190 U.S.

368
23 S.Ct. 772
47 L.Ed. 1099

JOHNSON BLACKFEATHER, the Principal Chief of the

Shawnee Tribe of Indians, etc., Appt.,
v.
UNITED STATES.
No. 276.
Submitted April 28, 1903.
Decided June 1, 1903.

[373]
Messrs.
Assistant Attorney General Pradt and Mr. William H. Button for appellee.
Statement by Mr. Justice Peckham:
The petitioner filed his amended petition in the court of claims in August,
1892, in which he asked to recover from the United States over five
hundred and thirty thouand dollars on the grounds therein set forth. There
was a demurrer to the amended petition, by the United States, on the
ground that it did not allege facts sufficient to constitute a cause of action.
The demurrer was sustained, and the plaintiff has appealed to this court.
In his petition the petitioner represents himself as a Shawnee Indian by
blood and descent, a member and the principal chief of the Shawnee Tribe
or Nation, and residing in the Indian territory. He states that he brings suit
in the court of claims as such principal chief of such Shawnee Tribe or
Nation under the provisions of two acts of Congress, the first of which is
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 (26 Stat. at L. 636,
chap. 1249), and the second 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' (27 Stat. at L. 86, chap. 151). These acts are set
out in the margin.
Act of 1890 (26 Stat. at L. 636, chap. 1249).
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That full jurisdiction is hereby
conferred upon the court of claims, subject to an appeal to the Supreme
Court of the United States as in other cases, to hear and determine what
are the just rights in law or in equity of the Shawnee and Delaware
Indians, who are settled and incorporated into the Cherokee Nation,
Indian territory, east of ninety-six degrees west longitude, under the
provisions of article fifteen of the treaty of July nineteenth, eighteen
hundred and sixty-six, made by and between the United States and the
Cherokee Nation, and articles of agreement made by and between the
Cherokee Nation and the Shawnee Indians, June seventh, eighteen
hundred and sixty-nine, approved by the President June ninth, eighteen
hundred and sixty-nine, and articles of agreement made with the Delaware
Indians April eighth, eighteen hundred and sixty-seven; and also of the
Cherokee freedmen, who are settled and located in the Cherokee Nation,
under the provisions and stipulations of article nine of the aforesaid treaty
of eighteen hundred and sixty-six, in respect to the subject-matter herein
provided for.
Sec. 2. That the said Shawnees, Delawares. and freedmen shall have a
right, either separately or jointly, to begin and prosecute a suit or suits
against the Cherokee Nation and the United States government to recover
from the Cherokee Nation all moneys due, either in law or equity, and
unpaid to the said Shawnees, Delawares, or freedmen, which the Cherokee
Nation have before paid out, or may hereafter pay, per capita, in the
Cherokee Nation, and which was, or may be, refused or neglected to be
paid to the said Shawnees, Delawares, or freedmen by the Cherokee
Nation out of any moneys or funds which have or may be paid into the
treasury of, or in any way have come, or may come, into the possession
of, the Cherokee Nation, Indian territory, derived from the sale, leasing, or
rent for grazing purposes on Cherokee lands west of ninety-six degrees
west longitude, and which have been, or may be, appropriated and directed
to be paid out per capita by the acts passed by the Cherokee Council, and
for all moneys, lands, and rights which shall appear to be due to the said
Shawnees, Delawares, or freedmen under the provisions of the aforesaid
articles of treaty and articles of agreement.
Sec. 3. That the said suit or suits may be brought in the name of the

