hostility and yet treaty relations existing between the United States and the Indians, the fact of such treaty will justify the court in assuming jurisdiction of a cause and awarding damages because of the depredation. It is contended on the part of the defendants that if a state of hostility existed in fact, that such condition is sufficient to bar the jurisdiction of the court, and that the fact of treaty relations will not justify the court in assuming jurisdiction.

This is the first case, tried and decided upon its merits, litigated in this court. The judgments which have been ren■dered were upon the second clause of the statute giving jurisdiction-to render judgment in all cases which have been allowed by the Interior Department} and which neither party desires to litigate.

The findings show that a state of amity did not in fact exist between the United -States and the Indians alleged to have committed the depredation; but it is insisted that under the second division of the second clause of the first section of the act that we have jurisdiction to determine the controversy on its -merits, and give such damages as from the evidence it is shown the parties have suffered. The word amity, as used in the first clause of the first section, is the subject of serious dispute and contention between the counsel.

In the construction of a statute words are to be taken in their ordinary and common acceptation, unless such a construction will do manifest violence to- the intention aDd purpose of the legislature. The word amity is not technical in its character, is not peculiar to a circumscribed subject-matter, and must be construed by the court in its broad and ordinary signification.

The Century Dictionary defines the word as follows: •

“Friendship in a general sense, harmony, good understanding, especially between nations; political friendship, as a treaty of amity and commerce. * * *
“These appearances and sounds, which imply amity or enmity in those around, become symbolic of happiness and misery. H. Spencer, Prin. of Psychol.
“Synonym. — Friendliness, kindliness, good will, affection, harmony.”

The court,' taking the word in its ordinary and common signification, must conclude that it intends to indicate a state of peace and good fellowship between the Indians upon the one side and the United States upon the other, and if such a state does not exist, then under that clause of the statute, no jurisdiction is incident to or inherent in the court.

The Supreme Court of the United States, in the' construction of an amendment to a railroad charter, said:

“But Yattel’s first general maxim of interpretation is, that “It is'not allowable to interpret what has no need of interpretation,” and he continues: “When a deed'is worded in clear and precise terms — when its meaning is evident and leads to no absurd conclusions — there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but to elude it.” Vattel’s Law of Nations, 244. Here the words are plain and interpret themselves. (Ruggles v. Ill., 108 U. S., 534.)
“But all these rules are understood to be subject to the qualification that, where the language is free from ambiguity, leads to no absurdity, and hence needs no interpretation, nothing beyond it can be regarded. (Bndlich, Interpretation of Statutes, sec. 27. Ezekiel v. Dixon, 3 Ga., 146.)”

The findings set'forth at length the'dispatches and communications of different Army officers having in charge the maintenance of peacable and friendly relations with the Indians, which show that during the summer of 1878 those relations were disturbed to the extent of open hostilities between the United States, the Bannock and Piute tribes. On October 24, 1878, the major-general commanding the division and department in which the Bannock tribe was located writes the Adjutant-General at Washington, “I also send copies of all the telegrams and orders issued in relation to the hostilities commenced at Big Canon Prairie, Idaho, last May, and which spread all over Idaho, Nevada, and Oregon, commencing with the Bannocks, involving the Piutes, Snakes, and affecting the river tribes to the south of the Columbia Biver, and causing great anxiety and fear the trouble might have extended to the larger tribes north of the Columbia. # * * The campaign lasted till late in the summer, was a very fatiguing one, caused much loss to life and property to the inhabitants, the troops, and the Indians.” The inhabitants of the district of country in which it is alleged the depredations were committed petitioned the Government for protection against the warlike act of the Indians. Those dispatches and reports, in connection with the action of the War Department, clearly demonstrate the want of amity, and establish the condition of actual war so far as that condition can exist between a small tribe of Indians and the United States.

This court has had occasion to determine as to wbat constitutes a condition of war between the United States and an Indian tribe. In the case of Alire v. United, States (1 C. Cls. R., 238) it is said:

“ Though there may have been no formal declaration of war by Congress, nor any public oficial proclamation of its existence by tbe President of tbe United States, yet it can scarcely be doubted, from tbe official acts and recognitions by tbe President and by Congress of tbe existing hostility by these tribes, and tbe means taken to suppress the disturbance and chastise them into submission, there existed that condition of things between the Government of the United States and those tribes known, in common parlance as well as legal enactments, as an 1 Indian war.7 In our intercourse and dealings, with these savage tribes, regarded in our laws as independent and domestic nations, we do not apply the same rules of peace or war that regulate the intercourse and fix the relations between us and foreign independent nations. Though we have had many ‘ Indian wars,7 it has been but rarely that Congress, in which the Constitution vests the right to declare war and make peace, has enacted or resolved a formal declaration of hostilities against any tribe or tribes. It has been regarded as sufficient that they have by law provided for the protection of our frontier against the attacks of these tribes, and for calling out volunteers to aid the Army, leaving the executive department to act according to the emergencies as they arise. And Congress has seldom failed to recognize and ratify such acts by voting appropriations to pay the troops called out and defray the expenses incident to such expeditions. This case has been no exception to the general rule. And taking into view the actual condition of things in the Territory of Hew Mexico between the 1st of January, 1855, and the 1st of August, of the same year, with the acts of this Government during that period and subsequently, we can not say that this was not an ‘ Indian war.7 There were repeated acts of depredation by the Indians upon the property of the white settlers, many acts of cruelty, murder, and massacre, such as are incident to savage warfare. These were repelled and punished by the forces of the United States under a general officer in command of the department. Voluhteers in aid Of these forces were called out upon requisitions made upon the civil governor of the Territory, and these were duly organized and mustered into the service of the United States. Expeditions were planned against these Indians, their country invaded, and battles fought against them, and finally a treaty of peace concluded with them.77

