
    CLARENCE W. TURNER v. THE UNITED STATES AND THE CREEK NATION OF INDIANS.
    [No. 30241.
    Decided April 10, 1916.]
    
      On the Proofs.
    
    
      Jurisdiction; Parties.—Where an act of Congress authorizes suit against an Indian nation and fails to prescribe the method of service of process it is doubtful whether the Court of Claims can direct the necessary or proper service to bring the defendants before the court.
    
      United States as Party; Parties.—The United States can not be made parties defendant to an action authorized to be brought against an Indian nation if the jurisdictional act is silent upon that subject.
    
      
      Indians; Contract; Statutes.—Where the laws of the Creek Nation authorized citizens of the nation to make contracts securing them certain special rights in communal pastures the right could not be secured by or in conjunction with persons who were not citizens of the nation.
    
      Indians; Torts; Sovereignty.—The Creek Nation has elements of an independent sovereignty, and in the absence of a law recognizing its liability for torts of citizens of the nation against noncitizens the rule that a sovereign is not liable to suit for the action of a mob is applicable in an action against that nation for the consequences of a destruction of property of the noncitizen.
    
      Contract; Tort; Nuisance.—A contract secured in violation of law is not to be enforced, and a tort committed can not be treated as a violation of a contract entered into in contravention of a statute of an Indian nation. Parties proceeding under the supposed right of such a contract may become liable for creating a public nuisance, and an individual or individuals who are specially damaged thereby may abate a public nuisance, using no more force and doing no more damage than is necessary to abate the nuisance.
    
      The Reporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Clarence W. Turner (whose place of residence is Muskogee, Okla.), is the surviving partner of the firm of Blackstone & Turner, which was composed of Pleasant N. Blackstone and Clarence W. Turner. Said firm engaged in the business of raising and selling cattle in the year 1890 and before and after that year. The said Blackstone died on or about the-day of April, 1903.
    II. A treaty between the United States and the Creek Nation of Indians was concluded June 14, 1866, and proclaimed by the President August 11, 1866, 14 Stats., 785, whereby certain rights were secured to the respective parties to the treaty. Among others, the Creeks ceded and conveyed to the United States the west half of their entire domain, estimated to contain over 3,000,000 acres, and the United States were to pay 30 cents per acre therefor. By Article X of said treaty it was provided as follows:
    
      “ The Creeks agree to such legislation as Congress and the President of the United States may deem necessary for the better administration of justice and the protection of the rights of person and property within the Indian Territory: Provided, however, [That] said legislation shall not in any manner interfere with or annul their present tribal organization, rights, laws, privileges, and customs. The Creeks also agree that a general council, consisting of delegates elected by each nation or tribe lawfully resident within the Indian Territory, may be annually convened in said Territory, which council shall be organized in such manner and possess such powers as are hereinafter described * *
    III. The said Creek Nation of Indians kept up their tribal organization and customs and had a system of laws for many years and until the year 1906, at which date the tribal government was terminated by the general provisions of the act of March 1, 1901, 81 Stats., 861, 872, section 46 of which reads as follows:
    “ 46. The tribal government of the Creek Nation shall not continue longer than March fourth, nineteen hundred and six, subject to such further legislation as Congress may deem proper.”
    The United States held in trust for the Creek Nation of Indians on November 18, 1915, the sum of $1,325,167.16. In addition thereto approximately $1,110,000 of the tribal funds of said nation is on deposit in the Oklahoma State and national banks, under the provisions of the act of March 3, 1911, 36 Stat., 1058, 1070, or a total of $2,435,167.16.
    Under their constitution it was provided that the lawmaking power of the nation was lodged in a council, consisting of two houses—the house of kings and the house of warriors; that there should be a principal chief elected for a term of four years by a majority of the votes of the male citizens of the Muskogee Nation who had attained the age of 18 years; that the “supreme law-defining power” should be lodged in a high court composed of five citizens over the age of 25 years, chosen by the national council; that the nation should be divided into six districts; and that each district should be furnished with a judge, a prosecuting attorney, and a company of light-horsemen—one captain and four privates— and the light-horsemen were to be invested with police powers and were under the direction of the judge of the district. The national treasurer was selected by the national council, and his duty was to receive and receipt for all national funds and to disburse the same, as should be provided for by law. He was required to report the condition of the national finances to the national council and was required to give a bond in the sum of $5,000. Their laws also provided with reference to intermarried noncitizens as follows:
    “Article III. Intermarried Noncitizens.
    “ Section 1. All noncitizens, not previously adopted, and being married to citizens of this nation, or having children entitled to citizenship, shall have a right to live in this nation and enjoy all the privileges enjoyed by other citizens, except participation in the annuities and final participation in the lands, and in case of removal from the limits of our nation shall not have the right to sell their improvements, provided that such person shall satisfy the principal chief as to their good character and honest intentions, and provided that the principal chief shall grant to such person permit to reside in the nation during good behavior.”
    Other provisions of their laws and acts amendatory of the statute of 1889 hereafter mentioned may be found in an official publication entitled “ Constitution and Laws of the Muskogee Nation, 1893.”
    IY. In the year 1889 the said lawmaking power of said Greek Nation of Indians enacted the following:
    “Whereas certain citizens of the Muskogee Nations have petitioned the national council representing that a few citizens engaged in the cattle interests have entered large areas of the public domain for their exclusive use in the grazing of cattle, which operate to the detriment of many who live in the vicinity of such inclosures; and
    “ Whereas it is complained that a dangerous monopoly of the natural advantages of the country is thereby threatened to the detriment of the general welfare of the nation; and
    “ Whereas it appears to be desirable that some protection should be afforded the live-stock interest of our citizens against the influx of large herds of cattle into our country from neighboring nations; and
    “ Whereas it is the desire of the nations, in view of these surrounding conditions, to provide as near as may be such remedial legislation as will afford the protection and benefits desired without unreasonable detriment to the interest of either of the classes of citizens in interest: Therefore
    
      
      “Be it enacted hy the national council of the Mushogee Nation, That any citizen, head of a family, engaged in the keeping or grazing of live stock in this nation, shall for that purpose be entitled to inclose for his exclusive use, free of any manner of tax, 1 mile square of the lands of the public domain, but such inclosures shall not intrude on the rights of any other citizen without his or her consent.
    “ Be it further enacted, That all persons who entered pastures greater in extent than 1 mile square prior to the passage of this act are hereby permitted to occupy and use the same for the purpose of holding and grazing stock thereon until the first day of May, 1890, at which date they are hereby required to raze and take down the fences forming the inclosures.
    