principal chief or chiefs of the said Shawnee and Delaware Indians, and
for the freedmen, and in their behalf and for their use in the name of some
perThe petitioner asks to recover and collect from the United States the
several amounts of money thereafter set out at length in payment for the
destruction, loss, forcible taking, carrying, and driving away of live stock,
farm products, household goods, money, and other personal property of
divers descriptions and kinds belonging to, owned, and possessed by, and
the property of, the said Shawnee Indians, by white and United States
citizens 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. Reference is then made to a schedule which is
made part of the petition, and in which appear the names of between three
and four hundred Indians, and the schedule gives their individual claims,
varying in amounts from as high as $7,000 down to $75, and aggregating
$530,945.14.
It is contended that the claims arise out of treaty relations with the United
States (mentioned in the foregoing acts of Congress), particularly articles
11 and 14 of the treaty of May 10, 1854 (10 Stat. at L. 1053, 1057),
between the United States and the Indians, and also out of 2154 and
2155 of the Revised Statutes of the United States. The articles of the
treaty are as follows:
'Article 11. It being represented that many of the Shawnees have sustained
damage in the loss and destruction of their crops, stock, and other
property, and otherwise, by reason of the great emigration which has for
several years passed through their country, and of other causes, in
violation, as they allege, of guarantees made for their protection by the
United States, it is agreed that there shall be paid in consideration thereof,
to the Shawnees, the sum of twenty-seven thousand dollars, which shall
be taken and considered in full satisfaction, not only of such claim, but of
all others of what kind soever, and in release of all demands and
stipulations arising under former treaties, with the exception of the
perpetual annuities, amounting to three thousand dollars, hereinbefore
named and which are set apart and appropriated in the third article hereof.
All Shawnees who have sustained damage by the emigration of citizens of
the United States, or by other acts of such citizens, shall, within six
months after the ratification of this treaty, file their claims for such
damages with the Shawnee agent, to be submitted by him to the Shawnee
council, for their action and decision, and the amount in each case
approved shall be paid by said agent: Provided, The whole amount of
claims thus approved shall not exceed the said sum stipulated for in this
article. And provided, That if such amount shall exceed that sum, then a

reduction shall be made pro rata from each claim until the aggregate is
lowered to that amount. If less than that amount be adjudged to be due,
the residue, it is agreed, shall be appropriated as the council shall direct.'
'Article 14. The Shawnees acknowledge their dependence on the
government of the United States, and invoke its protection and care. 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.'
Section 2154 of the Revised Statutes, which is part of the act of June 30,
1834 (4 Stat. at L. 731, chap. 161), reads as follows:
'Sec. 2154. Whenever, in the commission, by a white person, of any
crime, offense, or misdemeanor, within the Indian country, the property of
any friendly Indian is taken, injured, or destroyed, and a conviction is had
for such crime, offense, or misdemeanor, the person so convicted shall be
sentenced to pay such friendly Indian to whom the property may belong,
or whose person may be injured, a sum equal to twice the just value of the
property so taken, injured, or destroyed.'
Section 2155 of the Revised Statutes, which is also part of the act of June
30, 1834 (4 Stat. at L. 731, chap. 161), reads as follows:
'Sec. 2155. If such offender shall be unable to pay a sum at least equal to
the just value or amount, whatever such payment shall fall short of the
same shall be paid out of the Treasury of the United States. If such
offender cannot be apprehended and brought to trial, the amount of such
property shall be paid out of the Treasury. But no Indian shall be entitled
to any payment out of the Treasury of the United States for any such
property if he, or any of the nation to which he belongs, have sought
private revenge, or have attempted to obtain satisfaction by any force or
violence.'
It is also stated that, at the time the property was taken, the Indians were
in amity with, and had always been loyal to, the United States. Judgment
was asked in favor of the Indians mentioned for the respective sums set
opposite their names, and that 10 per centum of the amount might be
allowed the attorneys for their services.
Messrs. John C. Chaney and Alphonso
Mr. Justice Peckham, after making the foregoing statement of facts,
delivered the opinion of the court:

The duty of this court is simply to construe the acts of Congress of 1890 and
1892. The court of claims has no jurisdiction of the subject-matter of this
petition, unless it is conferred by one or the other of the above acts. The moral
obligations of the government toward the Indians, whatever they may be, are
for Congress alone to recognize, and the courts can exercise only such
jurisdiction over the subject as Congress may confer upon them.

Upon examination of the act of 1890, it appears that jurisdiction is conferred

upon the court of claims to hear and determine what are the just rights in law or
in equity of the Shawnee and Delaware Indians, who are settled and
incorporated into the Cherokee Nation, under the provisions of article 15 of the
treaty of 1866 (14 Stat. at L. 115) between the United States and the Cherokee
Nation, and also under articles of agreement between the Cherokee Nation and
the Shawnee Indians, made June 7, 1869, and articles of agreement made with
the Delaware Indians, April 8, 1867, and also of the Cherokee freedmen settled,
etc., under provisions of article 9 of the treaty of 1866.

The language of the 1st section, in our opinion, confers jurisdiction upon the
court of claims to hear and determine the rights in law or equity of the tribes of
the Shawnee or Delaware Indians, arising out of the subject-matter provided for
in the subsequent parts of the act, and there is no grant of jurisdiction to hear or
determine the rights of individual members of those tribes. It is true the statute
speaks of the Shawnee and Delaware Indians, but the words 'Shawnee and
Delaware Indians' mean the tribes, and not individual members of those tribes
of Indians. The rights must be those which arise out of the subject-matter which
is referred to in 2, 3, and 4 of the act. This is stated in terms in the 1st
section. The subsequent sections of the act show, as we think, that Indian
tribes, and not individual members thereof, are intended. And no jurisdiction is
granted to hear claims such as are included in this case, whether they are made
by tribes or by individual members of a tribe.

