# Transcript of Record — Blackfeather v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Transcript of Record
- **Published:** January 1, 1903
- **Citation:** 190 U.S. 368

## Text

( 18,455.)

SUPREME COURT OF THE UNITED STATES.
OCTOBER ‘TERM, 1902.

No 276

JOHNSON BLACKFEATHER, THE PRINCIPAL CHIEF OF
THE SHAWNEE TRIBE OF INDIANS, FOR THE USE
AND BENEFIT OF THE SHAWNEE INDIANS, APPEL-
LANT,

US.
THE UNITED STATES.

APPEAL FROM THE COURT OF CLAIMs,

INDEX.
Original. Print.
Petition filed . Liu hasice Seen iak a eek wb UNA CRS RAR RaC ae Oe 1 l
Amended petition eke Ake ann, 68; aanewanses l 1

Sghedule B—List of claims in fav or of Shawnee tribe of India ans
on account of depredations committed by white
citizens since the treaty of 1854, and for losses of

property during the late war ..... ..... 3 2

Exhibit D—Letter, Commissioner Bogy to Secretary of the In-
SORNOR SRN BB; COGS cise h kasescicsadecse 15 ll

Letter, Secretary of the Interior to Hon. Thad.
Geovens, January SO, 1G67 ... cs ines .cs cee enccas 17 12
Order to amend petition ...... ...... [SEC LAw ARES HA Sa SOR eRe ha Dabs 17 13
Demurrer toamended petition =—«.. 0... eee eee eee 18 13
PRI ee eee eye Tee eee 19 13
RSNA ary ce tr ee eee yy ea aes ee ge 23 17
INO (5 ycc. cy Ahan css abun vies -aeenee Se0b sas ‘ 24 17
Order allowingappeal........ .........05: Le Pe CK eee Coats 24 17
ROE © OOTURTICMD 6.5 cc fcc cee Fa oh Salah EhEs emcee eee 25 18

Jupp & DerwerLer, Printers, Wasuineron, D. C., Ocropsr 17, 1902.

eae

JOHNSON BLACKFEATHER, E?TC., VS. THE UNITED STATES. 1

1 Court of Claims.

Jonnson BLACKFEATHER, the Principal Chief of the
Shawnee Tribe of Indians, for the Use and Benefit of
the Shawnee Indians, No. 17210.
v8.
Tue Unrrep Srartes. j

I.—Petition and Amended Petition.

On the 28th day of September, 1891, the claimant filed his origi-
nal petition and on the 3d day of August 1892, he filed, in lieu of
said original petition, by leave of court, his amended petition which
is as follows:

Amended Petition.
Filed August 3, 1892.

To the honorable the judges of tle Court of Claims:

1. Your petitioner, Johnson Blackfeathr, represents and states
that he is fifty years old, a Shawnee Ind’an by blood and descent, a
member of and the principal chief of the Shawnee tribe or nation of
Indians, by occupation a farmer; that he resides at or near Vinita,
Delaware district, Cherokee nation, Indian Territory.

2. Petitioner further states that he brings this suit in this Court of
Claims, as such principal chief of the said Shawnee tribe or nation
of Indians, under the provisions of the act of Congress entitled “ An
act to refer to the Court of Claims certain claims of the Shawnee and

Delaware Indians and the freedmen of the Cherokee nation,
2 and for other purposes,” approved October 1, 1890, and an act

entitled “ An act supplementary and amendatory to an act
entitled ‘An act to refer to the Court of Claims certain claims of the
Shawnee and Delaware Indians and the freedmen of the Cherokee
nation, and for other purposes, approved October 1, 1890,’ approved
July 6, 1892,” to recover and collect from the United States Govern- —
ment the several, respective and aggregate amounts of money herein
alleged and set out in payment for the destruction, loss, forcible
taking, carrying, and driving away live stock, farm products, house-
hold goods, money, and other personal property of divers descrip-
tions and kinds belonging to, owned and possessed by, and the prop-
erty of the said Shawnee Indians, by white and United States citi-
zens and soldiers, in the State of Kansas and the Indian Territory
at divers times and places in the year 1861 and all the time up to
and including the year 1866, as more fully appears in the foilowing
nage ae list or schedule, setting out the names of the said Shaw-
nees, the property of which they and each of them were despoiled
as aforesaid, and the amounts of money claimed for the price or
valuation here named by the said claimants, and that the said
amount, as to a portion of the said claims, is the amount ascertained
by the Secretary of the Interior and by him transmitted to Congress

1—276

2

JOHNSON BLACKFKATHER, EFC., VS. THE UNITED STATES.

in the month of January, 1867, with a recommendation that the
said amount be paid as to the portion so transmitted at said time,
which amount is $109,746.25. (Reference is made to Exhibit D,
hereto attached, for the authenticated copy of the letter of the Com-
missioner of Indian Affairs and the Secretary of the Interior, and as
to the additional claims herein alleged and claimed in the said de-
scriptive list and schedule reference is further made, as showing the
action, allowance, and findings in all of the said claims, to House of
Representatives Executive Document No. 125, 49th Congress, first
session ; Schedule B, beginning on page 275, continuing on all the
subsequent pages, and ending on page 279, inclusive.)