      “Beit further enacted, That if the owner or owners of any pasture subject to removal under the provisions of this act shall fail to take down and remove or make due and diligent efforts to effect such removal within 10 days after the said first day of May, the judge of the district wherein such pasture is located shall cause the light-horse company to take down the fences inclosing the same. If by reason of resistance offered by the owners of such inclosures they shall be unable to take such fences down, then it is hereby made the duty of the principal chief to call into service a sufficient number of the citizens of the district who, under the direction of the light-horse captain, shall proceed to take the fences down as hereinbefore provided.
    
      “Be it further enacted, That where extensive pastures greater in extent than 1 square mile can be located on the borders of the nation to the benefit of any neighborhood by affording protection against the influx of stock from aidjoining nations, the same may be located under the following conditions, to wit: The judge of the district shall be notified by any number of citizens of the district of their desire for the establishment of such protective pasture or pastures; he shall then give due notice to the people of the neighborhood of the time and place of a meeting of voters, who, when so convened, shall determine by vote, or as they shall deem proper, the question whether or not such pastures are needed. If it shall appear by a majority of persons of voting age of the neighborhood thus to be protected favor the establishment of such pastures, it shall then be the duty of the judge to let or grant only the privilege of holding and grazing stock on such lands to such citizen or citizens as may by contract bind themselves to build a substantial fence of four or more strands of wire and to pay for said grazing privileges an amount per acre per year that shall not be less than 5 cents. The location of such tract or tracts of land as shall be occupied under the provisions of this act shall be described in the body of the contract, which contract shall include all provisions necessary to insure and protect the interests of the nation and the citizens thereof and shall be in force for the period of three years, with the privilege of renewal.
    “ Be it further enacted, That pastures greater in area than 1 mile square which have been inclosed prior to the enactment of this law which operate already as a protection of any neighborhood or portion of country against the drifting in of stock from surrounding countries may remain unmolested when the same shall be requested as provided m the section next preceding. In such cases, however, the judge is hereby directed to contract with the persons owning the pastures, which contract shall be subject to all the conditions imposed in the preceding section of this act. It is further required that all pastures remaining intact or which shall be built under the provisions of this act shall be provided on all sides with gates 10 feet wide at the distance of 1 mile or about 1 mile apart; and if stock of any kind escape from such inclosures and cause loss or damage to any citizen, it shall be the duty of the judge of the district, when complaint is made, to proceed, with two disinterested persons, and assess the damages, which shall be paid by the owners or managers of the pastures.
    “ Be it further enacted, That the judge contracting with the owners of the pastures shall make collection of the tax of 5 cents per acre per year provided under this act, commencing his assessment from the date of contract, which he shall pay into the National Treasury on the first day.of each quarter, beginning, respectively, with the months of January, April, July, and October of each year. He shall also render to the national council a full report of all moneys collected, together with receipts from the National Treasurer. And if any owner of pasture shall fail to make any quarterly payment or fail to comply with any of the obligations embraced in the contract with the judge, then he shall forfeit all the franchise granted by the terms of his contract, and the district judge shall so declare and enforce such forfeiture.
    “ Be vt further enacted, That this act shall take effect from and after its passage, and the principal chief is hereby authorized to furnish printed copies thereof to each district judge, who shall distribute them to all interested parties.
    “Approved October 26, 1889.
    “ L. C. Perryman,
    “ Principal Chief, M. NP
    
    
      Several instances are shown by the evidence where under said act “ noncitizens ” made arrangements with “ citizens ” that the .latter should apply for the right to have a pasture and upon its being granted the noncitizens would use it for pasturage and pay the citizens who had secured it.
    V. Said Clarence W. Turner had resided among said Creek Nation of Indians from the early seventies. In 1883 he married the daughter of an Indian of Cherokee blood named Butler, who had been adopted prior to the Civil War into the Creek Nation of Indians, and she was raised as a Creek and was given an allotment of land among the Creeks. The said Pleasant N. Blackstone was of Cherokee blood and was not a citizen of the Creek Nation of Indians.
    VI. After the said enactment authorizing pastures to be established the said firm of Blackstone. & Turner, or one of them acting for both, originated and caused to be put into effect a plan whereby application should be made by certain of the Creek Indians for the establishment of a pasture in what was known as the Deep Fork district and the securing of a right for the same, and to that end an organization was formed consisting of 100 of said Indians and the said Pleasant N. Blackstone and Clarence W. Turner. The said organization took the name of Pussy, Tiger &.Co., Pussy being a prominent Indian and Moty Tiger another. The remaining 98 Indians in said organization were sought out as Indians who would engage to further the proposed plan, and they lived within the confines of the pasture in said Deep Fork district. Pussy lived about 4 miles from the pasture and Tiger lived about 18 miles therefrom.
    It was understood and agreed between the parties composing the said association of Pussy, Tiger & Co. that in the event of the pasture being established each of the said 100 Indians would be paid by the said Blackstone & Turner $100 per year, payable quarterly; that the said Blackstone & Turner would pay the tax of 5 cents per acre per year to the Creek Nation of Indians; and that the said firm of Blackstone & Turner should have and retain any balances of any fund that might accrue from any transfer of a right to others to use the pasture. The said 98 Indians were full bloods and illiterate and, generally speaking, were poor. A number of them had a few cattle which grazed in said neighborhood. The said Indians were not financially able to build any fence and did not contemplate doing so themselves, but relied upon the said Clarence W. Turner to provide for the financing of the proposition.
    VII. In furtherance of said plan for a pasture, application was made by Pussy, Tiger & Co. to Jacob Knight, judge of the Deep Fork district, in which the proposed pasture was located, and an election was held in conformity with the said enactment set out in Finding IV. More than 100 citizens of the neighborhood voted at the election, and the result of the election was a defeat of the application for the pasture. When the said result was announced, and upon the same day, Pussy notified the judge that another election was desired, and Pussy, Tiger & Co. filed an application for a second election, and the judge announced to the people that another election would be held on October 11. Some of the voters had left the place when the judge’s announcement was made. The people concerned knew where the proposed pasture would be situated, but they were not informed as to what its acreage would be.
    The said application for a second election was filed on September 30,1890, and was in words and figures as follows:
    “ Courthouse, Deep Fork Dist., M. N.,
    “ Sept. 30, 1890.
    
    “ To the Hon. Jacob Knight,
    “ Judge, Deep Fork Dist.
    
