
    JEREMIAH GRAHAM v. THE UNITED STATES AND THE SIOUX TRIBE OF INDIANS.
    [Indian Depredations, 614.
    Decided April 29, 1895.]
    
      On the defendants’ Motion.
    
    The parties stipulate that neither will elect to reopen the case, and that judgment he entered for the amount allowed hy the Secretary of the Interior. The defendants now move for a new trial upon these grounds: That a suit can not he maintained, or judgment rendered against “ the Sioux Indians as a tribe;’’ that the depredation was not committed hy the Sioux tribe; that the Secretary acted without authority; that the stipulation for judgment was without authority of law; that the court acted without jurisdiction. It appears that the depredation was committed by “ the Minneeonjou band of the Siom Nation of Indians."
    
    I. The Sioux Nation is composed of different tribes or hands which have always been recognized as belonging to the Sioux family or race; and the Treaty 16th February, 1869 (15 Stat. L., p. 685), “with the representatives of the Sioux Nation," recognizes the “ different bands" in their dual capacity as a nation, and as separate bands composing the nation.
    
      II.When the national or tribal relations of Indian hands has been established by thepolitieal departments, the courts are bound by it.
    III. Under the Indian depredation act a suit may be maintained against the “Sioux Indians” as a tribe, and if there be no more particular identification judgment may be rendered against them.
    IV. When a claimant has complied -with the provisions of section 3 by averring the Indians who committed the depredation he has thereby made them parties defendant; and such averment is sufficient notice to the Attorney-General.
    V.The nation can not be held liable for the acts of the tribes, nor the tribe for the acts of the band, if the Indians committing the depredation can be identified as belonging to a particular tribe or band.
    VI.A judgment against the Sioux Nation is valid, though technically defective, if it should have been against the “ Minneoonjon band of the Sioux Hation.”
    
    VII.When a tribe is brought into court as defendant, the different bands named in a treaty as composing the tribe are in court; and judgment may be rendered against the band which committed the depredation.
    VIII.Where judgment was rendered against the tribe when the evidence indicated that a particular band committed the depredation, the judgment will not be disturbed, but an additional finding of fact will be filed sufficient to inform the Interior Department against what band the judgment should be charged.
    
      The Reporters’ statement of tbe case:
    Tbe motion for a new trial of tbis cause was overruled, tbe court sustaining tbe objection stated in tbe 'motion, but permitting claimant to amend bis pleadings, and itself amending tbe judgment so as to name tbe Minneconjou Sioux as defendants. Tbe defendants then filed a.petition for a rebearing upon tbe question of tbe right to amend by tbe insertion of tbe names of new defendants after tbe period bad expired in wbicb suits of tbis character could be instituted. Tbis motion of tbe defendants was dismissed without an additional opinion.
    Tbe stipulation upon wbicb judgment was entered and tbe defendants’ motion for a new trial will be found in tbe opinion of tbe court.
    In overruling tbe defendants’ motion for a new trial herein, tbe court, to remedy tbe technical defect raised by said motion as to tbe defendant Indians, makes tbe following additional findings of fact, viz:
    That tbe depredation complained of and for wbicb judgment was rendered in tbis case on tbe 4th day of December, 1892, was committed by tlxe u Minneconjou band of tbe Sioux Nation of Indians.”
    It is therefore ordered by the court that the foregoing findings of fact be filed in said cause.
    
