Fort Sill Apache Tribe of Oklahoma v. United States

Bennett, Judge,

delivered the opinion of the court:

The case now before the court presents several novel problems which do not appear to have been resolved before. The issues all revolve around the extent to which an Indian tribe may claim compensation for wrongdoing to the tribe unrelated to property rights, when the actual victims of the wrongdoing were the individual members of the tribe. For reasons to be detailed, the court affirms the decision of the Indian Claims Commission, 26 Ind. Cl. Comm. 281 (1971), in which it dismissed the claim without trial on the grounds of lack of jurisdiction over the subject matter, section 2, clause 2, and for failure to state a claim upon which relief could be granted under section 2, clause 5, of the Indian Claims Commission Act, 60 Stat. 1049, 1050, 25 U.S.C. § 70a (2), (5). The pertinent facts need to be outlined before examining the issues and their resolution.

The Chiricahua Apache Tribe, which is the predecessor to the appellants¹ now before the court, originally occupied ancestral lands covering large portions of the States of Arizona and New Mexico, along with portions of the Republic of Mexico. In the years 1876 and 1877, the tribe was officially removed from its ancestral tribal lands to the San Carlos Indian Reservation in Arizona. It is clear, however, that the Government authorities were less than successful in getting all of the Chiricahuas to stay on the reservation. The result was that at various times, several groups of aggressive, warlike Chiricahuas continued to occupy portions of the ancestral tribal lands, thereby coming in sporadic conflict with white settlers, miners, and ranchers. The hostile relations which existed between the Indians and the settlers reached a critical stage by 1886 when it became apparent that there was an urgent need to end the forays of the hostile groups of Apaches and attempt to bring peace to the Southwest.

There were several conflicting proposals presented for bringing about the desired peace. General Nelson Miles prepared a plan which, in part, called for relocating the Apache reservation to an area in the Oklahoma Indian territory, as a means of moving the tribe far enough from its original homelands to discourage further wanderings from the reservation. The plan ultimately adopted, however, was presented by General Sheridan and resulted in the wholesale relocation in 1886 of the entire Chiricahua Apache Tribe, men, women and children then at the San Carlos Reservation, to Fort Marion near St. Augustine, Florida, where they were interned as prisoners of war. The hostile bands were likewise rounded up, one at a time, and removed to Florida. The surrender in Mexico, September 4, 1886, of Geronimo, Natchez, and other Apaches classified as hostile, represented the end of the forays by the Chiricahuas. Mangus, Geronimo, Natcbez, and their followers were confined at Fort Pickens, Florida. In 1887 and 1888, the prisoners were moved to the Mount Vernon Barracks near Mobile, Alabama. It will be assumed for the purposes of this appeal, that this confinement constituted a wrongful arrest, imprisonment, and excessive punishment of some individual Indians.

During the first 3½ years of captivity, approximately 119 of the 498 Apache prisoners died, some apparently due to the effects of being moved from a high, very dry climate to a very low, humid climate. One hundred twelve of the Indian youth were sent to the Indian school at Fort Carlisle, Pennsylvania, where 30 died despite good sanitary conditions. Consumption was the principal cause of death. In the prison camps living conditions were bad. One Army report indicated the 6.8 percent death rate (as against a normal 2 percent) was aggravated among the young children by “their parents’ neglect of the simplest instructions of physicians and the murderous quackery of old squaws.” There was a high birthrate among the Indians in captivity so that their net loss in the first 3½ years was 38 of the original 498. The population, however, continued to decline over-all.