    “ Sir: We, the citizens of the Muskogee Nation, do hereby ask you to give us an election to build a pasture in the said district according to the laws of this nation enacted October 6th, 1889.
    “Boundary line thus to commence: Northwest corner of this district, running south on the Sac and Fox line to the North Fork Kiver, thence down said river twenty-five miles more or less, and thence north to the Deep Fork Kiver, thence west up said river of Deep Fork to the starting point; to be not less than one hundred thousand acres.
    “Pussy, Tiger & Co.”
    
      The judge of the Deep Fork district entered thereon the following order:
    “ Courthouse, Deep Fork Dist.,
    “ Sept. 30, 1890.
    
    “ In compliance to the above application, I have this day set October 11, 1890, for an election of pasture, to be held at the courthouse of Deep Fork district, M. N.
    “ Jacob Knight,
    “ Judge, Deep Fork Dist.
    
    “ [seal.] “ D. C. Watson, Clerk ”
    
    On October 11,1890, the second election was held, and the result thereof declared as follows:
    “ Courthouse, Deep Fork Dist., M. N.,
    “ October 11,1890.
    
    “ Election held this day above dated for a pasture, according to the application of Pussy, Tiger & Co., as follows, to wit:
    
      “ Fifty-nine for and thirty against, and the pasture elected by twenty-nine majority.
    “ Thereby the pasture entitled.
    “ I hereby certify that the above election is just and correct and held according to the laws of the Muskogee Nation.
    “ Given under my hand and signature this day above dated.
    “ Jacob Knight,
    “ Judge, Deep Fork Dist., M. N.
    
    “ [seal.] “ D. C. Watson, Clerk:’’
    
    There were above 300 voters in the said Deep Fork district. The evidence does not show the number of voters living in the neighborhood of said pasture. At the said second election a majority of the Indians in the said association of Pussy, Tiger & Co. voted for the pasture. After the result of the second election was announced a contract was entered into, a copy of which forms Exhibit A to the petition and is in words and figures as follows:
    “ Contract and agreement made and entered into this-day of October, 1890, by and between Jacob Knight, judge of the Deep Fork district, Creek Nation, he being duly authorized in the premises under the act of the national council of October 6, 1889, and Pussy, Tiger and Company, citizens of the Creek Nation.
    
      “ This contract witnesseth—
    “That Jacob Knight, judge of the Deep Fork district, Creek Nation, hereby contracts with and licenses Pussy, Tiger & Co., they having complied with all the provisions and requirements of the pasture act of October 6, 1889, precedent to entering into this contract, to inclose a certain pasture in the Deep Fork district, Creek Nation, for—
    “ Beginning at a stone on the boundary line between the Sac and Fox and Creek Nations, two miles more or less southeast of the Sac and Fox Agency, running thence south sixteen miles; thence easterly twenty-five miles; thence northerly sixteen miles; thence westerly twenty-five miles to place of beginning, not less than one hundred thousand acres.
    “That Pussy, Tiger & Co., on their part, agree to build good and substantial fence of four strands of barbed wire, inclosing the tract of country hereinabove described, and bind themselves to comply with all the provisions of the act of October 6th, 1889, and which act is made a part of this contract.
    “ (Signed) Jacob Knight,
    “Judge, Deep Fork Dist., M. N.
    
    “D. C. Watson, Clerk.
    
    
      “ Motet Tiger, Pres.
    
    “ John Pussy, V. Pres.
    
