#### ESTHER ROUSSEAU v. THE UNITED STATES.

[No. 29984.

Decided December 6, 1909.]

*On the Proofs.*

An Indian woman, residing on the Cheyenne River Indian Reservation, whose business is breeding horses, is the owner of a large herd running at large upon the reservation. The Indian agent there, with authority from the Interior Department, but without authority from the Department of Agriculture, orders that the herd be destroyed, in the belief that the horses have a contagious disease — the glanders. The agent acts in good faith and in accordance with the advice of a veterinary, but later it is ascertained that the herd was not infected.

I. Where a statute, Act, *7tU February, 1907*(84 Stat. L., p. 2408), confers jurisdiction “ *to hear, determine, and render final judgment upon the claim of Esther Rousseau for horses belonging to her, killed and destroyed upon the Cheyenne River Indian Reservation*” “ *by the Indian agent in charge,”*and directs the court to “ *render a judgment or decree thereon for such amount, if (my,"*“ *as the court shall find legally or equitably due,”*the statute does not create a liability; but its intent nevertheless is that if the agent of the Government needlessly and without proper authority caused the destruction of the claimant’s property, the court shall render judgment for such an amount as might be considered legally or equitably due to the claimant to make good her loss.

II. Authority to order the destruction of diseased animals is given to the Department of Agriculture by statute; whether the Department of the Interior has authority to order the destruction of infected animals belonging to an Indian and running at large upon a reservation, *quere.*

*2
      *The Reporters'1*statement of the case :

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

I. The claimant, Esther Rousseau, is now and was during-all the times mentioned in these findings, and particularly during the years 1894,1895,1896,1897, and 1898, a member of the Sioux tribe of Indians, and carried on the rolls of the United States Government at the Cheyenne River Agency, S. Dak., as a Sioux Indian, and a resident upon the Cheyenne River Indian Reservation in the State of South Dakota, upon which Indian reservation for about seventeen years prior to the year 1907 she had carried on the business of stock raising and ranching, raising and ranching on said Indian reservation cattle and horses; and that in the year 1907, and at the time of the commencement of this action, she was 54 years of age and has always borne true allegiance to the United States.

II. DEPARTMENT OP THE INTERIOR,

Washington, *September*18, *1908.*

The Clerk op the Court op Claims,

Washington, *D. G.*

Sir : I have the honor to acknowledge the receipt of a rule from your court, dated May 20, 1908, in the case of *Esther Rousseau*v. *United*Stales, No. 29984, in which the attorney for claimant calls attention to page 29 of the record, where a statement is made in a letter from the Acting Commissioner of Indian Affairs to the Secretary of the Interior, as follows:

“ * * * glanders was first discovered among horses on the Cheyenne River Reserve in 1891, and the department has from time to time since that date authorized the agent in charge of said reservation to expend large sums of money in the employment of veterinary surgeons to examine and kill horses afflicted with said disease.”

And he says that—

“ Information as to such authority and as to such expenditures, referred to by the acting commissioner, is very important to the proper consideration of this case, and is not only relevant, material, and competent, but necessary to complete the said report of the said department.”

*3In answer to the foregoing, and in compliance with department letter of May 23d last, I report that on an examination of the accounts of the agents in charge of the Cheyenne River Reservation it is found that the following amounts were expended during the fiscal years 1895, 1897, and 1898 in the employment and traveling expenses of veterinary surgeons to examine and kill horses afflicted with glanders, viz:

In the third quarter, 1895_ $350. 00

In the fourth quarter, 1895_ 338.00

In the fourth quarter, 1897_ 448. 00

In the second quarter, 1898_ 204. 75

Total_3,140.75

Very respectfully,

FRANK Fierce,

*First Assistant Secretary.*

III. Again on March 27, 1897, the United States Indian agent for the Cheyenne River Agency, S. Dak., represented to the Commissioner of Indian Affairs that the disease of glanders existed among the horses on said Indian reservation and asked authority and permission to employ a competent veterinary surgeon to examine all of. said horses and kill such of them as in the opinion of said veterinary were found to be so diseased. On April 9, 1897, the Department of the Interior, acting through the Commissioner of Indian Affairs, granted the permission and authority requested as aforesaid, and notified the said agent in writing to that effect. Whereupon the said agent employed one Dr. John *W.*Elliott, veterinary surgeon, of Aberdeen, S. Dak., to make said examination and inspection, and on May 29, 1897, addressed to said Dr. John W. Elliott the following communication:

“United States Indian Service,

“ *Oheyenne River*Agency, *S.*Dak., *May %9,1897.*

“ Mr. J. W. Eldiott, Y. S., Aberdeen, *8. D..*

“ Sir : By virtue of authority from the department under date of April 14, 1897, you are hereby granted authority to destroy in the most humane manner all diseased stock, whether belonging to the agency, the Indians, or white persons residing on the reservation, when said stock may be infected with the glanders, or suspicion of being infected, in *4order *ts*stamp out said disease, but no promise of compensation for stock so destroyed shall be made to any person.

