#### JESSE W. BEAM v. THE UNITED STATES AND THE SIOUX INDIANS.

[Indian Depredations,

2561.

Decided December 2, 1907.]

*On the Proofs.*

A depredation is committed prior to the 28th February, 1877, while the claimant is trespassing on the Sioux Reservation in Dakota. The question involved is whether persons who intruded in the Black Hills country after the negotiations in 1876, but before the act 2Sth February, 1877, can maintain an action against the tribe.

I. By the *Sioux Treaty, 1868*(15 Stat. D., p. 634), it was agreed that no person except those designated should enter upon the reservation or pass over it or settle or reside within it.

II. The negotiations in 1876 for a cession of a part of the reservation lying within the Black Hills country resulted not in a treaty but in a contract, which was not to become binding on the United States until it should receive the assent of Congress and the Executive. Not binding the United States, it did not bind the Indians until approved by the *Act 28th February,*1877 (19 Stat. D., 254, 257).

*62III. Under the *Indian Depredation Act, Sd March, 1891*(26 Stat. L., 851), the Sionx Indians were not liable as a tribe for depredations committed by individual Indians upon property of intruders in the Black Hills country in 1877 prior to the 28th February.

IV. A treaty binds each party to it from the date of its signature, thereby operating retroactively, but does not affect individual rights until there has been an exchange of ratifications.

V.The agreement of 1876-77, whereby a portion of the Sioux Reservation was re-ceded to the United States, is to be governed by the principle applicable to treaties. Settlers had no right to intrude on the lands to be re-ceded pending the negotiations, and the Sioux retained the right of exclusive occupation until the acceptance of the agreement by the act 28th February, 1877.

*The Reporters'1*statement of the case:

The following are the facts of the case as found by the court:

I. The claimant, Jesse W. Beam, at the date of the depredation hereinafter set forth was a citizen of the United States.

II. In the month of February, 1871, prior to the 28th day thereof, in Lawrence County, then Territory of Dakota and now State of South Dakota, Indians belonging to the Sioux tribe of Indians took property of the kind and character described in the petition, property of claimant, which was reasonably worth the sum of $2,200.

III. The locality in which said depredation occurred was a part of the Sioux Reservation under the treaty of 1868 between the United States and the Sioux Indians. That treaty provided (Art. II) :

The United States agrees that the following district of country, to wit, viz (the description which follows includes the locality where this depredation was committed) : * * * shall be, and the same is, set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them; and the United States now solemnly agrees that no person except those herein designated and authorized so to do, and except such officers, agents, *63and employees of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article.

And further (Art. XVI) :

The United States hereby agrees and stipulates that the country north of the North Platte River and east of the summits of the Big Horn Mountains shall be held and considered to be unceded Indian territory, and also stipulates and agrees that no white person or persons shall be permitted to Settle upon or occupy any portion of the same, or without the consent of the Indians, first had and obtained, to pass through the same; and it is further agreed by the United States that within ninety days after the .conclusion of peace with all the bands of the Sioux Nation the military posts now established in the territory in this article named shall be abandoned and that the road leading to them and by them to the settlements in the Territory of Montana shall be closed. (15 Stat. L., 635, 636, 640.)

IV. The territory thus reserved to the Indians was after-wards by them ceded in part to the United States. The agreement by which the reservation was so diminished was negotiated in the fall of 1876. It was not a treaty, but was a contract between the United States and the Sioux Indians or nation of Indians which required the assent of Congress and the Executive to make it binding. The agreement contained, as the last paragraph of the last article, the provision following, to wit:

*“*This agreement shall not be binding upon either party until it shall have received the approval of the President and Congress of the United States.” This approval was given February 28, 1877. (19 Stat. L., 254, 257.)

*Mr. William E. Harvey*for the claimant. *Mr. William B. King*and *Mr. William H. Robeson*were on the brief.

*Mr. Lincoln B. Smith*(with whom was *Mr. Assistant Attorney-General John G. Thompson)*for the defendants.

Howey, Judge,

delivered the opinion of the court:

This is one of a group of cases arising under the Indian depredation act of March 3, 1891 (26 Stats., 851). Some confusion has arisen on account of conflict in the testimony *64relating to the occurrences and because the defenses are different where the depredations occurred at different times. The decision now to be made in this case will govern the question of the defendants’ liability in all other cases where motions for new trial are pending if it appears that the depredations were committed before the ratification of the agreement between the Sioux tribe and the United States.

