#### BENJAMIN F. BYRD, ADMINISTRATOR, v. THE UNITED STATES.

[Departmental,

92.

Decided March 29, 1909.]

*On the Proofs.*

Tiiis case is in all respects similar to the preceding case of Hayes except that here the claim was transmitted to the court by the Secretary of the Treasury after it had. been certified to that department by the Secretary of the Interior.

*499I.Tlie administrative examination of the claims of Indians for property taken in violation of treaty obligations rests in the first instance with the Interior Department.

II.The administrative examination by the Secretary of the Interior in such cases is not conclusive upon the accounting officers. .

III.Where the claim of an Indian for property taken away by. Indians of another tribe in violation of treaty obligations is transmitted by the Interior Department to the proper auditor of the Treasury the claim must be deemed to be pending in the Treasury Department, and may be transmitted by the Secretary to this court under the Bowman Act.

*The Reporters’*statement of the case:

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

The claim in this case for horses taken by the Comanche Indians in September, 1866, from the claimant’s decedent, Kenarta, a Chickasaw Indian residing on the Chickasaw. Keservation, was referred to the court December 11, 1907, by the Acting Secretary of the Treasury ünder the provisions of section 2 of the act of March. 3, 1883 (22 Stat. L., 485). The claimant, Benjamin F. Byrd, administrator of the estate of Kenarta, deceased, appeared and filed his petition herein, averring, among other things, that in September, 1866, the Comanche Indians stole and carried away from the Chickasaw Keservation 14 head of horses belonging to said decedent, then and there reasonably worth the sum of $1,935.

I. The claimant, Benjamin F. Byrd, is the administrator of the estate of Kenarta, deceased, duly appointed by the Probate Court of Pontotoc County, Chickasaw Nation, Ind. T. The said Kenarta was during his life a Chickasaw Indian, a citizen of the Chickasaw Nation and resident therein, and died in about the year 1872.

II. During the month of September, 1866, Comanche Indians, not subject to the jurisdiction of the Chickasaw Nation, took and carried away from the residence tif said decedent, Kenarta, in Pontotoc County, Chickasaw Nation, property belonging to him of the character and kind described in the petition, then and there reasonably worth the *500sum of $720, which said property has not been returned or paid for.

A claim for said property, as set forth in the petition, was presented to the agent of the Choctaw and Chickasaw Indians December 18, 1868, under the provisions of article 14 of the treaty between the United States and Choctaw and Chickasaw Indians of June 22, 1855 (11 Stat. L., 614), reaffirmed by articles 10 and 45 of the treaty between the same parties April 28, 1866 (14 Stat. L., 774, 779). It is not shown that any action was ever taken by the Commissioner of Indian Affairs or the Secretary of the Interior except the reference of the claim to the court, as hereinbefore set forth.

*Mr. W. G. Shelley*and *Mr. S. A. Putnam*for the claimant.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

The Secretary of the Interior was given exclusive authority to investigate Indian depredation claims. Fie was required to prescribe the rules by which they should be measured, and he was directed to do the measuring himself. Fie was not authorized to delegate this duty to any other official or to this court. If Congress had desired the report of any other official or the report of this court upon these claims, it could easily have procured it without the assistance of the Secretary of the Interior. He had been directed to investigate the claims in a particular manner and report the result to Congress, and a report by any other official or by this court would not, and could not, be his report. The only avenue by which the Choctaw and Chickasaw claimants could secure indemnity for repredations upon their property was through the treaty of 1855, upon the same principle and in accordance with the same regulations that had been prescribed for the claims of white persons for depredations committed by the Indians; and if this court has jurisdiction to entertain the claims' it must proceed under these rules, which are in direct conflict at almost every point with its own rules of procedure. The conflict between the rules prescribed by the Secretary of the Interior and those pre*501scribed by this court was recognized by Congress, which found it necessary in the act of 1891 to make specific provision for the consideration by this court of the proof taken under the rules of the Secretary of the Interior in these claims.