In October 1894, the 259 remaining Chiricahuas were again moved; this time to the Fort Sill Military Reservation in Oklahoma. They were kept at Fort Sill as prisoners of war until April 2, 1913, when they were finally released. After the period of internment, the majority of the members of the tribe went to the Mescalero Reservation in New Mexico,² while the rest stayed at the Fort Sill Reservation.³

In their petition before the Indian Claims Commission (IOC), the plaintiffs alleged that the 27 years of internment suffered 'by the members of the tribe gave rise to a cause of action under both 25 U.S.C. § 70a(2) for a cause sounding in tort [the clause 2 claim], and under 25 U.S.C. § 70a(5) for a claim based on the absence of “fair and honorable dealings” [the clause 5 claim]. It is important to note that the appellants in this case are now asserting only a tribal claim for injuries to the tribe’s traditional power and structure resulting from the years of internment. The appellants are not seeking damages for false arrest and imprisonment of eaoli member of the tribe, apparently recognizing that these would be little more than multiple individual claims and therefore outside the jurisdiction of the Indian Claims Commission.⁴ See, Cherokee Freedmen v. United States, 161 Ct. Cl. 787 (1963); Minnesota Chippewa Tribe v. United States, 161 Ct. Cl. 258, 315 F. 2d 906 (1963). In seeking tribal damages for this type of injury, appellants are presenting a novel argument. They allege that the wrongful imprisonment of the members of the Ohiricahua Tribe, simply because they were members, constituted a compensable injury to the tribe as well as to the individual Indians involved. They argue that the internment of the tribe’s members took from the tribe its power to hold territory, its power to gather and accumulate food, horses and other resources necessary to its communal existence, and its power to govern its people. The loss of these powers, the appellants contend, constitutes a separate and distinct compensable injury to the tribe, recoverable under both clause 2 and clause 5 of 25 U.S.C. § 70a.

Any solution to the problem posed by the appellants requires the court to construe the pertinent sections of the Indian Claims Commission Act of August 13, 1946, ch. 959, 60 Stat. 1049, 25 U.S.C. § 70. On this matter the court has said :

* * * it should be possible to construe the statute liberally to affect its remedial purpose and intent, and strictly to limit undue abrogation of fundamental rights or to prevent undue extension of extraordinary remedies. [Otoe & Missouria Tribe v. United States, 131 Ct. Cl. 593, 602, 131 F. Supp. 265, 271, cert. denied, 350 U.S. 848 (1955).]

In order to determine if the claim presented by the appellants represents an undue extension of an extraordinary remedy, the court must consider separately each of the possible bases for granting the ICC jurisdiction of these claims.

The primary ground on which, jurisdiction might rest is the language of clause 2 of 25 U.S.C. § 70a.⁵ The appellants have attempted to characterize a series of multiple torts committed on the individual members of this tribe as also constituting a tort against the tribe itself making clause 2 applicable. There is a separate cause of action resting with the tribe only if the Act can be read to recognize a distinct right in the tribe to foster and protect its own form and structure. The focal point here is whether clause 2 recognizes such a protectible right in the tribe.

As support for its assertion that clause 2 does cover these facts, the appellants point to Baltimore & Potomac R.R. v. Fifth Baptist Church, 108 U.S. 317 (1883). The church in that case sued the railroad for disrupting its services and destroying the value of its property for church purposes by building and operating a locomotive storage and repair shop immediately adjacent to the church. The facility was found to be noisy, smoky, smelly, and dirty. After finding that the defendant’s shop constituted a private nuisance, the Court stated:

* * * The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the use of the building for the purposes for which it was erected and dedicated. * * * the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment ox his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages. * * *. [108 U.S. at 335.]

The appellants contend that this case recognizes a right in the church to sue for the thwarting of its common purposes and the annoyance and discomfort of its members, and therefore has important parallels to the case at hand. Characterized as the appellants have done, the Baltimore & Potomac R.B. case might serve as authority for the proposition that wrongdoing with respect to the individual members of the group also results in a distinct injury to the organization itself. The court does not read the cited case in that way, however. It seems clear that the Supreme Court was not awarding damages to the church because the members of the congregation were inconvenienced by the defendant nor because the number of people in the congregation declined due to the defendant’s operation, but because defendant’s actions constituted a nuisance which served to interfere with the use of the church’s property. The church was asserting a property right of its own, not a right of the individual parishioners.