3

Scuxeputer B.

A List of Claims in Favor of Shawnee Trine of Indians on Account of Depredations Com-

mitte
the Late War.

by White Citizens since the Treaty of 1854, and for Losses of Property During

(Treaty 1854, articles [1 and 14, and sections 2154 and 2155, Revised Statutes.)

5

= Value of

pe Name of claimant. Kind of property taken. property

° taken.

6

Zz
348 | Rogers, Graham.......... Horses, mules, produce, &c...... $2,556 00
349 Barbee, William.......... Horses, provisions, &c....... Wie 1,310 00
359 | Rogers, William... .. ... Mules and money................ 200 00
360 | Dougherty, Martha....... | Horses and money ............... 602 00
361 |} Maden, Solomon......... Horses, ponies, and hogs.......... 552 00
362 | Harvey, John... .. Horse, mule, and colt ........... 260 00
363 | Harvey, Caleb........... Two mares, saddles, bridles, hogs.. 1,390 00
364 | Cau-chi-qua.... ......... RAE AAT Serr 610 00
365 | Red Carpenter......... ..-| Household goods, hogs, &e ....... 350 00
366 | Choteau, Frederick....... “ se burned, groceries, &c., 3,965 00

taken.
367 = James, for Frances | Horse, cow, hogs, &c........ .... 312 00
_ BRPORARR Sere
368 | Chouteau, Benjamin .... | Buggy, horses, &c... . 1,195 00
369 | Chouteau, William... .... Horses and cattle ............... 440 00
370 | Pitcher, Mary ... Cattle, horses hogs, &c... ....... 602 50
igh. 2) ener Horses and hogs... .......... 775 00
ee. 3 a: eee eee Horse, saddle, colt, &c.........-. 260 00
373 | Silverheels, Moses......... Jewelry and hogs................ 265 00
374 | Widow Wheeler ......... SS SRE ere 365 00
375 | Barnett, Sally Ann....... ES oS ee 165 00
376 | Tucker, Charles.......... RIEU SO eben cn éehaes nats 750 00
377 | Wheeler, James....... Horses and saddle....... ........ 180 00
378 | McLean, Henry...... ... EFOree, GWAC, GG. oc. einen wee 221 00
379 | McLean, John.......... Horses, mule, and cattle.......... 950 00
380 | Borele, John.............. Horses, household goods, &c..... 2,215 00
381 | Tiblou, James............ Horses, clothing, &c........ ..... 947 00
382 | Deshane, David.......... PE MU MR iv xa vcaw ds ke 200 00
383 | White, Joseph........... ee eS RAO peer 3,244 00
384 | Wheeler, John .......... i) Te Pe Sa oad 80
385 | Wheeler, Polly... ....... PIONS ONG TROIS ke 250 00
386 | Coffey, Lewis............ DAMIEN, ONE. GO) ok si oe cise 1,755 00
387 | Britton, Mary............ Horses, ponies, &c..... bina a 265 00
Se PE. Biko riba nea ye aap eteeve xdeee 27,331

JOHNSON BLACKFEATHER, ETC., VS. THE UNITED STATES.

Schedule B—Continued.