      Mr. William H. Robeson (with whom was Mr. Assistant Attorney-General Howry) for the motion:
    The suit is against “the Sioux” tribe of Indians, and judgment is asked against that tribe. The proof establishes that the loss occurred at the hands of the Minneconjou Sioux.
    In the case of W. W. Woolverton v. The United States and the Hez Heroes Indians (No. 923) the proof showed that the depredation was committed by Joseph’s Band of Nez Perces, and the court dismissed the petition.
    The tribal distinctions among the Sioux have been fully recognized by the Government, as is evidenced by the facts of the establishment of separate agencies, the location of distinct reservations, the issuance of separate rations, the bestowal of particular annuities, and the making of separate treaties.
    The first treaty made with the Sioux Indians was with “ the Sioux Ration of Indians,” signed, on the part of the Sioux, by but two Indians. This treaty granted certain lands in Minnesota, and was made in 1805, though there is no evidence that it was ever ratified, and it does not appear with other treaties in the Statutes at Large, but in a pamphlet published by the Indian Bureau entitled “ Indian Laws” (p. 316). [The counsel then gave a list of the subsequent treaties, which will be found in the opinion of the court.]
    There were, at the time of the passage of the act of March 3,1891, and are now maintained for the Sioux Indians, eleven separate agencies, nine in Dakota, one in Montana, and one in Nebraska, and for the various tribes separate annuities and different appropriations are made. (Report Commissioner Indian Affairs', 1890, reports of agents.)
    Now, if a suit may not be maintained against the Sioux Indians as a tribe, then the court has not jurisdiction of the United States in this class of cases, because such jurisdiction is acquired by reason of the court’s jurisdiction of certain Indians, and not otherwise.
    Nor can this objection be avoided by any process of amendment, since an amendment making a particular tribe a party to tbis suit, at this elate, would be iu violation of the limitation of three years prescribed by the jurisdictional act of 1891.
    The court has held that the objection which is the ground of the motion for a new trial in this case can be cured by an amendment so as to include as parties defendant in the pleadings and the judgment the particular tribe by members of which the depredation is shown to have been committed.
    As leading up to this conclusion the court holds—
    (1) That the nation of Sioux has been recognized by the political departments of the Government and that the court is bound by such recognition;
    (2) That when this nation of Sioux is sued each tribe which is a component part of the nation becomes a party to the suit and is subject to a separate liability;
    (3) That if this separate liability is not ascertained, 'by reason of a failure to identify the particular tribe, then the whole nation, and therefore each and every tribe, becomes liable to the satisfaction of the claimant’s demand.
    Yet in the same opinion it is said that—
    (4.) In a suit against the nation, if the particular tribe is identified and its hostility established, the court is without jurisdiction on that account.
    The court is further moved to its holding by the consideration that the relations of the Indians to the United States are “ peculiar,” the latter being the financial trustee of the Indians.
    With reference to the first of these propositions, the defendants say that, while in the early history of the country a treaty was made with “the Sioux Nation,” executed and signed by two Indians, of a tribe separated by hundreds of miles from other and more numerous tribes of the same people, this can not be considered as a recognition of these Indians in a national capacity in the face of the fact that from the date of the making of that treaty to the time the very last one was made, the negotiations have been conducted separately with the distinct tribes of the Sioux.
    The second proposition is that when the Sioux as a nation are sued each and every tribe is embraced within the general designation.
    This would be so if there had not been an independent treatment of the tribes; if their power to contract had not been recognized; if a separate political entity had not been established by the decrees of the Government itself. But as it is the Government has created no national liability, and no joint liability as tribes; it has made the liability a separate one; it accomplished this in one instance, as the court has declared, by the mere departmental recognition of a part of the Nez Perces tribe, which had declared its independence of the main body and set ux> for itself. (Woolverton v. United States, 29 C. Cls. It., 107.) In that case it appeared that Joseph took his band from its tribe and waged war on its own account; that band was of the same blood as the main tribe, it was'a minority of the tribe, but it was recognized as having the capacity to wage war and to make peace, though no treaty was ever made with the band. The court was bound by this recognition, and so determined, and a suit against the “Nez Perces” was dismissed because it was not brought against “Joseph’s Band of Nez Perces,” and because that band was hostile.
    The contention is that a suit against “the Sioux” is a litigation without a defendant, and there is no status which may be amended. To illustrate — the right to sue a State being admitted — a suit may not be brought against the United States and dismissed as to all of them but South Carolina, even though the illustration offers a case in which there is — as there was not among the Indians — a mutual dependence and many interests in common. If South Carolina, for her own default, is suable, she is suable alone. The United States is not suable, and no process of paring down or lopping off can be employed to exclude all but one party from liability for judgment. In this case the liability is tribal or it is national; it is not both; it is one or the other. If it is tribal it is not national. If it is national the hostility of the tribe can not overcome or excuse the national liability or default.
    These objections are equally applicable to the third proposition that—
    (3) If in a suit against a nation of Indians the particular tribe is not identified, then judgment may be awarded against all the tribes jointly in a national capacity.
    Viewing the Indians as nations or independent tribes having a political entity, it is right in the abstract that they be charged with losses inflicted in time of peace by their own citizens; regarding them as dependents, it is clear that we have adopted an excellent plan of enforcing payment; but from no standpoint of national integrity can it be made to appear that the policy of charging one tribe for the depredations of members of another tribe not subject to its control is either reasonable or just.
    This brings us to consider the court’s conclusion that claimants may be permitted to amend their pleadings, and the court its judgment, so as to declare the liability of the particular tribe .guilty of the depredation. We have contended that the institution of a suit against “the Sioux” names no suable defendant.
    If all the Sioux were guilty of a joint trespass they could be joined by tribes, as Ogallala Sioux, Brule Sioux, Sisseton Sioux, just as the Minneconjou Sioux and the Northern Cheyennes might be sued together, but the word “ Sioux,” as defendants, means nothing. It conveys no information to the Attorney-General of either locality or national character, and gives him neither clew nor suggestion of defense. Whom is he to defend? He can not rely upon the prayer of the petition which names “ the Sioux” as defendants and prays judgment against “the defendants,” but must await the proof to discover who his clients are. A petition naming “the Sioux” as defendants covers localities from eastern Michigan to western Montana, from the British possessions to the southern boundary of Kansas; embraces the savages of 1862 in Minnesota and those of 1876 on the Little Big Horn; and comprehends alike the peaceful tribes in Wisconsin and the warlike hordes of South Dakota.
    Yet the act of March 3, 1891, prescribes that the petition shall state the tribe or tribes committing the depredation.
    It seems to me, however, that it is not simply a question of notice to the Attorney-General. The Indians are deeply interested in the outcome of these suits; we are concerned with the theory of this law, and the fact of the practice of the Government in paying these claims is not to divert us or prevent the application of a principle. On the 3d day of March, 1894, the time in which a suit might be brought in this jurisdiction expired. No new suits could be brought. If the Sioux had no national character this claimant was not in court.
    Notice to the Attorney-General of this suit was not notice to him of a suit against the Minneconjou Sioux, or any other of the particular tribes.
    
