
    THOMAS CONNOR ET AL. v. THE UNITED STATES.
    [Departmental No. 3.
    Decided June 4, 1884.]
    
      On the Facts.
    
    The treaty 1856 binds the government to protect the Creeks “from domestic strife, from hostile invasion, from aggression by other Indians and white persons not subject to their jurisdiction and laws." But the Creek Nation enter into a treaty with the Confederate government and engage in war against the United States, excepting the claimants, who remain loyal and render military service. In 1866 a new treaty is made whereby the government “reaffirms and reassumes all obligations" of the treaty 1856, and agrees to pay $100,000 to the claimants and other loyal Creeks in proportion to their losses. It is also provided that “ í7¿e stipulations of the treaty are to be in full settlement of all claims" “growing out of the late rebellion."
    
    I.When the Creek Nation entered into a treaty with the Confederate government and engaged in war against the United States, the treaty of 1856 (11 Stat. L., p. 704) was abrogated, and the obligations of the government to individual Creeks at an end.
    II.The provision in the treaty of 1866 (14 Stat. L., p. 785), whereby the government “reaffirms and reassumes all obligations" existing under the previous treaty, takes effect from the date of the new treaty, and does not carry back the obligations so as to be operative during the war.
    III. The provision in the treaty of 1866 that “the stipulations of this treaty are to be in full settlement of all claims of said Creelc Nation for damages and losses of every Mnd grouting out of the late rebellion," applies to individual and personal as well as to national demands.
    IV. By the Creek treaty 1866 the United States reserved $100,000 from moneys to be paid the Nation and stipulated that that amount should be divided among the loyal Creeks “ in proportion to their several losses " ; but they did not thereby assume the losses which loyal individuals suffered by reason of their having faithfully adhered to the government during the war.
    
      The Reporters’ statement of the case:
    This case was transmitted to the court by the Secretary of the Interior, under the provisions of the Bowman Act. The controversy was really one of law, the petition setting forth facts which the defendants admitted by demurrer. These facts, so alleged and admitted, the court certified to the Interior Department in the form of a findings of facts as follows :
    On the 25th of May, 1883, the claimants filed the following petition, duly sworn to:
    “ The petition of Thomas Connor, Warner Marshall, Geo. Marshall, and fifteen hundred and twenty others, loyal members of the Creek Nation in the Indian Territory, by their attorney and counsel, William W. Wilshire, respectfully shows:
    “That they have at all times borne true allegiance to the Government of the United States, and have in no way voluntarily aided, abetted, or given encouragement to rebellion against the said Government.
    “That in the war of 1801-65 — the war of the rebellion— they remained faithful to their allegiance to the United States, while the majority of their nation adhered to, and aided and abetted, the government of the States confederated in the said rebellion against the authority of the United States.
    “That because of their adherence to the Government of the United States they were obliged to leave the territory of the nation, and to take refuge within the lines of the Federal Army, with their wives and children.
    “That all of their number able to bear arms enlisted in the United States forces, and, as enlisted men, rendered valuable service to the Union.
    “ That many of them were persons of property, owning real and personal estate, having improved farms, and many horses and cattle, all of which property was of necessity abandoned; and during the said war their farms were laid waste, fences destroyed, houses burned, and their herds of horses and cattle stolen and taken north for the use of the Army of the United States.
    “That immediately after the treaty of 1866 between the United States and the Creek Nation (14 Stat. L., 785), and in pursuance of the 4th article thereof, a roll of the names of the loyal Creeks, to wit, of soldiers that enlisted in the Federal Army, refugees, and freedmen, was made by the United States agent for the Creek Nation and the Superintendent of Indian Affairs for the Southern Superintendency, and the said agent and superintendent proceeded to investigate and determine from said roll, and upon the testimony in each case presented, the amounts due the said refugee Indians for their respective losses aforesaid, and transmitted to the Commissioner ot Indian Affairs, for his approval and that of the Secretary of the Interior, the awards made to the said Indians respectively, to the number hereinbefore stated, which awards were approved by said Secretary and Commissioner, but only to the amount of $100,000. A certified copy of the said awards is herewith filed.
    “ Your petitioners claim that under the provisions of said treaty of 1866, and of Article XYIII, of the treaty'of 1856 between the United States and the Creek Nation (11 Stat., 699), the whole amount of said awards, to wit, about the sum of 1,900,000, except the sum $Í00,000 or thereabouts, paid in the year 1871, should now be, and long since ought to have been, paid under and by virtue of the treaties aforesaid.
    “But the Commissioner of Indian Affairs, in his letter to the Secretary of the Interior dated May 26, 1870, a copy of which accompanied the papers referred to the court by the Secretary of the Interior, while not disputing or in any way impeaching the justice of said awards, questioned the liability of the United States under the said treaty of 1866 beyond the sum of $100,000 named in the fourth article thereof, and the then" Secretary of the Interior decided that the liability of the United States was limited to the sum named in said article, and that for any further relief the claimants would have to appeal to Congress.
    “And now the whole matter being again before the Department of the Interior, upon a memorial filed by the said loyal Creeks, in which the full amount of said awards, less the sum of $100,000 paid as aforesaid, is claimed, the Secretary, by letter of May 10, 1883, on file in the clerk’s office of this court, refers the said question as to the liability of the United States in the premises for the judgment of the court under the provisions of section 2 of an act of Congress approved March 3,1883, entitled ‘An act to afford assistance and relief to Congress and the Executive Departments in the investigation of claims and demands against the Government.’
    “ Your petitioners further state, each for himself, that none of the claims upon which the awards aforesaid were reported as aforesaid have ever been assigned, nor any interest therein.
    “And your petitioners humbly pray that this honorable court will, at as early a day as possible consistent with its convenience, take into consideration the question so submitted as aforesaid, and thereupon render judgment.
    “W. W. Wilshire,
    
