Grow v. United States , 32 Ct. Cl. 599 ( 1897 )

Peelle, J.,

delivered the opinion of tbe court:

Tbe question presented in this case is, Were tbe defendant Indians in amity with tbe United States at the time of tbe depredation, January 26,1856; and if not, when did.they become hostile, and bow long did they so continue?

In tbe case of John P. Kinoaid, No. 8890, the court found that tbe Puyallup and Nisqually Indians were in amity with the United States on the last day of October, 1855, and to that finding the court adheres.

The petition in this case, as indicated by the above title, is against the Nisqually Indians only, but the evidence, as disclosed in the findings, is that the depredation was committed bytheNisqually, White Bi ver, Puyallup, and Klickitat Indians.

As the official reports from the various officers of the Government with reference thereto indicate that the Indians named were acting in concert, we shall consider them together.

The reports show that other Indians were involved in the same hostilities, but as the findings show they were not the depredators in this case, we exclude them from any conclusion we may reach herein for further consideration in any case that may arise wherein the question of their relation to the United States may be presented.

The disaffection of the Indians in Washington Territory, and particularly as to the Yakima and Klickitat Indians, was such that early in October, 1855, as seen by the Pep or t of the Commissioner of Indian Affairs for 1855 (pp. 15-194), Subagent Bolen was killed by them, following which other tribes and bands were requested to join them in their hostile acts, but the union as tribes was unsuccessful at that time, as shown by the same report.

October 9,1855, Major Bains, commanding Fourth Infantry in the Puget Sound district, becoming alarmed as to the threatened attitude of the Indians in that locality, addressed a communication to the governor of Oregon Territory, stating that “As commanding officer I have ordered all the United States disposable force in this district into the field immediately and shall take the command,” but as the force under him was questionable to subdue the Indians, the Yakimas and Klicki-tats, and perhaps other small bands, as his letter indicates, he called upon the governor for four companies of volunteers. (Beport Secretary of War, 1855-56, vol. 2, p. 83.)

In response to that communication the governor, writing from Portland, Oreg., under date of October 16,1855, among other things, said:

“A band of Klickitats, reported to be friendly, encamped near Cowallis some 70 miles south of this place, were in possession of the particulars of the engagement in Simcoe Yalley between the gallant command under Major Haller and the hostile tribes north of the Columbia Hi ver on the same day that the intelligence reached this place. It has been known for some time by the superintendent of Indian affairs for Oregon that the Indians west of the Cascade Eange had been tampered with by those now engaged in open hostilities on the northern frontier, and the Shasta and Bogue Biver .Indians are now in open arms against the settlers in that section of the Territory. For the suppression of this new outbreak I have taken prompt and, I trust, effective measures.”

1-Ie further reported in that same communication that in his belief a combination had been “effected among the different tribes on -our borders, as well as in our midst, and a general war resolved upon their part against the whites.”

The governor aforesaid had previously issued two proclamations calling attention to criminal offenses which had been committed by the Indians combined for hostile purposes, and he called for volunteers and arms in response to the requisition of Major Bains.

While we adhere to our finding in the Kincaid Case (supra) that the Puyallup and Nisqually Indians were in amity with the United States on the last day of October, 1855, their dep'redations, in connection with other Indians, which commenced early in October and after the troops had been ordered east of the Cascade Mountains to suppress Indian hostilities then actively existing there, grew worse and became more wanton until the troops so ordered away were recalled, after which the Puyallup, Nisqually, Klickitats, and other Indians, acting in concert, continued their wanton destruction of life and prop-perty, resisting military authority.

November 3,1855, Lieutenant Slaughter, with about 50 regulars, and the same number of volunteers, under Hays, had an engagement with them at the crossing of White Biver, in which 1 soldier and about 30 Indians were killed. (History of the Pacific States by Bancroft, p. 120.) Again, November 6, he was attacked at the crossing of Puyallup Biver and had 6 men wounded, 3 mortally. (Ibid., p. 120.) And again, November 24 following, he was attacked at night, sustaining a loss of 40 horses, while on November 26 one member of Wallace’s company was killed. (Ibid., p. 122.) The chiefs who commanded in these attacks were Kitsap and Kanascut, of the Klikitats; Quiemuth and Klowowit, of the Nisquallies, and Nelson, of the Green Kiver and Nisoope Indians. (Ibid., p. 122.)

