#### WILLIAM A. COFFIELD, ADMINISTRATOR, v. THE UNITED STATES AND CHEYENNE INDIANS.

[Indian Depredation No. 1079.

Decided December 18, 1916.]

*On Plaintiff's Motion.*

*Parties; amendment to petition; pleading.*— Where in a claim under the Indian depredation act of 1891 it appears that two separate depredations were committed, one by the Cheyennes and the other by the Sioux, and where the Cheyennes alone were named as Indian defendants therein, it is not allowable to make a change of parties by an amendment to the original petition so as to make the Sioux joint defendants, and the plaintiff is furnished no relief by the amendatory act of January 11, 1915, 38 Stats., 791.

*The Reporter's*statement of the case:

The facts of the case and the grounds of said motion are sufficiently set forth in the opinion of the court.

*Mr. 'William E. Harvey*for the motion. *King- $ King*were on the briefs.

Section 4 of the act of 1891 made it the duty of the Attorney General to defend the interests of the Government and the Indians. The same section also provided that in cases which had been examined, allowed, and approved by the Interior Department under the act of 1885, as this claim had been, judgment should be rendered for the amount found due, unless one or the other parties to the suit should see fit to elect to reopen the same. The papers in the court at this time disclosed the fact that the depredation had been committed by the Sioux and Cheyenne Indians, but instead of filing a plea of nonjoinder of the Sioux the attorneys for the claimant and the Assistant Attorney General entered into a “ Stipulation of facts in allowed claims,” whereby it was agreed that the facts recited were shown from the original papers, evidence, records, and reports from governmental departments on file in the office of the clerk of said court. Said stipulation also provided “that neither the said claimant nor the United States elects to reopen said case and try the same before the court, but the *18claimant is willing to accept said allowance in full satisfaction and settlement of said claim,” etc. (See *Santon-stall*v. Bussell, 152 U. S., 628, 630; *Anderson*v. *Wait,*138 U. S., 694.)

Said stipulation was a joint pleading by the parties whereby they mutually agreed to accept the amount which had been allowed, and the concluding paragraph is a prayer for judgment against the Sioux and Cheyenne Indians, and it was so treated by the court.

That it was so considered by the court is evidenced by the fact that on January 4, 1893, the court entered judgment against the United States and the Sioux and Cheyenne Indians. We submit that this stipulation cured any defect in the original petition and that the Sioux from and after the date of the filing of said stipulation in the court, on November 28, 1892, were parties to the suit. It will be noted that at the date this stipulation was filed and at the date the judgment was rendered the statute of limitations under the original grant of jurisdiction had not expired. Subsequent to the running of the statute of limitation a motion for new trial was made by the defendants, based upon the fact that the court was without jurisdiction to consider the claim because the claimant was not a citizen of the United States. Thus the case rested until after the passage of the act of January 11, 1915. Should the court hold upon the foregoing statement of fact that the Sioux were not parties to the action under the jurisdictional act of March 3, 1891, then the claimant insists that he has the right to bring them in under the act of January 11,1915, 38 Stats., 791.

*Mr. George T. Stormont,*with whom was *Assistant Attorney General Huston Thompson,*opposed.

Per Curiam:

A motion is made by the plaintiff for leave to amend the petition filed in this cause by naming as parties defendant the Sioux Tribe of Indians.

The original petition filed in this case by the decedent, who was then living, on April 27,1891, alleged two depredations, in August and October, 1869, whereby 11 mules and 3 sets of harness were taken by Cheyennes. The defendants named *19in the petition were the United States and the Cheyenne Tribe of Indians. Subsequently, in July, 1895, an amended petition was filed by the administrator of Merravale which makes defendants the United States and the Cheyenne Tribe of Indians and follows the original petition with the further averment that claimant was duly appointed administrator. Again, in June, 1897, the present claimant filed an amended petition making parties defendant the United States and the Cheyenne Tribe of Indians and also following the averments of the original petition. Both amended petitions alleged depredations in August and October, 1869, by Cheyennes, and state the same property that is mentioned in the original petition.

