
    WILY P. ALLRED v. THE UNITED STATES AND THE UTE INDIANS.
    [Indian Depredations, No. 1644.
    Decided April 22, 1901.]
    
      On the Proofs.
    
    The question involved is the amity of Black Hawk’s band. The facts are the same as in Herring v. The Utes (32 C. Cls. B., 536).
    I. A band is the lowest entity of Indian corporate existence. It may be composed of Indians of different tribes if it has continuity and cohesion, and is subject to the control of a leader having recognized authority.
    
      II, A band can not be deemed in amity with the United States where all its members are operating belligerently against all the members of a white community, and all the members of the white community are operating belligerently against it; and this though no engagement ever takes place between the band and the military forces of the United States.
    III. The fact that the paramount purpose of the Indians was plunder and robbery and not hostility, does not establish a condition of amity, if the band as a band was operating against the white community by belligerent means.
    
      The Reporters' statement of the case:
    The following are the facts of the case as set forth in the findings of the court:
    I. At the time of the depredations on the property herein alleged the claimant, Wily P. Allred, was a citizen of the United States, residing at Glencove, Sevier County. Utah.
    On March 15 and April 2,1867, said claimant was the owner of horses, cattle, and sheep, which were stolen by the band of Indians known as Black Hawk’s band, from near said place in said county. The stock at the time and pláce was reasonably worth more than $3,000.
    II. In the years 1865, 1866, and 1867 the Ute Indians were divided into separate, distinct, and independent bands; of these bands there were the Tabauches, Uintahs of Tabby’s band, Grand Rivers, Yampahs, Muoches, Weeminuches or Weeminuches band, Capotas or Capota’s band, Webber Utes or Little Soldier’s band, San Pitches or San Pitches band, Red Buck’s band, Tenpanogs, Gashutes, Elk Mountain Utes, and others.
    III. Red Buck, chief of a band bearing his name, died in the spring of 1865, prior to the alleged depredations under the leadership of Black Hawk, and that upon his death, Black Hawk, a son-in-law of Red Buck, and a member of his band, succeeded him as chief or leader of his band.
    Black Hawk’s band occupied or roamed over the country near the present town of Gunnison, in Sanpete County, Utah. The membership was composed of outlaws from many bands of different Indians.
    1Y. About April 9, 1865, the Indians of Black' Hawk’s band, together with their allies, San Pitches, Gosiutes, Elk Mountain Ute, and Navaho Indians, began a series of depredations upon the people of Utah, which continued until the fall of 1867, and, during the same period, from April 9, I860, to the fall of 1867, the Indians under the leadership of Black Hawk varied in numbers from forty-four to over one hundred, as shown hereafter.
    Y. No engagements took place during said period between Black Hawk’s band and the United States troops; but the Utah militia, consisting, of from fifty to seventy-five companies, aggregating between two and three thousand, was employed in frequent engagements with said Indians. On April 10, 1865, June 1, 1867, June 12, 1867, and August 13, 1867, engagements took place between said band, under the leadership of Black Hawk, and the Utah militia. During the time of these troubles the depredations of the said band were not confined to a particular county, but during tho continuance of the troubles several counties in that part of tho Territory suffered in the theft of stock, burning of houses, and the killing of many settlers.
    In the report of the Secretary of the Interior of 1865 it is stated:
    “During the past year the Indians have been peaceful, with the exception of the difficulties with a band of outlaws in San-pete Yalley, mentioned in my letter of the 28th April last. At that time 1 requested the, military authorities to send a sufficient force to protect the settlers and to arrest the offending Indians. This was refused, and the settlers were left to take care of themselves. They organized a force of about eighty men and drove the Indians back to Grand River, killing about one-third of the number of those who were engaged in committing the depredations” (p. 314).
    In the report of the Commissioner of Indian Affairs for 1866 it is stated:
    “Early in the spring advices were received that Black Hawk, an influential chief of the San Pitch band of Utahs, had taken the field with an active band of followers, and had killed many of the settlers and driven off a large amount of valuable stock. In the conflicts which ensued some forty of the Indians, were killed, but the chief was joined by wild spirits of outlaws from various bands, and thus recruited renewed his raid upon the settlers” (p. 31).
    