In the troubles with the Bannock Indians in the year 1878 all the substantial elements existed except the formal treaty of peace that existed between the United States and the Indians in the troubles in the Territory of New Mexico in the year 1885, which were held to constitute a state of “Indian War77 within the meaning of the law in the Alire case.

In the case at bar treaty relations did exist between the Bannocks and the United States, and one of the questioñs for us to determine is, whether the fact of such relation dispenses with the condition of amity as prescribed by the first clause of the section. The court is of the opinion that treaty relations are no equivalent in law to amity, .and do not relieve a claimant from proving a state of amity in cases coming within the first clause of the first section of the statute. The statute to which the second clause of the second division of the section is applicable is the Act of March 3, 1885 (23 Stat. L., 376), and is as follows:

“ Indian depredation claims. For the investigation of certain Indian depredation claims, ten thousand dollars and in expending said sum the Secretary of the Interior shall cause a complete list of
“ All claims heretofore filed in the Interior Department and which have been approved in whole or in part and now remain unpaid,
“And also all such claims as are pending but not yet examined, on behalf of citizens of the United States on account of depredations committed, chargeable against any tribe of Indians by reason of any treaty between such tribe and the United States,
“Including the name and address of the claimants, the date of the alleged depredations, by what tribe committed, the date of examination and approval, with a reference to the date' and clause of the treaty creating the obligation for payment, to be made and presented to Congress at its next regular session;
“And the Secretary is authorized and empowered, before making such report, to cause such additional investigation to .be made and snch further testimony to be taken as he may deem necessary to enable him to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid, and by what tribe such depredations were committed; and his report shall include his determination upon each claim, together with tbe names and residences of witnesses and the testimony of each, and also what funds are now existing or to be derived by reason of treaty or other obligation out of which the same should be paid.”

The only treaties made between the United States and the Bannock tribe of Indians are the treaties of July 3 1868 (15 Stat. L., 673), and the one bearing date May 14,1886 (Laws U. S. relating to Indian Affairs, 1884, p. 339). It is not necessary to refer to the last named treaty, as its provisions can have no possible bearing on the question at issue in this case. It relates to a grant to the Lemhi Indians to locate upon a reservation in Idaho belonging to the Shoshones, Bannocks, and Sheepeaters of Idaho. . The only treaty which we are called upon to construe is the one of July 3, 1868.

Among other provisions is the following:

“If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, on proof made to their agent and notice by him, deliver up the wrongdoer to the United States, to be tried and punished according to its laws; and in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due orto become due to them under this or other treaties made with the United States. And the President, on advising with the Commissioner of Indian Affairs, shall prescribe such rules and regulations for ascertaining damages under the provisions of this-article as in his judgment may be proper. But no such damages shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of Indian Affairs, and no one sustaining loss while violating or because of his violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor.”

The act of 1885 made an appropriation of $10,000 for the investigation of Indian depredation claims and the subsequent acts making appropriations for the same purpose do not differ essentially from the act of 1885.

For the purpose of facilitating Such investigation the Secretary of the Interior is directed to complete a list of all claims “which have been approved in whole or in part and now remain unpaid and also such claims as are pending, but not yet examined, on behalf of citizens of the United States on account of depredations committed chargeable against any tribe of Indians by reason of any treaty between such tribe and the United States.” Without at present determining the full force of the act of 1885, in the enlargement of our jurisdiction, in cases where amity does not in fact exist, it is sufficient for the purposes of this opinion to state that the claim made in this case does not come within the requirements of the act of March 3,1885, in belonging to the class of claims required to be-listed by the Secretary of the Interior for the direction and control of the investigation contemplated by that act.

The treaty between the United States and the Bannock Indians provided a mode of procedure upon the part of claimants which would make the Indians responsible by a loss from tbeir annuities 5 but that condition does not exist in tbis case. The depredation complained of in this proceeding was not the subject of investigation before the Indian agent, for the purpose of bringing the claim within that provision of the treaty making the tribe responsible by a diminution of annuities, because of a failure to deliver for punishment a wrongdoer.

Upon the whole case, it is the conclusion of the court that the facts found do not bring the case within the jurisdiction of the court authorizing a judgment for the claimants for the amount which they have suffered in consequence of the wrongs inflicted on them by acts of the Indians, and the petition is, therefore, dismissed.  