
    JEROME E. CROW v. THE UNITED STATES AND THE ARAPAHOE AND KIOWA INDIANS.
    [Indian Depredations, 998.
    Decided December 7, 1896.]
    
      On the defenda/nts1 Motion.
    
    The claimant files an election not to reopen the allowance made by the Secretary of the Interior. The defendants file a motion to dismiss claimant’s election. Defendants concede that as against the Kiowas the Secretary had power to make the allowance nnder the Treaty of July 27,1853 (10 Stat. L., 1013), but contend that he had no power as to the Arapahoes.
    I.The allowance of the Secretary of the Interior in Indian depredation cases does not have the sanctity of a judicial finding binding upon the rights of the parties.
    II.The only force the allowance of the Secretary has under the act is that upon the consent of the parties it may become the basis of a judgment. But the allowance must have been made in pursuance of law and have been within the authority of the Secretary.
    III. An award can not be made by the Secretary based on the Aot of 1834 (4 Stat. L., p. 731). The Aot of 1885 (23 Stat. L., p. 376), expressly provides that the obligation must arise under a treaty.
    IV. There must be an express undertaking, in the form of a treaty, on the part of the tribe to pay, and no general undertaking to keep the peace is sufficient to authorize an allowance against the Indians under the act of 1885. Mares’s Case (29 C. Cls. R., 197) reaffirmed.
    V.Where an award was against two tribes for the same depredation, and the Secretary had jurisdiction as to one and not as to the other, the award will be enforced against the former, unless the defendants elect to reopen.
    
      The Reporters'1 statement of the ease:
    The grounds for the motion sufficiently appear in the opinion of the court.
    
      Mr. Lincoln B. Smith (with whom was Mr. Assistant Attorney- General Howry) for the motion.
    