g
‘3 : Value of
Me Name of claimant. Kind of property taken. property
= taken.
6
Z
a
4 Brought eel A. «di ad haan sn | SR aera id Se thee 2,060 50
390 | Big Fox ...ee-ssee rere | Horses, furniture, &¢......+-+-++- 1,890 00
391 | Dougherty, David.......-- Horses, hogs, Ke... -+e+ee2 certs 1,082 00
392 | White, Frances ..---.-+++- Horses, mules, &c....---+-+-+5+° 536 00
393 | White, Henry ....---+++++ | Horses, cows, &e..... 0-65-06 8 see 800 00
394 | Blackhoof, Eli ..... ----- | Horses, mules, ke ...-+.e+eeee ees 915 00
395 | Dushane, Eli.. ..-++ --++> Horses, mares......++0e-seerr eres 545 00
306 | Flint, Veaty ...--- -- s++- _ Horse, ponies, Ke... 606 eee eee 620 00
397 | Burlow, John.....-- _. | Horses, cattle, Ke... eee eee eee 615 00
398 | Chuck-thee.....-.... -5+5 | i seeeenneaeens be 332 00
309 | Rogers, Betsey ...-++++-+- | Horse, mule, &e.. 6... esse ee eee 390 00
400 | Quinney, Jane....-- ..| Horses ....--+- Se Sey ety 600 00
401 | Prophet, Sally ....-+---++- | Horses and mares .. .---++++ see 1,650 00
402 | Graham, Polly .-...-+-++- | Mare and cattle .....-+++ ie 220 00
403 | Silverheels, John. ......--- | Horses, cattle, &e., house burned 2,050 00
404 | Longtail, Elizabeth........| Horses, rails burned, &e .. - 1,670 00
405 | Bob, Jane .....--++-se0e: | Horses, cattle, ke... 6 eee 412 00
405 | Coster, Nancy. .--.--+++++ | Horses, double wagon, &e 320 00
407 | Dushane, Martha...... -- | Horses ...... 2 -sseeecerseereceee 245 00
408 | Perry, James.....-- -++++> | Horses, &e....0.-eeees seer seers 480 00
| Perry, Betsy... -- +--+ | Horses and ponies.....-- is Seekes 530 00
410 | Dougherty, Elizabeth... -- | Horses and mares......- + --.5+++ 1,020 00
41) | Randall, Eliza......--.--- | House burned, horses, &ec., taken..| 5,650 00
412 | Bluejacket, David. .... | Horses, ponies. .....---+seeeee ets 235 00
413 | Swatzell, Catherine.. ..--- | Horses, mules, carriage, Os ii vane 2,921 50
414 | Vogel, Rebecca...-.---- | Clothing, silverware, ee | 1,360 00
415 | Batly, Mary E.....----++++ | Horses, hogs, Ke... ..-++eeesse eee 540 00
416 | Dick, Joseph.....----++-++ | SlobeA, coc Se ou ae te ee i 480 00.
417 | Dushane, David J. *"") Horses, rails, corn, &e....---- +++ | 1,110 00
418 | Fox, John.....-- .seee+e | Horses, oxen, Ke.....--- eee sere ee j 680 00
419 | Covnatzer, Samuel M..... | Horses, cattle, Kce......65 - eee 1,975 00
490 | Nan-nee-a....--5- 22 + °> | Furniture and stock ..----++---: | 195 00
21 | Hummingbird, Cyntha. .. | Horses. .. .-essseeceee-- seeeee 205 00
422 | Flint, Joseph......---- -_..| Horses and hogs... -.---++98+ -++5° 450 00
423 | Pampkin, Mrs.... 0 -.--- | Males and hogs .....+-++5 +995 | 500 00
24) Pumpkin, John. ..--- -- | Horses, harness, &e.... 0-0 +++ +9 520 00
495 | Deshane, Henry .---+ > --- | Horses, mules, &e ..-- +--+ +5 ++ 625 00
426 | Walton, Anna E......--++ | Household furniture, ee 1,226 06
427 | Rogers, Polly....---+ ---- | Horses and cattle. «eee reer: 745 00
428 | Whitefeather, Jacob. ..... Horses, mules, Ke.... - +++ -+++5*> 1,695 00
Carried forward. .|...----+-> tt cn kekvaas Rtas eae $68,586 00
5 Bronght forward .|.....----.eesrsees coset $68,586 00
420 Jackson, John ..---- Hornes, &C ....-002- cre seeeeee 485 00
420 | Flint, Haney .....-----++- | Clothing, A rr ral ce hae : 100 00
431 | Big Knife, James... .--- | Horse... ..+- (AU Ae RT ae. 75 00
482 | David, Laura ....-- ||) Mare and saddle . ..-+-+-++ +++ 120 00
433 | Spybock, Eunice..... | Horses and hogs... ---+++++++++> 390 00
434 | Harvey, James . .---+-->- | Horees ....-.- see ecene ceeseerees 700 00
435 | Frances, George ..--- meee Oa Gerrerrrtrrr rr aL ; 550 00
436 | Blanchard, Nancy ....---- ba ES Lae G a cheeses enn 300 00
437 | Big Knife, Jane.....-.--+- fo HRS iain nk caw vanes ca caen aon 380 00
438 | Skvbuck, Widow... | Horses, &e......000-eeeee tees 120 00

