Scott v. United States

33 Ct. Cl. 486, 1898 U.S. Ct. Cl. LEXIS 41, 1800 WL 2108

• Court: United States Court of Claims
• Decided: May 31, 1898
• Docket: Indian Depredations, 960
• Status: Published

Opinion

Nott, Oh. J.,

delivered the opinion of the court:

The year 1886 witnessed the last Indian war of this country, unless the single battle of Wounded Knee be regarded as a war. On the 4th of September of that year the last -war party of the Apaches surrendered in the Sierra Madre of Mexico to Oaptain Lawton, of the Fourth Cavalry, acting under the immediate orders of General Miles. This surrender closed an active campaign extending over a period of sixteen months. The military forces engaged at the time of the surrender consisted, on the part of the United States, of 42 companies of cavalry and infantry; on the part of our ally, the Republic of Mexico, of 4,000 men; and on the part of the common enemy, the Apaches, of not more than 50 men and a few women. It is a significant fact that neither the annual report of the Secretary of War, nor that of the commanding general, nor that of the Commissioner of Indian Affairs, nor that of the officer to whom the surrender was made gives the number of the Indians captured. An unpublished, unprinted, contemporaneous report from General Miles to General Howard gives the number of the prisoners as 22 men, 14 women, and 3 children; but as the number of the Indians who escaped in March, 1886, was then reported by Captain Maus, the officer in charge of them, as 22 men, 13 women, and 2 children, it is supposed by the court that General Miles’s report was intended to refer to those numbers, and that some omission occurred in its telegraphic transmission to General Howard.

In our military bistory tliis Indian army will be known as “Gerónimo and bis band.'"' If tbe narrative of tliis Indian’s exploits bad come down to ns in tradition from a former age, it is safe to say that scientific criticism would condemn it as a myth, as an instance of tbe love of tbe exaggerated and superstitious and impossible which dwells in tbe unscientific mind. But the costly record of Gerónimo is one which never can be questioned. His campaign taxed tbe powers of two great civilized governments; it involved a treaty which allowed tbe forces of tbe one to cross tbe frontier of tbe other; it received tbe energy and experience and ability of our two greatest masters of Indian warfare, General Crook and General Miles. Tbe war was waged, on tbe part of the United States at least, with the best military appliances of modern warfare, including steam, electricity, and tbe heliostat; and, more valuable tlian any other element in tbe military case, it was an instance of Apache against Apache, for our troops were led by Apache scouts, who faithfully and heroically served tbe Government. Yet Gerónimo armed bis band with the best of modern breech-loaders and ammunition, and even equipped them with field glasses taken from us, and drew bis supplies from wherever he would, and inflicted incalculable damage on the country of both of bis enemies, and carried on his last campaign successfully for five months. There is not, probably, in the history or traditions or myths of the human race another instance of such prolonged resistance against such tremendous odds.

Moreover, the Indian soldier was successful even in the ending of his campaign; for the surrender of this paltry band involved 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 Avar to an army in the field” — terms which effectually removed the sagacious savage and his folio Avers beyond the jurisdiction of the civil authorities. The pursuit, too, of Gerónimo is witli-out a precedent. Such is the opinion of General Miles, who led the pursuit of the Nez Perces through a march of more than 1,300 miles. The pursuing forces of the United States marched, though more or less by well-arranged relays, more than 2,000 miles. At midday the troops would be in arid deserts where the thermometer in the shade stood at 120°; at midnight they would scale mountain tops where the thermometer stood below tbe. freezing point; and Captain Lawton, the officer who led the pursuit and achieved the surrender, marched more than 1,000 miles, losing, General Miles says, more than 40 pounds in weight during the pursuit and almost expending life itself in the service of the country.

