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Opinion of the Court.

government, but the indemnification of the citizen was not to be dependent upon that fact.

When this case was before the Court of Claims it received the very careful attention of that court, and scarcely anything can be added to its well-considered opinion delivered by Judge Nott in directing judgment against the United. States and dismissing the petition against the Comanche and Kiowa Indians.

In conferring jurisdiction in this class of cases upon the Court of Claims, it will be seen that Congress conferred it in regard to 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. So long as the depredations were committed upon the property of citizens of the United States, and by Indians. in amity with the government, without just cause, etc., jurisdiction and authority to inquire into and finally adjudicate upon such claims was granted to the court. This broad ground of jurisdiction would, unless circumscribed by the subsequent provision of the act, permit an adjudication against the United States alone. There is nothing in any other portion of the act which provides in terms for joining as codefendants with the United States the tribes or bands of Indians by whom the alleged illegal acts were committed. The third section of the act merely provides for the contents of the petition, and by such section it is made the duty of the petitioner to state in his petition "the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be," etc. This is for the obvious purpose of giving some notice to the government of the alleged facts upon which the claim is based so that the proper defence, if any exist, may be made to the claim.

Section four, among other things, grants the right to any Indian or Indians interested in the proceedings to appear and defend by an attorney employed by such Indian or Indians, with the approval of the Commissioner of Indian Affairs,

Opinion of the Court.

if he or they so choose to do; but if no such appearance is made, it still remains the primary duty of the Attorney General, under the provisions of the same fourth section, to appear and defend the interest of the government and of the Indians in the suit, and no claimant can have judgment for his claim or any part thereof unless he shall establish the same by proof satisfactory to the court.

Taking into consideration that, by the fifth section, it is the duty of the court to determine in each case, “if possible, the tribe of Indians or other persons by whom the wrong was committed, and to render judgment in favor of the claimant or claimants against the United States and against the tribe. of Indians committing the wrong, when such can be identified,” it may be fairly claimed that, reading all the provisions together, the act makes it necessary, when known, to join with the United States the Indians or tribe of Indians by whom the illegal acts are alleged or are supposed to have been committed. Although the fourth section provides for the defence of the claim by the law officer of the government under any circumstances, yet as the interest of the Indians is embraced in the inquiry before the court because of their liability to a judgment against them if identified and to a payment of that judgment out of the annuities or otherwise as provided for in the sixth section, it is proper to allow them to appear and defend also by their own attorney. But the fifth section provides for judgment in favor of claimant and against the United States in any event, where the property of a citizen has been destroyed under the circumstances provided in the statute, but only against the tribe of Indians committing the wrong" when such can be identified," and of course it follows that if they cannot be identified no judgment can go against them. The United States would then be left as alone responsible for the property destroyed provided the proofs were of the character mentioned in the first section of the act; that is the claimant would be bound to prove that he was a citizen of the United States at the time of the taking or destruction of his property; that it had been taken by Indians belonging to some band or tribe or


Opinion of the Court.

nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and that it had not been returned or paid for.

Unless it can be asserted that it is impossible to make out a cause of action for such destruction of property by the class of Indians mentioned in the first section, without identifying such class as is mentioned in the fifth section, we can see no objection to a recovery against the United States alone in this case. We do not think that it is impossible to prove facts of the nature set forth in the first section, although they may have occurred under such circumstances as to prevent identification of the particular tribe or band of Indians committing the illegal act. The circumstances of the case might show beyond any reasonable doubt that the property had been destroyed by Indians; that it was at the time so situated with regard to various bands of Indians, all of whom were in amity with the United States, as to make it impossible to identify the particular band to which the Indians belonged who committed the depredation, but that from the facts it could not be successfully questioned that the Indians of one or the other of these bands had committed the depredation. Under such circumstances we think the claimant would bring his cause within the provisions of the act in question. He would have proved that his property, had been destroyed by Indians belonging to a band or tribe in amity with the United States, but which of several bands of that description he would be unable to identify. Consequently the judgment would go against the United States, but not against any particular band because of the failure of the proof.

We think after a careful examination of the whole act that the Court of Claims was right in entering judgment against the United States alone. The claimant having died pending the suit, the question as to the appointment and appearance of an administrator may be dealt with in the Court of Claims. The judgment of that court is, therefore,


Opinion of the Court.



No. 31. Argued January 4, 5, 1897. - Decided February 15, 1897.

When the managers of a national bank make arrangements with depositors in the bank to give them credit at the bank for larger sums than appear upon the credit side of their accounts up to specified amounts and for a fixed time, and the proper officers of the bank make entries thereof in the books of the bank in good faith and in the belief that they have a right so to do, such an entry is not a false entry within the meaning of that term as used in Rev. Stat. § 5209, and the person so making it is not guilty of a violation of that statute in so doing.

THE case is stated in the opinion.

Mr. C. C. Cole for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants in


MR. JUSTICE PECKHAM delivered the opinion of the court.

The plaintiff in error was convicted in the United States District Court for the Northern District of Iowa, under section 5209 of the Revised Statutes, of making false entries in certain reports in regard to the condition of the Commercial National Bank of Dubuque, of which he was president.

The indictment contained sixteen counts, all but six of which were taken from the jury, the remaining counts being the fourth, fifth, seventh, eighth, ninth and tenth.

The fourth and seventh counts relate to the making of alleged false entries in the returns made respectively on the 5th days of August and October, 1887. Those counts (each relating to one of the two returns) charged that the plaintiff in error falsely understated the amount of overdrafts paid by the bank and remaining unpaid to it on the date mentioned in the count.

Opinion of the Court.

The ninth and tenth counts relate to the same reports, and each count charges that the plaintiff in error falsely overstated the amount of loans and discounts which the bank had made and which stood on its books at the date mentioned, the claim in fact being that, as to the sum of about $20,000 contained in the item of "loans and discounts," the return was a false statement.

The point in dispute is in regard to which heading of the returns the items amounting to about $20,000 should have been placed under; whether they should have been treated as overdrafts or as loans and discounts.

The proof regarding these four counts shows that there are in substance two charges of making false entries under the two heads of "overdrafts" and "loans and discounts" in the returns dated respectively August and October, 1887.

The fifth and eighth counts relate to the making of entries alleged to have been false in the returns for the same two quarters, and relating to the liabilities of the directors, it being therein charged that those liabilities were stated in each report at a sum much less than the actual fact required it.

The plaintiff in error having been duly arraigned upon the indictment, pleaded not guilty, and was placed on trial at a term of the District Court for the Northern District of Iowa, Eastern Division, held in December, 1892, and was convicted upon the counts above mentioned.

In the course of the trial and for the purpose of proving the guilt of the accused under the fourth count, the Government gave evidence that from the books of the bank there appeared under the head of loans and discounts, on August 1, 1887, the sum of $490,133.78; that the plaintiff in error was the president of the bank and as such signed the quarterly report to the Comptroller of the Currency as to the condition of the bank at the time last named; that under the head of loans and discounts he placed in the report to the Comptroller the sum of $551,048.60, which, as is seen, is an increase of about sixty thousand dollars over the amount as shown by the bank's books on that date. One of the items going to make up this increase was the sum of $20,465.00, and this sum was

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