#### MARY E. REX, ADMINISTRATRIX OF THE ESTATE OF JAMES A. IVIE, DECEASED, v. THE UNITED STATES AND UTE INDIANS.

[Indian Depredation

No. 10842.

Decided March 18, 1918.]

*On Defendants’ Demurrer.*

*Statutory construction; Indian depredations.*— Applying the cardinal principle of statutory construction, of ascertaining the legislative intent by reference to all circumstances surrounding the passage of the law and the history of the subject matter thereof, to the act of January 11, 1915, 38 Stat., 791, it is clear that the Congress intended to grant to inhabitants of the United States the same rights, and nothing more, that were given to citizens of .the United States by the act of March 3, 1891, 26 Stat., 851.

*The Reporter’s*statement of the case:

The averments of the petition to which defendants demur will be found sufficiently set forth in the opinion of the court.

*Mr. George T.*Stormont, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the demurrer.

*Mr. Harry Peyton*opposed.

The court is referred to the various Indian depredation statutes, which should be considered, if necessary, in the interpretation of the two acts directly involved herein, that of March 3, 1891, 26. Stat. 851, and of January 11, 1915, 38 Stat. 791.

The first statute was that of May 19, 1796, sec. 14, 1 Stat. 472. The language used in this act is that of “ any Indian or Indians, belonging to any *tribe*in amity with the United States.”

The act of March 3,1799, sec. 14,1 Stat. 747. The language of this statute is identical with that of 1796.

The act of March 30, 1802, sec. 14, 2 Stat. 143, is identical with the two preceding statutes, the reference being to Indians belonging to any tribe, etc.

*321The act of June 30, 1834, 4 Stat. 731, which was known as the trade and intercourse act, follows the language of the preceding statutes in referring to the Indians as “belonging to any *tribe*in amity with the United States.”

The act of February 28, 1859, 11 Stat. 401, repealing liability on the part of the United States, provided that nothing in the act should be so construed as to impair or destroy the obligations of Indians to make indemnification out of their annuities, referring to the trade and intercourse act of 1834 as an act which, as shown, related to Indian tribes.

Section 2156, Revised Statutes, in referring to the Indians, uses the words “ belonging to any *tribe*in amity with the United States.”

The act of March 3, 1891, is the first act wherein the word band is used. This act also required as necessary to this court’s jurisdiction that the claimant must have been, on the day of the depredation, a citizen of the United States.

The act of January 11, 1915, eliminated the word band, leaving the court to look for its jurisdiction to the amity of the *tribe*to which the depredators belonged; also eliminating the jurisdictional requirement of citizenship.

A reference to the Congressional Record, part 4, Yol. 22, 51st Cong., 2nd Sess., p. 3544, will show the report of the Senate Conference Committee, and in the same volume, p. 3592, will show the report of the House Conference Committee upon the bill which became the act of March 3, 1891, and in neither of these reports was the word “ band ” in the bill as reported to the Senate and House from the committees.

It will at once be seen from the statutes, from the conference report upon the act of March 3, 1891, and from numerous bills introduced in Congress and some reported upon favorably by committees, that there was ever present a purpose of Congress to fulfill its ancient promises to indemnify inhabitants as well as citizens for depredations committed by Indians of a *tribe*in amity with the United States. This was finally effected by the act of January 11, 1915, and this act we submit, gave to the court, for the first time, *322jurisdiction of cases of noncitizens and of all claims, irrespective of the state of a *band*with reference to its amity, provided the tribe to which the depredators belonged was in amity with the United States.

The defendants rely upon two defenses to the petition filed herein.

First, that this claim is excluded from the jurisdiction of the court by reason of the following proviso found in the act of January 11, 1915:

“That all cases heretofore filed under said act of March third, eighteen hundred and ninety-one, and which have been dismissed by the court for want of proof of the citizenship of the claimant or alienage shall be reinstated and read-judicated in accordance with the provisions of this act.”

Second, that the claim is now barred by the three-year limitation of the act of March 3, 1891.

To sustain the defendant’s contention would be to do that which the Supreme Court has said courts will never do.