      To permit an amendment now is to authorize the institution of a new suit against each one of the tribes after the limitation has attached.
    The effect of the court’s decision is to determine regarding any one or each one of the tribes that they are liable also in those suits in which the guilty tribe can not be identified, no matter whether the depredation occurred a thousand miles away from the home of the tribes, or how plainly its innocence may be otherwise shown.
    But can the court retract that statement and say (which-seems to be very clear) that where the evidence clearly exculpates a certain tribe, it would not be embraced in the judgment? If it can, then if any tribe be excluded from the judgment it would not remain a judgment against the nation, but against the several tribes composing it, whose innocence does not clearly appear; that is, the Brule Sioux, the Ogallala Sioux, the Uncpapas, designated by tribes, just as they exist by tribes, treat by tribes, are subsisted by tribes, wage war by tribes, make peace by tribes, and are answerable by tribes.
    With the argument so often urged that those requirements of the act as to identification are merely for convenience of bookkeeping in the Treasury Department I am not in' sympathy. The act of 1891 did not make this court a commission to conduct ex parte investigations and to burden itself with the inquiries which attorneys ordinarily make. These cases were simply referred to the court for adjudication, and every one of them is a lawsuit. The claimant is chargeable with some responsibilities and held to the observance of some rules of law. He must file a petition which brings his cause of action within the court’s jurisdiction. He does not accomplish this by naming the United States alone as defendant (Harmon, No. 6859); he must sue a principal, since the United States, as the court has decided, is not primarily but secondarily liable (Gorham v. The United States, 29 0. Ols. B., 97; Graham v. The United States, No. 614; Leighton v. The United States, 29 0. Ols. B,., 288); and since the Attorney-General is entitled to notice, not of a suit against the United States, which he represents in all suits, but óf a suit against the Indians, whom he represents only within this particular jurisdiction; and if, as we have contended, the claimant names as defendants a people not recognized by the Government as possessing a national character, but as made up of many distinct tribes, and therefore not suable in the aggregate, he has failed to bring himself into court and must abide the consequences if he delay amendment beyond the period in which the law says suit must be brought.
    