      “Attorney for Claimants.”
    On the 25th of February, 1884, the defendants filed the following demurrer. Issue was joined thereon and submitted:
    “Now comes'the Attorney-General, on behalf of the defendants, and demurs to the petition therein filed, and says that the said petition does not set out a legal claim against the defendants for the following reason to wit:
    “That the fourth article of the treaty of 1866 between the United States and the Creek Nation, relied upon by the claimants, provides for the payment to the said claimants for the losses set out in the petition the sum of $100,000, and no more, which sum, as admitted by the said petition, has been paid to and received by the said claimants.
    “Thomas Simons,
    “ Assistant Attorney-General.”
    
    Upon the foregoing facts set out in the petition, and for the purposes of this submission admitted by the demurrer, the court decided as a conclusion of law that all claims which the petitioners had against the United States for damages and losses growing out of the late rebellion were adjusted, settled, and released by the treaty of 1866 (14 Stat. L., 785), and the payment thereunder of $100,000, as provided in article 3, and that the claimants, having received that sum, are not entitled to be paid any further amount.
    
      Mr. George L. Douglass for the defendants, for the demurrer.
    
      Mr. W. W. Wilshire opposed.
   Richardson, J.,

delivered the opinion of the court:

The claimants rely, as the primary foundation of their demand, upon the following provision of the treaty of 1856 (11 Stat. L., 704):

“Article 18. The United States shall protect the Creeks and Seminóles from domestic strife, from hostile invasion, and from agg'ression by other Indians and white persons, not subject to their jurisdiction and laws; and for all injuries resulting from such invasion or aggression full indemnity is hereby guaranteed to the party or parties injured out of the Treasury of the United States, upon the same principle and according to the same rules upon which white persons are entitled to indemnity for injuries or aggression upon them, committed by Indians.”

They contend, that although the treaty relations of the Creek Nation with the United States were unsettled by the nation joining the public enemies of this country, and entering into a treaty with the Confederate States, yet that the claimants, individual members of the tribe, remained loyal to the Union, and suffered great losses and damages on account of it, and that the treaty of 1866 reaffirmed the obligations of the United States contained in the eighteenth article of the treaty of 1856, and provided for a full indemnity and payment for their losses.

In our opinion the construction of the two treaties taken together and the liability of the United States thereunder as urged by the claimants are untenable. The course of proceedings taken by the Commissioner of Indian Affairs and the Secretary of the Interior in relation thereto were in strict conformity with the treaty obligations, and the claimants, having received each his proportion according to his losses, of the money awarded for that purpose, they are entitled to no more.