Gerónimo was not a chief of the Chiricahuas, but simply a born soldier and natural leader of men. The Chiricahuas were a part of the Apache tribe or race, and Geronimo’s band was a part of the insurgent portion of the Ohiricahua band. It was therefore, from a legal point of view, a case of a war by the minority of a minority of a subdivision of a tribe. The Chiricahuas were a minority of the Apaches; the Indians who went on the warpath in May, 1885, were a minority of the Chiricahuas; Gerouimo’s followers were a minority of the hostiles.

In 1885 the Chiricahuas had been placed on a separate reservation, known as the Apache or White Mountain Reservation. In May of that year about 200 of them broke away, led nominally by a chief, but really under the command of Gerónimo, who was not a chief, but simply a great Indian soldier. An active campaign was conducted against them by General Crook, then in command of the department. In. March, 1886, the war party surrendered to General Crook — a conditional surrender. On the 29th of March, while the column of troops and prisoners were moving toward Fort Bowie, the suspicions of Gerónimo of some coming treachery on the part of the whites prompted him, with 22 men, 13 women, and 2 children, to escape. They were immediately upon the warpath, carrying-death and fire and desolation over American and Mexican territory to an extent which is almost incredible.

The difficulties of the Indian situation which confronted General Crook on the 27th of March, 1886, are thus described by himself:

“In reply to your dispatch of March 30, to enable you to clearly understand the situation, it should be remembered that the hostiles had an agreement with Lieutenant Maus that they were to be met by me 25 miles below the line; that no regular troops were to be present. While I was very averse to such an agreement I had to abide by it, as it had already been entered into. We found them in camp on a rocky hill about 500 yards from Lieutenant Maus in.such a position that a thousand men could not have surrounded them with any possibility of capturing them. They were able upon the approach of an enemy, being- signaled, to scatter and escape through dozens of ravines and canyons which would shelter them from pursuit until they reached the higher ranges in the vicinity. They were armed to the teeth, having the most improved guns and all the ammunition they could carry. The clothing and other supplies lost in the fight with Crawford had been replaced by new blankets and shirts obtained in Mexico. Lieutenant Mans, with Apache scouts, was camped at the nearest point the hostiles would agree to his approaching. Even had I been disposed to betray the confidence they placed in me it would have been simply an impossibility to get white troops to that point either by day or by night without their knowledge, and had I attempted to do this the whole band would have stampeded back to the mountains. So suspicious were they, that never more than from five to eight of the men came into our camp at one time, and to have attempted the arrest of those would have stampeded the others to the mountains. Even after the march to Bowie began we were compelled to allow them to scatter. They would not march in a body, and had any efforts been made to keep them together they would have broken for the mountains. My only hope was to get their confidence on the march through Ka e te ua and other confidential Indians, and finally put them on the cars; and until this was done it was impossible even to disarm them.” • (General Crook’s Résumé of Campaign, 1S85-G.)

“In a conference with Gerónimo, and other Chiricahuas I told them that they must.decide at once upon unconditional surrender or fight it out. That, in the latter event, hostilities should be commenced at once and the last one of them killed if it took fifty years. I told them to reflect on what they were to do before giving me their answer. The only propositions they -would entertain were these three: That they should be sent East for not exceeding two years, taking with them such of their families as so desired, leaving at Apache, Nana, who is 70 years old and superannuated; or that they should all return to the reservation on their old status; or else return to the warpath with its attendant horrors. As I had to act at once, I have to day accepted their surrender upon the first proposition.” (Ib.)

General Crook’s policy had been, first, to put the Apaches upon defensive warfare, a situation in which they had never before been placed; second, on exhausting the resources of a band to invite their surrender, to make friends with them, to treat them with inflexible good faith, to keep all promises, to win their confidence, and to convince them that civilization was their only way of escape, and that the wild Apaches were the great hindrance to peace and their prosperity; third, to enlist from among them their best men as Apache scouts. These scouts, it is to be noted, served the United States with absolute fidelity, never deserting, never betraying a trust, never flagging in pursuit of their own countrymen, and never even stealing the Government’s property over which they stood guard.