      Mr. William B. King opposed.
    1. Judgment may equally be entered against a band or nation as against a tribe. The word “tribe” is general enough to embrace band, tribe, or nation.
    The examination made shows also that the Sioux Nation was often referred to as the Sioux tribe. The particular bands, on the other hand, were called tribes in many instances.
    2. But if the court should think, upon the testimony, that the depredation was committed by any particular' Sioux band, the claimant ought to have leave to amend his petition. He has filed a motion for leave to amend, making the Minneconjou and the Ogallalla bands separately parties to the action.
    The whole Sioux Nation is brought into the case by the original petition. This is a notice, not only to the nation itself but to every band of the nation, that a charge is made for depredations committed by them. They are all represented in court by the Attorney-G-eneral.
    Were this not so an amendment of the petition should still be allowed or the judgment should be rendered even without amendment against the particular tribe or band by whom the depredation was committed.
    If the court were to dismiss the petition because the wrong Indians were originally charged, it would fail to do what the law particularly directs it to do. The law says that it shall render judgment against the tribe which committed the .wrong. Nowhere does it say that the claimant shall not recover unless he has correctly identified the tribe in his petition. •
    The statute of limitations contained in the act does not affect the right to make new parties. This says (sec. 2) that claims “ shall be presented to the court by petition, as hereinafter provided, within three years after the passage hereof, or shall be thereafter forever barred.”
    The next section thereinafter provides that the petition shall state the tribe or band “ as near as may be.” If the petition complies with the law aud states the tribe or band “ as near as maybe,” then the statute of limitations ceases to run. Subsequent amendments can be made naming tbe particular tribes shown by tbe proofs to have committed tbe depredation.
    It is insisted tbat if tbe motion for new trial is proper in tbis case, and tbat if tbe judgment should be set aside as of its date, tbe court at the same time is authorized to allow tbe petition to be amended as of tbe very date when tbe judgment was entered, so tbat a new judgment can again be entered, of tbe same date, in place of tbe old, upon tbe filing of an amended petition. If one part of tbe action relates back to the original date of judgment, other merely ancillary action can be taken as of tbe same date.
    3. If tbe claimant seeks a remedy against tbe United States alone, stating in bis petition tbe tribe of Indians, “ as near as may be,” be is’ entitled to a judgment against tbe United States. He need ask no judgment against tbe Indians. But tbe law provides tbat tbe Indians inculpated by the proofs shall first pay tbe judgment if they have tbe funds. Tbe United States is alone interested in seeing tbat tbe tribe is included if a judgment is rendered.
    4. In tbe foregoing discussion tbe case has been treated as upon original bearing. But tbe question under argument is a motion for new trial. Tbe original motion was made under section 1088, Revised Statutes, and alleges wrong and injustice to tbe United States. An amendment has since been made basing tbe motion upon some supposed wider authority, presumably tbat of tbe act of August 23,1894, and its repetition of March 2,1895.
    Tbe court has perhaps indicated by its decision in one case concurrence in tbis view, although tbe defendants had previously disclaimed any such authority. No opinion sustaining tbe authority ha's been filed.
    These two acts do not give authority to the court to grant new trials. They appropriate sums for payment of judgments and limit tbe power of the Secretary of tbe Treasury over tbe amount appropriated. He is not to make payment unless tbe Attorney-General certifies to him that no ground exists to support a new trial, or unless tbe court refuses a new trial.
    The acts limit tbe payment, but nowhere confer a right to a new trial not already existing. They respect tbe sanctity of tbe judgments already assured by section 7; they acknowledge tbe coordinate authority of tbe judiciary; they do not repeal section 7; they give tbe United States an opportunity to take advantage of the rights granted by existing law. Such a construction brings these acts into entire accord with Revised Statutes, section 1088, and section 7 of the act of 1891.
    But if these acts really confer separate authority to grant a new trial, their terms do not extend it beyond that already existing.
    The language of section 1088 is that a new trial may be granted upon evidence that “ fraud, wrong, or injustice in the premises has been done to the United States.” That of the acts of 1894 and 1895 is u whether fraud, wrong, or injustice has been done to the United States, or whether exorbitant sums have been allowed.” The last clause is clearly included within the words u wrong or injustice,” and is nothing more than special mention of a particular kind of wrong or injustice. No right to a new trial can possibly be conferred beyond the grounds stated in the statute.
    Whether the motion for new trial is made under Revised Statutes, section 1088, or the act of August 23, 1894, it is on the ground of fraud, wrong, or injustice to the United States. Under neither act is injustice to a tribe of Indians a cause for new trial. The injustice must be to the United States. The United States alone makes the motion. But the United States does not deny that judgment could properly be rendered against the United States on this claim. If the objection now made had been made at the date of the judgment, judgment would then have been rendered, on amendment of the petition, against the United States and the particular band committing the depredation.
    The condition of the funds granted to the Sioux by the' treaty of 1868 and the agreement of 1876 makes it rather to the advantage of the United States, if at all material, that judgment is rendered against the Sioux Nation rather than against a particular band. The only party which might be damaged is the Sioux Nation; the law gives it no right to a new trial.
    If a new trial were now granted and the claimant were not allowed to amend his petition and make the proper band a party, a gross injustice would result to him. The United States should have pleaded a misjoinder of parties at the time when the statute of limitations had not run against the filing of a new petition so that the claimant might have amended his petition. Instead of that, the United States during the whole of that time formally admitted the correctness of the judgment.
    The particular injustice to the present motion is seen in the fact that after the rendition of this judgement the claimants in many cases originally brought against the Sioux Nation, out of abundant caution, added the individual tribes or bands as. joint defendants, by amendment. This was done in the case of Leighton, already referred to.
    The action of the Government, indeed, would be a sort of a trap, set by its highest officers, for the claimant. The Interior Department rendered a decision against the Sioux Nation, recognizing it as liable. The claimants, upon this decision, make the Sioux Nation a defendant. The Attorney-General admits that the action was properly brought. The succeeding Attorney-General waits over a year and then declares that the Secretary of the Interior and his own predecessor were both wrong and moves to set aside the judgment. When the claimant asks an opportunity to amend his petition and make the proper tribes parties, the Attorney-General objects that the statute of limitations has run against new parties. Among private citizens, would a course like that of the United States here be fair or even honest? It is .too inequitable i» receive judicial approval.
    5. The effect of the provisions of section 4 in regard to approved claims has been very fully discussed before the court. We have preferred in this argument to go further and to discuss broader principles. But a sufficient answer to the motion for new trial, if all this argument should be disregarded, is to say that the Secretary of the Interior made his award under the act of 1885; that the claimant brought his suit under that award; that the United States did not elect to reopen the case; that judgment was thereupon rendered, and that nothing appears to show that the failure of the defendants to reopen . the case was due to any fraud, wrong, or injustice from which the United States suffers.
    6. This case is different from other cases in which motions for new trial have been granted by the court. Substantial grounds of defense were alleged in those cases which had not been urged on the first trial; here the ground of defense is purely technical. It does not'affect the obligation of the United States. Had it been made in due season an amendment of the petition would have cured the defect. The error now complained of resulted from the action of the defendant’s officers and met their approval. The motion is wholly inequitable. It should not, in good conscience, be sustained.
    7. The motion of the United States attacks the jurisdiction of the court because no actual tribe of Indians has been joined with the United States. The foregoing argument answers:
    (1) That no tribe need be joined in the petition.
    (2) That, whether the Sioux Nation was properly the defendant in this case or not, there is now, and was at the date of the depredation, such a tribe or nation, which might in proper cases be made defendant. If any proper tribe exists which is made defendant, the jurisdiction can not be attacked; the objection is merely an allegation of error, an error which, we have seen, works no injustice to the United States.
   Peelle, J.,

delivered the opinion of the court:

In the original petition filed herein April 14, 1891, it is averred, among other things, in substance, that on the 9th of September, 1872, property of the value of $1,000, belonging ■to the claimant, a citizen of the United States, was taken by Indians belonging to the Sioux tribe or nation, then in amity with the United States; and that a claim for said qiroperty, with evidence therein, was presented to the Commissioner of Indian Affairs, and thereafter, January 5, 1888, reported to Congress by the Secretary of the Interior as allowed in the sum of $750.

