Marks v. United States (161 U.S. 297)

C. A. Keigwin and A. H. Garland, for appellants.

On July 8, 1891, appellants, as claimants, filed their petition in the court of claims, under the act of March 3, 1891 (26 Stat. 851), to recover the sum of $11,800, the value of certain personal property charged to have been taken and destroyed by the Bannock and Piute Indians during the month of June, 1878, in Happy Valley, in the state of Oregon. Subsequently they filed an amended petition. In that it was alleged that the Bannock and the Piute Indians were 'in amity with the United States' at the time of the taking and destruction of the property; that they were 'chargeable for said depredation, and under an obligation to pay for the same, by reason of the provisions of the treaty of July 3, 1868, between the United States and the Shoshone (Eastern band) and the Bannock tribes of Indians'; and, further, that petitioners 'presented their said claim to the hon. commissioner of Indian affars (No. 4,915), July 27, 1888, for payment, but the same has not been returned or paid for.' A traverse having been filed by the government, the case was submitted to the court, which on February 27, 1893, made a finding of facts, and thereon entered judgment dismissing the petition. 28 Ct. Cl. Rep. 147. The seventh finding of fact was as follows:

'From these facts, the court finds the ultimate fact-so far as it is a question of fact-that the tribes or hands of Piute and Bannock Indians were not in amity with the United States at the time the depredations complained of were committed.'

From the judgment thus entered in favor of the defendants the claimants duly appealed to this court.

Asst. Atty. Gen. Howry, for appellees.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.