In *McLean*v. *United*States, 226 U. S. 374, that court said:

“An act of Congress will not be construed as giving a right and taking it away at one and the same instant; nor will the conditions making it necessary be made a reason for defeating it.”

Certainly we are not to be led to the illogical conclusion that Congress intended, in the enactment clause to invest the court with full jurisdiction of a class of cases, and then “ at one and the same instant ” intended taking it away.

Eeally, in construing this act of January 11, 1915, and the proviso relied upon by defendants, it might well be held that Congress did not intend the proviso should be used in its technical sense. The words “ provided further ” might be stricken from the act entirely or stricken from the act and the word “ and ” substituted, and there would be perfect harmony between the enactment clause and the proviso. It is more an exception of a class of cases within the act and direction to the" court as to procedure in this class of cases than it is a proviso in its technical sense.

In *Carroll*v. State, 50 Ala. 396, cited with approval by Eichardson, Ch. J., 27 C. Cls. 144, it was held:

*323“ Because the term *provided*is used in the law, it does not necessarily follow that the matter which may succeed is a *proviso*in its technical sense; it is a matter of the succeeding words, and not the form, which determines whether it is or is not a technical proviso.”

The proviso in the *Miimis case,*15 Pet., 423, relied upon by defendants, was an express prohibition against any officer receiving any additional per cent or additional pay in the matter of disbursing public moneys, and was a proviso en-grafted upon an appropriation bill.

In *Quaekenbush*v. *United States,*111 TJ. S., 20, there was a prohibition by proviso forbidding allowance of certain pay or emoluments to naval officers and the court said that the only office of this proviso was to forbid the allowance of certain pay or emoluments.

In *Boyce*v. *United States,*36 C. Cls., 328, 335, Judge Peelle said:

“The general rule of law, says Mr. Story, in the case of *United States*v. *Dickson,*15 Pet., 141, 176, ‘ which has always prevailed and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting clause is general in its language and objects and a proviso is afterwards introduced, that proviso is construed strictly and takes no case out of the enacting clause which does not fall fairly within its terms.’ ”

It may be safely stated, as a rule of statutory construction, that the enactment clause and the proviso should be taken together with the view of giving effect to each, and to carry out the intention of the legislature as manifested in the entire act. 1 Kent., 463.

If the proviso be found repugnant to the enactment clause it, the proviso, must be held void. 36 Cyc., 1163.

The act of January 11,1915, in the general language of the enactment clause, amended the act of March 3, 1891, in two respects. It is worthy of consideration that in these two respects the promise of eventual indemnification in all the early acts, and denied in the act which Congress was seeking to amend, was fulfilled by this act.

*(a)*Jurisdiction was given the Court of Claims of inhabitants as well as citizens. Note that this amendment *324conforms to the original statutes, which promised original indemnification to inhabitants as well as to citizens.

(b) The word “ band ” is eliminated from the act, leaving the court’s jurisdiction determinable by the status of the tribe. This amendment puts the act of March 3, 1891, in the exact language of all former acts relating to the same subject. It is significant that Congress, having sought to effectuate its promises running through a period of more than 100 years by the act of March 3, 1891, and having failed in that act in two regards, that of inhabitants, and a new requirement, viz., that a band of Indians must have been in amity, should by the same amendment, the act of January 11, 1915, have restored its promises so many times made. Is it not significant that the act of March 3, 1891, as now amended, is in exact accord, literally word for word, with all prior acts upon the same subject?

In that connection it is important to note that the only new legislation in the act of March 3, 1891, differing from the trade and intercourse act of 1834 and prior acts upon the same subject, is that relating to inhabitants who were provided for in the last named and not provided for in the first, and that the word “ band ” is found in the act of March 3, 1891, and not in the earlier acts.

*Snare <& Triest Go.*v. *United*States, 50 C. Cls., 201, is authority for the statement that where a subsequent statute corrects an omission of a former one, or adds to the relief extended in the former statute, the court will exercise jurisdiction thereunder and render judgment accordingly. The court there states that “not infrequently such acts are materially enlarged in the scope of authority originally granted by subsequent legislation upon the same subject matter.”