To the petition thus filed the defendants answered by the general traverse.

Thereafter, to wit, November 28,1892, neither party electing to reopen the allowance thus made, an agreed stipulation was signed by the parties and filed in the cause in these words:

“It is hereby stipulated and agreed on the part of claimant in the above-entitled cause by Sanborn & King, attorneys of record, and on the part of the Government by L. W. Colby, Assistant Attorney-General, in charge of Indian depredation cases, that the following facts are shown by the original papers, evidence, records, and reports from Governmental Departments on file in the office of the clerk of said court:
“I. That Jeremiah Graham, the original claimant, was, at the time of the commission of the depredations complained of, a citizen of the United States.
“II. That on the 9th day of September, 1872, at or near Fort Laramie, certain Indians belonging to the said Sioux tribe, band, of nation took or destroyed property belonging to the said original claimant without just cause or provocation on the part of the owner or agent in charge, and that the same has not been returned or paid for, and was at said time and place of the value of $750.00.
“III. That the said Sioux tribe, band, or nation of Indians were, at the time of the commission of said depredations, in amity and treaty relations with the United States.
“ IY. That on the 19th day of December, 1887, a claim for said property so taken or destroyed was examined, approved, and allowed by the Secretary of the Interior, or under his direction, in pursuance of the act of Congress making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1886, and for other purposes, approved March 3, 1885, and subsequent Indian appropriation acts, in the sum of $750.00, in favor of said Jeremiah Graham, and thereafter reported with such allowance to Congress by Executive Document No. 31 of the 1st session of the 50th Congress of the United States as claim No. 1199.
“Y. That-
“ YI. That neither the said claimant nor the United States elects to reopen said case and try the same before the court, but the claimant is willing to accept said allowance in full satisfaction and settlement of said claim, and asks to have judgment rendered therefor by said court under the act of Congress approved March 3,1891, entitled ‘An act to provide for the adjudication and payment of claims arising from Indian depredations.’
“ Sanborn & King-, Attorneys for Claimant.
“L. W. Colby, Assistant Attorney-General.”

The claim having been examined and allowed under the Act March 3, 1885 (23 Stat. L., 376), was entitled, under the provisions of the Act March 3, 1891 (26 Stat. L., 851, sec. 4), to priority of consideration by the court; and under the provisions of the same section, neither party electing to reopen the case as set forth in the stipulation, it became the duty of the court, nothing appearing to the contrary, to render judgment for the amount against the United States and the Sioux tribe, band, or nation of Indians, which was accordingly done on the 5th day of December, 1892.

Thereafter, to wit, on the 4th day of December, 1894, the defendants filed their motion for a new trial, setting forth that wrong and injustice bad been done tbe United States by reason of tbe judgment so rendered in tbis :

“1. Suit may not be maintained nor judgment rendered against tbe Sioux Indians as a tribe.
112. Tbe depredation wbicb forms tbe basis of tbis suit was not committed by tbe Sioux tribe of Indians.
“3. Tbe Secretary of tbe Interior was without authority to allow said claim.
' “4. Tbe stipulation for judgment was without authority of law.
“5. In entering judgment pro forma tbe court was without jurisdiction, and said judgment operates as a wrong and injustice to tbe United States and tbe other defendants.”

By tbe Act March 3, 1891 (supra), under wbicb tbis suit was brought, section 3 provides “that all claims shall be presented to tbe court by petition, setting forth in ordinary and concise language, without unnecessary repetition, tbe facts upon wbicb such claims are based, tbe persons, classes of persons, tribe or nation or band of Indians by whom tbe alleged illegal acts were committed, as near as may be.”

And in tbe petition it is averred that tbe property for wbicb compensation is sought “ was taken by Indians belonging to tbe Sioux tribe or nation then in amity with tbe United States,” and judgment was rendered against tbe Sioux tribe, band, or . nation of Indians in accordance with tbe agreed stipulations filed.

Tbe defendants contend that tbe Sioux Indians, as a tribe or nation bad no recognized political entity or corporate existence at the date of the depredation complained of and have not since bad, and are therefore not suable.

Tbe Sioux are by far tbe most numerous of any tribe or nation of Indians in tbe United States, numbering over 40,000, or perhaps one-sixth of all tbe Indians in tbe United States, and while tbe nation is composed of different tribes or bands, they have always been recognized by tbe political departments of tbe Government as belonging to tbe Siouan family or race.

Tbe common designation or name Sioux appears in all tbe treaties with tbe United States, whether made with them as a nation or with tbe different, tribes or bands composing the nation.

Whatever other name is used or referred to in tbe treaties to identify them locally, tbe common or family name Sioux is also invariably used, and by this name they have been identified from the first'.

The defendants’ counsel has obliged us with a list of the treaties made with these Indians, which we have verified and found to be correct, the first of which was negotiated in 1805 with “ the Sioux nation of Indians.” This treaty, though it does not ap'pear to have been ratified, was published by the Bureau of Indian Affairs in a volume entitled Compilation of Indian Laws, page 316.