oo cam

4 JOHNSON BLACKFEATHER, ETC., Vs. THE UNITED STATES.
Schedule B—Continued.
£
3 Value of
“ire Name of claimant. Kind of property taken. property
“ tabu
Zz
439 | Possom, John............. SO ae ee as $260 00
440 | Bigbone, Nancy........... Horse, cattle, &e ....... racks 385 00
441 | Elliott, James............. Clothing, corn, &c ............-5. 451 00
442 | Charles Tiblow ....... (EEE ieee esxscacrer bi0d06 425 00
443 | James Longtail. ........ Horses and cattle ................ 830 00
444 | Elizabeta Longtail ....... NL SG ev oso 8s evan hee p'8% 110 00
445 | Jesse Whitideer........... eee eee 1,640 00
446 | George Whiteday......... Elorges, hags, &c ......065 226. , 530 00
447 | Martha Dougherty........ OL Seer ‘ 22 0
448 | Hannah Rogers...... NRCS. «oo cs hebetsh osu es 410 00
449 | Nancy Prophet............ TS ee Sdn awa stehie 650 00
450 | Pate-thump-qua........... 2 es eee ee 60 00
451 | William Whiteday.. .. . | Horees, Ge .. ........ ..2. wees 610 00
452 | William White. ........ | Horses...... aE Pe ee 350 00
4534 Jack Hern ...........-. Horse and ponies ...... ......... 570 00
454 | Catherine Johnson........ Clothing and furniture ........... 252 0
455 | Joseph Johnson,.......... | OO ee orn ee +40 0
456 | Sanule Tucker ............ SOD hcbraita hin Sc5'..00 55 owe bees Sh 3 120 W
457 | James Blackfeather.. .... Horses and cattle... ............ 1,085 00
458 | David Blackfeather ....... ReGrOee, GOGhEO, GO... occ se sce 1,750 00
459 | George Cohen. ........... eae ee ee 230 00
460 | Sarah Big Knife. . ...... Horses, mules, &c............... 480 00
461 | Thomas Big Knife ........ GRRE SAE Es ae ees 985 00
462 | John Dougherty .... ..... Herse and saddle .......... ..... 145 00
ed Co 8 eee PR RES Rrere retry fa 1,495 00
464 | Harriett Pureel! ...... ... BS ee 325 00
465 | Samuel Garrett ....... ee Rr eee ee 225
466 | Susanna Armstrong........ Bee ee re 480 00
467 | Polly McDougall ..... . Shed Latawivasks shake nha 200 00
408 | Glian Mille.. ..........-. MI ob sn cass aagse cadonh 345 00
469 | Stephen Bluejacket... ....| Horses, farming implements, Xc. . 761 00
470 | Frances Chautau.......... eee 425 00
eee NE. CE Boch cou ck buh ca Gen cus 858 75
504 | Choceau, Benjamin....... Span of horses ..-...---+-++++++9 400 00
505 | Tiblou, Zion .........---- Horses, field of corn.....--++-+-+> 1,395 00
506. Flint, Lazarus ...... ...+- Horses .......--- ie Vie hae eobed 180 00
507 | Tiblow, Mary Ann.... -- 300 bushels of corn..... ..- 150 00
508 | Bluejacket, Nancy......--- Horses, ponies, Kc ...----++++-- 5,220 00
509 | Ki-la-we sa,heirs of (White-;) Horses, cattle, grain, &e.......-- 1,724 00
| man, guardian).
510 | Caboon, George......- +-- Cattle, household goods, &e....... 3,604 45
td Mattei A ccs. exetebi onsen adnccsuoh stent | $118,966 75
7 Brought forward. |....-----+eseer pete: pak miata $118,966 75
511 | Coxie, Soth .... ..--. Horses, cattle,and household goods, 6,797 75
j ac. |
512 | Chisholm, F. (Jno. Deer, | Horses, cattle, corn, Kc.....---+-- | 6,436 50
| guardian).
513 | Chisholm, W. FE ...------ Provisions, household goods, &e - . 9,649 00
514 | Chisholm, Jackson.... Horses, mules, cattle, Ke... ...-- 5,779 00
515 | McQueen, > Horses,cattle, household goods, & 3,733 7a
B16 | Alberta... .....----seeccee Horse, stock, cattle, household 2,504 25
| goods, &e.
517 | Jim Deer.. ..-- ino Cee aknkresbaseen see 9,409 85
» 18) John Deer.... -.---- +++ Horses, cattle, provisions, &e — -..| 11,506 60
519 | Wright, Jimmy ...------ Horses, cattle, etd tools, &e.. -! 1,757 50
520 | Sally ........ Horses, cattle, corn, &c.....--.--- 3,255 Oo
21 | Little Fish.........-.+- +: Household goods, &e «+--+ 774 20
522 Gibson, Wilson .......---- Horses, stock, cattle, Ke.....---+ + 2,067 25
523 | Heir of George Blackfoot | Horses, cattle, farming tools, &e...| 1,175 00
| (Long Jim, guardian). i
524 | Rabbit ..........----ee eee Horses, cattle, furniture, &e ..-. 1,160 00
525 | Long Jim........- Horses, cattle, farming tools, &e... 1,787 50
526 | Black Cat .......-.-- Do. Sah 2,152 50
597 | Hill, John............---- Horses, cattle, farming tools, &e... 1,045 00
528 | Little Spoon.... .. ------ Stock, cattle, farming tools, &e... 748 25
529 | Warrive, George ...... -- Horses, cattle, Kc. ......0--+0e 52> 1,068 75
530 | White Turkey ..........-- | Horses, cattle, corn, kc... .-- 3,745 25
531 | George Young .....---+.++ i Do. ‘ 1,310 7
532 | Hill, John (guardian of Lit- | Horses, cattle, hogs, &e.....---++> 1,042 00
tle Wildcat).
ES I ni inde bene en TT bnceatigiagtte neo A= PEN 1,112 75
534 | John Duch .. ...-.--.-+e- ee a hamenek 1,380 00
535 | Esparnee | cts dS ew ae tae 2,714 75
B36 | Rock. .... 2... cece eeeeees | ), eae y ste 984 00
Do. 909 25

6

JOHNSON BLACKFEATHER, ETC., VS. THE UNITED STATES,

LzE No. of claim.

Schedule B—Continued.
2 Value of
Name of claimant. Kind of property taken. property
taken.
Se Nan dianbeecawe Horses, mules, cattle, hogs, &e.... $5,938 55
ONS Ss ehitce's wes xh Horse, cattle, household goods, &c. 1,366 60
WNT N54, Avexkaiancer Horses, cattle, farming tools, &e... 990 50
SOU GTI Fi dines sebs sheds coc nen incivevesteves $220,529 00
8 ee NIUE ak tas Sieh cows veeaqatenincedas 220,529 00
White, Nancy... .... Horses, cattle, household goods, &ec. 2,605 85
Rae eer orses, cattle, hogs, ke... 2... 439 25
DONE x tincveteisvaneesall Toga SAT 5,259 35
John White, chief ....... Mamet, WOMe, Ge... ss cccscasccsss 5,579 62
John White (guardian of | Horses, Sa Wisi ccescichicnss 2,462 20
Little George).