This court has held in a number of cases that when an opinion has been rendered to the head of an executive department, under the second section of the Bowman Act he must be controlled by it in his future action in that and similar cases. *(McKnight*v. *United*States, 18 C. Cls. B., 292; *Barnett*v. *United*States, 16 C. Cls. B., 515; *Power*v. *United States,*18 C. Cls. B., 263.) In the case of *Jaelcson*v. *United States*(19 C. Cls. B., 504) it was held that: “A pending claim upon being ’transmitted to this court by an executive department under the Bowman Act, becomes a competent matter of jurisdiction; and the department is to be guided by the decision of the court, although it may be merely that the further consideration of the claim by the department is unauthorized by law.” In the case of *Meigs*v. *United States*(20 C. Cls. B., 186 and 187) the court reviewed quite extensively the different acts, and reached the conclusion that “ the course of legislation unmistakably indicates the intention of Congress that the decisions of the Court of Claims shall be guides and precedents for the executive departments in all like cases.”

The Secretary of the Interior, however, had no authority to refer a claim of this character to the court, and he had even less authority to refer such a claim to the accounting officers of the Treasury. The supposed authority is contained in the decision of the comptroller in the Overton Love case, referred to the accounting officers of the Treasury by the Secretary of the Interior under the impression that his own jurisdiction had been withdrawn by the act of 1891, in which it was held that the Secretary of the Interior still had authority to investigate these claims under section 466 of the Bevised Statutes, but that the accounting officers of the Treasury also had authority to examine and audit the claims under sections 464 and 236 of the Bevised Statutes.

*502That the two statutes relate only to matters of account, and are not applicable to claims for unliquidated damages, should be too clear to need argument; but if by chance any doubt should still remain upon this point, that doubt should ' be dissipated by the act of August 7, 1882 (22 Stat., 345, 346), entitled “An act to authorize the auditing of certain unpaid claims against the Indian Bureau by the accounting officers of the Treasury,” which specifies the character of the claims on file in the Department of the Interior which may be examined, audited, and reported to Congress.

It would seem that Congress considered it necessary, in order to give the accounting officers of the Treasury jurisdiction, even in claims for services and supplies, that special legislation should be enacted. How much more so, then, Avould such legislation be necessary in claims for unliq-uidated damages growing out of torts. This court has held in a number of cases that the accounting officers of the Treasury have no jurisdiction to examine the facts in claims for unliquidated damages growing out of contracts even. *(Power*v. *United*States, 18 C. Cls. B., 263.) The court in its opinion gave its reasons for this conclusion and cited a number of authorities in support. (See also the case of *Dennis*v. *United States,*23 C. Cls. B., 324.)

If the accounting officers of the Treasury have no authority to settle claims of this character, the Treasury Department has no jurisdiction of the claims, and the Secretary of the Treasury has no authority to refer them to this court under the Bowman Act. *(The State of Illinois*v. *United States,*20 C. Cls. B., 342; *Pope et al.*v.1 *United States,*21 C. Cls. B., 50; *Pitman*v. *United*States, 20 C. Cls. B., 253; *Armstrong et al.*v. *United States,*29 C. Cls. B., 148.) It therefore follows if the act of 1891 did not act as a repeal of the act of May 29,' 1872, under which the rules and regulations for the investigation of these claims were prescribed, the Secretary of the Interior still has exclusive jurisdiction to make investigations and report to Congress. *{Marshall*v. *United States,*21 C. Cls. B., 307.)

While the Secretar}'' of the Interior in this class of cases had the exclusive authority to investigate the facts and *503report bis findings to Congress, he had no authority to settle the claims, and as the court said in the recent case of *Vin-cente Oantua*v. *The United States*(No. 93 Departmental, 43 C. Cls., 569), “the head of a department can not transmit a claim to the court under section 1063 of the Revised Statutes unless it is one over which it has jurisdiction; that there is no appropriation out of which the Secretary of War can settle the claim, consequently he is without authority to take action thereon.” The court further said: “ The statute contemplates the head of a department stating the controverted questions of law or fact involved in the controversy upon which he desires an opinion.” This language of the court would appear to indicate that while the head of an executive department may transmit a test case for an opinion for guidance in the settlement of other cases of the same class it is not within his power to bodily shift a whole class of cases from his own shoulders onto the court for the sole purpose of compelling the court to investigate facts .which Congress directed should be done solely by himself.