Subsequent to this time treaties were proclaimed with them as tribes, bands, or nation, as will appear from the following:

“Sioux’s of the Lakes, December 26, 1815. (7 Stat. L., 126.)
“ Siouxs of the Biver St. Peter, December 26, 1815. (7 Stat. L., 127.)
“Siouxs of the Leaf, the Siouxs of the Broad Leaf, and the Siouxs who Shoot in the Pine Tops, December 30, 1816. (7 Stat. L., 143.)
“Teton, Yancton, and Yanetonais tribes of the Sioux, February 6, 1826. (7 Stat. L., 250.)
“ Sioune and Ogallala bands of Sioux Indians, February 6, 1826. (7 Stat. L., 252.)
“Huncpapas band of the Sioux Indians, February 6, 1826. (7 Stat. L., 257.)
“ Sioux in Michigan, February 6,1826. (7 Stat. L., 272.)
“Medawakanton, Wakpacoota, Wakpeton, and Sissetong bands or tribes of the Sioux Indians, February 24, 1831. (7 Stat. L., 328.)
“Wahaskaws of the Sioux tribe of Indians, February 15, 1837. (7 Stat. L., 510.)
“Yankton and Santee bands of Sioux Indians, February 15, 1837. (7 Stat. L., 524.)
“Sioux of the Mississippi Valley, June 15, 1838. (7 Stat. L., 538.)
“Yankton tribe of Sioux Indians, February 21,1838. (7 Stat. L., 542.)
“Med ay wa kan toan and Wak pay koo tay bands of Dakota or Sioux Indians, of Minnesota, August 5, 1851. (10 Stat. L., 954.)
“ See see toan and Wah pay toan bands of Dakota or Sioux Indians, August 5, 1851. (10 Stat. L., 949.)
“ Yancton tribe of Sioux or Dakotah Indians, February 26, 1859 (11 Stat. L., 743.)
“ Mendawakanton and Wahpakoota bands of Dakota or Sioux tribe of Indians, March 31,1859. (12 Stat. L., 1031.)
“Sisseeton and Wahpaton bands of the Dakota or Sioux tribe of Indians, March 31, 1859. (12 Stat. L., 1037.)
“Minneconjou band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 695.)
“Lower Brulé baud of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 699.)
“ Two Kettles band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 723.)
“ Blackfeet band of Dakota or Sioux Indians, March 17, 1877. (14 Stat. L., 727.)
“Sans Arcs band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 731.)
“Yanktonai band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 735.)
“ Onkpahpah band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 739.)
“Upper Yanktonais band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 743.)
“ O’Gallala band of Dakota or Sioux Indians, March 17, 1866. (14 Stat. L., 747.)
“ Sissiton and Warpeton bands of Dakota or Sioux Indians, May 2, 1867. (15 Stat. L., 505.)
“ Brulés, O’Gallalas, Minneconjons, Yanetonais, Uncpapas, Blackfeet, Two Kettles, Cut Heads, Santee, and Sans Arcs bands of the Sioux Nation of Indians, February 16, 1869. (15 Stat. L., 635.)”

Referring to these treaties with the separate bands of the Sioux Indians, the Commissioner of Indian Affairs in his report for 1891 (vol. 1, p. 187) says:

“These treaties with scattered portions of the Sioux seem to have produced little result, and prolonged war with the tribe over large sections of country was brought to a close only by the well-known treaty at Fort Laramie, in 1868, with representatives of the Sioux Nation as a whole, except that portion which has always remained in the region of Montana.” * * *

This is the last of the treaties referred to in the foregoing-list.

* By article 2 thereof a common reservation was set apart to them and by the terms of article 17 all treaties theretofore entered into between the respective parties, whereby the United States were obligated to provide money, clothing, or other articles of property to such Indians, were thereby abrogated and annulled, but no further.

By this treaty “with the representatives of the Sioux Nation,” i. e., the chiefs and headmen of the “different bands of the Sioux Nation of Indians,” they are recognized in their dual capacity as a nation and as separate bands composing the nation. And when that national or tribal relation has been established by the political departments the courts are bound by it. (United States v. Holliday, 3 Wall., 407.) Not that Indians under treaty relations only are suable under tbe act 1891, but that by such treaties the relations of the Indian's in their organized or tribal capacity is thereby fixed and recognized. (Kansas Indians, 5 Wall., 737.)

Therefore, we think it clear that under the Indian Depredation Act, March 3, 1891 (supra), suit may be maintained against the Sioux Indians as a tribe or nation; and if in such suit the evidence should show that the depredation was committed by Indians belonging to such tribe or nation, without more particular identification, we think a judgment may properly be rendered against them as a tribe or nation.

The defendants further and perhaps principal contention narrowed down is, that where the evidence shows, as in this case, that the depredation complained of was committed by a band of Indians, recognized as such by treaty, suit may not be maintained or judgment rendered against the tribe or nation of which such band is a part, though such tribe or nation is a party defendant, but that such band should, by name, be made a party defendant with the United States, and judgment, if at all, be so rendered.

This involves the question as to whether or not the various bands composing the tribe or nation of Indians are in court for the purpose of a judgment when the tribe or nation of which they are a part is made a defendant.