eer Horses, cattle, bacon, &c.......... 4,870 00
Shawnee Jackson ......... RTI g 4 cate. ee 990 50
POE ShAccHAKaN cana yan Horses, cattle, corn, &e....... 5,795 10
er ae Bais |e ees hs een 1,829 75
PU Ris bvcaveinccads Horses, cattle, bacon, &e.......... 3,258 50
Jim Sloane ..... Sew datded BR 21>. « Wek ee Bex 1,136 00
Sally Long Tail........... Do. vibe eosin 2,810 00
eee Do. 2, gudanaes 740 75
John Tomahawk... ....... a rr? 1,180 75
Shawnee Buck... .........| Horses, cattle, corn, &c.... 1,926 50
ee ES as eee 1,284 50
ON Beicl ot cameawe eed 1,974 25
Nb s'cbb'es uekh re-
ferred to, in compliance with the acts of Congress referring these
claims to the Court of Claims, and for such other and further relief
as shall appear to the court right and just to the said Shawnee In-
dians ; and this petitioner will ever pray.

JOHNSON BLACKFEATHER,
By CHARLES BROWNELL,

His Attorney-in-fact.
DENVER & BROWNELL,
Attorneys for the Petitioner and the Claimants.

14 Unitep.Srates oF AMERICA, ae
Washington, District of Columbia, } pie

Charles Brownell, first sworn, on his oath states that he is the
attorney-in-fact for the petitioner, Johnson Blackfeather, and the
Shawnee claimants herein described in the above petition ; that he
has read the above and foregoing petition and knows the contents
thereof, and that the same are true of his own knowledge and belief
except as to the allegations as are stated on information and_ belief,
and as to those he believes them to be true.

CHARLES BROWNELL.

Subscribed and sworn to before me this Ist day of August, 1892.

[sEaL.] JOHN T. MITCHELL,
Notary Public.

15 (1-482.)

De«ePARTMENT OF THE INTERIOR,
WASHINGTON, August 2, 1892.

I, George Chandler, acting Secretary of the Interior, hereby certify
that the papers hereto attached are true copies of the originals now
on file and of record in this department.

In testimony whereof I have hereunto subscribed my name and
caused the seal of the department to be affixed the day and year
first above written.

[swav.] GEO. CHANDLER,
Acting Secretary.

;

JOHNSON BLACKFKATHER, ETC., VS. THE UNITED STATES. 11

Exuisit D.

(Copy.)

DEPARTMENT OF THE INTERIOR,
OrricE oF INDIAN AFFAIRS,
WAsHINGTON, January 23, 1867.

Sin: I have the honor to transmit herewith for your considera-
tion sundry papers relative to the claims of Shawnee Indians, of
Kansas, for indemnity for losses sustained by them during and since
the late rebellion. These papers comprise copies of the letter- of
Agent Abbott transmitting them to this office and of a communica-
tion by the Shawnee council upon the subject, besides the original
report of Agent Abbott, before whom the testimony was taken, and
the affidavits to establish the claims.

The council base these claims upon the right of the Indians to
protection from the Government of the United States while them-
selves observing their treaty stipulations, and reference is made for
precedent to previous acts of Congress recognizing that right, par-
ticularly to article 11 of the Shawnee treaty of 1854, by which the
sum of $27,000 was provided to be paid for losses of the Shawnees
by immigrants passing through their country, and to chapter XL of

the Laws of 1860 (vol. XII, Stat. at L., p. 15), by which the
16 Government appropriated $36,711 for the payment of losses

of these Indians during the then recent troubles of Kansas.
The list of claims now presented, as stated in Agent Abbott’s report,
amounts to $106,928.75, but on examination of the papers errors
are found to exist, a correction of which makes the proper footing
$109,746.25.

The evidence presented in order to establish these claims is not,
certainly, such as ‘n most cases would be deemed sufficient in the
case of claims by white citizens against the Government, but on
comparison of these papers with the evidence on file in the matter
of payment of some $37,000 under the law of 1860, above cited, it is
apparent that the same class and character of affidavits as are now
presented were then deemed sufficient to warrant payment, and per-
haps the evidence, under the circumstances, is as good as the nature
of the case admits.

Agent Abbott, in his report herewith, comments at length upon
the nature and character of the evidence, and your special attention
is invited to his remarks and explanations upon that subject. The
course taken in 1860, when the Shawnee claims came scbder consid-
eration by this office, was to refer the matter to the department,
with the recommendation that Congress be requested to place an
appropriation at the disposal of the department sufficient to pay the
claims, so much of the amount to be paid to the claimants as shall
be found on further examination to be ri htfully due. The same
course is now recommended and for the following reasons, to wit:

Ist. The Shawnees, as a friendly tribe, strictly regarding their
treaty stipulations with the Government and abstaining from acts

12 JOHNSON BLACKFEATHER, ETC., VS. THE UNITED STATES.

of private revenge or retaliation, but relying upon the good faith of
the Government, are entitled to its protection under the 14th article
of the treaty of 1854 and to remuneration for losses sustained at the
hands of its citizens.
2d. It is apparent from an examination of the evidence that the
Governmeut had the use for its troops of a large amount of the prop-
erty taken.
3d. There is an abundant prima facie case established to justify
the department in asking Congress for an appropriation of a suffi-
cient amount to meet the claims, and then the department can then
proceed to take such additional evidence as may be deemed
17 necessary to enable it to do substantial justice in the prem-
ises.
Very respectfully, your obedient servant,
(Signed) LEWIS V. BOGY,
Commissioner.