It is true that the twelfth article of the treaty of 1866 does •declare that—

“The United States reaffirms and reassumes all obligations of treaty stipulations with the Creek Nation entered into before the treaty of said Creek Nation with the so-called Confederate States, July 10,1861, not inconsistent herewith.”

But the effect of that provision was clearly to renew the former treaty from that date, and nothing more. It would be an unreasonable and unjustifiable interpretation to put upon it that the United States agreed to be responsible for all obligations on their part contained in the treaty during the time the Creek Nation was, with other public enemies, at war with them, and yet, while making a new treaty, they provided the ways and means of settling such obligations only in part, as contended by the claimants.

The eleventh article of the treaty of 1866 expressly declares that—

“The stipulations of this treaty are to be in full settlement of all claims of said Creek Nation for damages and losses of every kind growing out of the late rebellion.”

It is urged by the claimants that this provision applies only to national claims, while their demands are individual and personal. But that position is not warranted by the law or facts of the case. The claims of individual members who bring this action were claims of the nation, within the rules of international law (Great Western Insurance Co. Case 206 ante). Moreover, their payment as agreed upon was provided for by the treaty itself.

By the later treaty the nation sold one-half of its lands for $975,168 to the United States, who agreed to pay therefor $100,000 “ to soldiers that enlisted in the Federal Army, and the loyal refugee Indians and freedmen who were driven from their homes by the rebel forces, to reimburse them in proportion to tlieir respective losses,” and the balance for the benefit of the whole tribe, as set out in article 3.

The claimants are the very persons to whom, as they allege, said $100,000 was payable. But they urge that they are entitled to some $1,800,000 more under the provisions of the fourth article of the treaty, which is as follows:

“Article 4. Immediately after the ratification of this treaty the United States agree to ascertain the amount due the respective soldiers who enlisted in the Federal Army, loyal refugee Indians and freedmen, in proportion to their several losses, and to pay the amount awarded each, in the following manner, to wit:
“A census of the Creeks shall be taken by the agent of the United States for said nation under the direction of the Secretary of the Interior, and a roll of the names of all soldiers that enlisted in the Federal Army, loyal refugee Indians, and freedmen, be made by him.
“The superintendent of Indian affairs for the southern superintendency and the agent of the United States for the Creek Nation shall proceed to investigate and determine from said roll the amounts due the respective refugee Indians, and shall transmit to the Commissioner of Indian Affairs for his approval, and that of the Secretary of the Interior, their awards, together with the reasons therefor.
“ In case the awards so made shall be duly approved, said awards shall be paid from the proceeds of the sale of said lands within one year from the ratification of this treats’-, or so soon as said amount of one hundred thousand ($100,000) dollars can be raised from the sale of said land to other Indians.”

The United States, by the Commissioner of Indian Affairs and the Secretary of the Interior, proceeded to ascertain the amount due the individuals in proportion to their losses as provided in that article. They first ascertained the amount of losses of each one, and finding the aggregate to be some $1,900,-000, while the amount due them all by the provisions of the treaty was only $100,000, they awarded and paid to them their respective shares of said latter sum in proportion to their several losses. This was in exact conformity to the terms of the treaty.

Theu amount due the respective soldiers” was not the whole $1,900,000 of their losses, a sum nearly twice as large as that, for which the United States were to give for the lands out of which payment was to be made, but was the $100,000 which was set aside and appropriated for that purpose, and was to be paid so soon as said amount could be raised from the sale of said lands.- There is no express agreement to be found in the •treaty to pay any more than that sum, and even that was not to be paid until it could be raised from the sale of lands. The taking an account of the actual losses of individuals under the circumstances, raises no implied promise to pay the whole, because the purpose was, as declared, to ascertain the amount due to each one in proportion to his losses, thereby implying that they might not be paid to the full extent of the losses.

We have before us the letter of the Commissioner of Indian Affairs to the Secretary of the Interior of May 26,1870, referred to in the petition and made part thereof, and the reply of the Secretary thereto under date of September 5, 1870, as well as a letter from the Acting Commissioner of Indian'Affairs to the Secretary of the Interior of February, 1879, all of which take the ground that the claimants are entitled under the treaties to no more than the $100,000 which they have received. In that conclusion we entirely concur.

The demurrer is sustained, and the clerk of the court will certify a copy of the findings, conclusion of law, and this opinion to thb Interior Department for its guidance and action as provided by law.  