“ Courts are constrained to give effect to jurisdictional statutes where the intent of the legislature can reasonably be inferred from the language thereof to vest authority to judicially ascertain the merits of the controversy. *(Supervisors*v. Stanley, 105 U. S. 305.) Doubts are to be resolved in favor of jurisdiction unless some established law is violated. *(Endlich on Statutory*Construction, sec. 430; *Butler <& Vale*v. *United*States, 43 C. Cls., 497.)” *Mille Lac Ghip-pewas*v. *United*States, 46 C. Cls., 476.

*325The first proviso is in effect that the provisions of the act shall not extend to claims of persons whose property at the time it was taken was unlawfully in the Indian country.

- The second proviso directs the court to reinstate cases dismissed for want of the citizenship or because of the alien-age of the claimant.

The third proviso limits the court’s jurisdiction conferred by the act to only those cases wherein suits have been brought in the Court of Claims.

We submit that no better or clearer rule, when applied to the statutes we now have under consideration, can be found than announced by this court in *Neurath*v. *United*States, 17 C. Cls., 225:

“A statue designated to give to a class of claimants a legal remedy for the enforcement of their claims where none exists available to them is a remedial statute to be construed so as to advance the remedy. * * *

“Where the general intention of Congress in passing an act is to provide for the settlement of all outstanding claims, a court administering the statute should effectuate, and not defeat, impede, or embarrass the purpose.”

In *Johnston's*case, 17 C. Cls., 157, 171, this court said:

“A remedial statute must be construed liberally so as to afford all the relief within the power of the court which the language of the act indicates that the legislature intended to grant. Courts will look into the occasion for the passage of such an act, and will consider the evils or wrongs which it seeks to remedy, their nature and extent, in order to determine how far it was intended the act should reach, whether to cases thereafter to arise, or to existing cases, or retroactively to cases entirely passed and consummated.”

In *Murray*v. *United States,*46 C. Cls., 101, the court said:

“ The limitation in the Indian depredation act is not so much of a statute of limitation as it is a fixed statutory jurisdictional period of which the court can and must take notice.”

See *Kidd*v. *United*States, 8 C. Cls., 263; *Haycraft*v. *United*States, 10 C. Cls., 95; *Rice v. United States,*21 C. Cls., 413.

If Congress give legal efficacy to a designated claim, or class of claims, which were not legal rights, or mere rights without remedy, the statute of limitations begins to run *326from the passage of the enabling act, or from the happening of some event prescribed therein. *Simons*v. *United*States, 19 C. Cls., 602.

A statute which declares that every claim cognizable by this court “ shall be forever barred ” unless suit be brought “ within six years,” differs from ordinary statutes of limitations in barring the demand instead of applying a prescription to the right of action. *Kendall*v. *United*States, 14 C. Cls., 122.

Booth, Judge,

delivered the opinion of the court.

The petition in this case raises a jurisdictional issue and is here on defendants’ demurrer. The plaintiff alleges a loss of considerable personal property on June 10, 1866, at the hands of Black Hawk’s Band of Ute Indians, the habitat of the Indian tribe being in the then Territory of Utah. A claim for this loss was filed with the Secretary of the Interior on April 10, 1899, and subsequently a petition was duly filed in this court under the Indian Depredation statute of March 3,1891, 26 Stat., 851.

This court in *Herring's*case, 32 C. Cls., 536, found Black Hawk’s Band of Ute Indians to have been in a state of hostility on the date named in the above petition, and following this decision the plaintiff’s then pending case was dismissed.

The act of March 3, 1891, commonly styled the Indian Depredation statute, is as follows:

> “ That in addition to the jurisdiction which now is, or may hereafter be, conferred upon the Court of Claims, said court shall have and possess jurisdiction and authority to inquire into and finally adjudicate, in the manner provided in this act, all claims of the following classes, namely:

> “ First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.

> *“*Second. Such jurisdiction shall also extend to all cases which have been examined and allowed by the Interior Department and also to such cases as were authorized to be examined under the act of Congress making appropriations *327for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject, however, to the limitations hereinafter provided.

> “ Third; All just offsets and counterclaims to any claim of either of the preceding classes which may be before such court for determination.

