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MARKS v. UNITED STATES.

decided: March 2, 1896.

MARKS
v.
UNITED STATES.



APPEAL FROM THE COURT OF CLAIMS.

Author: Brewer

[ 161 U.S. Page 299]

 MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

This case, like that of Johnson v. United States, 160 U.S. 546, recently decided, involves a construction of the Indian Depredation Act of March 3, 1891. The particular language to be considered is that found in the first clause of the act, which grants to the Court of Claims jurisdiction over claims for property "destroyed by Indians belonging to any band, tribe, or nation, in amity with the United States." The seventh finding negatives the existence of amity, and if this stood alone there would be no room for discussion. But, as appears from its terms, it is based upon a series of facts stated in detail in prior findings, and is also to be taken in connection with the treaty entered into between the United States and the Bannock tribe of Indians of July 3, 1868, 15 Stat. 673, which contains, among other provisions, the following:

"If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, on proof made to their agent and notice by him, deliver up the wrongdoer to the United States, to be tried and punished according to its laws; and in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the President, on advising with the Commissioner of Indian Affairs, shall prescribe such rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no such damages shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of Indian Affairs, and no one sustaining loss while violating or because of his violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor."

[ 161 U.S. Page 300]

     Turning to the prior findings, it is stated in the second that "the Bannock and Piute Indians made a raid" in which the property in controversy was destroyed, and also that "the Indians numbered between five hundred and six hundred, and were in a body or band moving in concert, having the form of the Indian military organization." Other findings (which consist largely of telegrams and reports from various officers of the army and other officials, narrating at length a series of military operations during the years 1877 and 1878, which documents are by section 4 of the act of 1891 made competent evidence, and which are too voluminous to be copied into this opinion) show that what was done by the Indians was done by them as tribes, and not by a single individual, or a few in opposition to the will of the tribes. They show that these Indians were actually engaged in hostility, and that they were finally conquered and captured only by the military forces of the United States. Indeed, counsel for the claimants practically admit this, for in their brief it is stated "that at various times in the spring of 1878 small bands left the reservation for the sake of obtaining food, until finally the majority of the tribe were absent; that in the month of June, 1878, the absentees began killing white people, after which date the several bodies of Indians carried on a raid over a large area in Idaho and Oregon, which was finally checked by the efforts of troops of the United States; that the troops were more or less actively engaged in suppressing the outbreak until the latter part of August, 1878; and that the Indians were captured and returned to their reservation shortly after the last-named date."

Their contention is rather that actual hostilities may exist without war between two nations; that war is a political status, and to be determined by the political department of the government, by matter of record, and never by oral testimony; that it is not pretended that there was ever any formal declaration of war by either the Bannock tribe of Indians or the United States government; that, therefore, the political relations established by the treaty of 1868 continued during all these hostilities, and the tribe was "in amity with the

[ 161 U.S. Page 301]

     United States;" and further, that subject and dependent people, like the Bannock Indians, are not capable of making war with the United States. In support of this contention is cited a number of declarations of publicists and decisions of courts, such as the following from Chancellor Kent: "But, though a solemn declaration, or previous notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration." 1 Bl. Com. 55. And this from People v. McLeod, 1 Hill, 377, 407: "A state of peace and the continuance of treaties must be presumed by all the courts of justice till the contrary be shown; and this is presumptio juris et de jure until the national power of the country in which such courts sit officially declares the contrary."

Without questioning these declarations and decisions as applied to the relations between independent nations, we think they avail but little in the solution of the question here presented. That question is, what limitation did Congress intend by the words "in amity with the United States." 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 a different scope. Webster defines it "friendship, in a general sense, between individual, 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

[ 161 U.S. Page 302]

     of "under treaty." A "treaty" implies political relations; "amity" signifies friendship, actual peace.

The phrase "in amity with the United States" is one of frequent use in the legislation of Congress in reference to Indians. In the early act of May 19, 1796, c. 30, 1 Stat. 469, it ...


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