INDIAN AFFAIRS: LAWS AND TREATIES. Vol. 1, Laws

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1904.

ACTS OF FIFTY-FIRST CONGRESS—SECOND SESSION, 1891.
CHAP. 383 | CHAP. 517 | CHAP. 538

Chapter 538
Sections 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13

Margin Notes
Chap. 538	Indian depredation claims.
Chap. 538	Court of Claims authorized to adjudicate—
Chap. 538	— claims for property taken by Indians in amity. Rev. Stat., 2156. 161 U. S., 291, 297; 160 U. S., 546.
Chap. 538	— claims examined and allowed.
Chap. 538	— claims heretofore authorized to be examined under certain acts. 164 U. S., 686; 173 U. S., 77, 79.
Chap. 538	Offsets and counter claims.
Sec. 2	Limitations waived.
Sec. 2	No claims to be considered accruing before July 1, 1865, unless heretofore presented, with evidence. Rev. Stat., 445, 466, 2156.
Sec. 2	Petitions to be presented within three years.
Sec. 2	Future depredations not included.
Sec. 3	Petition what to contain. Rev. Stat., 1072.
Sec. 4	Service of petition upon Attorney-General, who shall defend the Government and Indians.
Sec. 4	Pleadings to be filed by Attorney-General within sixty days.
Sec. 4	On failure of Attorney-General to plead, claimant may proceed, but no judgment without proof.
Sec. 4	Indians may employ special attorney. 173 U. S., 79. 35 C. Cls. 36.
Sec. 4	Papers on file may be read as evidence.
Sec. 4	Certain allowed claims to have priority.
Sec. 4	Judgments for amounts found due unless either party re-opens.
Sec. 4	Burden of proof, if case reopened.
Sec. 5	Rules for taking testimony to be made by court. Rev. Stat., 1075-1085.
Sec. 5	Parties made competent. 1887, Mar. 2, c. 359, s. 8, 24 Stat. 505.
Sec. 5	Judgment to be rendered against the United States and Indians.
Sec. 6	Judgment to be charged against tribe.
Sec. 6	Payment made, from what funds.
Sec. 6	Payments from Treasury to remain a charge against Indians.
Sec. 7	Judgments final. Rev. Stat., 1092, 1093.
Sec. 8	List of judgments to be sent to Congress.
Sec. 9	Sales and attorneys’ contracts declared void.
Sec. 9	Warrants for judgments to be payable and delivered to claimants, except amount allowed attorneys.
Sec. 9	Maximum allowance to attorneys.
Sec. 10	Appeal. R. S., 707, 708.
Sec. 11	Papers. etc., in Departments and before Congress to be furnished the court. R. S., 1076.
Sec. 12	Additional Assistant Attorney-General to be appointed. R. S., 348.
Sec. 13	Investigation under acts heretofore in force to cease.
Note b	Indian depredation.
Note b	Secretary of Interior to make list of claims pending and report to Congress.
Note b	— to investigate claims.
Note b	Investigation continued.
Note b	— to include claims, if any, barred.
Note b	Report to Congress.
Note b	Investigation continued.
Note b	— to include claims, if any, barred.
Note b	Report to Congress.
Note b	Investigation continued.

Chapter 538
Mar. 3, 1891. | 26 Stat., 851.

An act to provide for the adjudication and payment of claims arising from Indian depredations.

Be it enacted, &c., That in addition to the jurisdiction which now is, or may hereafter be, conferred upon the Court of Claims, said Court shall have and possess jurisdiction and authority to inquire into and finally adjudicate, in the manner provided in this act, all claims of the following classes, namely:

First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation, in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.

Second. Such jurisdiction shall also extend to all cases which have been ^a examined and allowed by the Interior Department.

See note ^a, post p. 61.

And also to such cases as were authorized to be examined under 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 thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject however to the limitations hereinafter provided.^b

See note ^b, post p. 61.

Third. All just offsets and counter claims to any claim of either of the preceding classes which may be before such court for determination.

That all questions of limitations as to time and manner of presenting claims are hereby waived, and no claim shall be excluded from the jurisdiction of the court because not heretofore presented to the Secretary of the Interior or other officer or department of the Government:

Provided, That no claim accruing prior to July first, eighteen hundred and sixty-five, shall be considered by the court unless the claim shall be allowed or has been or is pending, prior to the passage of this act, before the Secretary of the Interior or the Congress of the United States, or before any superintendent, agent, sub-agent or commissioner, authorized under any act of Congress to enquire into such claims; but no case shall be considered pending unless evidence has been presented therein:

And provided further, That all claims existing at the time of the taking effect of this act shall be presented to the court by petition, as hereinafter provided, within three years after the passage hereof, or shall be thereafter forever barred:

And provided further, That no suit or proceeding shall be allowed under this act for any depredation which shall be committed after the passage thereof.