      Superintendent Head, on April 30, 1866, addressed the Commissioner of Indian Affairs as follows:
    “ BÍack Hawk, a somewhat prominent chief of the Utah Indians, has been engaged for more than a year past in active hostilities against the settlers in the southern portion of this Territory. His band consisted at first of but forty-four men, who were mostly outlaws and desperate characters from his own and other tribes. During the summer and autumn of 1865 he made several successful forays upon the weak and unprotected settlements in Sanpete and" Sevier counties, killed in all thirty-two whites, and drove away to the mountains-upward of two thousand cattle and horses.”
    “ Forty of his warriors were killed by the settlers in repelling his different attacks. His success in stealing, however, enabled him to feed abundantly and mount all Indians who joined him-, and the prestige acquired by his raids was such that his numbers were constantly on the increase, despite his occasional losses of men. He spent the winter near where the Grand and Green rivers unite to form the Colorado. On the 20th instant ho again commenced his depredations by making an attack upon Salina, a small settlement in Sevier Count}7. He succeeded in driving to the mountains about 200 cattle, killing two men who were guarding them, and compelling the abandonment of the settlement.
    “ His band, from what I consider entirely reliable information, now numbers 100 warriors, one-half of whom are Navajoes from New Mexico. I am very apprehensive that unless Black Hawk is severely chastised an Indian war of considerable magnitude may be inaugurated.” * * * (P. 128.)
    On page 129 of the same publication is given another report from Superintendent Head regarding the hostility of Black Hawk and his band.
    On page 124 the same superintendent reports:
    “A small band of outlaws, under the command of a chief named Black Hawk, have been engaged in hostilities for nearly two years. Their number did not at first exceed fifty men, and in various skirmishes which have taken place nearly that number have been killed, but accessions have been continually had from among the more reckless Indians of the different bands, so that their number has increased to about sixty men. They have made raids upon several of the small and defenseless settlements in the southern portion of the Territory for the purpose of stealing cattle and. horses, fighting when pursued by the settlers, who sought to recover their stock. During the present year they have made two such raids upon the settlements of Salina and Round Valley, stealing in each instance nearly 200 cattle and horses. I applied in April last to the officer in command of the United States forces at Camp Douglass, in this Territory, asking him to station one or two ■companies of soldiers in the southeastern portion of the Territory to protect the settlers. He was not able to do so, however, as he was expecting that all his command, being volunteers, would shortly be mustered out of service.”
    The Commissioner of Indian Affairs, in 1867, says of Black Hawk:
    “In my last annual report mention was made of a series of depredations by Black Hawk, a hostile Utah chief, who, with a small band of outlaws from the different tribes of Utah Indians, was engaged in active hostilities” (p. 178).
    In 1868 the same superintendent (Head), under date of September 16, 1868, reporting to the Commissioner of Indian Affairs, said:
    “In some of his raids during the year 1865, 1866, and 1867 Black Hawk had engaged with him some of the wild Elk Mountain Utes and Shebaretches. Some of the latter tribe, after Black Hawk had made peace, commenced to steal” (p. 612).
    House Miscellaneous Document No. 99, second session Fortieth Congress, is a memorial of the legislative assembly of Utah Territory to Congress, asking compensation in the sum of $1,500,000 for the suppressing of the Indian hostilities in the years 1865,1866, and 1867. In that memorial it is said:
    “During this war Sevier and Piute counties were abandoned by six extensive and flourishing settlements,.it being-considered impracticable to defend them there. Their removal was effected at the loss of nearly all they had, their stock and teams being mostly stolen and driven a'way by the Indians, and thejr were removed by the citizens of San Pete Count}*-. Likewise four settlements on the borders of San Pete Count}' were broken up and removed at much expense and loss; also fifteen settlements in Iron. Kane, and Washington counties, besides two or three small settlements in Wasatch County. (See also Laws of Utah, 1868, chap. 39.)”
    In House Mis. Doc. No. 19, first session Forty-first Congress, appears another memorial of the legislative assembly of Utah Territory, for an appropriation to pay for Indian depredations and expenses incurred in suppressing Indian hostilities. The statement and prayer of the memorial is as follows:
    “Your memorialists, the governor and legislative assembly of the Territory of Utah, would most respectfully represent to your honorable body that for the last three years we have had a vexatious Indian war on our hands, the seat of which has been in Sevier, Piute, and San Pete counties, extending1 more or le^s to the 'counties of Wasatch, Utah, Millard, Beaver, Iron, Washington, and Kane, rendering a strong military force constantly necessary in the field. Colonel Irish, former superintendent of Indian affairs, called on General Conner to protect the settlements of this Territory from Indian depredations. The General replied that if those depredations were committed upon any settlements along the overland mail line he would protect them, but if on settlements remote from said line he could not do it.
    “Colonel- Head, present superintendent of Indian affairs, called on Colonel Porter to protect the settlements of this. Territory where Indian hostilities existed. Colonel Porter sent East for instructions in the case, and received answer from General Sherman that we must rely on the militia of the Territory.
    •X* *X* *X* -X- -X- * *
    “In this war we have furnished our own soldiers, arms, ammunition, transportation, cavalry horses, and supplies for the years I860, 1866, and 1867. We have borne a heavy burden, and we ask for compensation and aid, as most of our citizens at and near the seat of this war have become greatly reduced and impoverished thereby; and likewise the other settlements that have had to remove are more or less so.
    “We therefore ask your honorable body to appropriate §1,500,000 to compensate the citizens for their services, transportation, and supplies in suppressing Indian hostilities in the Territory of Utah during the years before named, or so much thereof as will cover these expenses, as per vouchers and testimonies now in the Adjutant-General’s office, which will accompany this our memorial or follow it at an early day. And your memorialists, as in duty bound, will ever pray. ”
    In Bancroft’s History of Utah it is stated:
    “In April, 1865, an Indian war broke out in San Pete-County, spreading to adjacent districts and lasting without intermission until the close of 1867, under the leadership of a chieftain named Black Hawk. Although the militia of the southern counties were strongly in the field, and reenforce-ments were sent from Salt Lake City under General Wells, the California volunteers being then disbanded, more than of the Mormon settlers were massacred, an immense quantity of live stock captured, and • so widespread was the alarm that many of the southern settlements were for a time abandoned, the loss to the community exceeding $1,100,000” (pp. 632-633).
    Yl. From the foregoing facts the court deduces the ultimate fact, so far as the same is a question of fact, that at the time of the alleged depredations the said Indians were not in a state of amity.
    