    “ J. S. Kobison, Sec'ty. [seal.] ”
    VIII. At some time prior to the winter of 1890 the said firm of Blackstone & Turner or the said claimant, acting for the firm, made an agreement with a firm known as Daniel Waggoner & Son, who were largely engaged in cattle raising and grazed large numbers of cattle, whereby the said Daniel Waggoner & Son agreed, in consideration of the assignment to them of the right to use and graze their cattle upon the said pasture to pay Blackstone & Turner the sum of $27,500 a year during the term of said contract. At that time the building of the fence had not been commenced, and Daniel Waggoner & Son agreed with Blackstone & Turner that the former would advance $10,000, and they did advance that sum, to be used in the purchase of material with which to build the fence around said pasture. The said sum so advanced was to be a credit on the annual payment of $27,500 which Daniel Waggoner & Son were to pay to Blackstone & Turner, as aforesaid.
    After making the said agreement with said Daniel Wag-goner & Son the said Turner employed a man named Moore to erect said fence, agreeing to pay him $36 per mile of fence and $2 for each gate erected. Turner furnished the wire and staples, and the posts were cut from the Indian lands. Moore employed men and commenced building the fence early in March, 1891. Before and after the work of building the fence commenced complaints were made by Creek Indians living in the district, and objections to the fence or pasture were made. From the time the fence was commenced and continuing throughout its construction rumors reached the parties engaged in erecting the fence of threats by Indians to destroy the same.
    IX. On or about the first Monday in June, 1891, a number of Creek Indians, having banded themselves together, proceeded to destroy and did destroy so much of the fence as had been erected and to cut the wire used in the fence. When the fence was destroyed about 60 miles of it had been finished, posts had been erected around the balance, and the wire had been strung on all except about 20 miles of the distance. The cattle of said Daniel Waggoner & Son had at that time been turned in upon the pasture and were grazing thereon. The fence was never rebuilt, and no efforts to rebuild it were made, owing to threats of its destruction if rebuilt.
    X. As the construction of the fence proceeded, threats of its destruction were made and reached the builders. These threats grew in volume as the work progressed. About a month prior to the cutting of the fence a number of citizens inside the area of the fence requested Treasurer Moore to call upon the principal chief, Perryman, to take steps to prevent the construction of the fence and to inform said principal chief of their purpose to destroy the fence if he did not prevent its erection. Treasurer Moore so informed the principal chief, who gave no positive assurance as to what his course would be. About the same time Judge Knight wrote to the principal chief inquiring whether the fence was a legal fence or not. Treasurer Moore made one or more visits to the principal chief subsequent to the one above mentioned and notified him that the people in the district intended to destroy the fence. About the last of April or early in May the claimant, Turner, who then resided at Muskogee, received information through his agent of threats that the fence would be destroyed, and he sent for Waggoner & Son. Thereupon the claimant, Turner, and one of the Waggoners, on the 4th day of May, 1891, caused to be filed in the United States court for the first judicial division of the Indian Territory a bill in the name of Daniel Waggoner & Son against L. C. Perryman and Jacob Knight as defendants, praying, among other things, for an injunction against the tearing down or the removal of said fence around said pasture.
    A copy of said bill for an injunction and the several orders thereon are attached to the petition herein as Exhibit A-3.
    During the latter part of May threats against the fence increased. Notices were placed at different parts of the boundary forbidding its erection. Some days before it was destroyed Indians assembled in the nighttime in the vicinity of the place where the work was being done and by discharging guns and making noises attempted to scare away the workmen. Threats of personal violence to the workmen, some of whom were Indians, were made. Indians representing themselves to be light horsemen told Moore, the fence builder, that the fence would be destroyed. A few days before it was cut, Isparecher, a full-blood Indian, and a leader of the full bloods in the neighborhood of the fence, appeared in person and informed the builder, Moore, through an interpreter, that the Indians would destroy the fence unless he suspended work, which Moore refused to do. On the first Monday in June the Indians divided themselves into three groups, and acting in concert attacked in the daytime the fence on three sides with axes, cutting the posts and the wire, and destroyed the entire fence. Spools of wire and staples had been distributed along the line of the fence preparatory to stringing the wire, and these spools of wire were cut and the staples scattered. Two of the groups engaged in destroying the fence were each composed of about 25 Indians, who came from settlements outside the neighborhood of the fence. These were joined by Indians inside the bounds and by Indians outside of the fence, and more than a hundred engaged in the said destruction. Isparecher, who afterwards became principal chief of the nation, was one of the Indian leaders in the movement to destroy the fence and in its actual destruction. He had a ranch near the boundaries of the fence and grazed several hundred cattle on the lands in question. He lived about 8 miles from said neighborhood. Treasurer Moore also grazed a number of cattle on said lands and lived about 6 miles from the pasture. He was another of the leaders in the said destruction. Fixico, an Indian preacher, who lived in the neighborhood of the fence, was another of the leaders, and except these three, who were the leaders, the evidence does not show the names of the Indians engaged in the work of destruction.
    Prior to the destruction of the fence rumors were circulated among the Indians in said district that money had been used in said elections. Some objections to the fence were on account of the size of the pasture, and other objections were because it was claimed that the common right of pasturage was interfered with. The Indians living within the confines of the fence were full bloods, generally illiterate and poor, and without knowledge of the English language. Some of them had from 15 to 20 head of cattle that ranged on said lands.
    The said threats to destroy the fence became and were matter of general notoriety in the Deep Fork district. The parties engaged in building the fence did not apply to the Indian authorities for protection against said threats, and none of said authorities took steps to prevent the destruction of the fence.
    XI. A day or two before the 1st of April, 1891, the said Moore sent to Moty Tiger $1,250 in amount of warrants or scrip, known as auditor’s certificates, and which were a legal tender for taxes in the Creek Nation, to be delivered by said Moty Tiger to the district judge as a quarterly payment on the tax due under the contract of 5 cents per acre. Moty Tiger sent these certificates to the judge, who subsequently reported to Tiger that he had taken them to the national treasurer and that the treasurer would not receive them, and the judge delivered them back to Moty Tiger, from whom he had gotten them. That was the only payment tendered or made on account of the tax for said pasture. A short time thereafter Turner sent to Moty Tiger $2,500 in money to be distributed to the Indian membership of Pussy, Tiger & Co. When the fence was destroyed Blackstone & Turner had expended in and about its building the sum of $12,046.82. They recovered materials valued at $1,968.46, which left a net loss on the fence of $10,078.76. The material for constructing said fence had been purchased from the Turner Hardware Co., which was owned and controlled by the said Clarence W. Turner, and later the firm of Blackstone & Turner became insolvent, and said Turner repaid to Daniel Wagoner & Son the $10,000 advanced by them as aforesaid and which had been used in purchasing the said material from the Turner Hardware Co. Several times thereafter— to wit, in November, 1892, October, 1893, November, 1893, and November, 1894, the said claimant presented his claim to the council of the Creek Nations of Indians for $10,078.16, and payment was refused. At one time the council voted in favor of paying said claim and the resolution was vetoed by Principal Chief Perryman. The council subsequently sustained the veto. A copy from the minute book of the supreme court of the Creek Nation of Indians of an order by that court was introduced in evidence, as follows:
    “Supreme court, November 2, 1896. Court convened; opened with prayer by John Reed. Court continued consideration of the question submitted by the Pussy, Tiger Co.; after long and earnest arguments court decided the pasture was legal, having been built in accordance with the law then in existence. Then took up the question submitted by H. C. Reed as to claims on the public domain. Court, in the absence of law governing the public domain, declined to render an opinion and adjourned.”
    “ Nov. 3, court convened, etc.”
    And at the bottom of the page is the following:
    “ Supreme Court, Okmulgee, M. N., Nov. 2, 1896. Hon. Roley McIntosh 2d and acting prin. chief, M. N., Sir: We have the honor to acknowledge the receipt of your communication of Oct. 31, submitting the question prepared by the Pussy Tiger Co., to wit: ‘Whether the building of the pasture in question was legal under the law then in existence providing for the building of large pastures.’
    
      “ In reply we have to say that after careful investigation and earnest consideration the court has decided that the building of the pasture was legal.
    “ David Anderson,
    
      “Chief Justice.
    
    “ Sue M. Eogers, Clh.”
    