The 2d section permits a suit against the Cherokee Nation and the United States
government to recover from the Cherokee Nation moneys due and unpaid to the
Shawnees, etc., which the Cherokee Nation have before paid out, or may
hereafter pay per capita in the Cherokee Nation, and which the Cherokee
Nation had refused or neglected to pay to the other Indians. The suits are in
reality against the Cherokee Nation, and the recovery is from that nation. The
separate or joint suit mentioned in this section is a separate or joint suit of the
tribes and of the freedmen, and not of the individual members thereof. In either
event, it does not include such a case as this.

Section 3 permits the bringing of 'the said suit or suits' in the name of the
principal chief or chiefs of the said Shawnee and Delaware Indians, and for the
freedmen, in their behalf and for their use, in the name of some person as their
trustee, to be selected by them with the approval of the Secretary of the Interior.
The exercise of this jurisdiction is not to be barred by any lapse of time
heretofore, nor are the rights of the Indians to be impaired by any acts passed
and approved by the Cherokee National Council. The right given by the 3d
section is to commence a suit or suits which had already been spoken of in the
2d section of the act. The 2d section gave no right to commence this suit, as we
have seen. Neither section includes the rights of individual Indians.

A perusal of 4 shows that the right to bring a suit against the United States,
therein provided for, was limited to the purpose of collecting from the United
States government any amount of money that in law or equity may be due from
the United States 'to said tribes in reimbursement of their tribal fund for money
wrongfully diverted therefrom.' We think that individual Indians had no right to
commence such an action as this under the act of 1890, even though it be
assumed that the tribe had such right under that act for the recovery of the value
of property taken from the tribe. Such a suit as the one before us is plainly not
included in the grant of jurisdiction in this section.

By the act of 1892, it is provided that 'the Shawnee tribe or band of Indians,
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 1890), 'shall present to the said court all their claims against the United
States and the Cherokee Nation,' etc.

The result is that this act does not grant jurisdiction to the court of claims to
hear and decide the questions arising under this petition. The grant of
jurisdiction is to hear and determine all the claims of the Shawnee tribe or band
of Indians.

The claims are those of a tribe or band, and not those of the individual members
of the Shawnee tribe or band. The reference in the act of 1892 shows that
Congress assumed that, whatever their nature, it was the claims of the Shawnee
tribe or band that had been referred to the court of claims for adjudication by
the act of 1890, and not claims of the individual members, thereof. The act of
1892 enlarges the scope of the act of 1890 so as to include all claims of the tribe
or band, instead of claims of the nature provided for in 2, 3, and 4 of the act
of 1890, but the claims must be claims of a band, and not of an individual.

10

These acts have been before this court on a previous occasion.

10

These acts have been before this court on a previous occasion.

11

In United States v. Blackfeather, 155 U. S. 180, 194, 39 L. ed. 114, 119, 15

Sup. Ct. Rep. 64, 70, Mr. Justice Brown, speaking for the court, said:

12

'While there may be a moral obligation on the part of the government to

reimburse the money embezzled by the Indian superintendent, and, in fact, an
appropriation appears to have been made for that purpose (Act of July 7, 1884,
chap. 334, 23 Stat. at L. 236, 247), it is by no means clear that, under the acts of
1890 and 1892, the Shawnees were authorized to recover and collect from the
government any other moneys than those which they claimed in their tribal
relation or capacity. The money in question is not due the tribe as such, but to
certain individual orphans, who claim to have been defrauded. But whether this
be so or not, there is nothing in the record to indicate how much of this money
was embezzled by the guardians created by the Indian council, and how much
by the Indian superintendent, so that there is in reality no basis for a decree in
their favor.'

13

While the question in issue here was, as is seen, not decided in the above case,
yet the expression contained in the opinion shows the court was not prepared to
hold that the acts embraced claims of individual Indians.

14

As these statutes extend the jurisdiction of the court of claims and permit the
government to be sued for causes of action therein referred to, the grant of
jurisdiction must be shown clearly to cover the case before us, and if it do not,
it will not be implied. Statutes of this nature extending the right to sue the
government will generally be strictly construed. We concur with the following
remarks of Judge Weldon, contained in the opinion delivered by him in this
case in the court of claims:

15

'The act of 1892 seems to have been enacted for the purpose of enlarging 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?