      Mr. John W. Glarlc for the claimant.
    
      Mr. Assistant Attorney- General Thompson for the United States.
    
      Mr. Kie Oldham f or the Confederated Bands of Ute Indians.
   WeldoN, J.,

delivered the opinion of the court:

This case presents substantially the same facts as shown in the case of Joseph F. Herring v. The United States and the Ute Indians (32 C. Cls. R., 536). That case was decided adversely to the claimant on the ground that Black Hawk’s band of Indians were not in amity at the time of the alleged depredation.

The amount not being sufficient to justify an appeal, this case, having a claim for more than $3,000, is prosecuted for the purpose of reconsidering the judgment in the case of Herring.

In order to change the judgment of the court, upon the question of amitjr of the Black Hawk band of Indians at the time of the alleged depredations, the claimant has produced several affidavits of persons living in the country in which the depredations of Black Hawk were committed, and more or less conversant with what happened during the time coyered by the time of the depredations of Black Hawk.

The defendants have agreed that such-affidavits may be considered upon the question of amity as having the force of depositions; and upon the faith of that agreement the court has considered the legal effect of those affidavits as tending to contradict a condition of a want of amity, which was found by the court in the Herring case.

Giving the testimony of the witness due consideration with referenco to the condition of the Indians at the time of an alleged depredation, it is sufficient to say that the testimonj? of the witnesses does not change the conclusion of the court upon the question of whether at the time of the alleged depredations Black Hawk was in a state of amity with the United States.

The question of whether Black Hawk was the leader of a band within the meaning of the first section of the act conferring jurisdiction oh this court to adjudicate claims arising from Indian depredations was settled bjr the decision in the Herring case. It is said in substance in that case that a band, being the lowest and smallest subdivision, confederates more readily than any other form of corporate existence, so to speak, and may be composed of Indians of different tribes or nations, and becomes a de facto band by the extent of its membership, its continuity of existence, and its persistent cohesion, subject to the control and power of a leader having the recognized authority of a commander and chief.

The different divisions of the Indians have not usually originated from the conventional mode which organizes white persons into political communities, but have originated as a •condition in fact, and when so existing they are recognized by the laws and treaties as. a separate entity and held responsible as such.

The legal effect of the new evidence not having changed the condition of the relations existing between this band of Indians and the United States, as found in the Herring case, we must hold, as we did in that case, that there is no liability?- on the part of the United States, and that the claimant is not entitled to recover.

The suit in this case is against the Ute Indians generally, but the proof shows that the depredations complained of were committed bj? a band under the leadership of Black Hawk, members of which had severed themselves from the different bands of Indians occupying that country, and had become, in legal contemplation, an entity known to the law as a band.