    XII. In “An act to authorize the Secretary of the Interior to issue patents in fee to purchasers of Indian lands under any law now existing or hereafter enacted, and for other purposes,” approved May 29,1908 (35 Stats., 444), it is provided, by section 26 thereof, as follows:
    _ “ That the Court of Claims is hereby authorized to consider and adjudicate and render judgment as law and equity may require in the matter of the claim of Clarence W. Turner, of Muskogee, Oklahoma, against the Creek Nation for the destruction of personal property, and the value of the loss of the pasture of the said Turner, or his assigns, by the action of any of the responsible Creek authorities, or with their cognizance and acquiescence, either party to said cause in the Court of Claims to have the right of appeal to the Supreme Court of the United States.”
    XIII. On the 13th day of September, 1910, the claimant filed his said petition in this court, and upon the filing thereof the clerk of the court transmitted a copy of it by mail addressed to the chief of the Creek Nation of Indians, and also sent a copy to the Attorney General of the United States. The rules of the Court of Claims at that time provided that—
    “ Suits shall be commenced by petition, verified in the manner provided by law, and filed in the office of the clerk, with one extra copy in print or typewriting. The clerk will note thereon the day of filing, and will cause a copy to be forwarded to the Attorney General.”
    At the time said copy was transmitted M. L. Mott, Esq., held the office of national attorney for the Creek Nation, and he associated with him W. L. Sturdevant, Esq., of St. Louis, Mo. On the 3d day of October, 1908, the said Sturdevant forwarded a paper addressed to the clerk of this court purporting to be a demurrer to the petition of the claimant, and the same was not filed but was returned by the clerk with the statement that Mr. Sturdevant not being an attorney of this court the paper signed by him could not be received and filed. Said letter reads as follows:
    “I return herewith the demurrer and copy of same inclosed in your letter of October 3, 1908, upon the suggestion of the Assistant Attorney General representing the Government in said cause. He desires me to say that as the United States is joined with the Creek Nation of Indians as defendant the proper procedure is for the attorney or attorneys representing the tribe of Indians, defendant, to confer with the Attorney General before taking action.
    “ I may add further that neither yourself nor Mr. Mott have been admitted to our bar, and Mr. Mott at least, the authorized attorney for the defendant Indians, should apply for admission in the usual way as prescribed by No. 8 of our rules, a copy of which I inclose you under another cover.”
    The claimant took the depositions of a number of witnesses, commencing in July, 1909. At the taking of said depositions the said Mott and Sturdevant appeared and cross-examined the witnesses; and later, in September, 1909, the said Mott and Sturdevant examined certain witnesses on behalf of the defendant Indians, and the testimony of all of said witnesses is included in the record.
    On the 17th day of August, 1914, a brief of E. C. Allen, national attorney for the Creek Nation of Indians, was filed in the clerk’s office of this court, in which, among other things, it was contended that the said jurisdictional act did not grant authority for the bringing of the suit; did not grant authority to make the United States a party or to recover against the United States and the Muskogee (Creek) Nation jointly or severally; and that the court had no jurisdiction over the subject matter of the act.
    On the 6th day of January, 1915, the case was called in court and the claimant appeared by counsel, and E. C. Allen, national attorney for the Creek Nation of Indians, appeared for the purposes of his said motion, but the United States did not appear by counsel; and it is here stated at the request of claimant’s attorney that at the time of the said appearance in court of E. C. Allen, national attorney for the Creek Nation of Indians, he was accompanied by the principal chief of the Creek Nation in person. The questions were discussed by counsel, and the claimant’s attorney amended his petition by striking out the name of the United States as a party defendant, and the case was submitted to the court. On the next day the claimant’s attorney appeared in court and requested that the submission of the day before be set aside, which was done, and that he be allowed to amend his petition, which was allowed. Thereafter, on the 25th day of October, 1915, the said attorney for the Creek Nation filed another brief, in which he appeared specially for the purpose of moving to dismiss the case on the ground that the court was without jurisdiction. On the same date the United States, by its Attorney General, filed a motion to dismiss the case against the United States for want of jurisdiction. The case was then submitted to the court upon the said motion of the national attorney for the Creek Nation, and without waiving said motions the case was also submitted upon the merits. The United States refused to appear further than to make their motion to dismiss for want of jurisdiction.
    
      Messrs. C. H. Merillat and Marion Butler for the plaintiff. Messrs. J. M. Vale and G. J. Happier were on the briefs.
    It is submitted that judgment under the established facts in the record must be rendered in favor of claimant for the labor and materials lost, and also the loss of use of the pasture. The power of Congress in the premises is supreme and plenary.
    In Lone Wolf v. Hitchcock, 187 U. S., 553-66, the Supreme Court said:
    “ Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the Government. * * * The power exists to abrogate the provisions of an Indian treaty.” See also Cherokee Nation v. Hitchcock, 187 U. S., 294; Stephens v. Cherokee Nation, 174 Ib., 445.
    
      It was for Congress, therefore, to say whether the Indian tribe in this case should or should not be sued and should be held liable or not and what conditions should create a tribal liability. Without Congressional authority there is no power of suit against an Indian tribe. Congress, on the showing made to it as to the loss claimant had suffered, determined that this liability should be found in the event that it was established that the loss suffered was the consequence either of the “ action of any of the responsible Creek authorities,” or was “ with their (responsible Creek authorities) cognizance and acquiescence.” In other words, Congress made the Creek Nation, which could act only through its responsible officers, liable in the event the overt acts of those officers themselves or their supineness occasioned the loss—on the theory that the nation should be liable for the acts of commission of disorder of its authorities or the deliberate omissions to maintain law and order of the tribal authorities where injury was occasioned thereby.
    The Creek Nation made a contract of lease that their supreme court had held was lawful, that lease was assigned or transferred regularly in accordance with tribal custom. Quiet enjoyment and possession of the leased premises was a covenant of the contract as much as though expressly written therein. When the Creek people, with the active aid of some of their highest authorities and the cognizance and acquiescence of all the Creek authorities, forcibly committed a breach of that contract, it became right and proper that Congress, as having plenary power in the premises, should afford the means of legal redress for the breach of the contract made in behalf of the whole people.
    Upon a demise of property the law implies a covenant of quiet enjoyment. Lutz v. Linthicum, 6 Peters, 165-76; Scott v. Rutherford, 92 U. S., 107-9.
    The rule is to declare liability where a mob, actuated wholly by lawlessness and defiant of the constituted authorities, has swept away the authorities seeking to maintain the peace and has destroyed property despite the earnest efforts of the authorities. County of Allegheny v. Gibson, 90 Pa. St., 397. See also Solomon v. City of Kingston, 31 N. Y., 565.
    
      In Spring Valley Coal Co. v. City of Spring Valley, 65 Ill. App., 571, the court reversed the lower court on the ground that the jury had rendered a wrongful verdict in favor of the city through prejudice and passion against the coal company. The suit was one brought for failure to afford protection to the company’s store during a strike and its incidental disturbances. See also Darlington v. Mayor, 31 N. Y., 164; Luke v. City of Brooklyn, 43 Barbour (N. Y.), 54; Ely v. Co. of Niagara, 36 N. Y., 167; Moore's Int. Law, p. 839.
    The damages suffered by claimant are of easy ascertainment and easy of legal determination. Obviously claimant being entitled to recover should be awarded the amount of actual net loss occasioned by destruction of the labor and materials entering into construction of the fence. That such loss is the natural consequence of the breach of the peace and of the contract and of the tort committed is not open to doubt. In such cases this court has held compensation is the loss of profits that otherwise would have accrued. North Platte Canal Co. v. United States, 48 Ct. Cls., 282.
    
      Mr. R. 0. Allen for the Creek Nation.
   Campbell, Chief Justice,

delivered the opinion of the court:

The jurisdictional act under which this suit is brought is found in chapter 216, 35 Stats., 444, entitled “An act to authorize the Secretary of the Interior to issue patents in fee to purchasers of Indian lands under any law now existing or hereafter enacted, and for other purposes,” and is section 26 of said act, as follows:

“That the Court of Claims is hereby authorized to consider and adjudicate and render judgment as law and equity may require in the matter of the claim of Clarence W. Turner, of Muskogee, Oklahoma, against the Creek Nation for the destruction of personal property, and the value of the loss of the pasture of the said Turner, or his assigns, by the action of any of the responsible Creek authorities, or with their cognizance and acquiescence, either party to said cause in the Court of Claims to have the right of appeal to the Supreme Court of the United States.”

