U.S. Supreme Court

Conners v. United States,180U.S. 271 (1901)Conners v. UnitedStates

No. 44

Argued December 17,1900

Decided February 11,1901

180U.S. 271

APPEAL FROM THE COURT OFCLAIMS

Syllabus

Where a band belonging to the Cheyenne Indiana becamedissatisfied with their reservation, separated themselves from themain body of the tribe, started northward to regain their formerreservation, were pursued by the troops, were defeated in battle,became hostile and committed depredations upon citizens, it washeld that neither the government nor the tribe to whichthey had originally belonged were responsible for the value ofproperty taken or destroyed by them.

This was also, as in the last case, a claim for livestock takenand destroyed in October, 1878, by certain bands of the Cheyenneand Arapahoe Indians, the suit being against the United States andDull Knife's and Little Wolf's bands of Northern Cheyennes and theNorthern and Southern Cheyennes and Arapahoe Indians. Defendantsdisclaimed responsibility upon the ground that the depredation wascommitted by an independent band of Indians not then in amity withthe United States.

The Court of Claims made a finding of facts, the materialarticle of which is set forth in the margin.*

Page 180 U. S. 272

Upon these findings of fact, the court decided as a conclusionof law:

The bands of Dull Knife and Little Wolf, at the time when

Page 180 U. S. 273

the depredation was committed, were independent bands ofIndians, within the intent and meaning of the Indian DepredationAct, 1891, and the tribe of Northern Cheyennes, the defendantsherein, was not responsible for their acts of depredation, and thepetition should be dismissed. 33 Ct.Cl. 317.

MR. JUSTICE BROWN delivered the opinion of the Court.

The opinion of the Court of Claims sets forth with more fullnessthan the findings the details of one of the most melancholy ofIndian tragedies -- a shocking story of nearly a thousand of theNorthern Cheyenne tribe removed from the Red Cloud reservation inNebraska to the Southern Cheyenne and Arapahoe reservation at FortReno in the Indian Territory; of the profound dissatisfaction ofDull Knife's and Little Wolf's bands, who lived apart from theother Indians on the reservation and made repeated applications tothe government to be returned to what they termed their nativecountry in the Northwest; of no notice being taken of theirrequest, when over three hundred of them broke away from thereservation; of a military force from Fort Reno sent in pursuit ofthem with particular instructions to induce the Indians to comeback without resort to force, if possible; of their being overtakenone hundred and twenty miles from Fort Reno; of an order to returnto the reservation and a reply in substance that they did not wishto make war, but that they would rather die than go back. Thetroops immediately fired upon them; they returned the fire, fled,and escaped; made their way across Kansas and Nebraska, twicefighting the troops as well as a body of armed citizens whoattacked them. They were finally intercepted by other troops, and,after some fighting, surrendered on October 3,

Page 180 U. S. 274

1878, and were taken to Fort Robinson, their former reservationin Nebraska. It was two days before the surrender, October 1, 1878,that the property of the claimant is found to have been taken ordestroyed by these Indians. Up to the time they were fired upon bythe pursuing troops in the Indian Territory, they had committed noatrocity, were in amity with the United States, and desired toremain so. After they were fired upon, their flight wascharacterized by the usual excesses of Indian warfare. The leadingchief was Dull Knife, who was accompanied by Old Crow and Wild Hogwith some of their bands, but, regarded as a military force, theywere under the command of Dull Knife. The band at the time of thesurrender consisted of forty-nine men, fifty-one women, andforty-eight children.

The main body of the Northern Cheyennes, to which these bandsseem to have originally belonged both in the Indian Territory andon the Northern Reservation, were in amity with the United States.Although these bands, under the leadership of Dull Knife, wereevidently driven into hostility with the United States by theaction of the troops in firing upon them pending a peaceful effortto induce them to return to their reservation, and therebyinstituting an Indian warfare, the fact still remains that this wasan independent band which had broken away from the main body of theCheyennes, and was acting in hostility to the United States and toall the frontiersmen along their path of retreat. As stated in theopinion of the court:

"They fought and fled, and scattered and reunited. They foughtother military commands and citizens who had organized to opposethem, and in like manner they again and again eluded theiropponents, making their way northward over innumerable hindrances.They had not sought war, but from the moment when they were firedupon, they were upon the warpath -- men were killed, women wereravished, houses were burned, crops destroyed. The country throughwhich they fled and fought was desolated, and they left behind themthe usual well known trail of fire and blood."