A situation somewhat more analogous to the facts at hand can be found in Cherokee Freedmen v. United States, supra. There the appellants were not listed on the rolls of the Dawes Commission Keport as officially being members of the Cherokee Tribe, and as a result, they were denied a pro rata portion of an award obtained by the tribe from the United States. The court found that the resolution of the appellants’ claim would depend on individual proof of each Freedman’s right to be enrolled. There was no group interest or common right among the appellants. The court summarized by saying:

* * * Since the claims are individual, they could be prosecuted singly, in a proper forum, without involving other Freedmen or any entity; combining them into one proceeding does not transform such individual claims into group claims cognizable by the Claims Commission, or change their basic individual character. [161 Ct. Cl. at 789.]

But, the Cherokee Freedmen case, relied upon by the Government, seems to miss the mark of the appellants’ argument, since it does not address in depth the critical issue of whether there is a distinct cause of action and right resting with the tribe itself. In that case the appellants were joining, into one claim, many individual claims which contained common elements of proof. The court found this to be impermissible under the Act, as it would be if our appellants were merely seeking to claim damages on behalf of the individual members of the tribe for their false arrest and imprisonment. With respect to the crucial issue now before the court, it simply stated there was no group interest or right being asserted by the Cherohee Freedmen appellants. While that was true under those facts, it provides little assistance in attempting to determine under the facts now before the court, whether the claim of these appellants is a valid assertion of a group interest or right which the court might recognize within the language of the Act.

The court is faced with the resolution of this problem under circumstances in which the legislative history has a bearing on interpretation of the statute. For the following reasons, it finds that the ICC Act was not intended to cover, under clause 2, claims of the type now being pressed by the appellants. One of the problems the court has with the appellants’ position is illustrated by the facts in Gila River Pima-Maricopa Indian Community v. United States, 190 Ct. Cl. 790, 427 F. 2d 1194, cert. denied, 400 U.S. 819 (1970). A portion of the appellant’s claim in Gila Rimer was based on the allegation that “damage was caused by the Government when it ‘undertook to, and did, subjugate petitioner under wardship to a stagnation of self-expression * * * [and] bridled petitioner into cultural impotency.’ ” 190 Ct. Cl. at 792, 427 F. 2d at 1195. For the purposes of that decision, the court assumed that this was a tribal claim and went on to dismiss the claim on other grounds. Both in Gila Rimer and in the case now before the court, the tribes were seeking recovery for essentially the same type of injury. Each felt Government action caused damage to the power structure and viability of the tribal unit; that is, damage to Indian peoplehood in general. Opening the door to appellants in this case would leave it open for a multitude of other claims based on facts more closely akin to those in Gila River. While the court recognizes that a variety of injustices have been inflicted upon Indians both before and after they were relocated on the reservations, it nonetheless does not appear that Congress in 1946 thought this type of injury would come within the coverage of the Claims Commission Act. It has been noted that the Act “is a synthesis of those ‘* * * classes of cases * * * which have heretofore received congressional consideration in the form of special jurisdictional acts. * * *.’ ” Gila River, 190 Ct. Cl. at 801, 427 F. 2d at 1200. The court has not been made aware of any of the special jurisdictional acts which were intended to cover tribal injuries of the type presented here. The apparent view of the Congress in 1946 was that these claims would be “for specific deprivations of land or property or rights protected by treaty, statute, or then-existing law. The instances cited in the Congressional history are of that kind.” 190 Ct. Cl. at 802, 427 F. 2d at 1200-01. h.r. rep. no. 1466, 79th cong., 1st sess. (1945).