That all claims shall be presented to the court by petition setting forth in ordinary and concise language, without unnecessary repetition, the facts upon which such claims are based, the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be, the property lost or destroyed, and the value thereof, and any other facts connected with the transactions and material to the proper adjudication of the case involved. The petition shall be verified by the affidavit of the claimant, his agent, administrator, or attorney, and shall be filed with the clerk of said court. It shall set forth the full name and residence of the claimant, the damages sought to be recovered, praying the court for a judgment upon the facts and the law.

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. It shall be 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, and within sixty days after the service of the petition upon him, unless the time shall be extended by order of the court made in the case, to file a plea, answer or demurrer on the part of the Government and the Indians, and to file a notice of any counterclaim, set-off, claim of damages, demand, or defense whatsoever of the Government or of the Indians in the premises:

Provided, That should the Attorney-General neglect or refuse to file the plea, answer, demurrer, or defense as required, the claimant may proceed with the case under such rules as the court may adopt in the premises; but the claimant shall not have judgment for his claim, or for any part thereof, unless he shall establish the same by proof satisfactory to the court;

Provided, That any Indian or Indians interested in the proceedings may appear and defend, by an attorney employed by such Indian or Indians with the approval of the Commissioner of Indian Affairs, if he or they shall choose so to do.

In considering the merits of claims presented to the court, any testimony, affidavits, reports of special agents or other officers, and such other papers as are now on file in the departments or in the courts, relating to any such claims, shall be considered by the court as competent evidence and such weight given thereto as in its judgment is right and proper:

Provided, That all unpaid claims which have heretofore been 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 thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and subsequent Indian appropriation acts, shall have priority of consideration by such court.

And judgments for the amounts therein found due shall be rendered, unless either the claimant or the United States shall elect to re-open the case and try the same before the court, in which event the testimony in the case given by the witnesses and the documentary evidence, including reports of Department agents therein, may be read as depositions and proofs:

Provided, That the party electing to re-open the case shall assume the burden of proof.

That the said court shall make rules and regulations for taking testimony in the causes herein provided for, by deposition or otherwise, and such testimony shall be taken in the county where the witness resides, when the same can be conveniently done,

And no person shall be excluded as a witness because he is party to or interested in said suit, and any claimant or party in interest may be examined as a witness on the part of the Government;

That the court shall determine in each case the value of the property taken or destroyed at the time and place of the loss or destruction, and, if possible, the tribe of Indians or other persons by whom the wrong was committed, and shall render judgment in favor of the claimant or claimants against the United States, and against the tribe of Indians committing the wrong, when such can be identified.

That the amount of any judgment so rendered against any tribe of Indians shall be charged against the tribe by which, or by members of which, the court shall find that the depredation was committed, and shall be deducted and paid in the following manner:

Second, if no annuities are due or available, then from any other funds due said tribe from the United States, arising from the sale of their lands or otherwise;

Third, if no such funds are due or available, then from any appropriation for the benefit of said tribe, other than appropriations for their current and necessary support, subsistence and education;

And, fourth, if no such annuity, fund, or appropriation is due or available, then the amount of the judgment shall be paid from the Treasury of the United States:

Provided, That any amount so paid from the Treasury of the United States shall remain a charge against such tribe, and shall be deducted from any annuity, fund or appropriation hereinbefore designated which may hereafter become due from the United States to such tribe.

That all judgments of said court shall be a final determination of the causes decided and of the rights and obligations of the parties thereto, and shall not thereafter be questioned unless a new trial or rehearing shall be granted by said court, or the judgment reversed or modified upon appeal as hereafter provided.

That immediately after the beginning of each session of Congress the Attorney-General of the United States shall transmit

to the Congress of the United States a list of all final judgments rendered in pursuance of this act, in favor of claimants and against the United States, and not paid as hereinbefore provided, which shall thereupon be appropriated for in the proper appropriation bill.

That all sales, transfers, or assignments of any such claims heretofore or hereafter made, except such as have occurred in the due administration of decedent’s estates, and all contracts heretofore made for fees and allowances to claimants’ attorneys are hereby declared void,

And all warrants issued by the Secretary of the Treasury, in payment of such judgments, shall be made payable and delivered only to the claimant or his lawful heirs, executors or administrators or transferee under administrative proceedings, except so much thereof as shall be allowed the claimant’s attorneys by the court for prosecuting said claim, which may be paid direct to such attorneys, and the allowances to the claimant’s attorneys shall be regulated and fixed by the court at the time of rendering judgment in each case and entered of record as part of the findings thereof;

But in no case shall the allowance exceed fifteen per cent. of the judgment recovered, except in case of claims of less amount than five hundred dollars, or where unusual services have been rendered or expenses incurred by the claimant’s attorney, in which case not to exceed twenty per cent. of such judgment shall be allowed by the court.