In support of this contention counsel cites the Woolverton Case (29 C. Cls. R., 107). In that case the Nez Perces tribe was the only defendant joined with the United States, while the Indians who comjnitted the depredation were Joseph’s band of Nez Perces Indians, then in a state of war and actual hostilities with the United States, and hence the petition was properly dismissed if there had been no other reason therefor.

But on examining the findings it will be seen that while Joseph’s band was a part of the tribe at the time of the treaty of 1855 and down to the treaty of 1863, they severed their connection with the tribe at the latter date, refused to become parties to the treaty, and have since been recognized by the President and by the Secretary of the Interior as a separate and distinct tribe, receiving no benefits under treaty provisions with the Nez Perces tribe, having no interest in their reservation in Idaho, and occupying a reservation set apart to them in a different State (Washington).

This finding (3) is tbe justification for tbe court’s statement in tbe opinion at page 110:

“Tbe defendant Indians are not liable, because they did not commit tbe depredation. Tbe United States are not liable, because tbe Indians wbo committed tbe depredation, and wbo were perfectly well known, bave not been made parties to tbe suit. It is a fatal misjoinder of tbe responsible party.”

There is nothing in the' case to warrant the inference that if other Indians recognized as members of tbe tribe bad committed tbe depredation judgment would not bave been rendered against tbe tribe.

In tbe Leighton Case (id., 288-330) tbe Ogallala band, against whom judgment was rendered, was with other bands and tribes ■made defendants, and judgment was rendered against tbe band, distinct from tbe tribe of which it was a member, for tbe reasons stated in tbe opinion of tbe court:

“Tbe defendant, tbe Ogallala band of tbe Sioux tribe of Indians, having been in separate treaty relations with tbe United States at tbe time of tbe depredation set forth in tbe findings, and Congress having, by the act of 1891, recognized such band in the jurisdictional requirements of the act as to amity, we think it was intended by Congress that the band should be held liable for tbe value of tbe piroperty so taken, notwithstanding tbe provisions of sections 5 and 6 of tbe act concerning judgments against the tribe. . And especially do we think this correct since all tbe other bands of tbe tribe may bave been engaged in war at tbe time of tbe depredation, and for that reason not in amity with tbe United States. Where tbe political departments of tbe Government -have recognized a band for tbe purpose of a treaty and provided therein for the payment of annuities to such band separate and distinct irom tbe annuities paid to tbe tribe or other bands of tbe tribe,, we think it a sufficient recognition of tbe band to warrant a judgment against it.”

Tbe evidence shows that tbe depredation complained of was committed by tbe Minneconjou band of Sioux Indians on tbe 9th of September, 1872.

Prior thereto, to wit, March 17, 1866 (14 Stat. L., 695), as set forth in tbe foregoing list, a treaty was proclaimed between tbe United States and tbe Minneconjou band of tbe Dakota or Sioux Indians, whereby they acknowledged themselves subject to tbe exclusive jurisdiction and authority of the United States, and bound themselves not only to cease all hostilities against the citizens of the United States, but to use their influence, with force if necessary, to prevent other tribes from making hostile demonstrations; and if controversies involving peace or war with other tribes should arise they obligated themselves to submit the same for decision to the President.

The band also agreed to withdraw from the routes overland already established or to be thereafter established, “and in consideration thereof the Government'of the United States agree to pay said band the sum of $10,000 annually for twenty years, in such articles as the Secretary of the Interior may direct.”

By reference to the last treaty (1868), which is referred to in the above list (15 Stat. L., 635), it will be seen that the Minneconjou band was one of the ten bands of the Sioux Nation of Indians who signed that treaty on behalf of themselves and of the nation of which they are a part.

By article 17 of this treaty so much of the treaty of 1866 as obligated the United States to furnish and provide money, clothing, or other articles of property to the Minneconjou band, as before stated, was abrogated and annulled, but no further.

So that in effect the separate treaty with the band was otherwise continued in force.

By article 10 the United States agreed that in lieu of all sums of money or other annuities provided for by former treaties (1866) certain clothing therein specified should be furnished to each Indian, and in addition thereto the sum of $10 for each person entitled to the beneficial effects of the treaty for the period of thirty years for such as roam and hunt, and $20 per year to those who engage in farming, etc.

The Minneconjou band of the Sioux Nation of Indians, therefore, has been recognized by the political departments of the Government both by separate treaty and with other bands composing the Sioux Nation.

The Indians being subject to the jurisdiction and control of the United States as “ domestic dependent nations,” they have no standing in the courts either as plaintiff or defendant except by statute, and under the act 1891, then only with the strong arm of the United States, as was held substantially in the Jaeger Case (27 Cls. R., 278).

The act makes the Attorney-General their sole legal adviser in all proceedings thereunder, unless, with the consent of the Commissioner of Indian Affairs, they employ counsel to assist him, as provided by the second proviso to section 4.

No notice is required to be served on the Indian defendants except through the Attorney-General, though by section 3 claimants are-required to state in their petitions the “tribe or bands of Indians by whom the alleged illegal acts were committed, as near as may be.”