16

'The statute [1890] is 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,' and provides, in substance, 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, expressed or implied, under such

treaties, made and entered into by and between the said Shawnees and
Cherokees, and between them, or either of them, and the United States.
17

'The right to sue, by the phraseology of this statute, is in the assertion of rights
growing out of treaties, and for contracts, expressed or implied, 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, expressed
or implied, between the United States and the individual Indians, who, through
the medium of the principal chief, are now prosecuting these claims?

18

'The attention of the court is called to the 14th article [of the treaty of 1854],
which provides that 'the Shawnees acknowledge their dependence on the
government of the United States, and invoke its protection and care. 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.' Does this phraseology establish
contractual or treaty relations, having the effect of contracts, with each
individual Indian 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?

19

'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.

20

'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 expressed or implied, compacts, or treaties with individual Indians so as
to embrace within the purview of such contract or undertaking the personal
rights of individual Indians.

21

'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 remuneration to the Indian is to be
made under 2154, Revised Statutes, is not shown to exist in this case. And so
it may be said of 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.

22

'The act of 1892 specifies that the Shawnee tribe or band of Indians, 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 October 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 personal claims of the individual Indians belonging to said tribe or band of
Shawnees.
23

'The evident object of the act of 1892 was to enlarge the jurisdiction 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.'

24

We think it clear that no jurisdiction over this case is granted by the language
of the sections of the Revised Statutes above referred to.

25

We see nothing in the act, approved May 9, 1860 (12 Stat. at L. 15, chap. 40),
appropriating moneys for the payment of 'claims of certain members of the
Shawnee tribe of Indians,' which affects the conclusion we have reached that
the acts of 1890 and 1892 refer to tribes, and not individuals. The act of 1860
appropriates, in terms, money to pay claims of certain members of the tribe. It
is apparent that when Congress intends to include individuals as distinct from
tribes, it does not speak of them as Shawnee Indians, but as 'certain members' of
the Shawnee tribe.

26

Congress may, of course, at its pleasure, still confer jurisdiction upon the court
of claims in such terms as shall, without doubt, cover claims of the nature set
forth in this record. In our judgment it has not done so as yet. The judgment of
the Court of Claims must be affirmed.

sons as their trustee, to be selected by them with the approval of the Secretary
of the Interior. And the exercise of such jurisdiction shall not be barred by any
lapse of time heretofore, nor shall the rights of such Indians be impaired by any
acts passed and approved by the Cherokee National Council. Suits may be
instituted within twelve months after the passage of this act, and the law and
practice and rules of procedure in such courts shall be the practice and law in
these cases; and copies of the petitions filed in the case at the commencement
of the suit shall be served upon the Attorney General of the United States, and
on the principal chief of the Cherokee Nation, by the marshal of the district
court for the Indian territory; and that the costs of the said suits shall be
apportioned between the United States and the other parties to such suits as to
said court, law and equity shall require. The Attorney General shall designate

and appoint from the Department of Justice a person who is competent to

defend the said Cherokee Nation and the United States. And the said
Shawnees, Delawares, and freedmen may be represented by attorneys and
counsel. And the court is hereby authorized to decree the amount of
compensation of such attorneys, and counsel fees, not to exceed ten per centum
of the amount recovered, and order the same to be paid to the attorneys and
counsel of the said Shawnees, Delawares, and freedmen; and all judgments for
any sum or sums of moneys which may be ordered or decreed by such court in
favor of the Shawnees, Delawares, or freedmen, and against the Cherokee
Nation, shall be enforced by the said court or courts against the said Cherokee
Nation by execution, mandamus, or in any other way which the said court may
see fit.
Sec. 4. That the said Shawnee Indians are hereby authorized and empowered to
bring and begin a suit in law or equity against the United States government in
the court of claims, to recover and collect from the United States government
any amount of money that in law or equity is due from the United States to said
tribes in reimbursement of their tribal fund for money wrongfully diverted
therefrom. The right to appeal, jurisdiction of the court, process, procedure, and
proceedings in the suit here provided for shall be as provided for in sections
one, two, and three of this act.
Act of 1892 (27 Stat. at L. 86, chap. 151).
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That the Shawnee tribe or band of Indians,
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 October first, eighteen hundred and ninety,
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,' 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 every
description whatsoever, arising out of treaty relations with the United States,
rights growing out of such treaties, and from contracts, expressed or implied,
under such treaties, made and entered into by and between the said Shawnees
and Cherokees, and between them, or either of them, and the United States.