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Depredation Claims and Liabilities of the United States to Indians
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Indian depredation claims are claims against Indians for depredations committed by them against whites or other Indians. These depredations began with the earliest white settlements, and claims under them have been a constant source of contention.
One of the most serious dangers that now threatens the reservation Indians is the allowance of claims against them for long past depredations said to have been committed on white men or other Indians.
Congress, while opening the Court of Claims to claimants, provides for defense by making an appropriation for the purpose under direction of the Department of Justice.
The Commissioner of Indian Affairs annually reports the condition of these claims. The following text and tables are from the Commissioner’s report for 1890, pages cxxvii-cxxxiii, except the last two tables and the accompanying text, which are from the Commissioner’s report for 1891, pages 115, 116:
The first of such legislation is found in the act of May 19, 1796 (1 United States Statutes, 472), which provided that if the Indians took or destroyed property the owner should present his claim to the superintendent or agent of the tribe charged, who would demand satisfaction from the Indians, if it was not made within 18 months, the superintendent or agent was to report the claim and his action thereon to the President; and, “in, the meantime in respect to the property so taken, stolen or destroyed, the United States guarantied to the party injured an eventual indemnification”, provided he did not seek private satisfaction or revenge. This act also provided for deducting the amount “out of the annual stipend which the United. States are bound to pay the tribe”; and, further, that the Indian charged might be arrested, etc. This and subsequent conciliatory acts also provided that if the property of n friendly Indian should be taken by a white man, the same should be paid for out of the Treasury of the United. States, provided the Indian did not seek private revenge.
The act “to regulate trade and intercourse with the different tribes and to preserve peace on time frontiers”, approved June 30, 1834 (4 United States Statutes, 749), not only re-enacted all the provisions above mentioned but restrained white people from going on to the reservations without a license from the agent or other person in charge. It also provided that claims against Indians should be barred unless presented for payment within 3 years from the date of the injuries complained of. The law stood thus until the act approved February 28,1859 (11 United States Statutes, 101), repealed that clause of the act of June 30, 1834 , which provided that indenmity should be made out of the Treasury of the United States, but left unchanged and unrepealed the obligation of the Indians to pay for hiss out of their annuities. By a joint resolution of June 25, 1860, Congress declared that this repeal should not he so construed as to destroy any right to indemnity which existed at the date of the same, that is, February 28, 1859, from which it would seem that claims originating prior to that time were not affected by the act of that date.
The act of July 15, 1870 (10 United States Statutes, 360), provided that no claim for Indian depreciations should be paid in future except by special appropriation by Congress. The act of May 29, 1872 (17 United States Statutes, 190), directed the Secretary of the Interior to prepare rules and regulations prescribing the manner of presenting-depredation claims under existing laws and treaties, and the kind and amount of testimony necessary to establish their validity, also to investigate the claims presented and report them to Congress at each session, whether allowed or not, together with the evidence on which his notion was based. Since this date this office has prepared these reports, and the work was done by its civilization and educational division until after the passage of the act of March 3, 1885; it was then transferred to the depreciations division, which, however, did not receive official designation as such until January 1, 1889.
A clause in the Indian appropriation act of 1885 (23 United States Statutes, 370) set aside $10,000 for the investigation of certain Indian depredation claims”. This .act provided (1) for making and presenting to Congress at its next session a complete list of all Indian depredation claims then on file; (2) for the investigation and report to Congress of depredation claims in favor of citizens of the United States, chargeable against any tribe of Indians by reason of treaty stipulations. The first port of this work was transmitted to Congress March 11, 1866 [1886), and is to be found in Executive Document No. 125, Forty-ninth Congress, first session.
To carry out the second requirement, the Secretary of the interior was authorized to cause such additional testimony to ho taken as would make it possible to form a just estimate of the kind and value of the property damaged or destroyed. For this purpose special agents were employed and sent to the scenes of the alleged depredations, and additional clerks were appointed in this office to report the claims to the department for transmittal to Congress as rapidly as investigated.
Much of the first year’s work was rendered useless for the following reason: the construction placed upon the act of March 3, 1885, by both the Indian bureau and the Department of the Interior, was that claims barred by tho limitation clause of the act of June 30, 1834 (4 United States Statutes 731, section 17), were not entitled to investigation on their merits; hence, they were simply examined to see whether they bad been filed “within 3 years from the commission of the injuries”, and if not, they wore briefly reported as “barred” and not entitled to consideration. When quite a number had been, thus disposed of, Congress, by the act approved May 15, 1886 (21 United States Statutes, 44), which appropriated $20,000 for continuing the investigation of the class of claims designated in the act of March 3, 1885, added the clause, “and the investigation and report shall include claims, if any, barred by statute, such fact to be stated in the report”. This change in the law necessitated the return from Congress or the department of all claims which had been reported as “barred” and not examined on their merits.