There can be no doubt that the Apache Tribe did not prosper from the injuries suffered by its constituent members. But, the injury to the tribe is subsumed by the multitude of individual claims. As in Cherokee Freedmen, supra, the measure of damages for any tribal injury arising out of the imprisonment of the Apaches would seem to be the cumulative damage to the individual victims of imprisonment who did not contest their imprisonment by seeking writs of habeas corpus. We need not at this late date conjecture whether such efforts would have been successful, but the legal remedy was there. The significance is, however, that had the remedy been invoked successfully we would not have the instant claim. The question now is whether the Indian Claims Commission Act has given the Commission jurisdiction to award damages to the tribe for wrongs suffered by individual Indians who were allegedly falsely arrested and imprisoned. Twice before the Commission has answered this question in the negative. Confederated Tribes of the Colville Reservation v. United States (Docket No. 186), 25 Ind. Cl. Comm. 99 (1971); Fort Sill Apaches v. United States (Docket No. 30), 1-A Ind. Cl. Comm. 137, 143 (1949). The court agrees with the Commission, reads clause 2 of 25 U.S.C. § 70a as a whole, and determines as a matter of law that the Act does not recognize in the tribe a separate and distinct right to recover for injuries so closely tied to those suffered personally by individual Indians, which injuries are the whole basis for any damage to the tribe as such. The jurisdiction of the Commission is only over claims by the tribes, bands, or other identifiable groups of American Indians which have group rights. There is no grant of jurisdiction to hear claims on behalf of individual Indians. The legislative history as well as the language of the Act makes this clear.⁶

Appellants also rely upon clause 5 of 25 U.S.C. § 70a, the “fair and honorable dealings” clause, as a basis for arguing that the ICC has jurisdiction over its claim. The claim presented by the appellants under clause 5 is identical to that presented and discussed with respect to clause 2, and suffers from many of the same weaknesses. The court has said that the reach of the “fair and honorable dealings” clause is limited to somewhat fewer situations than a literal reading would imply. More specifically, the United States is held liable under this “fair and honorable dealings” clause where “by its own acts, it has undertaken special duties which it has failed to fulfill.” Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 502 (1967). The issue therefore, under the clause 5 portion of the appellants’ claim, is whether the United States has undertaken a special duty to protect and foster the traditional power and structure of the tribal organization. We think it has not done so.

The appellants point to the language in the Treaty of July 1, 1852, 10 Stat. 979, and the Indian Trade and Intercourse Act of June 30, 1834, ch. 161, § 12, 4 Stat. 730, 25 U.S.C. § 177, as creating just such a special duty on the part of the United States, which duty was breached by the internment of the members of the tribe under conditions which eroded the structure and power of the tribe. The Treaty of 1852 was, however, a treaty of peace, which fact this court recognized in Lipan Apache Tribe, supra at 501. The Commission described the 1852 Treaty in Fort Sill Apache Tribe v. United States (Docket Nos. 30-A and 48-A), 19 Ind. Cl. Comm. 212, 238 (1968), stating:

* * * This negotiation was intended primarily as a treaty of peace, not a settlement of conflicting claims. Subsequently, all parties violated the terms of the Treaty of Santa Fe and no one is in position to-assert any benefits or rights thereunder.

The court agrees with this assessment of the treaty so far as creating any viable “special relationship” on the part of the United States is concerned. Further, and specifically, it contains no language even implying a duty upon the United States to protect the structure and existence of the Chiricahua tribal unit.

The Indian Trade and Intercourse Act of 1834 suffers from the same failure to create a special relationship or duty under the circumstances of this case. The court held in Seneca Nation v. United States, 173 Ct. Cl. 917, 925 (1965), that the Act “created a special relationship between the Federal Government and those Indians covered by the legislation, with respect to the disposition of their lands, and that the United States assumed a special responsibility to protect and guard against unfair treatment in such transactions.” In short, the Indian Trade and Intercourse Acts have consistently been interpreted as creating obligations on the part of the United States to protect the Indian tribes in dealings involving the disposition of their lands.⁷ The special relationship created by this statute, as amended, has never been extended to the intangible factors of tribal well-being, cultural advancement, and maintenance of tribal form and structure. Nothing in the statute or its legislative history requires a contrary conclusion or modification of this view.