Au Apache chief has thus described the condition to which General Crook had reduced them:

“ Cha lipun said that he had come in, as the representative of all the Apaches, to say that they wanted to surrender because General Crook had Goo many cartridges of copper’ ■ (‘demasiadas cartuchos de cobre’). They had never been afraid of the Americans alone, but now that their own peoi>le were fighting against them they did not know what to do; they could not go to sleep at night, because they feared to be surrounded before daybreak; they could not hunt, the noise of their guns would attract the troops; they could not cook mescal or anything else, because the flame aud smoke would draw down the soldiers; they could not live in the valleys,, there were too many soldiers; they had retreated to the mountain tops, thinking to hide in the snow until the soldiers went home, but- the scouts found them out and the soldiers followed them. They wanted to make peace and to be at terms of good will with the whites.” (Captain Bourke’s On the Border with Crook.)

In the difficult aud delicate position in which General Crook was placed in March, 1886, he undoubtedly did the right thing and accepted the best alternative. But, unhappily, when this was reported to the War Department it was not understood and was disapproved. The Indians had surrendered on conditional terms; the conditions were disregarded, but the Indians were held as prisoners. Ail the insurgent Ghiricahuas, and those who had remained upon the reservation, and, likewise, Nana, the old chief whom they so venerated that they had specially stipulated that lie should not be removed, and even the very scouts who had been fighting for the United States, were seized and sent to Fort Marion as prisoners. This action of the Government was in the mind of Gerónimo another instance of the white man’s perfidy. His suspicions were justified to himself. General Oiook regarded the action of the Department as a breach of his plighted word to the Indians, a word which had never been broken before. He asked to be relieved and passed out of the field of Indian warfare.

General Miles was assigned to the command of the Department of Arizona as the successor of General Crook.- When be got down from tbe train of tbe Southern Pacific Railroad at Bowie Station, on tbe 12th of April, 18S6, two weeks after tbe escape of Geronimo’s band, this is tbe condition of affairs which be found:

“ I found a battalion of tbe Second Cavalry encamped and in a very unsatisfactory condition. They appeared to be not only discourag'ed but thoroughly disheartened. They bad been in the field a long time doing most disagreeable and hazardous duty, and appeared to have very little hope of ultimate success. The citizens and settlers located in that district of country were the most terror-striekeu people I have ever seen in any part of the United States. The settlers were afraid to travel during the daytime, and never felt safe either night or day unless within the reach of their firearms. Many of the mines and settlements had been abandoned. The Apache was the terror that haunted the settlers by day and by night. For hundreds of years the Apache had been at war with the civilized races; first with the Spaniards, then with the Mexicans, and still later with the United States authorities.” (Personal Recollections of General Miles, p. 477.)

The preparations which General Miles made for this last Indian campaign would be incredible if they had been made a century ago against so insignificant a foe. He divided the Territories of New Mexico and Arizona into districts of observation; he reorganized his commands; he required the commanding officer of each district to make it untenable for any band of Indians that might invade it; he made dispositions of troops which would enable him to use the railroad and telegraph wherever it was possible; he brought from Washington a corps of skilled signal officers and men, with the best telegraphic instruments and appliances that were attainable; he established heliostat, or sunlight, telegraph stations on mountain tops so that he could, as it were, from his headquarters look into every valley in a region 300 miles in width by GOO in length. These stations were on mountain tops G,000 feet above the level of the sea; they were provided with three operators and a sufficient number of guards, and food and water were carried up to the men on mules. The mysterious flashes from these mountain tops, repeated and answered, were one of the most powerful agencies which operated upon the mind of Gerónimo and brought about his actual submission to the authority of the United States. It was useless to contend with an enemy who could employ means which he could not understand. Finally General Miles selected an officer and a body of men of tried fidelity, endurance, and tenacity of purpose wlio should take up the pursuit in Mexico when the different bodies of troops in Arizona and New Mexico should drive Gerónimo and his band out of the United States.