The petition, drawn fifteen years ago and at a time when the claimant’s recollection would naturally be fresh as to the events in question, shows that the depredation was committed on February 15, 1877, by Sioux Indians. The court has not treated this allegation pertaining to date as conclusive, especially as the claimant knew nothing of the loss of his own knowledge and does not appear to have been in that part of the country at the time of the depredation. But subsequent to the filing of the petition it was sought by him to change the allegation as to the date of his loss, the effect of which, if the last date given be accepted, excludes the defense interposed to the original petition. Under these circumstances the court has proceeded with care to determine the exact date as near as may be. Manifestly the proof relating to the matter of date set forth in the amended petition ought to be clear and convincing as against that originally alleged. There is no room to doubt but that the loss occurred prior to the ratification of the agreement between the defendants, and consequently the date of the loss set forth in the amended petition as subsequent to February 28, 1877, can not be accepted. Out of these facts is presented the question of law necessary to be decided.

Defendants entered into a treaty (which had never been superseded except as shown in the contract hereinafter stated) by which it was agreed on the part of the United States that no persons except those designated by the treaty should enter upon the reservation or be permitted to pass over, settle upon, or reside in the territory where this property was taken. It is not contended that the claimant had any leave or license from the Indians, or that he had any right to occupy Indian lands or to pasture his horses thereupon except such right as may have been enjoyed by all other *65citizens of the United States. The territory thus reserved to the Sioux was afterwards by them ceded, in part, to the United States, and it was on this territory that the depredations were committed. The agreement by which the reservation was so diminished was negotiated in the autumn of 1876. It was not a treaty, but a contract between the United States and the Sioux tribes or nation of Indians which required the assent of Congress and the Executive to make it binding. This approval was given by an act of Congress 'approved February 28, 1877. Under these conditions liability did not ordinarily arise under the act of March 8,1891, and previous acts of Congress for depredations committed by individuals among the Sioux upon the property of white intruders so as to charge the annuities of the tribe. *(Bush*v. *United States,*29 C. Cls. R., 144; *Welch*v. *United States,*32 C. Cls. R., 106.)

But it is earnestly contended that the circumstances surrounding the opening up of the Black Hills for settlement were the result of government exploration in consequence of the discovery of gold there, and that there was immediately such a volume of immigration to the country that a great majority of the Sioux Indians went on the warpath, in consequence of which the military forces were sent to quell the disturbances and that all military opposition to settlement of the Black Hills was withdrawn; that more than 10,000 settlers had entered the country before the contract disclosed by the findings, and that a regular civil government had been established by permission of the United States; that the military commanders advised settlers as to the measures they should take to protect themselves and maintain their settlements, from which it is argued that the presence of the claimant and his agents in the country was lawful, and that under these conditions the approval of the agreement to cede the land where this depredation was committed related back to the date when the agreement was made. As this agreement was entered into the year preceding the depredation, it is urged that the United States acquired title contemporaneously with the occupation of the country by its military forces and by reason of the circumstances set forth, and un*66der the general rule of international law concerning the cession of the land that, as between the parties, a treaty operates from the date of its signature and should be applied to this case so as to make the presence of settlers in the country lawful from the date of the agreement.

“It is undoubtedly true, as a principle of international law,” said Wheaton and the Supreme Court, “ that, as respects the rights of either government under it, a treaty is considered as conclusive and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date.” *(Haver*v. Yaker, 9 Wall., 34.) But a different rule prevails where the treaty operates on individual rights. The principle of relation does not apply to rights of this character until there is an exchange of ratifications. *(Arredondo's*case, 6 Pet., 749.) If it were intended to give retrospective operation to this agreement it must not be supposed that words would have been used that expressed the contrary intention. It would be a singular kind of a contract which provided for mutual concessions that one party should be held to its obligation pending acceptance while the other was not. The agreement had no validity until formally approved by the political departments of this Government, and in this respect the agreement is governed by the same principle applicable to the rights of the individual citizen under treaty. Possession of the country by the military forces pending the treaty no more transferred title to the land than it did to divest the right of exclusive occupation by the Sioux.

The right to recovery and the reasons advanced in support of the right come at last and really rest upon the proposition involved in the general misconduct of the Sioux, who, first precipitating a state of war, had been subdued in part, but were yet committing depredations by those members of the tribe who still remained hostile. Xf the conditions as to war existed, recovery for that reason alone is prohibited. If peace prevailed, the Sioux, it is true, had no license to rob the settlers or engage in the destruction of their property. But the action is not in trespass. The annuities of the whole tribe are chargeable for the acts of the individual members *67only' upon tbe conditions prescribed by law, and tbe United States assumed to pay only as guarantors if the Sioux were primarily liable. Tbe circumstances set forth in the petition, if true in every particular, do not create liability, because tbe claimant was unlawfully on tbe reservation.

Petition dismissed.