In this light, the court is constrained to agree with the decision reached by the ICC on this issue, finding that no special relationship existed between the Chiricahua Tribe and the United States sufficient to bring this claim within the “fair and honorable dealings” clause. It should be further noted that, given the discussion of the nature of the appellants’ claim with respect to clause 2, the court will not lightly imply a duty upon the Government of the typo sought by appellants when the same claim is raised under the clause 5 language. This is not to preclude the possibility that under some treaty language the Government may have undertaken the responsibility of protecting the tribal structure of a given group, and have thereby created a definable group interest, damage to which would involve a breach of the “fair and honorable dealings” clause. Such a special relationship, however, must be clearly indicated. This is not the situation in the case at hand where the pertinent treaty and Act of Congress do not deal with the matter at all. The court, therefore, finds that the appellants’ claim does not fall within the jurisdiction of the ICC under the “fair and honorable dealings” clause and the Commission was correct in holding that as to clause 5 the petition failed to state a claim upon which relief can be granted under the ICC Act.

Because we have disposed of the appeal on other grounds, it will not be necessary to discuss the arguments raised by defendant that the case is barred as res judicata because it is alleged to be identical with ICC Docket No. 30, Fort Fill Apaches v. United States, 1-A Ind. Cl. Comm. 137, 139 (1949), wherein there was a claim involving the arrest and imprisonment of the Apaches as outlined in this case, ICC Docket No. 49. The Commission dismissed the claim in both dockets for similar reasons. However, it did not bar the claim in Docket No. 49 either for res judicata or collateral estoppel, assuming for the purpose of ruling on appellants’ motion for summary judgment that the parties were not identical and that the causes of action were different. However, the Commission did say Docket No. 30 was stare decisis to No. 49. Final judgment has been entered by the Commission in No. 30 and no appeal has been taken. ICC Docket No. 49 now before the court is our first contact with the problem. For the same reasons, it is not necessary to discuss the appellants’ argument that the internment of the Indians destroyed “sovereignty” of their tribe and that the United 'States has violated its “general duty” not to mistreat the tribe and has offended “basic principles of law, equity and morality” and has bordered on genocide with its tortious conduct. These and other arguments have been ably and forcefully presented by opposing counsel.

Tbe story of the wars between, the United States and the Apache Indians is one of harsh treatment on both sides. The Apaches raped, plundered, and murdered on a grand scale, “carrying death and fire and desolation over American and Mexican territory to an extent which is almost incredible.” Scott v. United States, 38 Ct. Cl. 486, 489 (1898). The Federal Government determined it to be necessary to field at one time an army of 5,000 men against the Apaches. The Mexicans had 4,000 soldiers in the field. Battles with Apaches went on for over 100 years. In 1886, when Geronimo surrendered, the organized hostilities came to an end. This court described the final surrender as involving “more prolonged negotiation than the army of Burgoyne at Saratoga or of Lee at Appomattox, and concluded by the granting of terms that the surrender be ‘as prisoners of war to an army in the field’ — terms which effectually removed the sagacious savage and his followers beyond the jurisdiction of the civil authorities.” Scott v. United States, supra at 488. We see then that the decision to put the Apache Indians in confinement in Florida was a military measure taken to prevent the possibility of a resumption of warfare. We do not consider the merits of that decision. The question now is not how mistreated the Indians were or how much provocation there was to explain the actions of the United States, but whether the Indian Claims Commission has jurisdiction of the claim.