Notwithstanding that the troops had been so arranged that when pursuit had been begun it should be continued by relays of different commands, one commanding officer after another taking up the pursuit, they suffered incredible hardships. “The Indians, coming over the roughest mountains, would break down one set of horses, would abandon them and pass over the highest ranges, and, descending into the valleys below, would seize others and continue their retreat, while the troops, in order to pursue them, were obliged to send their horses around the impassable mountain heights and follow the trail on foot, climbing in the ascent and sliding in the descent.” “On one occasion the troops continued the pursuit for twenty-six hours without a halt,” and were “without water during eighteen hours in the intense heat of the summer season. Their suffering was so intense from thirst that the men opened their own veins to moisten their burning lips with their own blood.” (Personal Recollections of General Miles.)

While the pursuit was thus carried on by the soldiers of the United States, 4,000 Mexican troops stood ready to engage and harass the retreating Apaches and finally to block the further way of their escape. This, it should be noted, had been prearrange.d by General Miles with Governor Torres, the executive of Sonora. Therefore it may be said that the capture of Gerónimo required the active cooperation of three distinct military agencies — of a superior force of Apaches, of a large contingent of Mexican troops, and of the most thoroughly organized and equipped army for. Indian warfare that this country has ever put in the. field.

The jurisdictional act in these Indian cases, following a statute of a century ago, piovides that the court shall not have jurisdiction of such cases as this, unless the depredations were committed by members of a tribe, baud, or nation in amity with the United States. It is insisted that these Indians of Gerónimo were members of the Chiricahua baud, and that that band was in amity. In the course of this litigation it has been determined that a tribe may become disintegrated; that bands may be formed out .of tribes: that individuals may leave their tribe and become expatriated and form new bands, or become members of a hostile band; that such new bauds must be regarded in relation to amity and responsibility as new entities and proper defendants; that there is a vital distinction between the depredations of individuals and the acts of war; that a tribe at peace can not be held liable for the acts of a band at war.

The previous cases, however, have been cases of compai ative magnitude. In that of Joseph’s baud, the Nez Perces were subdivided into bands; the band of Joseph existing before hostilities began; it had been a party to a treaty; it had an hereditary chief and a separate habitat. (Woolverton v. The Nez Perces, 29 C. Cls. R., 107.) In the case of Black Hawk’s band, it numbered hundreds; and it carried on wliat may be called organized warfare for years. (Herring v. The Utes, 32, id., 536.) In the case of Victoria’s band, it was composed of individuals from a number of bands, who had left their bands avowedly not to return, but to carry on an existing war against the United States after their tribes had made peace. (Montoya v. The Mescaleros, ib., 349.) In the case of the Northern Cheyennes- there had been previous subdivisions of the tribe, and some of these had been separated from the tribe by the Government, and were removed to a distant reservation, and had been treated to all intents as a distinct band. (Ante, . p. 317.) In the case of the Ogallalas, the trib'e had been practically divided into two bands, one on the reservation at peace, the other 300 miles distant, at war, and the Government had regarded the band on the reservation as an entire entity and had entered into treaty relations with it and had recognized it in an act of Congress. (Ante, p. 320.) But in this case of Geronimo’s baifd, only 22 men broke away from the baud of prisoners in May, 1886, some of whom subsequently returned to the reservation, though a few from the reservation subsequently joined Gerónimo; their wives and children did not accompany them; they had no previous formation as a band; their leader was not a chief; as has been said, they were but the minority of a minority, insignificant in numbers, without home or habitat, claiming nothing but their intrinsic ability to wage war against the United States.' Nevertheless they were a fearful power in the Southwest, acting independently of the United States on the one hand and of the Ohiricahua band on the other; and they continued to be such until the Government recognized them as a distinct military entity by allowing them to surrender “as prisoners of war to an army in tbe field.” The terms of that surrender precluded the idea of their being members of a tribe in amity; and characterized all that they did as the inevitable destruction of an Indian war. The judgment of the court is that the petition be dismissed.