• For a period of nearly three years these Indians terrorized the people of that part of the Territory by warlike and hostile demonstrations — so much so that the settlements became a desolation, and the people by organized association and the authorities of the Territory by its militia became and were military belligerents against the Indians. It is true that no engagement ever took place between Black Hawk’s band and the military forces of the United States, and the condition existing between the people of Utah forming a part of the people of the United States made the hostility of the Indians as to those people a hostility against the United States and prevented the prevalence of that condition upon which the liability of the United States is founded.

For reasons not material to know, the United States failed to protect the people of the Territory of Utah, and said to them through their proper officer that they must rely upon their own resources as a people for military protection against the hostility of the Indians.

It is insisted by counsel for the claimant that the purpose and object of the organization known as Black Hawk’s band was theft and robbery and not a hostility to the citizens of Utah; that plunder and robbery was the paramount purpose, and that whatever violence was incident to their depredations was for the purpose of protection merely and to insure success in the execution of their predatory purpose. The condition incident to the raids of Black Hawk’s band, extending from the spring of 1865 to the autumn of 1867, was to inspire in the minds of the people and inhabitants of that country the most grave apprehensions for not only their property, but their homes and their lives. The findings of fact show that their depredations were numerous and extensive; and as incident to the execution of their purpose, whether of plunder or of hostility to the people, their act was fraught with most serious consequences not only to the property which they stole, but to the property upon which they trespassed and the lives of the citizens which were taken in the manj'' raids in which they engaged. That between this band and the inhabitants of that country there, should exist in legal contemplation a spirit of peace, friendship, and amity is most ridiculous to assume.

The Supreme Court, .in defining the word “amity” as used in the statute, has not confined its definition to a condition of war. It is said the word “amity ” is not a technical term. It is a word of common use, and such words when found in a statute must be given their ordinary meaning unless there be something in the context which compels a narrower or different scope.

Webster defines it “friendship, in a general sense, between individuals, societies, or nations; harmony; good understanding; as, a treaty of amity and commerce.” The last part of this definition shows that the phrase “in amity” is not the equivalent of “under treaty.” A “treaty” implies political relations; ‘! amity ” signifies friendship, actual peace. (Marks v. The United States, 161 U. S., 297.)

That there was a condition of peace between the inhabitants of that portion of Utah and the Indians involved in this controversy is most absurd, considered in the light of what was the current apprehension — strife., bloodshed, and history. There was a state of suspended amicable relations between the Indians on one side and the white people on the other, and it was strife, pursuit, plunder, and death when they came in contact from the time of the commencement of the troubles until the surrender of Black Hawk .in the fall of 1867. If there was peace and amity, it contradicts the popular impression of the condition and makes silly and foolish every fear and apprehension which was indulged in by individuals and the public.

The refinement is too much refined to say that because the paramount purpose was plunder and gain that, notwithstanding violence, murder, and bloodshed, amity, peace, and friendship still prevailed.

The contention of the claimant involving the theory that because the object of Black Hawk’s band may have been robbery and theft that therefore a condition of nonamity could not arise is founded upon what is said by the Supreme Court in the case of Montoya v. The United States (180 U. S., 261), on appeal from this court, in which it is said “ whether a collection of marauders shall be treated as a band whose depredations are not covered by the act may depend, not so much upon the numbers of those engaged in the raid as upon the fact whether their depredations are part of a hostile demonstration against the Government or settlers in general or are for the purpose of individual plunder. If their hostile acts are depredations against all settlers with whom they come in contact, it is evidence of an act of war.

If the responsibility of Black Hawk’s band is to be determined by the application of the doctrine enunciated in the last sentence above quoted, can there be any reasonable question as to what its legal condition was upon the question of amity?

The hands of these individual Indians were raised against everybody living in that part of Utah, and the entire force of the community in detail and in its aggregate capacity was called out by the public authorities to resist the encroachments of the marauders. So it may be said with complete justification that their hostile acts, incident, it may be, to the purposes of theft and robbery, were directed against “all settlers with whom they came in contact,” there being no portion of .the community with which they were in a state of friendship, and no period of that time during the history of their depredations when they ceased to be hostile in purposes and disposition against every white man inhabiting the territory over which they roamed.

By reference to the findings in this case it will be seen that a most deplorable condition of want of amity existed, and the court is constrained by force of the evidence in the case to hold, as they did in the Herring case, that the court, because of the want of amity, is without jurisdiction, and the petition is therefore dismissed.  