With the perspective of history and the benefits of hindsight and ignorance of the temper, passions, and conditions of the times, it is easy to say that the actions of the United States were perhaps unwarranted and that reparations should be given to the Apache Indians for their suffering after surrender. The Congress knew all about the Apache wars and their aftermath when it enacted the Indians Claims Commission Act in 1946. This generous and remedial legislation did not, however, provide for claims by individual Indians, but only by tribes and identifiable bands and groups. We take the law as we find it.

The early bound reports of the Court of Claims contain scores of cases wherein claims were made and judgments rendered under the so-called Indian Depredation Act of March 3, 1891, ch. 538, 26 Stat. 851. The United States was charged with defense of these claims wherein Indian tribes were joined as defendants. The statute reserved to the Government, and to the Indians themselves, all rights to “counterclaim, set-off, claim of damages, demand, or defense whatsoever of the Government or of the Indians * * Sec. 4, 26 Stat. 852. The various Apache tribes and bands appear repeatedly in the kepoets.

Under the depredation statute, judgments were given only against Indian tribes living in amity with the Government. Where an outlaw band seceded from a tribe it was not held against the tribe. Scott v. United States, supra; Montoya v. United States, 32 Ct. Cl. 349 (1891), aff'd, 180 U.S. 261 (1901). But, where the entire Chiricahua Tribe at one time was at war with the United States, it could not be held liable in a suit at civil law for its depredations. Dobbs v. United States, 33 Ct. Cl. 308 (1898). The answer given to such a problem was military in nature. It was the constant, overriding purpose of the Government to pacify the Indians and to make treaties which would bring them under the Nation’s laws. Whatever civil remedies are to be allowed, for adjustment of ancient, legitimate Indian grievances is, however, for Congress to say. It has not said anything which would permit recovery under the theories advanced by appellants under Docket No. 49. To grant appellants the relief demanded would be an undue extension of the extraordinary remedies allowed under the Indian Claims Commission Act. The decision of the Commission is, accordingly, affirmed.

Affirmed.

1 The petition of appellants was filed by the Port Sill Apaches of the State of Oklahoma and by three individual Indians in a representative capacity on behalf, respectively, of the Warm Spring Band of Apaches, the Chiricahua Band of Apaches and the Port Sill Apaches. All three groups are components of the aboriginal Chiricahua Apache Tribe.

2 Now identified as the Chiricahua & Warm Spring Bands.

3 Now identified as the Fort Sill Apache Tribe of the State of Oklahoma.

4 See, 25 U.S.C. § 70a, § 701. In a claim brought by the Fort Sill Apache Tribe for the false arrest and Imprisonment of 450 members of the Warm Spring & Chiricahua Bands based on these same facts, the Indian Claims Commission dismissed the petition since it concerned the rights of the individual Indians and not the rights of the tribe (Ind. Cl. Comm. Docket No. 30). 1-A Ind. Cl. Comm. 137, 141 (1949).

5 “* * * (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the united States if the united States was subject to suit; * *

6 On legislative history, see the conversation between the Assistant Commissioner of the Bureau of Indian Affairs and Chairman Henry M. Jackson at the Hearings on H.R. 1198 and H.R. 13141 Before the House Committee on Indian Affairs, 79th Cong., 1st Sess., at 77 (March 28, 1945).

7 Pursuant to clause 4, section 2, of the ICC Act, appellants In the Instant case claimed a taking of their lands and were awarded $16,489,096 therefor, after deduction of offsets. Fort Sill Apache Tribe v. United States, 26 Ind. Cl. Comm. 198 (1971); 25 Ind. Cl. Comm. 352 (1971) ; 22 Ind. Cl. Comm. 627 (1970); 19 Ind. Cl. Comm. 212 (1968). Appeal by defendant from said award Is pending before this court In Appeal No. 8-72. Also, a claim Is presently pending before the Commission in Docket No. 182 for compensation for minerals, timber and other resources allegedly removed from the Apache lands prior to the date of the taking of the lands in 1886. The Apaches have been In litigation on these matters before the Commission continuously since 1948.