Hon. O. H. Browning, Secretary of the Interior.

(Copy.)

DEPARTMENT OF THE INTERIOR,
WasHINGTON, January 30, 1867.

Hon. Thad’s Stevens, chairman Committee on Appropriations,
House of Representatives.

Sir: I have the honor to transmit herewith a copy of a communi-
catiou, dated the 23d instant, from the Commissioner of Indian
Affairs and accompanying papers submitted by him to this depatt-
ment in relation to claims of Shawnee Indians of Kansas for in-
demnity for losses sustained by them during and subsequent to the
late rebellion, and who rely upon the stipulations of the 14th article
of their treaty with the United States of 10th May, 1854, “to have
their rights vindicated.” These papers comprise copies of the letter
of Agent Abbott and of a communication by the Shawnee council
upon the subject.

The claims presented to the department amount to $109,746.25,
and in view of. the facts set forth in the papers now enclosed the sub-
ject is commended to the favorable consideration of your commnittee.

The report of Agent Abbott, a list of the Shawnee claims, and the
evidence sustaining the same are also herewith submitted.

Very respectfully, your obedient servant,
(Signed) O. H. BROWNING, Secretary.

Order.

It is hereby ordered, that the petition be so amended as to strike
out all references to treaties and acts of Congress.
March 13, 1902.

By tae COURT.

JOHNSON BLACKFEATHER, H'TC., VS. THE UNITED SPATES. 13

- 18 Il.—Demurrer. Filed December 28, 1900.

JounsoN BiackreaTHER, Principal Chief, &c.,
v. No. 17210.
Tue Unrrep States.

And now come the said defendants, by their Attorney General,
and demurring to the amended petition in this cause, state as the
round thereof that the said amended petition does not allege facts
sufficient to constitute a cause of action.
L. A. PRADT,
Assistant Attorney General.

19 {II.—Opinion of the Court. Filed February 17, 1902.
Demurrer.

Wetpov, J., delivered the opinion of the court:

On the 3d day of August, 1892, the claimant filed a petition in
which it is alleged that the petitioner, Johnson Blackfeather, brings
suit as the principal chief of the Shawnee tribe or nation of Indians
under the provisions of an act of Congress entitled “Aa act to refer
to the Court of Claims certain claims of the Shawnee and Delaware
Indians and the freedmen of the Cherokee nation, and for other pur-
poses,” approved October 1, 1890, and make said act au exhibit and
part of his petition.

It is further alleged as a basis upon which the suit is brought that
to said act there is a certain amendatory act entitled “An act to refer
to the Court of Claims certain claims of the Shawnee and Delaware
Indians and freedmen, and for other purposes,” approved July 6,
1892, which act is also made an exhibit.

It is further alleged that under and by virtue of the provisions of
said acts there is a liability against the United States for depreda-
tions committed by white citizens of the United States in the State
of Kansas and the Indian Territory upon the property of said In-
dians at divers times and places in the year 1861 and up to and in-
cluding the year 1866, amounting in the aggregate as damages to
the sum of $109,746.25, as ascertained by the Secretary of the In-
terior in January, 1867, shown in Exhibit D. An exhibit is then
made of the different amounts claimed by other individuals repre-
sented by the petitioner, amounting to the sum of $530,945.14, as
shown in Exhibit B, made part of the petition.

The alleged depredations consist of the taking and destruction of
a by the white citizens of the United States belonging to the

ifferent Indians represented in the petition, which property consists
of horses, mules, clothing, and other and different varieties of per-
sonal property.

It is alleged that said claims arise out of treaty obligations with
the United States, to wit, articles 11 and 14 of the treaty of May 10,

a

14 JOHNSON BLACKFEATHER, ETC., VS. THE UNITED STATES.

1854, and the acts of Congress, to wit, sections 2154 and 2155

20 of Revised Statutes; that the property was taken from said

Shawnee Indians, and depredations committed against them

and their property, by said white citizens and soldiers of the United

States since and after the time said Indians made and entered into

said treaty of May 10, 1854, and while the Indians were located and

aa aeng Od residing and living peaceably on their own lands in the

ndian Territory, to wit, in the year 1861, up to and including the
year 1866.

It is further alleged that the said Indians have not, either as indi-
viduals or as a nation, sought to be revenged, nor have they or any
of them attempted to obtain satisfaction on account of the taking of
said property.

To the said petition the defendants have filed a demurrer, in which
it is alleged as a ground of demurrer that the petition is insufficient,
(1) because it appears upon the face thereof that the court has no
jurisdiction, and (2) because said petition does not allege facts suffi-
cient to constitute a cause of action in this regard.