*“*Very respectfully,

“ PETER Couci-imaN,

*“U. 8. Indian Agent.”*

IV. During the years 1895, 1896, and 1897 and up to the 22d day of January, 1898, the said Dr. John W. Elliott and others acting under the authority of the Department of the Interior and at the cost and expense of the Government of the United States and without the authority or consent of the claimant herein, killed and destroyed, or caused to be killed and destroyed, 500 of said claimant’s horses, including 7 stallions, and on the 30th day of July, 1897, the said Doctor Elliott, in a letter to the Commissioner of Indian Affairs, condemned the entire herd of horses belonging to claimant and recommended that the same be killed.

V. On January 22, 1898, the Department of the Interior, acting through the Commissioner of Indian Affairs, telegraphed Indian agent for the Cheyenne River Agency to suspend the order heretofore granted for the killing of the claimant’s horses. Subsequent to the granting of said order of suspension, and at the request of claimant and her attorneys, the Commissioner of Indian Affairs, on February 4, 1898, requested permission of the Department of the Interior to request the Secretary of Agriculture to detail a competent veterinary surgeon from his department, to act with and in conjunction with a similar detail from the Department of War, and make a rigid and careful examination of all of claimant’s horses upon said Indian reservation with a view of determining accurately whether the recommendations of Dr. John W. Elliott as aforesaid should be carried into effect, which authority was subsequently granted, and thereupon the Secretary of War detailed Veterinary Surgeon Richard B. Corcoran, Eighth Cavalry, stationed at Fort Yates, N. Dak., and the Secretary of Agriculture detailed Dr. Robert H. Treacy, in charge of the Bureau of Animal Industry of the United States, having charge of the station of North and South Dakota and Montana, and stationed at Bismarck, N. Dak. In March, 1898, Doctors Treacy and Corcoran went to said Indian reservation, rounded up 379 head of claimant’s horses, and after applying the Mallein test and other scien-*5tifie methods of diagnosis, declared in a written report to the Department of the Interior that claimant’s horses were free from glanders. The evidence further shows that, during the application of the test as aforesaid, the said doctors examined and inspected four or five of claimant’s animals previously examined by Doctor Elliott and ordered killed, but each of whom had escaped after being seriously wounded by persons ordered to shoot them, and found each of these animals to be free from glanders. It further appears from the evidence in the case that said Doctors Treacy and Corcoran forwarded to the United States Department of Agriculture specimens of tissue taken from said animals for examination and inspection, and on May 6, 1898, received from the Chief of the Bureau of Animal Industry the following communication :

“ U. S. DEPARTMENT OE AGRICULTURE,

“ Bureau oe Animal Industry,

“Washington, *D. 0., May 6,1898.*

“ Mr. Robert H. Treacy,

“ *Bismarck, N. Dak.*

“Sir: Tour letter of April 4, accompanying specimens taken from a colt suspected of having had glanders, were both received. Regarding the same will say that, after a careful study of the tissues and inoculation of animals with material from the small vial sent, that we can not regard the case as glanders. Your statement to the effect that the colt did not react upon application of the Mallein test is also confirmatory evidence that the colt ivas not affected with glanders.

“ Very respectfully, D. E. Salmon,

“ *Chief of BureauB*

It is further shown that the claimant, at her own expense, employed Doctor Dalton, of Chicago, Ill., to examine and inspect her horses, and that he found the same free from glanders.

It appears that the examination and inspection of. claimant’s horses by the said Dr. John W. Elliott was not in accordance with known and scientific methods of diagnosing a suspicious case of glanders; that he at no time during his examination subjected the animals to what is known as the “Mallein test,” relying solely upon external appearances and personal observations.

*6VII. That none of claimant’s horses which were inspected, condemned, and shot by order of Doctor Elliott aforesaid were at the time of said killing diseased with glanders.

VIII. Previous to the time of killing aforesaid the claimant herein was the owner and rightfully in possession of at least 1,000 horses, of more than ordinary standard, weighing-on the average from 1,000 to 1,400 pounds, fat, and in good condition, including within said herd 9 stallions, 8 of which were Clyde and Percherons and 1 of unknown breed, and about 250 colts ranging and being rightfully upon the aforesaid Indian reservation. Said killing and destruction of her property was done without her authority and over her express protest.

That on the 27th day of January, 1898, claimant herein, through her attorneys, Messrs. Shunk and Hughes, filed her sworn petition before the Commissioner of Indian Affairs, in which she stated that her horses were not diseased with glanders, and petitioned said department for the suspension of any order or authority to proceed with the killing of any more of her said horses, and asked leave to and expressing a willingness to have any competent veterinary or veterinarians examine any or all of her said horses and abide by their decision, and on January 21, 1898, said claimant, through her attorneys as aforesaid, filed her bill in the Circuit Court of the Sixth Judicial Circuit praying for an injunction and to restrain the further killing by said Doctor Elliott or others of her said horses.'

*Mr. Robert W. Stewart*for the claimant. *Mr. Chauncey E. Richardson*and *Mr. H. R. Homer*were on the brief.