That the claimant, or the United States, or the tribe of Indians, or other party thereto interested in any proceeding brought under the provisions of this act, shall have the same rights of appeal as are or may be reserved in the Statutes of the United States in other cases, and upon the conditions and limitations therein contained. The mode of procedure in claiming and perfecting an appeal shall conform, in all respects, as near as may be, to the statutes and rules of court governing appeals in other cases.

That all papers, reports, evidence, records and proceedings now on file or of record in any of the departments, or the office of the Secretary of the Senate, or the office of the Clerk of the House of Representatives, or certified copies of the same, relating to any claims authorized to be prosecuted under this act, shall be furnished to the court upon its order, or at the request of the Attorney-General.

To facilitate the speedy disposition of the cases herein provided for, in said Court of Claims, there shall be appointed, in the manner prescribed by law for the appointment of Assistant Attorney-Generals, one additional Assistant Attorney-General of the United States, who shall receive a salary of twenty-five hundred dollars per annum.

That the investigation and examinations, under the provisions of the acts of Congress heretofore in force, of Indian depredation claims, shall cease upon the taking effect of this act, and the unexpended balance of the appropriation therefor shall be covered into the Treasury, except so much thereof as may be necessary for disposing of the unfinished business pertaining to the claims now under investigation in the Interior Department, pending the transfer of said claims and business to the Court or courts herein provided for, and for making such transfers and a record of the same, and for the proper care and custody of the papers and records relating thereto. [March 3, 1891.]

^aSee Revised Statutes, 445, 446, 2098, 2156, 2157, and the acts cited in the following note.

^bThe provision referred to in the act of 1885, March 3, chapter 341 (23 Stat., 376), is as follows:

“Indian depredation claims. For the investigation of certain Indian depredation claims, ten thousand dollars, and in expending said sum the Secretary of the Interior shall cause a complete list of all claims heretofore filed in the Interior Department whole or in part and now remain unpaid, and also all such claims as are pending but not yet examined, on behalf of citizens of the United States on account of depredations committed, chargeable against any tribe of Indians by reason of any treaty between such tribe and the United States, including the name and address of the claimants, the date of the alleged depredations, by what tribe committed, the date of examination and approval, with a reference to the date and clause of the treaty creating the obligation for payment, to be made and presented to Congress at its next regular session;

“And the Secretary is authorized and empowered, before making such report, to cause such additional investigation to be made and such further testimony to be taken as he may deem necessary to enable him to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid, and by what tribe such depredations were committed; and his report shall include his determination upon each claim, together with the names and residences of witnesses and the testimony of each, and also what funds are now existing or to be derived by reason of treaty or other obligation out of which the same should be paid.” Subsequent Indian appropriation acts contain the following provisions: 1886, May 15, chapter 333 (24 Stat., 44):

“Indian depredation claims: For continuing the investigation and examination of certain Indian depredation claims originally authorized, and in the manner therein provided for, by the Indian appropriation act approved March third, eighteen hundred and eighty-five, twenty thousand dollars;

“And the examination and report shall include claims, if any, barred by statute, such fact to be stated in the report;

1887, March 2, chapter 320 (24 Stat., 464):

“And all claims whose examinations shall be completed by January first, eighteen hundred and eighty-seven, shall then be reported to Congress, with the opinions and conclusions of the Commissioner of Indian Affairs and the Secretary of the Interior upon all material facts, and all the evidence and papers pertaining thereto.”

“And the examination and report shall include claims, if any, barred by statute, such fact to be stated in the report:

“And all claims whose examination shall be completed by January first, eighteen hundred and eighty-eight, shall then be reported to Congress, with the opinions and conclusions of the Commissioner of Indian Affairs and the Secretary of the Interior upon all material facts, and all the evidence and papers pertaining thereto.”

1888, June 29, chapter 503 (25 Sta., 234):

“For continuing the investigation and examination of certain Indian depredation claims, originally authorized, and in the manner therein provided for, by the Indian appropriation acts approved March third, eighteen hundred and eighty-five, and March second, eighteen hundred and eighty-seven, twenty thousand dollars.”

This is repeated in the same words by 1889, March 2, chapter 412 (25 Stat., 998); 1890, August 19, chapter 807 (26 Stat., 356); and 1891, March 3, chapter 543 (26 Stat., 1009).