Green v. Menominee Tribe

delivered the opinion of the court.

By this appeal a review is sought of a judgment of the court below holding that an amended petition filed by the appellant stated no cause of action and dismissing the same. (47 Ct. Cls. 281.) Our attention therefore must be directed to the petition, but as a means of at once clarifying the issues, we refer to the act of Congress authorizing the suit and briefly state the averments of an original petition which was likewise dismissed because stating no cause of action.

By an act of Congress of May 29, 1908 (35 Stats. 444, c. 216, § 2), jurisdiction was conferred upon the Court of Claims “to hear, determine, and render final judgment, notwithstanding lapse of time or statute of limitation, for any balances found due, without interest, with the right of appeal as in other cases,” upon the claims of eight named persons who were described in the act as “traders,” against the “Menominee tribe of Indians in Wisconsin and against certain members of said tribe at the Green Bay Agency, for supplies, goods, wares, merchandise, tools, and live stock furnished certain members of the said tribe after the first day of January, in the year eighteen hundred and eighty, for the purpose of carrying on logging operations upon the Menominee Indian Reservation, in Wisconsin.” The statute further provided: “Said court shall,, in rendering judgment, ascertain and determine the amount, if any, due ■ upon each of said claims, and if the court find that there is a liability upon' any of said claims, it shall then determine if such liability be that of the said Menominee tribe of Indians as a tribe or that, of individual members of said tribe, and it shall

Green, the appellant, one of the traders named in the act, sought to recover from the Menominee tribe and 158 named members thereof an amount alleged to be the price of certain equipment and supplies alleged to have been furnished by him. The-liability of the individual Indians was based upon averments that they had received during the years 1886 to 1889 the amount of thé equipment and supplies sued for, and that they had contracted to pay for the same, the supplies having been furnished them to enable them to carry on logging operations on the Menominee Reservation in Wisconsin. The liability of the tribe was based on averments that it had expressly guaranteed that the individual Indians, members of the tribe, would pay for the supplies furnished them for the purposes and under the circumstances alleged. The defendants jointly demurred on two grounds: first, that the act conferring authority to bring suit was repugnant to the Constitution, and second, because the petition stated no cause of action. Holding that Congress had the undoubted, power to pass the jurisdictional act, the court overruled the first ground. It also overruled the second ground as to the individual members of Ihe tribe who were made defendants, but it sustained the exception of no cause of action as to the tribe, the court holding that “under the averments of the petition the Menominee Tribe of Indians is but a naked guarantor for the debt of another, and such promise not being in writing is void under the statute of frauds.” The suit, as to the tribe, was therefore dismissed.

It was avea-red that up to 1889 supplies were furnished in accordance with the agreement with the approval of the Indian agent and the United States, and with a few exceptions were paid for by the methods pointed out by the contract; that during the year 1889, however, supplies amounting to $13,087.46 were furnished to 158 members of the tribe, the name of each member and the amount supplied him being stated, for which payment had not been made either by the Indians, the tribe, or the United States.

It was further averred that such unpaid for supplies were furnished “in accordance with and relying upon said agreement” and that petitioner and Stacy “did not and would not extend credit, to the individual members of said tribe, but extended such credit solely to the tribe, relying upon said agreement.” It was further alleged that the proceeds from the sales of the dead and down timber cut and hauled by the Indians were received by the Indian agent and if the amounts which came into his hands in accordance with the contract and which were subject by its terms to be applied to the payment of the supplies advanced under the. t,erms of the agreement had been so applied, all the supplies would have been paid for, but that they remain unpaid for because “such proceeds were not so applied.” After averring that the logging operations and the credits extended by the petitioner and Stacy were for the benefit of the tribe, the petition charged that “there is a large fund in the possession of the United States to the credit and for the benefit of said Menominee Tribe of Indians, derived through their logging operations, and now amounting to more than a million and a half of dollars, which fund has been accumulated through the credit extended and assistance rendered by licensed traders to the Menominee Indians in logging operations,”

The petition concluded with the following averment and prayer:

“Your petitioner avers that there is due him from the Menominee Tribe of Indians, or from the individual members thereof, as may be found and adjudicated by the court, the sum of Thirteen Thousand and Eighty-seven Dollars, Forty-six Cents ($13,087.46).

“Wherefore the petitioner prays judgment for Thirteen Thousand and Eighty-seven Dollars, Forty-six Cents ($13,087.46).”

By a general demurrer the defendants besides questioning the right to file the amended petition on the ground that it constituted an entire departure, and insisting in any event that, if there was a right to file it, its averments did not state a cause of action, denied the right to implead the United States as a defendant and challenged the constitutionality of the jurisdictional aqt. The court without specifically directing its attention to the -other grounds came to consider whether the amended petition stated a cause of action and deciding that it did not, dismissed the cause, and as we at the outset said, the rightfulness of its action hrso doing is the matter we are called upon to decide.

The contentions pressed upon the one side to sustain the correctness of the conclusion of the court below and

1. The court held that the jurisdictional act except so far as concerned the statute of limitations created no new right in favor of the petitioner, but simply afforded a means of establishing by a proceeding in the Court of Claims the existence, if any, of a claim against the tribe and the individual members of the tribe as such. From this premise the conclusion was deduced that the act gave no right to sue the United States and conferred no jurisdiction upon the court below over claims against an Indian as a mere individual aside from his membership of the tribe or dissociated from his dependent condition as an Indian subject because of such condition to the exercise, by the United States of governmental supervision and control. The court consequently decided that it was not concerned with any supposed liability of the individual defendants as citizens of the United States resulting from their purely individual and personal contracts and which, therefore, were not related to or connected with tribal membership or the dependency resulting from status as an Indian as distinguished from citizenship. We think the conclusions thus reached by the court are so clearly the necessary result of the text of the act that we content ourselves with referring to that text as a demonstration of their soundness.

2. Concluding that the relevant provisions of § 2103 of the Revised Statutes (which are in the margin *) were ap

But it is said the statute ought not to be held applicable because the petitioner was a licensed Indian trader authorized to deal with the tribe and its members. But manifestly the right to deal did not confer power to deal by making unlawful contracts.' And this consideration also answers the proposition so much insisted upon that because the asserted contract was made in the presence of and with the assent of an agent of the Interior Department, therefore the provisions of § 2103 should not be held applicable. We say the prior reasoning is controlling since it cannot be held that the presence of the agent of the Interior Department authorized the doing of that which was expressly prohibited by law. In other words, that an unlawful contract became lawful because of the presence, at its making, of a public officer whose obvious duty it was to see to it that the law was not violated. Indeed when the prohibitions of § 2103 are considered and the

Affirmed.