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

Booth, J.,

delivered the opinion of the court:

This case arises under a jurisdictional act approved February 7, 1907 (34 Stat. L., 2408), as follows:

AN ACT For the relief of Esther Rousseau.

> “Re *it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That *7jurisdiction be, and hereby is, conferred upon the Court of Claims to bear, determine, and render final judgment upon the claim of Esther Rousseau for horses belonging to her and killed and destroyed upon the Cheyenne River Indian Reservation, or elsewhere, in the State of South Dakota, by the Indian agent in charge of said Cheyenne River Indian Reservation and other persons under his authority, with right of appeal as in other cases.

> “ That a petition may be filed by the attorneys of the said Esther Rousseau in said court within forty days from the approval of this act, and service of said petition shall be had by filing copies thereof with the Attorney-General and the Secretary of the Interior, and answer thereto shall be filed in said court within sixty days after the service of the 23etition.

> “The court may receive and consider all papers, depositions, records, correspondence, and documents heretofore filed in the executive departments of the Government, together with any other evidence offered, and shall render a judgment or decree thereon for such amount, if any, without interest, if any, as the court shall find legally or equitably due the said Esther Rousseau.

> “ Said cause shall be advanced on the calendar of said court, and the amount for which judgment may be rendered, when paid to the party named in said judgment or her duly authorized and accredited attorneys, shall be received in full and final settlement of the claim for said unlawful destruction of said horses.”

The findings show that the claimant herein is an Indian woman residing on the Cheyenne River Indian Reservation engaged in the occupation of breeding and raising horses, and at the time of the injuries complained of was the owner and in possession of a considerable number of well-bred horses ranged upon the aforesaid Indian reservation. Some time in March, 1897, and prior thereto, the United States Indian agent in charge of said reservation reported to the Commis'-sioner of Indian Affairs that the disease of glanders existed among the horses on said reservation, and asked permission from said department to take the necessary steps to eradicate it. In pursuance of said report the Department of the Interior, on April 9, 1897, issued to said agent full power and authority to employ a competent veterinary to inspect all horses ranged upon said reservation and destroy in the most humane manner all animals afflicted with the said disease. *8Acting upon the authority of the Department of the Interior the Indian agent did employ one Dr. J. W. Elliott, a veterinary surgeon of the State of South Dakota, for the purpose of making said inspection and executing said orders. The record discloses that Doctor Elliott, in company with the necessary assistance from head farmers, range riders, and others, proceeded to his task. Three or four inspections of the claimant’s horses, made at different points on the reservation, convinced Doctor Elliott that the disease of glanders pervaded the claimant’s herd of horses, and after killing several hundred he issued a sweeping order, certainly as comprehensive as it was remarkable, calling for the extermination of her entire brand. This most remarkable order, calling for an indiscriminate slaughter of all of claimant’s property, was in process of execution when suddenly halted bjr orders from the Department of the Interior. Subsequent events proved unmistakably the wisdom of the order from the Department of the Interior. The claimant, through her attorneys, protested against the proceedings of Elliott and commenced suit in the local court to stay the slaughter of her horses. At the request of the claimant and in view of the report of Doctor Elliott the Department of the Interior, in conjunction with the Agriculture and War departments, detailed two competent and experienced veterinaries, Dr. Robert H. Treacy, an inspector in charge of the Bureau of Animal Industry of the United States having charge of the States of North and South Dakota and Montana, and Doctor Corcoran, veterinary in -the Eight Cavalry, then stationed at Fort Yates, N. Dak., to inspect claimant’s horses and report their condition as respects the existence of glanders among the herd. The report of Doctors Treacy and Corcoran, confirmed by the report of Doctor Dalton and every other reputable witness in the record, discloses that the inspection, diagnosis, and order of Doctor Elliott were erroneous. These three veterinarians, after a most thorough diagnosis, made in the most modem and scientific way upon claimant’s horses, pronounced them free from glanders. In fact, four or five animals condemned to death by Doctor Elliott, each of whom escaped their executioners after being seriously *9wounded, were brought before these veterinarians in a state of recovery from their wounds, and after the most careful examination and inspection were found to be free from disease. Subsequent to the order of suspension of January 22, 1898, few, if any, of the claimant’s horses were slaughtered.

This case under the record before us is.almost wholly one of fact. Just what authority the Department of the Interior had to order the 'destruction of claimant’s property without notice or opportunity to defend, has not been disclosed to the court. While we do not wish to be understood as saying no such authority existed, it has not been shown to the court in this case. No claim is made that the inspection and condemnation was made by order of the Department of Agriculture or in virtue -of the many statutes governing this-department’s stipervision and control of affairs of this character. The jurisdictional act under which we are proceeding-recognizes the existence of the claim, and while it does not create a liability, its language is such as to import a strong intendment that one existed.

The case is one disclosing the importance of great caution in the execution of summary law, and all the facts and circumstances in the record xwesent a transaction wherein the-claimant was greatly wronged and injured.

Judgment is awarded the claimant in the sum of $29,500.

Howry, J., was absent when this case was tried and took no part in the decision.