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, subagent 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 To be 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 Future depre- 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.

in three years.

dations not in

cluded.

Petitions, etc.

Service of petition. Attorney

fend.

SECTION 3. 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.

SECTION 4. The service of the petition shall be made general to de 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 failure of Attor- 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 Special attor 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.

Provisos.

Proceedings on

ney General to defend.

ney for Indians.

claims to have

Re-opening

cases.

In considering the merits of claims presented to the Evidence. 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 Examined which have heretofore been examined, approved, and al- priority. lowed 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 Burden the party electing to re-open the case shall assume the burden of proof. SECTION 5. That the said court, shall make rules and Rules for tak 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 tribe can be identified.

proof.

ing testimony.

of

charged against

ment.

SEC. 6. That the amount of any judgment so rendered Judgment to be against any tribe of Indians shall be charged against the tribe. 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. First, from Mode of payannuities due said tribe from the United States; 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, it 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 Payments 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 here after become due from the United States to such tribe.

from Treasury.

Judgments

final.

List

ments to be sent to Congress.

SEC. 7. 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.

of judg SEC. 8. 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 herein before provided, which shall thereupon be appropriated for in the proper appropriation bill.

neys' contracts,

void.

able to claimant.

Allowance attorneys.

Sales, attor- SEC. 9. That all sales, transfers, or assignments of any etc., declared such claims heretofore or hereafter made, except such as have occurred in the due administration of decedents' estates, and all contracts heretofore made for fees and allowances to claimants' attorneys, are hereby declared Warrants pay- 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 to 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.

Maximum.

Appeal.

SEC. 10. That the claimant, or the United States, or the tribe of Indians, or other party thereto interested in any proceedings 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.

All papers, etc.,

SEC. 11. That all papers, reports, evidence, records to be furnished and proceedings now on file or of record in any of the the court: 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.

sistant Attorney

SEC. 12. To facilitate the speedy disposition of the Additional As cases herein provided for, in said Court of Claims, there General to be apshall be appointed, in the manner prescribed by law for pointed. 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.

under

SEC. 13. That the investigation and examinations, Investigation under the provisions of the acts of Congress heretofore las tor present in force, of Indian depredation claims, shall cease upon the taking effect of this act, and the unexpended balance Balances to be of the appropriation therefor shall be covered into the covered in. 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.

Approved, March 3, 1891.

The Indian depredation act received a judicial construction by the Court of Claims, in the following cases, volume 29, Court of Claims Reports:

The Indian depredation act, 1891, provides that the court_shall have jurisdiction of "all claims for property of citizens of the United States taken or destroyed by Indians belonging to any tribe, band, or nation in amity with the United States.' This makes citizenship jurisdictional. (Johnson's Case, p. 1.)

Congress having adopted in this statute the language of the act of 1885, it must be inferred that the words were used in the sense that had been given to them by the Interior Department. (Ib.)

The Constitution and statutes determine without ambiguity who are citizens, and no departmental practice can prevail against their unambiguous terms. (Ib.)

The departmental construction of the statutes, viz, that when treaty relations existed amity was not jurisdictional, was erroneous, and, there being no ambiguity, it can not be adopted by the judiciary. (Leighton's Case, p. 288.)

The act 3d February, 1887, which provides that certain officers absent at the date of their commissions "shall be entitled to the same

pay and emoluments as if actually performing the duties of the grade" does not extend to one who, being discharged from one regiment to accept promotion in another, failed to report, and remained beyond the reach of military authority. (Parkhurst's Case, p. 399.)

The act 18th June, 1878, requesting the President to investigate charges of fraud in regard to the claims of Weil and La Abra Mining Company was only an expression of the desire of Congress to have the charges investigated. The act 28th December, 1892, provided means of investigation in a judicial forum. Neither act limited or increased the diplomatic powers of the President. (La Abra Case, p. 432.)

The statutory recognition of a claim to an international award changes its character from that of a mere appeal to the grace of the sovereign to a right susceptible of judicial determination. (Ib.) Where parties waive an oral argument and submit a case, either will be allowed to withdraw it before a decision is announced. (Gidding's Case, p. 12.)

A case which has had the approval of the Secretary of the Interior and the Assistant Attorney General can not be reopened for reargument. (Wynn's Case, p. 15.)

Citizenship acquired by being a resident and voter in Nebraska when it was admitted does not relate back to the time when a depredation was committed. (Hosford's Case, p. 42.)

The Government has a right to press the claim of a citizen, though his partners be alien. (Ib.)

In the Indian depredation act, 1891, citizenship and amity relate to the same time. (Valk's Case, p. 62.)

A declaration to become a citizen did not make an alien a citizen within the intent of the act of 1891. (Ib.)

The Indian depredation act was framed in accordance with the general policy of all governments, not to pay for property destroyed in war. (Ib.)

Judgment against a tribe is not a necessary condition to judgment against the United States. (Gorham's Case, p. 97.)

The United States are responsible only: 1st. Where the Indian defendants are responsible, but without funds to respond in damages, 2d. Where the depredations were committed by Indians whose tribal relations can not be ascertained. (Woolverton's Case, p. 107.)

A tribe is not liable for depredations committed by a distinct band, previously a part of the tribe. (Ib.)

Joseph's band of the Nez Percé Indians were in 1877 a distinct Indian organization, and their nonjoinder as defendants for a depredation committed by them is fatal. (Ib.)

Where an allowed case is opened by the claimant and submitted on the evidence which was considered by the Secretary, the court will not increase the award. (Ib.)

The fact that the Government notified claimants by statutes to present their claims, and the fact that the claimant neglected to do so, suggest moral presumptions against the claim. (Stone's Case, p. 111.)

When ownership, possession, quantity, value, and the fact of the depredation depend exclusively upon the testimony of the party and a single witness, a court should not allow such testimony, wholly unsupported, to control a decision. (Ib.)