      Mr. G. A. Keigwin opposed:
    The act of 1834 was obligatory both upon the Indians and upon the Interior Department. As to the former it imposed a liability in invitnm and altogether independent of their promises. They are bound to pay, not because they have agreed to do so but because the law says that they shall. The same act devolves upon the Secretary of the Interior, as the appropriate agent of the President, the duty of investigating cases of alleged depredation and of ascertaining the value of the property taken, and it further prescribes that the amount so ascertained shall be withheld from the annuities." This act is mandatory, and it leaves nothing to depend upon the terms of treaties. “ To determine whether the offense charged in the indictment be legally punishable or not is among the most unquestionable of its powers and duties.” (Marshall, O. J., in J3x parte Watkins, 3 Peters, 193.)
    As the Kiowas were in receipt of annuities under article 6 of the treaty of 1853 (10 Stat. L., 1013), they are equally liable with the Arapahoes under the foregoing argument.
    But should that argument be adjudged unsound, then the Kiowas are clearly liable under article 4 of the treaty last cited, by which they “ bind themselves to make restitution or satisfaction for any injuries done by any band or any individuals of their respective tribes to the people of the United States who may be lawfully residing in or passing through their said Territories.”
    The phrase “ said Territories ” relates back to and means “the Territories inhabited by the said tribes,” as expressed in the article next preceding.
    Omission of any material allegation is cured after verdict when proof of the omitted allegations must have been given to warrant such a verdict. (Stermel v. Soggfl Wms. Saunders; Lincoln y. Iron Works, 103 U. S., 412; Stephen on Pleading.)
    Defendants’ argument is-that “It is not claimed that the depredation in question was committed in the Indian country; and the Secretary’s allowance would seem to be void as against the Kiowas, as it certainly is against the Arapahoes.”
    The petition does allege that the depredation was committed in the State of Kansas at a place about 231 miles from Fort Leavenworth.
    By the Indian intercourse act of June 30, 1834, the Indian country is defined to be “ all that part of the United States west of the Mississippi and not within the States of Missouri and Louisiana or the Territory of Arkansas.
    ' The averment of the petition therefore fixes the locus of the depredation within the Indian country. The finding of the Secretary likewise locates the depredation, in Kansas, and brings the case within his jurisdiction.
    Even in the absence of any averment on the subject, the finding- of the Department is conclusive as to its jurisdiction so far as that depends upon place, time, or other matters of fact.
    Where the jurisdiction of a tribunal depends upon certain facts which the tribunal must ascertain to exist before it can proceed, and it finds those facts, its finding is as conclusive upon such facts as upon any other. The judgment of such a tribunal can not be collaterally impeached by showing error in the preliminary findings essential to its jurisdiction. (Freeman on Judgments, secs. 523, 531; English v. Smock, 34 Ind., 115; Martin v. Mott, 12 Wheaton, 19, 31.)
    Field, J., says:
    ‘-'So, also, according to the doctrine in the cases cited, if the patent be issued without authority, it may be collaterally impeached in a court of law.
    “This exception is subjectto the qualification that when the authority depends upon the existence of particular facts, or upon the performance of certain antecedent acts, and it is the duty of the Land Department to ascertain whether the facts exist or the acts have been performed, its determination is as conclusive of the authority, against collateral attack, as is its determination upon any other matter properly submitted to its decision.” (Smelting Co. v. Kemp, 104 U. S., 636, 645. See also Voorhees v. Bank, 10 Pet., 449; Kempe v. Kennedy, 5 Or., 173; Williams v. Amroyd, 7 Or., 423.)
    A survey is not void because the lines are not run as prescribed t>y law {Gazmian v. Philips, 20 How., 372; Tcvylor v. Brown, 5 Or., 234); or even if the lines are not run at all {Pollard v. Dioight, 4 Or., 421; Seiosom v. Pryor, 7 Wheaton, 7).
    So, where a surveyor-general was authorized to make a return as to the swampy or non-swampy character of land, his return was conclusive, even on his superiors in office. (Tubbs v. Wilhoit, 138 U. S., 135; Wright v. Roseberry, 121 U. S., 488.)
    For the distinction between facts strictly jurisdictional and facts only quasi jurisdictional, see Noble v. Logging Co., 147 U. S., 165. So of other findings by the Interior Department, Minterv. Crommelin, 18 How., 87; finding as to swamp lands, French v. Fyan, 93 U. S., 169; Ehrhardt v. Hogaboom, 115„ U. S., 67. So where a probate court sells real estate upon finding a deficiency of personalty, Grignon v. Astor, 2 How., 319; McPherson v. Cunliffe, 11 S. R., 429, or where the power to sell depends upon finding that certain heirs had reached majority (Thompson v. Tolmie, 2 Pet., 157).
    It is not necessary that the evidence upon which the finding was made should appear sufficient, or even that it should be preserved and set out at all. (Grignon v. Astor (supra) ; Florentine v. Barton, 2 Wall., 210; Gomstoelc v. Crawford, 3 Wall., 396.)
    “In this class of cases, if the allegation be properly made and the jurisdiction is found by the court, such finding is conclusive and binding iu every collateral proceeding; and, even if the court be imposed upon by false testimony, its finding-can only be impeached in a proceeding instituted directly for that purpose.” (Noble v. Logging Go.,- supra; Hudson y. Gnes-tier, 6 Or., 281.)
    A foreign condemnation of a vessel for a breach of municipal regulation is valid, though in a collateral action it is shown that the seizure was on the high seas. (In re Cooper, 143 IT. S., 509.)
    “The court had power to inquire into the fact upon which jurisdiction depended, and its maintenance of jurisdiction involved the conclusion necessary to sustain it.” (Hughes v. Cornelius, 2 Shower, 232, 32 Car. 2d, 1681 A. D.)
    France and Holland being at war, an English ship was condemned by the French admiralty as Dutch. In trover in England the owner of the ship was held concluded by the adjudication of Dutch character: (Higginson v. Sheriff, 1 Comyns Rep., 153, 7th Anne, 1708.)
    In a court having jurisdiction only of cases arising within certain territorial limits, judgment was given against a debtor, who escaped from prison. On an action against the sheriff, he undertook to show that the original cause of action arose without jurisdiction: Held, incompetent. (Allen v. Hundas, 3 T. R., 125.)
    Payment to an executor who has procured probate of a forged will is good discharge, the probate being evidence of his authority in a collateral proceeding. (Ooolce v. Bangs, 31 Fed. Rep., 640.)
    A justice of the peace tries a man for assault and battery, and convicts. The judgment is not void, though the offense was committed without his jurisdiction. The validity of the finding as against the Kiowas being established, it may stand against them, though the Arapahoes were erroneously included. A judgment may be amended by changing the names of the parties so as to conform to the record. (Goelle v. Loclcheacl, Hempstead, 194.)
    So a judgment against several defendants may be void as against some and valid as to other. (Freeman on Judgments, sec. 136.) So held specifically by this court in an Indian depredation case. (Graham v. U. 8., 30 0. Ols. it., 318.)
   Weldon, J.,

delivered the opinion of the court:

On the 24th of August, 1894, the claimant by his attorney filed an election “not to reopen the allowance made in the above-entitled case by the Secretary of the Interior, but requests the entry of judgment in the said cause for the sum of $984.15, being the amount of the allowance made in favor of said claimant by the Secretary of the Interior on the 24th of November, 1886.”