Section 4 provides that “ the service of the petition shall be made upon the Attorney-General of the United States in such manner as may be provided by the rules or orders of said court,” and when service bas been so had it is made “ the duty of the Attorney-General of the United States to appear and defend the interests of the Government and of the Indians in the suit.”

When a claimant has complied with the provisions of section 3, by averring “the persons, classes of persons, tribe or tribes or bands of Indians by whom the alleged illegal acts were committed, as near as may be,” he has thereby made snch Indians parties defendant for the purpose of a judgment within the meaning of the act 1891; and such averment is sufficient notice to the Attorney-General as to the Indians whose interests the act makes it his duty to defend.

“The interests of the Government and of the Indians in the suit” are so linked together that if fraud, wrong, or injustice has been done the tribe, band, or nation in any judgment rendered against them and the United States, such fraud, wrong, or injustice will necessarily apply to the United States, as by the act it is not only made the 'duty of the Attorney-General to defend the interests of such Indians, but thereby the United States assume jointly with them existing liability and maybe required to pay the whole judgment, as set forth in section 6.

The judgment as it stands, though rendered in the alternative, makes all the bands composing the Sioux Nation liable for the payment thereof, although but one of them committed the depredation.

If all the other bands of the nation had been engaged in actual war against the United States at the time of the depredation, it is clear that under the former decisions of this court, to which we adhere, judgment against them, either as a nation, tribe, or as bands, would be erroneous; and if such bands had been in amity with the United States, while the band to which the depredating Indians belong was engaged in actual war, no judgment could be rendered against either.

And if in a suit brought it should be averred in the petition that the depredation was committed by Indians belonging to an unknown tribe or nation, and the evidence should identify a particular band as responsible for such depredation, though engaged at the time in actual war, the petition would have to be dismissed, although nine other bands belonging to the same tribe or nation were in amity with the United States.

The nation can not be. held liable for the illegal acts of the tribe, nor the tribe for the illegal acts of the band, when the Indians committing the depredation can be identified as belonging to a particular tribe or band.

As was said in the Leighton Case (supra), “Congress having by the act 1891 recognized such band in the jurisdictional requirements of the act as to amity, we think it was intended by Congress that the band should be held liable for the value of the property so taken, notwithstanding the provisions of sections 5 and 6 of the act concerning judgments against the tribe.”

In view of the evidence in the case which identifies the particular band responsible for the depredation, and what we have said, it follows that the judgment, though valid, is technically defective, as to the defendant Indians in this, that the Sioux tribe or nation of Indians therein referred to should have been designated as “the Minneconjou band of the Sioux Nation of Indians.”

But at this point the defendant’s counsel contends that the correction can only be made by setting aside the judgment, and that then judgment can not be rendered against the band as indicated without an amendment to the petition making the band a party defendant by name, and that, inasmuch as the time provided by the second proviso to section 2 within which to file a petition has expired, it is now too late to so amend.

Ordinarily, this contention would be well taken, but iu view of the peculiar relations of the Indians to the United States, whose financial trustee they are, and their recognition by the political departments of the Government as a nation of Indians ■composed of different bands; and from what we have already ■said, we think that under the act when the tribe or nation is made a defendant, as in this case, the different bands named in the treaty as composing the nation are brought into court as defendants and are duly represented by the Attorney-General; and that when the evidence, as in this case, identifies the particular band belonging to and forming a part of such tribe or nation as responsible for the depredation, the Attorney-General is thereby informed of the fact, and judgment may be rendered against the band without further amendment.

In the condition of this case, however, we do not think it necessary to set aside the judgment and then render judgment anew against the United States and the Minneconjou band of the Sioux Nation of Indians, as the judgment already rendered includes such band; and we think the technical defect may be reached by adding an additional finding- of fact with reference thereto, thereby segregating the responsible band for the information and guidance of the Department in carrying out the provisions of section 6 of the act.

This course will, we think, effectuate the purpose of the act in giving claimants their day in court and at the same time protect “ the interests of the Government and of the Indians in the suit.”

The claimants look to the United States rather than to the Indians for the payment of any judgments rendered in their favor; and, inasmuch as the liability of the United States, though secondary, depends upon the citizenship of the claimants and the amity of the Indians committing the depredation, they will, in the payment of such judgments, always be in position to protect themselves to the extent of any money due or to become due to such Indians as provided in section 6.

In many cases, however, judgments against the Indians will amount only to a means of identifying them for future adjustment, as they are without means; and appropriations “for their current and necessary support, subsistence, and education” can not be used for the payment of such judgments. However, these are matters of bookkeeping in the Treasury Department.

On the argument of the motion for a new trial the defendant’s counsel did not controvert the citizenship of the claimant, the amity of the Indians, nor the value of the property represented by the judgment, and neither is assigned as a reason for a new trial; and therefore it is immaterial to inquire as to whether or not the Secretary of the Interior had authority to examine and allow the claim under the act March 3, 1885, for, if the judgment is otherwise correct, though technically defective as to the particular Indians against whom the judgment is rendered, it will not be disturbed on that ground.

Having reached the conclusion we have, the motion for a new trial is hereby overruled.

The judgment as rendered is to stand, with the additional finding of fact specified in the order of the court this day filed.  