United States v. Martinez (195 U.S. 469)/Dissent White
Mr. Justice White, with whom concurs Mr. Justice McKenna, dissenting:

Under the Indian depredation act of March 3, 1891, the United States was sued by one Gorman, in the court of claims, and it was averred in the petition that the damage complained of had been inflicted by the Comanche and Kiowa tribes of Indians, who were in amity with the United States. After hearing, the court of claims, finding it to be established by the proof that the loss complained of had been occasioned by Indians in amity with the United States, but that the proof did not show that the Comanche and Kiowa tribes were the wrongdoers, nevertheless, without any amendment of the petition, rendered a judgment solely against the United States. The action of the court of claims was sustained by this court in United States v. Gorham, 165 U.S. 316, 41 L. ed. 729, 17 Sup. Ct. Rep. 328.

In considering the power conferred by the statute it was said (p. 320, L. ed. p. 731, Sup. Ct. Rep. p. 384): "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 3d 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 or 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 defense, if any exist, may be made to the claim."

Again, after pointing out that the statute made it "the duty of the court to determine in each case, if possible, the tribe of Indians of 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 was observed (p. 321, L. ed. p. 731, Sup. Ct. Rep. p. 384):

"But the 5th 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 1st 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 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."

To my mind this decision clearly establishes that, under the act of Congress, the Indian tribe by whom the depredation was committed was not an essential party to give the court jurisdiction over the claim. This conclusion, it seems to me, is inevitable from the ruling that, although it was alleged in the petition that a particular tribe was the wrongdoer, it was competent for the court to conform to the proof, and render a judgment against the United States, in a case where the proof did not establish the truth of the averment as to the tribe committing the injury, if only it was shown that the wrong complained of must have been committed by some Indian tribe which was in amity with the United States. Now, the question on this record is simply whether a petitioner who has alleged that the wrong was committed by a particular tribe can, after the three years' limitation, amend by stating another and different tribe as the wrongdoer. It is decided that such amendment cannot be allowed, because to allow it would amount to a fatal departure; that is, the substitution of a new and wholly different cause of action.

Consistently with the ruling previously made, my mind cannot assent to this conclusion. To adopt it without specifically overruling the Gorham Case, it seems to me, is to declare, on the one hand, that it is not essential to prove the allegation that the wrong was committed by a particular tribe, and, on the other hand, to say that the allegation as to the tribe committing the wrong was essential to the cause of action. That is to declare that a particular allegation is, at the same time, both essential and nonessential,-essential to be alleged, but not essential to be proved.

As it is considered by me that the Gorham Case is conclusive of this, and as the opinion now announced does not purport to overrule that case, it is not necessary for me to enter into a statement of my reasons for believing that, even if that case did not exist, the construction now given to the statute is not only repugnant to its text, but conflicts both with the rights of individual claimants and those of the United States, as shown by the purpose and spirit of the act.

I therefore dissent. 

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