The eleventh section of the treaty of 1854, upon which is predi-
cated the claim of the petitioner, is in substance that, it being repre-
sented that many of the Shawnees have sustained damage and loss
by reason of emigration passing through their country and because
of other causes, in violation of the guaranties made for their protec-
tion by the United States, it is agreed that there shall be paid as
consideration to the Shawnees the sum of $27,000, to be taken and
considered in full satisfaction of such elaims and all others of what-
ever kind, and release all demands and stipulations arising under
former treaties, except the perpetual annuities; and all Shawnees
who have sustained damage by said causes shall, within six months
after the ratification of the treaty, file claims for such damages with
the Shawnee agent, to be submitted by him; and the amount in
each case approved shall be paid by sueh agent, provided the whole
amount of the claims thus approved shall not exceed the said sum
stipulated ; and provided further that if such amount shall exceed
the sum, then a reduction shall be made pro rata from each claim
until the aggregate is lowered to that amount.

Article 14 of the same treaty provides, in substance, that the Indians
acknowledge their dependence on the Government of the United
States, and invoke its protection and care; that they will abstain
from the commission of depredations, and comply, as far as they are
able, with the laws in such cases made and provided, as they will
expect to be protected and to have their rights vindicated.

It is insisted by the defendants that the court has no jurisdiction,
unless it be by virtue of the actsof 1890 and 1892, because the claims
arose between 1861 and 1866, and are long since barred by the
statute of limitations. 2

It will be seen by the allegations of the petition that the action 1s
not brought to recover a sum due the Shawnee tribe, but as a pro-
ceeding to enforce an obligation against the Government for the pay:
ment of personal losses of individual Indians.

The aggregate amount claimed in Schedule B of losses embrace¢

foitNsoN BLACKFKATHER, Kitc., Vs. THE UNIreD states. 15

in the petition is the sum of $530,945.14, and it is alleged with refer-
ence to such claims that they arise out of treaty relations with the
United States, and as rights growing out of such treaties, to wit, ar-
ticles 11 and 14 of the treaty of May 10, 1854, and the act of Con-
gress, to wit, sections 2154 and 2155, Revised Statutes, and that the

yroperty so described was taken from the Shawnee Indians
21 _—sindividually, and the depredations committed against them

by white citizens and soldiers of the United States since the
making of the treaty of May 10, 1854.

The claim of the petitioner, according to the allegations of the pe-
- tition, is founded upon the liability assumed by the defendant in
the eleventh and fourteenth sections of the treaty of 1854, and the
right of action, which is by the petition prosecuted, is founded upon
the two acts of Congress aforesaid, to wit, that of 1890 and that of
1892.

A very able argument was made by counsel for the claimant to
maintain the right of each individual Indian, under the acts aforesaid,
to prosecute his individual right in and through the medium of the

jaintiff in this cause, who is the principal chief of the Shawnee In-

ians. Confining the discussion to the right to bring suit in the form
of the petition, it is not pretended that the Indians in their tribal or
aggregate capacity as an entity were damaged by the alleged depre-
dations of the persons stated in the petition. That being true, one of
the questions presented for the determination of the court is as to
whether a petition framed upon the theory of the individual right of
the Indian can be maintained under the provisions of those statutes.

The act of 1892, seems to have been enacted for the purpose of en-
larging the scope of the right given under the act of 1890. But is it
sufficiently broad to embrace the individual right of each Indian who
may have suffered a depredation at the hands of the persons alleged ?

The statute is entitled “An act to refer to the Court of Claims cer-
tain claims of the Shawnee and Delaware Indians and the freedmen of
the Cherokee nation, and for other purposes,” and provides, in sub-
stance, that they shall present to the said court all their claims against
the United States and the Cherokee nation, or against either or both
of them, of any description whatsoever arising out of treaty relations
with the United States, rights growing out of such treaties, and from
contracts, express or implied, under such treaties made and entered
into by and ahaa the said Shawnees and Cherokees, and between
them, or either of them, and the United States.

The right to sue, by the phraseology of this statute, is in the asser-
tion of rights growing out of treaties, and for contracts, express or
ae under treaties made and entered into by and between the
said Shawnees, Cherokees, and the United States. Can it be said that
there has been a treaty, a contract, express or implied, between the
United States and the individual Indians, who, through the medium
of the principal chief, are now prosecuting these claims?

The attention of the court is called to the fourteenth section, which
ood that “the Shawnees acknowledge their dependence on the

vernment of the United States, and invoke its protection and care.

That they will abstain from the commission of depredations and com-

16 JOHNSON BLACKVEATHER, Ere., Vs. THE UNITED sTatKs.

ply, as far as they are able, with the laws in such cases made and ap.
proved, as they will expect to be protected and have their rights
vindicated.” Does this phraseology establish contractual or treaty
relations, having the effect of contracts, with each individual [ndian
composing the Shawnee tribe? Or, rather, is it not a general clause,
limited in its effect to the parties to the treaty, to wit, the United
States on one side and the Shawnee tribe upon the other?

The plaintiff, by the allegations of the petition, has asserted an
individual obligation existing between the United States and each
of the claimants, and in order to recover it must appear that such a

relation exists.
22 The United States, as the guardian of the Indians, deal
with the nation, tribe, or band, and have never, so far as is
known to the court, entered into contracts, either express or implied,
compacts or treaties with individual Indians so as to embrace within
the purview of such contract or unlertaking the personal riglits of
individual Indians.