While the ghastly facts of this case, which are set forth withmuch greater detail in the opinion of the Court of Claims, appealstrongly to the generosity of Congress to recompense those who

Page 180 U. S. 275

have suffered by the inconsiderate and hasty action of thetroops in driving these Indians into hostility, they afford noground whatever for a judgment against the tribes to which theseIndians originally belonged, but from which they had separated andcarried on independent operations. In fact, it would be highlyunjust to add to their manifest sufferings the payment of thesedamages from their annuities, or from other funds standing to theircredit. Nor does the claim make a case against the United Statesunder the act vesting jurisdiction in the Court of Claims. We arenot at liberty to consider the circumstances under which theseIndians were driven into hostility to the United States. That theband was not in amity from the moment it was fired upon by thetroops is entirely clear. That the band itself was beyond thecontrol of the tribes to which it originally belonged is equallyclear. As stated by the court below:

"It was not the case of individual Indians wandering from themain body, murdering and destroying, while the main body remainedin amity with the United States, but it was the case of an entirebody waging armed resistance, with all its might and with all theferocity of Indian warfare, against whatever power the UnitedStates could bring to bear upon them. The fearful extermination ofDull Knife's band by the responsible military authorities of theUnited States, on the assumption that they were escaping prisonersof war, refutes the idea of preexisting conditions of amity andrenders it preposterous."

The fact that they were treated as prisoners of war also refutesthe idea that they were murderers, brigands, or other commoncriminals.

To constitute a "band," we do not think it necessary that theIndians composing it be a separate political entity, recognized assuch, inhabiting a particular territory, and with whom treaties hadbeen or might be made. These peculiarities would rather give themthe character of tribes. The word "band" implies an inferior andless permanent organization, though it must be of sufficientstrength to be capable of initiating hostile proceedings.

The opinions of the court below in both of these cases are sothorough and satisfactory that a prolongation of this opinion

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would be but a mere repetition of those. The law whichcontrolled the disposition of the case just decided is equallyapplicable here, and the judgment of the Court of Claims dismissingthe petition is therefore

Affirmed.

*

"Finding of Facts"

"In May, 1877, 937 Northern Cheyennes, men, women, and children,were removed from the Red Cloud reservation at Fort Robinson, inNebraska, to the Southern Cheyenne and Arapahoe reservation at FortReno, in the Indian Territory. The Cheyennes went voluntarily,though reluctantly, relying in part upon representations made tothem that the southern reservation would be a desirable home and inpart upon what they understood to be assurances that, ifdissatisfied with it, they should be brought back. The body ofIndians was composed of subdivisions of the Cheyenne tribe known asthe bands of Dull Knife, Little Wolf, Wild Hog, and Old Crow. Theseso-called bands had no autonomy, and had not been recognized eitherby the government or by the tribe as separate entities. They werenatural segregations of civilized Indians, leading a nomadic lifeand living in groups in a widely extended habitat. The so-calledchiefs were leaders or spokesmen, commonly called head men. TheIndians so removed were about one-half of the entire tribe."

"On the reservation at Fort Reno, the Cheyennes of Dull Knife'sand Little Wolf's bands lived apart from other Indians on thereservation. They were dissatisfied, and made repeated applicationsto the government to be brought back to what they termed theirnative country in the Northwest. No notice being taken of theirrequest, 320 of them broke away from the reservation on September9, 1878. The commanding officer at Fort Reno sent a military forcein pursuit. 'The officer in command was particularly instructed ifhe could induce the Indians to come back without resort to force,to do so.'"

The Cheyennes were overtaken at a point 120 miles distant fromFort Reno. The officer in command summoned them to yield and returnto the reservation. Little Wolf, as spokesman for the Cheyennes,replied in substance that they did not wish to make war, but thatthey would rather die than go back. The troops immediately firedupon the Cheyennes, who returned the fire, and then fled andescaped. They made their way across Kansas and Nebraska, twicefighting United States troops and likewise a body of armed citizenswho attacked them. In the northern part of Nebraska, they wereintercepted by other troops, and after some fighting theysurrendered on the 3d of October, and were taken to Fort Robinson.Shortly before this surrender, Little Wolf, with about half of theparty, had separated from Dull Knife, and he and his party were notincluded in the surrender. Old Crow and Wild Hog, with some oftheir bands, accompanied Dull Knife's party in this escape from theIndian Territory. The leading chief was Dull Knife, and theIndians, regarded as a military force, were under his command. Theband at the time of the surrender consisted of 49 men, 51 women,and 48 children.

Up to the time these Cheyennes were fired upon in the IndianTerritory by the pursuing troops, they had committed no atrocityand were in amity with the United States and desired to remain so.After they were fired upon as before described, their flight wascharacterized by the usual characteristics of Indian warfare.During the period of this flight -- that is to say, between the 9thof September and the 3d of October, 1878 -- the Northern Cheyennes,both in Indian Territory and on the northern reservations, were inamity with the United States.

"On these specific facts the court finds the ultimate factsthat, at the time when the depredation above set forth wascommitted, the tribe of Northern Cheyenne Indians was in amity withthe United States, with the exception of those who composed thebands of Dull Knife and Little Wolf, and that the bands of DullKnife and Little Wolf were not in amity."