One of the first question presented is whether the United States can be made a party to the suit. The plaintiff sought to make them a party, and they through their Attorney General objected. The United States can not be sued without their consent, and there is nothing in the jurisdictional act authorizing the United States to be sued. We are clearly of the opinion that they can not be made parties in this proceeding. Green v. Menominee Indians, 46 C. Cls., 68; 47 Ib., 281; 233 U. S., 558.

Another question is as to whether the Creek Nation has been brought before the court. The jurisdictional act does not prescribe the manner of service upon the nation. The rules of the Court of Claims are not adapted to suits against others than the United States, and the statute provides that in suits against the United States a copy of the petition shall be served upon the Attorney General, who shall appear and defend. As a matter of fact, when the petition in this case was filed a copy of it was mailed to the principal chief of the Creek Nation. No application was made by the plaintiff to the court to prescribe any service.

It may be noted that said chapter 216, 35 Stats., 444, contains several sections referring to this court, with the right to hear and determine certain claims. Section 5 refers a claim against the Choctaw Nation and prescribes that notice of the suit shall be served on the governor of that nation, and that the Attorney General of the United States shall appear and defend on behalf of said nation. Section 2 refers the claim which was considered in the case of Green v. Menominee Indians, supra. That section provided that the Menominee Indians, through its business committee, were authorized to employ an attorney to defend in said action, and the Attorney General of the United States filed a demurrer on behalf of the defendants. Section 16 of said chapter refers a claim against certain Choctaw and Chickasaw freedmen to the court, prescribes the method of service of a petition, and authorizes an appearance by an attorney to be employed by the freedmen. Section 27 refers a claim against the Choctaw Nation and prescribes the method of serving the petition. It thus appears that as to claims referred in said chapter there is provision for service upon the defendants, or appearance by them, except in the case under consideration, and it is usual where suits have been authorized by Congress against nations or tribes of Indians that the method of bringing them before the court has been prescribed by the acts authorizing the suits.

The method of bringing a defendant who is sued before a court is a matter of statutory regulation. The Creek Nation was at the time of the action complained of in this case vested with certain powers of government over the Indians composing it, but the Court of Claims can not know upon whom service of process should be executed to bring the nation properly before the court unless the act of Congress prescribes the service that is necessary. Congress may do this, as it may authorize a suit in the exercise of its plenary power of control over Indian affairs. Having failed to do so, we think that the jurisdictional act is defective unless the appearance made by the attorney for the nation is sufficient to bring the defendant into court.

Finding XIII shows what transpired in this court with reference to an appearance by the defendant. Prior to any actual appearance testimony had been taken on both sides, and it was printed by leave of court. No question of jurisdiction or service was raised until after this testimony had been taken and printed. The attorney who took the testimony representing the Choctaw Nation was the regularly employed attorney of said nation under contract authorized by its national council and approved by the Secretary of the Interior. Among his other duties was that of appearing in all courts at the request of the principal chief to defend said nation. The actual appearance in court by the filing of any pleading or brief occurred after the taking of the testimony, and at that time the question of the court’s jurisdiction was raised. We thus state the question, but it is not our purpose at this time to decide it because the case was submitted upon said motion and without waiving it upon the merits, and we prefer to rest our decision upon the latter phase of the case.

The jurisdictional act does not create or declare any liability against the Creek Nation in favor of the plaintiff. Its purport is to furnish a forum where the question of liability may be determined. Green v. Menominee Indians, supra. The act authorizes the court to “ adjudicate and render judgment as law and equity may require in the matter of the claim of Clarence W. Turner ” against the Creek Nation for certain things therein set out. The reference to the destruction of property and loss of pasture by the action of the responsible Creek authorities, or with their cognizance and acquiescence, is merely descriptive of the claim and does not show a purpose on the part of Congress to declare that there is a liability therefor because in a preceding part of the act the court is directed to “ render judgment as law and equity may require.”

The plaintiff claims that Pussy, Tiger & Co. made a contract with Jacob Knight, judge of the fifth judicial district of the Muskogee Nation, by virtue of which the plaintiff became entitled to a large pasture, and that he subsequently granted the right to Waggoner & Son to graze their cattle upon said pasture for a large consideration, namely, $27,500 per year; that while plaintiff was building the fence around said pasture the same was utterly destroyed by Indians, and that he lost not only in large part the material and labor expended in building so much of the fence as had been completed but also the profits he would have made under the contract with Waggoner & Son. He claims several other items, which will be mentioned, and contends that his right of action is for a breach of contract. The findings show that the plaintiff had agreed to pay $10,000 per year to the Indian members of Pussy, Tiger & Co., who were Creek citizens ; also that he was to pay 5 cents per acre per year for land in the said pasture, and that he was building the fence required to inclose it. The contract alleged to have been made between Judge Knight and Pussy, Tiger & Co. appears to have been made in October, 1890. In April, 1891, the plaintiff sent $2,500 to Moty Tiger to be distributed among said Indians as the first quarterly payment upon the sum agreed to be paid to them. About the 1st of April he sent $1,250 in scrip, a legal tender for taxes and due to the Creek Nation, to Moty Tiger to be paid upon the tax of 5 cents per acre upon said pasture. This sum was not received by the authorities and was returned to Moty Tiger, plaintiff’s agent. At the time the fence was destroyed something over $12,000 had been expended by plaintiff in and about the fence incident to its building.