> “ Sec. 2. That all questions of limitations as to time and manner of presenting claims are hereby waived, and no claim shall be excluded from the jurisdiction of the court because not heretofore presented to the Secretary of the Interior or other officer or department of the Government: *Provided,*That no claim accruing prior to July first, eighteen hundred and sixty-five, shall be considered by the court unless the claim shall be allowed or has been or is pending, prior to the passage of this act, before the Secretary of the Interior or the Congress of the United States, or before any superintendent, agent, subagent, or commissioner, authorized under any act of Congress to inquire into such claims; but no case shall be considered pending unless evidence has been presented therein: *And provided*further, That all claims existing at the time of the taking effect of this act shall be presented to the court by petition, as hereinafter provided, within three years after the passage hereof, or shall be thereafter forever barred : *And provided*further, That no suit or proceeding shall be allowed under this act for any depredation which shall be committeed after the passage thereof. * * * 55

On January 11, 1915, 38 Stat., 791, Congress amended the Indian Depredation statute by the following enactment:

> “That the first section of paragraph one of an act entitled ‘An act to provide for the adjudication and payment of claims arising from Indian depredations,’ approved March third, eighteen hundred and ninety-one, be, and the same is hereby, amended so as to read as follows:

> “ First. That in all claims for property of citizens or inhabitants of the United States, except the claims of Indians heretofore or now in tribal relations, taken or destroyed by Indians belonging to any tribe in amity with and subject to the jurisdiction of the United States without just cause or provocation on the part- of the owner or agent in charge, and not returned or paid for, and in all adjudications under said act as now amended, the alienage of the claimant shall not *328be a defense to said claim: *Provided,*That the privileges of this act shall not extend to any person whose property at the time of its taking was unlawfully within the Indian country: *Provided further,*That all cases heretofore filed under said act of March third, eighteen hundred and ninety-one, and which have been dismissed by the court for want of proof of the citizenship of the claimant or alienage shall be reinstated and readjudicated in accordance with the provisions of this act: *Provided further,*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: *Provided further,*That all acts and parts of acts in so far as they conflict with the provisions of this act are hereby repealed.”

On September 2, 1917, the present petition was filed, the allegations differing from the prior petition only with respect to the question of amity, the contention being that the omission from the act of January 11,1915, *supra,*of the word “band” was intentionally done to enlarge the jurisdiction of the court and extend redress to all inhabitants wherein the loss was occasioned by any *“*tribe ” of Indians in amity with the United States.

The development of legislation extending remedies and redress to the early western settlers of the country for Indian depredations upon their property was decidedly gradual and evinces a legislative intent to guard both the right and the remedy by specific limitations. Commencing in 1796,1 Stat., 472, and extending without material change to February 28, 1839, is found four statutes, in each of which there is an express reservation obviously intended to restrain the operation of the law and so circumscribe it that the Indians, or rather the Indian tribes themselves, should be penalized for the offense. The essential right of recompense for lost property has always been limited to thefts and depredations committed by friendly Indians, and any sort of mutual quarrel between the depredators and the depi-edated which constituted just cause or provocation for the crime was sufficient to bar both the right and remedy. The very nature of the claims seems to have exacted a scrutinizing care and evoked in every law several strict and imperative limitations. The *329earlier legislation withheld jurisdiction from the courts to try the cases, the claimant in each instance being relegated to the simple procedure of preferring his claim to the superintendent of the Indian reservation and he in turn, if unable to procure its adjustment, transferring the controversy to the President of the United States, in each instance requiring the positive showing of the amity of the tribe and the peaceful relations of the parties. Act of March 3, 1799, 1 Stat., 747; act of March 30,1802, 2 Stat., 143.

The statute of June 30,1834, 4 Stat., 731, the trade and intercourse act, continued in effect the preceding laws, the only noticeable enlargement of the remedy being found in the section providing a method of proof. Tins statute contained a three-year limitation and directed an investigation by the Secretary of the Interior. The question of amity, as well as all other restrictions, were expressly retained.

The Congress on February 28, 1859, 11 Stat., 40, repealed all laws wherein the United States were held liable for Indian depredations and left the sufferers from such losses exclusively for indemnification out of the annuities of the Indian tribes, and this, despite the fact that in each of the earlier laws the inhabitants had been expressly guaranteed “ eventual indemnification.”