December 4,1855, Lieutenant Slaughter was shot and killed while holding- a conference early in the evening. The Indians then continued firing for three hours, killing 2 noncommissioned officers and wounding 6 others. (Ibid., p. 123.)

Soon after Slaughter’s death, the pack horses being worn out and many of the soldiers sick, the troops were withdrawn from active operations against the Indians and went into garrison where they could give the best protection to the settlers. (Ibid., pp. 123,124.)

About the same time the following communications were sent to the Secretary of the Navy:

“ü. S. Flag-ship Independence,

“Navy-Yard-, Mare Island, December 4,1855.

u Sin: I have the honor to inform you that the hostilities of the Indians of Washington and Oregon Territories, manifested in the massacre of the settlers and their attacks upon the regular troops of the Army, have assumed an alarming character which, with other demonstrations farther south, would seem to indicate a concerted action and general rising among all the Indian tribes inhabiting the western side of the Sierra. Nevadas. These difficulties, in my opinion, call for all the naval force which can be spared from other duties here to act with the land forces in transporting troops as circumstances may require.

*******

“William Meevine,

“ Commanding Pacific Squadron.

“ Hon. J. C. Dobbin,

“ Secretary of the Navy, Washington, D. C.

“(Senate Doc. 26, first and second sessions Thirty-fourth Congress, p. 57.)

“U. S. Sloop oe Wae Decatue,

“ Port Madison, Wash. T., Puget Sound, December 5,1855.

“SlE:

*######

“I trust I shall be pardoned for stating it as my opinion that the war in this Territory is assuming a most serious aspect. The numbers, valor, and prowess of the Indians have been greatly underrated, and the forces now in the field, and indeed the whole military resources of the Territory, are totally inadequate to conduct the war with success, or even to afford protection to tbe settlers. The war in Oregon seems to engross the whole of the attention of the people and press of California, and the greater danger to which this Territory is subjected appears to be unknown.

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■IV TP TP TP VP TP

“Isaac S. Sterrett, Commander.

“Hon. J. C. Dobbin,

“Secretary of the If my, Washington, I). C.

“ (Senate Doc. 26, first and second sessions Thirty-fourth Congress, p. 67.) ”

January 26,1856, the date on which the depredation in the case at bar was committed, about 1,000 Indians attacked Seattle, continuing their attack until late at night, but with what loss is not known.

March 16,1856, the governor of Washington Territory, among other things, writes:

“Executive Oeeioe, Washington Territory,

“ Olympia, March 16,1856.

“Sir:

*######

“ The war has now gone on five months. It is a war emphatically for the defense of the settlements, so much so that I have ordered to the Sound four companiés from the Columbia Biver, and a.t this critical period it is important that there should be no change in the command or in the plan.

* # * * * * ■ #

“Isaac I. Stevens,

“ Governor and Commander in Chief.

“Lieut. Col. Silas Casey,

“ Ninth Infantry, Commanding Puget Sound Division,

“ Fort Steilaeoom, Washington Territory.

“(Senate Doc. 66, first and second sessions Thirty-fourth Congress, p. 48.)”

In the Bush Case (29 O. Cls. B., 144) the Klickitat Indians were found hostile on March 26,1856.

The superintendent of Indian affairs for Washington Territory, on May 31,1856, reported as follows:

* * * “The war broke out early in October, confined first to the Yakimas and Klickitats, and gradually extended to the Tyh, Deschutes, John Days, and Umatilla Indians of Oregon, to the Cayuses and Walla Wallas of Washington, and to the Palouses, all east of the Cascades, and to detachments from several bands at or near the head of Puget Sound, west of the Cascade Mountains. * * *

“ The circumstances of the defection of the Indians on Puget Sound were so extraordinary as to excite universal alarm and consternation through all classes of the community and to create a universal mistrust of the fealty of all the tribes. The Indians who took up arms had been but a few days before visited by Acting Governor Mason and several gentlemen connected with the Indian service, and had assured him that all the reports of their meditating an outbreak were false, and that they were the best friends of the whites. * * *

“Leschi, the leader of the hostiles on the Sound, was familiarly known to most of our citizens; had in part adopted the habits and usages of civilized life, was a good farmer, an expert hunter, and believed to be an honest man.