The plaintiff contends and requests the court to find that he lost the difference between the amount which Waggoner & Son had agreed to pay for the use of the pasture for 3 years ($82,500) and the amount which he was to pay during said 3 years as tax to the Creek Nation at 5 cents per acre, which he fixes at $5,000 per year, or $15,000 in all. Under no phase of the case could this result follow, because if it be assumed that there was a valid contract and a breach of it for which the nation should be held responsible, it is difficult to understand from the contract how there could be any such profit. The alleged contract provided that the owner of the pasture should pay 5 cents per acre per year, and the number of acres in the pasture was 256,000, according to the description in the contract, the tax on which would be $12,800 per year; so that if we assume that Waggoner & Son were to pay $82,500 for the term there must be deducted from that sum the tax which plaintiff should have paid for 3 years ($38,400), and in addition $30,000 which he would have paid to the said Indians for said time, making an aggregate of $68,400. Besides this, before he could get any profits there should be deducted the cost and expense of building the fence, and upon it he had expended something over $12,000 at the time of its destruction, and something more than three-fourths of it had been completed. It thus appears that the sum of these expenditures would aggregate at least $80,400, and as the facts do not show what it would have cost to complete the fence it is manifest that the plaintiff shows no loss of profits. Of course, if his payment on account of tax had been based upon an acreage of 100,000 acres instead of 256,000, there would have been a difference in his favor. Upon what theory the plaintiff can maintain that the tax he was to pay amounted to $5,000 per year, instead of the amount required by the law and the plain terms of the contract, is not apparent. The contract provided for a pasture 25 by 16 miles in extent, comprising 400 square miles, and the plaintiff’s agent was building a fence to inclose that area, having completed about 60 miles in length of it, with about 20 miles unfinished at the time it was cut. By reference to the bill in equity shown in the findings to have been brought at the instance of plaintiff in the name of Waggoner & Son in the United States Court for the Indian Territory against the principal chief and the said judge, Knight, as defendants to restrain them from taking action to remove the fence, the averments are made that the acreage was 250,000, more or less, and that the tax on that acreage had been paid. The averment as to the payment of tax was erroneous, for it had not been paid, but the averment as to acreage is nearer true. Certainly the plaintiff must be held to have known that the tax he was to pay was 5 cents per acre per year on the acreage described in the contract upon which he relies.

The plaintiff also claims the $2,500 which he paid to said Indians, but that is not recoverable if he could otherwise recover, because that sum was paid to the Indians under the arrangement between him and them above adverted to and not under the contract upon which he sues. The item of tax which he claims of $1,250 would not be recoverable for the reason that the nation never received it.

As above stated, he had expended something over $12,000 in and about the construction of the fence, and he recovered about $2,000 in value of the materials after the fence had been cut, making a net loss to him of $10,078.16. Several times he applied to the Indian Nation to reimburse him, and on each occasion he made claim for said sum of $10,078.16. That sum appears, approximately at least, to have been the limit of his loss.

The plaintiff predicates his rights under the alleged contract upon the effect of an enactment of the Creek National Council passed in October, 1889, and set out in Finding IY. It is apparent from reading this enactment that one of its purposes was to curtail the practice of building large pastures “ to the detriment of the general welfare of the nation.” The act provides for the removal of certain large pastures greater in extent than 1 mile square. It is, however, provided that “ where extensive pastures greater in extent than 1 square mile can be located on the borders of the nation to. the benefit of any neighborhood by affording protection against the influx of stock from adjoining nations the same may be located ” under the conditions mentioned in the act. The persons who may secure these “ protective pastures ” are “ citizens of the district,” and an election by the voters in the neighborhood concerned is required. The reason for limiting the right to acquire pastures to “ citizens ” is manifest; the parties would then be subject to the laws and courts of the nation; whereas if outside parties were allowed to acquire pastures a different result could follow. Blackstone and Turner, desiring to secure a pasture, originated and put into effect a plan whereby about 100 full-blooded Indians in the territory affected by the pasture would be brought into an association and an application be made under said act for an election to authorize the pasture and the Indian members of the association would constitute voters to pass upon the question. An election was ordered and the pasture was defeated. A second election was held and the result declared in favor of the pasture. Thereafter the contract in question was made. Several years after the grievances complained of by the plaintiff the supreme court of the nation decided that “ the pasture was legal, having been built in accordance with the law then in existence.” (Finding XI.) We do not know what facts were before that court, but upon the facts before us we should hesitate to say that “the pasture was legal.” The application for the second election was made by Pussy, Tiger & Co., the leading spirit in which were Turner and Blackstone, who were not Creek citizens, and Pussy and Tiger, who were citizens. The petition vaguely referred to the size of the pasture and less carefully expressed its bounds than is stated in the contract subsequently made. The said enactment does not prescribe the form of proceedings necessary to secure the pasture. It provided that application shall be made by “ citizens.” The application for the pasture in question was made by Pussy, Tiger & Co., not all of whom were citizens. In a number of States provision is made for the establishment of fence districts, and where the statute provides that the application shall be made by freeholders residing in the district it is held that the petition must show that the applicants are freeholders residing in the district, and that otherwise the court receiving the application does not acquire jurisdiction. Flowers v. Grant, 129 Ala., 275; Mize v. Speight, 82 Ga., 397; Cain v. Davie County Commissioners,, 86 N. C., 8. We think that it would be too exacting to test the petition of Pussy, Tiger & Co. by any strict rules of pleading. However, the findings show that the Indians who voted upon the question, being Indians in the “neighborhood ” affected, were illiterate and poor and were brought into said association because they would undertake to carry out the purposes of its promoters. The plan under which Pussy, Tiger & Co. was organized contemplated that the said Indians should be paid each $100 per year during the term of the contract in the event the pasture were established; and subsequently, in April, 1891, Turner paid to Moty Tiger $2,500 to be distributed among said Indians. At the said election a majority of the membership of Pussy, Tiger & Co. voted, and the affirmative vote was 57. It is therefore apparent that those by whose votes the election was carried were pecuniarily interested in the result and became the recipients of money advanced by Turner.

The size of the pasture suggested in the petition as “not less than 100,000 acres ” was misleading in view of the fact that the acreage actually covered by the contract was an area 25 by 16 miles, making 400 square miles of land and comprising 2J times the area suggested in the petition. The facts do not show that that amount of acreage was necessary or proper to constitute the “ protective ” fence contemplated by said act, nor do we think that the method of acquiring the pasture was in keeping with the spirit and purpose of said act. Thereafter the contract in question was made, but as some of the membership of Pussy, Tiger & Co. were not citizens the question is whether any right can grow out of the contract authorized, as above stated, and made.

Said statute of the Creek Nation plainly contemplates that any contract made under its provisions should be with citizens of that nation. We can not sanction the obtaining of its benefits by indirection. Unless all of the members of Pussy, Tiger & Co. were citizens the purposes and intent of the act were violated. Besides this, section 2116, Revised Statutes, forbids a contract whereby a noncitizen of said nation could make and secure a lease of said pasture or “ any title or claim thereto.” Said section declares that a contract, such as the facts show the one under consideration to be, shall have no validity. 18 Op. Atty. Gen., 285; Cherokee Strip Live Stock Assn. v. Cass Land Co., 133 Mo., 394. It is a general rule that no right of action can grow out of a contract made in violation of the terms of a statute or the policy of the law. Harris v. Runnels, 12 How., 79, 82; Burbank v. Conrad, 96 U. S., 291, 302; Harriman v. No. Securities Co., 197 U. S., 244, 298. The alleged contract was not authorized by the law of the Creek Nation. Manifestly the plantiff can not recover upon it.