The acts of Congress referred to by the allegations of the petition
and the argument of counsel for the claimant, are not applicable to
the claim made by this petition. The condition upon which remu-
neration to the Indian is to be made under section 2154, Revised
Statutes, is not shown to exist in this case. And so it may be said
of section 2155 of Revised Statutes, that the condition upon which
the Indian is entitled to remuneration out of the Treasury is not
shown to exist in the claims made in this proceeding.

The act of 1892 specifies that the Shawnee tribe or band of In-
dians, whose claims and demands against the Cherokee nation and
the United States were referred to the United States Court of Claims
for adjudication under the act of Congress passed and approved Oc-
tober 1, 1890, shall present to said court all their claims against the
United States. The claims referred to this court under the act of
1890, were the claims of the Shawnee tribe or band of Indians, and
not the persona! claims of the individual Indians belonging to said
tribe or band of Shawnees.

The evident object of the act of 1892, was to enlarge the jurisiic-
tion of this court with reference to the same class of claims as were
cognizable under the act of 1890, to wit, the claims of the Shawnee
tribe or band of Indians.

It is insisted by defendants’ counsel that the statute of limitations
bars the right of proceeding. In the view which the court has taken
of this case it is not necessary to pass upon that question. The act
of 1892 was before the Supreme Court of the United States in the
case of United States v. Blackfeather (155 U.S., 180), and in that case
the Supreme Court said in substance that it was by no means cer-
tain that, under the acts of 1890 and 1892, the Shawnees were au-
thorized to recover and collect from the Government any other
moneys than those which were claimed in their tribal relation.
The money in question was not due the tribe as such, but to certain
individual orphans, who claimed to have been defrauded.

It may have been unnecessary for the Supreme Court, in the de-
cision of the question involved in that proceeding, to pass upon the

JOHNSON BLACKFEATHER, ETC., V8. THE UNITED STATES. 17

individual right of the Indian, but the court, in dealing with the

uestion involved in that proceeding, has expressed an opinion in-
Beating the proper construction of the act of 1892, with reference to
the rights of the United States and the Indians.

But, waiving all criticism on the form of the proceeding, the
fundamental question is, as to whether, under the treaty of 1854,
and the Revised Statutes cited by the claimant, any right exists to
recover against the United States, founded cither upon the treaty or
the statutes.

The eleventh article, as has been stated, provides for the payment
of a specific amount upon the condition that the claims arising
under said section shall, in the aggregate, amount to that specific
sum, and that in case such claims do not aggregate that sum, the
residue shall be appropriated as the council of the Indians shall
direct. That sum has been paid, and this proceeding is not based
upon any liability of the United States for the non-payment of any
portion of that amount.

In the argument herein it was insisted by claimant's counsel that
the fourteenth section, acknowledging the dependence of the In-
dians and their obligation to abstain from Teptedation: and the
guaranteed protection to the Indians, constitutes a legal basis, upon
which the claims can be maintained, assuming that the act of 1892, °
gave the right of action in this court.

The general guaranty of the Government to protect the Indians,
in consideration of their submission to the law, is not sufficient, in
the opinion of the court, to constitute the basis of the claim alleged
and sought to be maintained by this petition, nor is the right given
under the Revised Statutes, and therefore the demurrer is sustained.

28 1V.—Demurrer Sustained.

At a Court of Claims held in the city of Washington on the 17th
day of February 1902, it was ordered that the demurrer to the

amended petition in the above-entitled cause be sustained.
By tHE COURT.

24 V.—Application for and Allowance of Appeal.

From the opinion and judgment of the court in the above-entitled
cause, rendered February 17, 1902, in favor of the defendants, the
claimant by his attorney therein, this 20th day of February 1902,
hereby makes application for and gives notice of an siiooal to the
Supreme Court of the United States.

JOHN- BLACKFEATHER,
Principal Chief of the Shawnee Indians,
By JOHN ©. CHANEY,
His Attorney.
Filed February 20, 1902.

Ordered, that this appeal be allowed as prayed for.
By tHe COURT.
February 20, 1902.
3—276

18 JOHNSON BLACKFKATHER, ETC., VS. THE UNITED STATES,

25 Court of Claims.
Jonnson BLackFEaTHER, Principal Chief of the Shaw-
nee Tribe of — for the Use, &c., No. 17210,

Unitep STArEs.

I, John Randolph assistant clerk Court of Claims, hereby certify
that the foregoing are true transcripts of the pleadings in the above-
entitled cause, of the opinion of the court,—of the judgment of the
court sustaining the demurrer, of the application for and allowance
of appeal to the Supreme Court of the United States.

In testimony whereof I have hereunto set my hand and affixed
the seal of said Court of Claims this 15th day of March A. D. 1902.

{Seal Court of Claims.]
JOHN RANDOLPH,
Ass’t Clerk Court of Claims.

Endorsed on cover: File No. 18,455. Court of Claims. Term
No. 276. Johnson Blackfeather, the principal chief of the Shawnee
tribe of Indians, for the use & benefit of the Shawnee Indians, appel-
lant, vs. The United States. Filed March 19’, 1902.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0311%3A1. Public record. Not legal advice.