On the 13th of October, 1894, the defendants filed a motion “to dismiss the claimant’s election not to reopen and request for judgment in the amount allowed by the Secretary of the Interior, filed on August 24,1894.”

In the argument of the motion it was conceded by counsel for the defendants that as against the Kiowas the Secretary had the power, by the provisions of the treaty of July 27,1853 (10 Stat. L., 1013), to make the allowance against said Indians, but that as to the Arapahoes no such power existed either in that or any other treaty between the United States and the Arapahoe Indians.

It is sufficient to say that as to the treaty of 1853 the Arapahoes are not parties to it, therefore not bound by its provisions, and the court has not been cited to or able to find any treaty the provisions of which bind them to the payment of losses.

But it is insisted by counsel for the claimant that the finding of the Secretary is binding upon this court and upon the defendants by that principle of law which prevents judicial judgments and awards from being collaterally attacked; and upon the further ground that, although there is no treaty specially authorizing the Secretary to make an allowance charging the Indians, under the Act of 1834 (4 Stat. L., 731) there is a general power to assess the Indian tribes with the amount of depredations committed by them or their members.

While the counsel very ably argued the first point, and cited many authorities to sustain the general principle of law that collateral proceedings can not affect the legal force of a judgment or award, it does not follow that the court is to give the allowance of the Secretary the sanctity of a judicial finding, binding upon the rights of the parties and the jurisdiction and power of the court. If that theory be true as applied in this proceeding, the right of either party to elect to reopen the case as provided by the statute would be a nullity, and the court would be bound in all cases to enforce the allowance of the Secretary against the party desiring a retrial of the cause. One of the clauses of the fourth section provides, “And judgments for the amounts therein found due shall be rendered unless either the claimant or the United States shall elect to reopen the case and try the same before the court * * * the party electing to reopen the case shall assume the burden of proof.”

The only force the allowance of the Secretary has under the act of our jurisdiction is that upon the stipulation and consent of the parties it may become the basis of a judgment, and in giving a judgment “the court determines no question applicable to the (merits of the) original controversy.” (Hyne v. The United States, 27 C. Cls. R., 113.)

But the stipulation and consent of the parties must be based upon an allowance made in pursuance to law and within the power of the Secretary. An allowance in gross was made against both tribes and the judgment sought to be recovered is to be entered against both; but as to one of them it is void, there being no power in the secretary to make an allowance against the Arapahoes.

The Act of 1885 (23 Stat. L., 376), under which the Secretary acted, provides for an examination and allowance “ on account of depredations committed chargeable against any tribe of Indians by reason of any treaty between such tribes and the United States, including the names and address of the claimants, the date of the alleged depredation, by what tribe committed, the date of the examination and approval, with a reference to the date and' clause of the treaty creating the obligation for payment.”

The theory that the obligation may arise under the act of 1834 can not be successfully maintained in view of the provisions of the act of 1885, which expressly provides as the basis of the award an obligation arising “by reason of any treaty.” The Secretary in his report is to embrace “ a reference to the date and clause of the treaty creating the obligation for payment.”

While Congress has the undoubted right to provide that an obligation to pay may arise from an act of Congress, the policy of the Government has confined the responsibility of the Indian and the consequent power of the Secretary to the obligation arising from treaties in which there is an express undertaking on the part of the Indians to pay for depredations.

There must be an express undertaking, in the form of a treaty, on the part of the tribe to pay, and no general undertaking to keep the peace and treat the citizens honestly and humanely is sufficient to authorize an allowance against the Indians under the act of 1885. (Mares v. The United States et al., 29 C. Cls. R., 197.)

That case presented substantially the question presented by the motion in this case, and the court has in many decisions adhered to the doctrine of that case.

It is said that, there being no contribution between wrongdoers, the judgment may be given against the Kiowas, it being-conceded that the treaty made them liable for their wrongs.

The United States are the guardians of the Indian, having a trust to discharge impartially as to all, and if the Arapahoes are jointly guilty with the Kiowas the United States have the legal right to ascertain that fact by an examination of the case on its merits, and therefore the award must be enforced against them in its entirety, if at all.

If the award was composed of several depredations, some of which were committed by the tribes separately, the result might be different; but in this case no segregation can be made.

Inasmuch as the award can not be maintained as a legal finding upon the part of the Secretary it is not sufficient upon which to base a judgment of this court, and not being sufficient the election of the claimant not to reopen is without authority of law and does not shift the burden of proof to the defendants.

The motion of the defendants is allowed.  