At the request of this office the assistant attorney general for the Interior Department rendered an opinion August 23, 1886, as to what claims were subject to investigation on their merits under the act of March 3, 1885, as amended by the act of May 15, 1886, This opinion was to the effect that two classes of claims came within the provisions of these acts: first, all claims on file March 3, 1885, in favor of persons who were citizens of the United States at the dates of the alleged depredations for losses at the hands of Indians whose tribe had a treaty with the United. States at the time of the losses, whether such claims were barred by statute or not; second, all claims’ growing oat of depredations committed since December 1, 1873, because the latter part of the seventeenth section of the act of June 30, 1834 (containing the limitation clause which barred claims if not filed within 3 years from the date of the depredation), was omitted from section 2156 of the Revised Statutes, which is a re-enactment of the first part of said seventeenth section. Thus, when the Revised Statutes went into effect December 1, 1873, the limitation clause was removed, and the bar being no longer operative, claims could be filed at any time, if for a depredation committed subsequent to that date. A recent decision, however, has placed December 1, 1870, instead of December 1, 1873, as the time subsequent to which claims may originate and still be entitled to investigation, for the reason that if the bar had not become complete by the expiration of the fall time to which it was limited, it was ineffectual and inoperative.
Under these decisions the claims on file have been classified as subject to consideration and not subject to consideration. The first class comprises 2 groups: one of claims on file March 3, 1885, whether barred or not; the other, claims filed since March 3, 1885, but for depredation committed since December 1, 1870. The latter class may be subdivided into 2 groups; one containing defects curable by the claimants, and the other defects curable only by statute. Both groups may be again subdivided into several classes.
Those defects curable by the parties are: (1) lack of proof in compliance with the department rules, which require that the evidence of 2 witnesses should support each claim, that the tribe which committed the alleged depredations shall be designated, and that the testimony shall have been taken before some officer duly authorized to administer oaths in such cases; (2) loss of material papers in the case when the claim has at some time been sent to an agent or to Congress, or where the papers have been returned to claimant, his agent, or attorney for amendment and never raffled. The claims with defects curable only by statute are: (1) those for depredations committed prior to December 1, 1870, and not on file March 3, 1885; (2) those in favor of citizens, but for depredations committed by Indians not in treaty relations; (3) those in favor of Indians because of depredations by other Indians or by white neon; and (4) those in favor of White persons not citizens of the United States.
The records do not show that any depredation claims were filed in this office prior to 1849, up to which time the bureau was a part of the War Department, although it is possible that some may have been so filed. If so, we record of them has never been transmitted here. During the last 40 years, or since this bureau was transferred to the Interior Department, over 6,000 claims have been presented, but the government has not carried out its oft repeated guaranty of “eventual indemnification” in even 300 of then, From 1798 to 1859 there was an implied. contract on the part of the government to pay its citizens for property lost by Indian depredations ” out of any money in the Treasury not otherwise appropriated”, and from 1859 to 1870 the obligation still rested on the government to deduct the amount of properly established claims from the annuities due the tribes charged with the depredations; but only a few of these claims have been paid or otherwise adjudicated.
The number so disposed of was stated in my last report as 54, aggregating $218,190.10, but this number included only such claims as had been paid by act of Congress and were mentioned in the acts providing for their payment.
A thorough examination of the office records shows that 220 other claims have been at various times before May 99, 1872, referred by the Department of the Interior to the second auditor for settlement, and it is presumed that these have been paid either directly from the Treasury or from the annuities due the tribe of Indians charged with the depredation, so that the number of claims which have been filed and are no longer pending may be stated with tolerable accuracy as 274, aggregating $784,268.42, on which $134,570,93 was allowed.
When the act of March 3, 1885, was passed there were on file in this office 3,846 Indian depredation claims, involving it total of nearly $14,000,000. Between that time and the close of the fiscal year ending June 30, 1885, there were filed 93 claims, involving neatly $900,000, so that, as shown in my last report, there were on file June 30, 1885, 3,939 claims, aggregating $14,879,088.
Owing to the great amount of work required to prepare ‘the list of claims which are found in Executive Document No. 125, as heretofore explained, and the fact that many of those reported under the act of March 3, 1885, as being “barred ” had to be reinvestigated under the amended act of May 15, 1886, the real work of reporting claims for submission to Congress in pursuance of the above acts did not begin until about June 30, 1886, and those reported since then have been sent to Congress regularly in January of each year.