This claim having come from the Indian Office, there was a stipulation that neither the plaintiff nor the defendants choáe to reopen the case, and there was a further stipulation by counsel representing the respective parties that the depredations which resulted in the plaintiff’s loss were committed by the Cheyennes and Sioux. The case was submitted to the court upon a motion for judgment, and a judgment was rendered against the United States and the said Sioux and Cheyennes for the amount found due by the Commissioner of Indian Affairs. Said judgment was rendered on January 4, 1893. Thereafter, in November, 1894, a motion was filed by the Government for a new trial, one of the grounds of the motion being that the depredation which formed the basis of the suit was not committed by the Sioux Tribe of Indians. In the defendants’ brief, filed in support of their motion for new trial, it is pointed out that the petition in this court makes the Cheyennes alone parties defendant, and that “ the Sioux are not named in the pleadings of this court.” The question thus raised was discussed in the brief for claimant on the motion for new trial. The motion for new trial was thereafter granted, and subsequently the case was dismissed out of this court for want of proof of citizenship. It may be conceded that the question of citizenship was the one principally considered by the court in granting the new trial, though it does not appear that the other grounds assigned were not also considered. After the act of January 11, 1915, 38 Stats., 791, the case was again restored to the docket, and *20the motion now under consideration was filed on December 8, 1916.

The amendment now sought is to make the Sioux Indians also defendants, it appearing that the depredation in August was by Cheyennes alone and the depredation in October was committed by Sioux and not by Cheyennes. In other words, there were two depredations committed by two distinct tribes or bands of Indians. In the *Martinez*case, 195 U. S., 469, it was held that a tribe of Indians not originally named in the petition can not be brought into the action by amended petition after the limitation prescribed by the act had run. It is, however, insisted by the plaintiff that the court should allow the amendment and render judgment accordingly, because, he insists, first, that the Sioux were made parties to this suit prior to the running of the statute of limitation under the provisions of the Indian depredation act, “and, second, that this case is pending in this court now by virtue of the act of January 11, 1915, 38 Stats., 791, and, he argues, that the time for filing a petition under the last-named act has not expired. There is no merit in either of these contentions in the present case. The original petition and two subsequent amended petitions in this court named the Cheyenne Indians as defendants, and if it was allowable to amend and if an amendment was actually made as claimed under the Indian depredation act by making the Sioux defendants, the effect of the amendment was to charge the depredations alleged to both tribes or bands of Indians. Instead of showing a depredation by one band it was in effect the allegation of a joint depredation by two bands, and that allegation is not sustained by the proof. Neither of the depredations was committed by both bands. If the amendment were, therefore, made, the court would have to find that under the facts one depredation was committed by the Cheyennes and the other by the Sioux, and it could not render two judgments upon one petition, one against one defendant and the other against the other defendant. In such case it would render judgment against the Cheyennes because they were originally named and the proofs show a depredation by the Cheyennes. While the right of amend*21ment is liberal, it is uniformly held that a party can not be brought in by amendment, and judgment be given against the party so brought in, to the exclusion of the original party. It is not allowable to make an entire change of parties, and a petition in a suit against the Cheyennes alone can not be made a support for a judgment against the Sioux by the process of amending the petition so as to make the Sioux joint defendants when the proof shows they are alone responsible for one of the alleged depredations. Assuming, therefore, that some action was taken prior to the running of the statute of limitation it was not such action as kept alive the claim against the Sioux.

A new petition could have been filed under the Indian depredation act within the statutory time which would have preserved the rights of the plaintiff under the claim of depredation by the Sioux, but no such petition was filed, and an attempt was made to make the Sioux the defendants to a petition alleging a depredation by Cheyennes, and thereby, if the amendment was allowable, the petition was changed from one against the Cheyennes alone to one against both the Cheyennes and Sioux. The facts do not sustain such a petition. Nor is the alleged right saved by the amendatory act above referred to. The act amended the Indian depredation act and required the court to reinstate cases which had been dismissed for want of proof of citizenship. It has a proviso, “ That nothing in this act shall be construed to authorize the presentation of any other claims than those upon which suit has heretofore been brought in the Court of Claims.” There has never been a suit brought against the Sioux for the depredation of October, 1869, independently of an attempted amendment to the petition against the Cheyennes. For the reasons stated that amendment clid not allege in fact or in effect a cause of action against the Sioux alone. If the amendment was made it simply averred a joint depredation, and the court would be powerless to render two separate judgments under the petition, which would be essential under the facts of the case to granting the relief prayed.

Having failed to bring suit properly against the Sioux under the Indian depredation act the plaintiff can get no aid *22from the amendatory act. It follows that the motion must be overruled, and a judgment should be rendered upon the original petition against the Cheyennes and claim for the depredation committed by the Sioux must be dismissed.