It was not until the passage of the statute of March 3, 1891, supra, granting jurisdiction to this court to hear and determine cases of this character, that any provision was made for their judicial determination. Section 2156, Revised Statutes, revived the ancient proceedings, but did not in any respect enlarge the scope of the right or remedy. The statute of 1891 is carefully drawn; it not only refers to the amity of the tribe as a prerequisite to recovery but introduces for the first time the amity of the “band.”. Not only was the hostility of the band or nation recognized but what is of more importance the right and remedy was expressly limited to *citizens*of the United States who had lost property through' Indian depredations, thereby excluding claims of mere inhabitants. The act of 1891 abounds in limitations; it gives forth numerous indications of legislative intent to restrict this court to narrow channels in the *330adjudication of Indian claims and nowhere evidences a desire to place claims of this character upon the unrestricted basis of most all other claims against the United States. In 1915 practically all of the cases coming within the terms of the act of 1891 had been adjudicated, several hundred presented under the law had been dismissed for nonoitizenshif, and Congress was especially confronted with the fact of what upon its face seemed a manifest unjust discrimination between a citizen of the United States and an inhabitant thereof when each under similar circumstances had been the loser by reason of Indian depredations.

The history of Indian depredation legislation negatives a congressional intent to do more than extend the right of recovery to a specific class of claimants under certain clear and well-defined conditions. If the act of January 11, 1915, was intended to enlarge our jurisdiction and revive numerous cases dismissed because of the proven hostility of the *band*of Indians committing the depredations, it would not have so preeminently treated the one issue of citizenship alone. Every single provision of the amendatory statute which changes the existing law is so apparently intended to revive the remedy in behalf of *inhabitants*who had joeen excluded by the act of 1891 that it seems free from doubt that Congress was alone concerned with this particular subject. Why say in the statute, “the alienage of the claimant shall not be a defense to said claim”? Why provide specifically for the reinstatement of all cases heretofore dismissed for want of proof of citizenship or alienage, and make no mention whatever of the volume of cases dismissed for the hostility of the band of Indians committing the crime? Indeed, if we are now invested with jurisdiction to try and determine the present case, what logical reason can be assigned for limiting the same to suits heretofore brought in this court ? The petition herein is in effect a trial *de*novo, the filing of a new petition. Citizenship cases, on the contrary, are reinstatements automatically made in virtue of the statute; the records before the court were in practically all instances complete; nothing remained to be done but ascertain the question of judgment. If Congress intended after *331the lapse of twenty-four years by the amendatory legislation of 1915 to open for litigants of this class a new and enlarged jurisdiction it would not have obscured the intent by several provisions and provisos which in themselves have no direct or remote relationship to the question of amity whatever. Congress was dealing with the question of citizenship and with this question exclusively and alone. It is hardly possible to conceive that at this late day, and in the face of all prior legislative disposition toward claims of this class, the Congress was enacting a law designed to remove a restriction solemnly placed in the statute when the court for the first time was granted jurisdiction to hear these cases. The history of the passage of the act through Congress, its consideration by the committee, clearly discloses that the one purpose to be accomplished was the removal of the bar of noncitizenship. In the report of the committee- (S. Rept. No. 720, 63d Cong., 2d sess.) the question of amity nowhere appears.

The intent of the legislature is the cardinal principle of statutory construction. If in the light of all the circumstances surrounding the passage of the law, including the whole history of the subject matter of legislation, the court can ascertain the legislative intent it must be effectuated in its judgment. We need indulge in no citations to sustain this assertion. If the statute is ambiguous and subject to construction, the primary duty of the court is to ascertain the intended purpose of the statute, the mischief it was intended to remedy, and from all the facts and circumstances surrounding its enactment seek to discover the legislative intent and construe it accordingly.

We believe that carrying the amendatory act with its changed provisions into the original statute of 1891 bars the right of the plaintiff to maintain this suit, the same not having been brought within the three-year period.

Defendants’ demurrer is sustained. Petition dismissed. It is so ordered.

Hat, *Judge;*DowNey, *Judge;*BaeNey, *Judge;*and Campbell, *Chief*Justice, concur.