“Nelson, the monster who perpetrated the massacre on White River, was in like manner treated and respected by the inhabitants of the county of King.

“The other leaders were held in similar trust. I have never heard of any charge that they had been maltreated by the settlers. I know that they were treated with consideration and respect.

“Recollect, Leschi lived within three hours’ride of Olympia and two hours of Steilacoom; that he visited both places; and Nelson was a welcome and frequent visitor to the town of Seattle, and so were the other leaders. Conceive, therefore, of the consternation of .the whole community when the Indians, believed to be the most reliable, in direct violation of their solemn word, commenced the war by the massacre of an entire settlement.

“ McAlister and Edgar were betrayed and shot by their own guides. McAlister went with his neighbor, Stahi, to see Leschi, believing that their old friendship of ten years could be appealed to to induce Leschi-to continue friendly. Stahi treacherously betrayed and shot him on the road and joined the enemy.

“Were it necessary I could give many cases. Moses and Miles, returning from the east of the mountain with, several other gentlemen, passed through the camp of Leschi on White Biver, believing them to be friends. They met as such, shaking hands and exchanging friendly greetings; but as soon as their backs were turned the Indians fired upon them, and Moses and Miles, prominent citizens, the first the inspector of customs at Nisqually, the latter a lawyer of Olympia, and one of the colonels of the Territorial militia, were the first martyrs of the war.” (Report Secretary of the Interior [Mess, and Docs., 1856-57, pt. 1], pp. 736, 737.)

Bancroft, in his history referred to above (p. 118), states that Leschi was a Yakima-Nisqually chief, and from the communication last cited it appears that he had in part adopted the usages of civilized life and was therefore supposed to be friendly. He was subsequently indicted and tried by the civil courts and sentenced to be hung.

The particular crime with which he was charged was that of killing one A. JB. Moses, of Pierce County. On the first trial the jury failed to agree, but on the second trial he was convicted and subsequently sentenced to be hung, and the day of execution was fixed for'January 22, 1858.

The proceedings were condemned by the military authorities and an effort was made to secure his pardon, but the opposition was too great.

On the day fixed for his execution, however, the sheriff and his deputy were arrested by a United States marshal, appointed for the purpose. An effort was also made to obtain the death warrant in the possession of the sheriff, and by this means the execution was thwarted.

. The indignation of the people secured from the legislature the next day an act authorizing the Supreme Court to hold a special session to again sentence him and fix the time for his execution, which was done, and on February 19 following he was executed.

Bancroft’s History (supra), pp. 171 et seq.

The Commissioner of Indian Affairs in his report for 1856, page 17, among other things, states in substance that hostilities broke out in 1855 in southern Oregon with the Eogue Eiver Indians, and that afterward in Washington Territory the Yakimas and Klickitats commenced a war with the settlers, which communicated to a number of adjacent tribes in both Territories. He further says: “The war raged in various localities from October, 1855, to June 1,1856.”

While hostilities were being actively carried on east of the Cascade Mountains some of the troops of the United States stationed west of the Cascades were ordered east to reenforce the troops there, but after their departure the Indians in and about Puget Sound and along White Eiver, under Leschi, began to depredate, killing the settlers and destroying their property.

These cruel and wanton acts, at first confined to the Yakimas and Klickitats, gradually extended to other tribes and portions of tribes along the border, as shown by the official reports, and particularly that of the governor of Oregon hereinbefore referred to, until tlie troops ordered east were, as stated, recalled. It was at this time that Major Eains, commanding the Fourth Infantry in the Puget Sound district, called upon the governor of Oregon Territory for volunteers, which were promptly furnished.

The engagement of Lieutenant Slaughter with the defendant and other Indians, November 3,1855, appears to be the first encounter with troops, and so we fix the date of the beginning of the hostilities November 3, 1855, and as continuing until June 1,1856.

This covers the date of the depredation in this case, and the petition is dismissed.

Howry, J., was not present when this case was tried and took no part in the decision.