The following tables will show the number of claims filed and disposed of those subject to investigation and those which can be rendered subject to investigation under existing laws, the number embraced in each of the 4 classes where the defects are curable only by statute, and the total amount involved in each class:
I have not included these tables here, the totals are:
6,053 Claims for $20,922,939
1,371 claims, $1,640,017.33 allowed, $4,612,553.07, amount claimed.
2,293 Claims, $5,172,017.35 claimed
2,380 Claims, $11,138,368.53 claimed.
Class (c) need not be subdivided into the groups previously mentioned for the reason that in many instances if the papers were returned from Congress, the Indian agent, the claimant or his attorney, they would still be found defective in some way, and would have to he placed in another subdivision of the same class,
Class (d) is subdivided as follows:
1,809 Claims, $6,557,480.95 Amount Involved.
During the fiscal year ending June 30, 1890, 124 claims subject to investigation, involving over a half million dollars, were placed on file; 435 claims not subject to investigation, involving over a million dollars, were also filed and are included.
When the act of March 3, 1885, became a law there were on file in this office 3,574 claims, omitting those previously paid or otherwise disposed of, and although 1,097 claims have been reported to the department, and 2 have been paid, there were still pending June 30, 1890, 4,682 claims, an increase of 1,108. Of these 4,682 only 580 require amendments, which the claimants can make, and it is submitted that the remaining 4,102 are all entitled to consideration under existing law.
Total Claims investigated in a 6 year period 1885-1890, 1,054
It was shown in my last report that during the fiscal year ending June 30, 1889, 202 claims, involving $881,107, wore reported to the department. During the fiscal year ending June 30, 1890, 289 claims, involving $1,214,825.65, have been so reported.
Much difficulty has been experienced in communicating with claimants, especially where the claims originated nearly half a century ago, and considerable time has been taken up with this branch of the work. That it has resulted in bringing to light and into shape a number of such claims is shown by the fact that while last year 800, amounting to $5,145,965.48, were not in condition for present consideration because of curable defects, now only 580, amounting to $4,480,938.53, are so defective.
While the number of claims tiled last year exceeded that of the previous year, and was greater than those of 1886 and 1887 combined, a large percentage of them are for depredations committed several years ago, and must not be taken as evidence that depredations are increasing. On the contrary, as the Indians are more closely confined to their reservations, or as they take land in severalty and adopt the habits of civilized life, depredations perceptibly decrease, and only few have been reported as occurring within the lest few years.
May 17, 1790, under the approval of George Washington, Congress solemnly promised eventual indemnification to the citizens and inhabitants of the United States who might, through no fault of their own, lose their property at the hands of Indians who were holding treaty relations, In the nearly 100 years which have elapsed since that date the promise has been kept in regard to not more than 3 per cent of the claims which have been filed. The law forbade these claimants, under penalty of losing the amounts of their claims, from attempting by private efforts to recover their property, where such efforts might involve the country in an Indian war, in the language of the law from taking “private satisfaction or revenge”. Becoming thus, by its own law, their agent and attorney, and forbidding them any other course of procedure, the government appeared bound by honor and good policy to redeem its pledges and faithfully carry out its promises.
On the last day of. its last session [March 3, 1891] Congress enacted a law transferring jurisdiction as to the adjudication of all these claims from the Interior Department to the Court of Claims. This office has long desired and frequently recommended that some such action should be taken; and while the measure adopted by the last Congress does not, in some of its aspects, meet my entire approval, yet in the main I welcome its enactment, and am glad that a stop has been taken looking to the ultimate redemption of the obligations, of the United States.
Indians are easily dissatisfied, and, as a rule, not understanding English, they frequently, with or without reason, become displeased with the nation or its officials, and especially so in the matter of treaties or contracts, charging that they did not know the terms at the time of signing, or that the contracts have been improperly executed, or that they are being cheated. It is difficult to quiet a dissatisfied Indian. Attorneys for Indian tribes are not appointed by the Secretary of the Interior or the Commissioner of Indian Affairs, but are retained by the Indians. When attorneys are selected by tribes, they bring their contracts to the Indian Office for approval and transmission to the Secretary of the Interior for his approval. The officials of the United States are to see that the contracts are net excessive and that the Indians are protected. A list of all such contracts is kept on file by the Commissioner of Indian Affairs, and is published by him in his regular annual reports.1
See Report Commissioner of Indian Affairs, 1890, pages CLXXVI-CLXXXIL ↩
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