The act under which the plaintiff claims provided that there should be a tax upon the holder of the pasture of not less than 5 cents per acre per year, and that act was by express reference carried into the said contract made between Pussy, Tiger & Co. and Jacob Knight, judge of the Deep Fork district. It was made by the act the duty of the said judge to collect said tax, “ commencing his assessments from the date of contract,” and he was required to pay the same into the National Treasury quarterly, beginning with the months of January, April, July, and October of each year. No payment of said tax was made or tendered by Pussy, Tiger & Co. until about the 1st of April, 1891, although the contract was made in October, 1890. The only tender which they actually made was $1,250 in scrip or certificates of said nation, a legal tender for taxes and dues, and this tender was made through Moty Tiger about the 1st of April, 1891. He delivered the certificates to the said judge, to be delivered by him to the Treasurer, and the Treasurer declined to receive them. They were thereupon returned by the said judge to Moty Tiger, plaintiff’s agent. The payment of tax due in January had not been made or tendered, nor was the tender made in April sufficient. Instead of paying $1,250 per quarter, there was a liability upon the owners of the pasture to pay 5 cents per acre upon 256,000 acres per year, or a total of $12,800 per year. Their tender therefore should have been $3,200 instead of $1,250, and under the terms of their contract $3,200 should have been paid on or before the 1st of January as well as a similar amount on or before the 1st day of April. The enactment under which they claimed the pasture provided that if “ any owner of pasture shall fail to make any quarterly payment or fail to comply with any of the obligations embraced in the contract with the judge, then he shall forfeit all the franchise granted by the terms of his contract, and the district judge shall so declare and enforce such forfeiture.” The method of enforcing this forfeiture was a summary one. The owners of the pasture, if any lawful pasture had existed, were in default and their franchise was subject to forfeiture.

From the very beginning complaints were made against the erection of said fence, and plaintiff and his representatives knew of them. Threats of its destruction were made, which grew in intensity until they finally resulted in. a large body of Indians getting together and utterly destroying the fence so far as it had been then completed.

The lands sought to be inclosed were part of the public domain of the said Creek Nation, the property being held in community, and the right to graze cattle upon the lands belonged to all of the citizens of the nation. Some of the parties who led in the destruction of the fence lived outside of the neighborhood, but grazed their cattle upon the lands in question.

Plaintiff’s petition avers that the damage was inflicted by “a mob of Indians of the Creek or Muskogee Nation or Tribe”; and if that be true the Creek Nation is not to be held responsible for the mob’s action. It can be said of the Creek Nation, as was said of the Cherokee Nation, that it has “many of the rights and privileges of an independent people. They have their own constitution and laws and power to administer their internal affairs. They are recognized as a distinct political community, and treaties have been made with them in that capacity.” Delaware Indians v. Cherokee Nation, 193 U. S., 127, 144. They are not sovereign to the extent that the Federal or State Governments are sovereign, but this suit is predicated upon the assumption that their laws are valid enactments, and it recognizes the separate existence of the Creek Nation. When, therefore, the effort is made to hold them responsible as a nation for the illegal action of a mob we must apply the rule of law applicable to established governments under similar conditions. It is a familiar rule that in the absence of a statute declaring a liability therefor neither the sovereign nor the governmental subdivisions, such as counties or municipalities, are responsible to the party injured in his person or estate by mob violence. Louisiana v. Mayor, 109 U. S., 285, 287, 291; Hart v. Bridgeport, 11 Fed. Cas., 6149; Gianfortone v. New Orleans, 61 Fed., 64; C ity v. Abbagnato, 62 Fed., 240; Murdock Grate Co. v. Commonwealth, 152 Mass., 28, 31.

There is another view which reaches the same result so far as this case is concerned. The three groups of Tudiauq moving with one purpose, and that to destroy the fence, were led severally by Isparecher, a leader among the full bloods, who used and had the right to use the lands sought to be inclosed for pasturing his cattle; by National Treasurer Moore, who enjoyed a similar privilege; and by Fixico, who resided in the “neighborhood” of the pasture. The other two leaders were citizens of the Creek Nation but lived some miles from the lands in question. Participating in the act complained of were citizens living within the pasture confines and others living outside of them.

In our view of die question, Waggoner & Son, having turned their cattle in to graze upon said lands, were intruders, and the fence under the facts found was a public nuisance. As such it was liable to abatement. The duty to abate a public nuisance rests primarily on the public authorities, but it is well settled that individuals who suffer special injury therefrom may abate a public nuisance. They do so at their own risk and are liable for any damage done in excess of that necessary to properly abate the nuisance. That the Indians concerned did more damage in and about the entire destruction of the fence and the partial destruction of the plaintiff’s materials seems apparent, but for that damage the individuals who did it became jointly and severally liable, and the Creek Nation is not responsible for it.

The plaintiff urges that there was a custom recognized by said nation for noncitizens to acquire pastures through an arrangement with citizens, whereby the latter would acquire the right and assign or sublet it to a noncitizen. We are dealing, however, with a statute, and the plaintiff claims under that statute. We do not think the custom referred to, if there were such a custom, can be looked to in order to affect the meaning of said statute. The contract which plaintiff sets up was executed about a year after the enactment of the statute, and the time was too short in which to establish any custom contrary to its terms. The case of Wassom v. Willison, 58 S. W., 574, which plaintiff cites, recognizes the validity of a lease made under acts of the Creek Nation amendatory of the said act of 1889, which had been assigned to a noncitizen, to the extent that the due execution of the lease by the proper authorities and its introduction in evidence afforded prima facie proof of its validity and cast upon the defendant the burden of showing that it had not been consented to by the Indians affected. The case also recognizes that proof of the invalidity of the lease might be made and that proof is made in the instant case. Other cases which may be consulted in this connection are Hackett v. Alston, 58 S. W., 675; Cass v. Hall, 46 S. W., 180; Johnson v. Riddle, 240 U. S., 467.

We do not think that the wrongs complained of show a breach of contract by said nation. Under the facts found any right of action would be for a tort. State of Louisiana v. Mayor, supra; German Bank v. United States, 148 U. S., 573-579.

We have considered the case without intending to commit ourselves upon the question as to whether or not this court has jurisdiction under the terms of the jurisdictional act of an action for tort. Under the general statute applicable to the Court of Claims it has no jurisdiction of an action sounding in tort.

We conclude that the Creek Nation is not liable to the plaintiff, and his petition must, therefore, be dismissed. And it is so ordered.

Atkinson, Judge, Barnet, Judge, and Booth, Judge, concur.

Downey, Judge, took no part in the decision of this case.  