Peelle, Ch. J.,

delivered the opinion of the court:

The claim herein for property stolen and carried away by Comanche Indians in September, 1866, from the claimant’s decedent, Kenarta, a Chickasaw Indian residing on the Chickasaw Reservation, for which indemnity is sought under article 14 of the treaty between the United States and the Choctaw and Chickasaw Indians of June 22, 1855 (11 Stat. L., 614), reaffirmed by articles 10 and 45 of the treaty between the same persons of April 28, 1866 (14 Stat. L., 774, 779), is in all respects similar to the case of *Amos II.*Hayes, administrator, *etc.,*v. *The United States (ante*522), except that the claim in the present case was transmitted to the court by the Secretary of the Treasury after the same had been certified to that department by the Secretary of the Interior.

In that case, as in this, the jurisdiction of the department to transmit the claim under section 2 of the act of March 3, .1883 (22 Stat. L., 485), is questioned, though not seriously urged.

*504In the Hayes case, supra, we held that the authority to investigate this class of claims had not been taken away from the Secretary of the Interior by section 13 of the act of March 3, 1891 (26 Stat. L., 851), but that he was still possessed with authority to investigate the claims of Indians for depredations by Indians in violation of treaty stipulations, and that when such investigation had been made the result thereof, whether for or against the allowance of such claim, should be certified to the Treasury Department for final settlement and adjustment under Revised Statutes, section 236.

In the present case we have not only considered the controverted question of law involved, but' we have- considered the evidence and found the facts respecting the merits of the claim, though the administrative examination of such claims rests in the first instance with the Interior Department, charged with Indian affairs, if, indeed, the conclusion of " that department, on the facts before it respecting such claims, is not conclusive on the claimant in the absence of fraud or mistake.

In the case of *Medbury*v. *United States*(173 U. S., 492, 497), being an action to recover under the act of June 16, 1880 (21 Stat. L., 287), an excess payment for lands entered within the limits of a railroad grant where the grant was subsequently forfeited, the court said:

> “ If there were any disputed questions of fact before the Secretary, his decision in regard to those matters would probably be conclusive,'and would not be reviewed in any court. But where, as in this case, there is no disputed question of fact, and the decision turns exclusively upon the proper construction of the act of Congress, the decision of the Secretary-refusing to make the payment is not final, and the Court of Claims has jurisdiction of such a case.”

We do not hold that the administrative examination by the Secretary of the Interior, on the facts before him, is conclusive on the accounting officers, as the practice of the accounting officers has been, we are advised, as stated by the assistant comptroller in the case of *Overton Love*(7 Comp. Dec., 308, 312), where he says, “ Neither the Secretary nor *505the commissioner is empowered to make a settlement, their, authority being administrative and advisory; but the accounting officers should hesitate to make an allowance on such claims greater than that approved by the administrative officers.” In that same case, respecting the jurisdiction of the accounting officers to consider such claims without administrative examination by the Interior Department, it is said: “ This conclusion is reached without assenting to the view of the auditor that he is without jurisdiction to settle the claim before the required administrative examination .has been made. Sections 464 and 466, Bevised Statutes, are not, in my opinion, jurisdictional statutes, a full compliance with which is indispensable to enable the auditor to obtain jurisdiction. Those sections are directory, and as obligatory upon the officers referred to therein as if they were mandatory, yet a failure to comply with their requirements can not debar the auditor from his jurisdiction under section 236, Bevised Statutes, a transmission to the auditor being all that is necesary to invest him with jurisdiction.”

On the authority of that case by the assistant comptroller holding that the transmission of such claim to the auditor was all that was necessary “ to invest him with jurisdiction,” we conclude that the present claim was pending in the department at the time of its reference to the court. And as by section 2 of the act of March, 1883, under which the reference was made, it is provided “ That when a claim or matter is pending in any of the executive departments which may involve controverted questions of fact or law the head of such department may transmit the same to said court,” we must hold that the Secretary of the Treasury had the author - ity to so transmit the claim.

The foregoing findings of fact and conclusion of law, together with this opinion, are ordered to be certified to the Secretary of the Treasury for his guidance and action.