Annual Report of the Commissioner of Indian Affairs - 1892

Page 126

120 REP O'R0T THE COMMISSIONER OF INDIAN AFFAIRS. The defendants are the sovereign guardian of the Indians, prot,eoting t l~amin their rights against the elxinkn and enorosohments of the citizen, and it is to bopresonled that in any proceediux the effect of whioh is to impsir or injure t.heir rights the defendants will he vigilnl~ti n the protection of every possible right which they may have. * " * If the Yumn. Indians have funcls in the control and custody of tho United States, the United States have a perfect legal right to deal with it as they see fit, and the reference of s, question to this court affecting the integrity of that fund does not confer upon the Indiana the legal rights of a, suitor. The statute taken as a whole has some peculiar provision8 as to the Indiana; but as the fourt,h seation providea that the service of the petition shall be upon the At-torney- General, that he shall appear and defend the interests of the Government and the Indians, and shall file the proper papera on which to defend the interests of both; that a iX111re upon his part to do so will not prevent the alaiinlant from pra-ceeding under such rules as luay bo prenoribed by the ooqrt. Considering th;tt the Indians are pecnliar in their relations to theunited States in not having incident to them the common-law rights of suitors, that their standing in courts is purely statutory and within the discretion of the United Stateq we are of opinion that the Indians are not defendants in the proceedings in the sense of being distinct from the United Statea entitled to notice, and therefore the first motion that notice be served on the Indians in overroled. This decision that the United States, as "the sovereign guardian of the Indians," have LLplacedth emselves in the legal position of being responsible for the torts of the Indians," while at the same time "if the ' * ' Indians have fuuds in the control and custody of the United States, the United States have a perfect legal right to deal with it as they see fit, and the reference of a question to this court affecting the integrity of that fund does not confer upon the Indians the legal . . rights of a suitor," leaves the Indian but small ground to stand upon and defend his rights in the courts under this act. A law under which a. guardian, Lcresponsible for the torts" of his ward, can appropriate the funds of that ward to the payment of the damages due by such tortwithoutsaid wardbeing madeapartytothetranswtionorhaving any voice in the same presents a condition which calls for further 1egir;la-tion at the earliest opportunity. Under this act the Indians are made the principal defendants in these cases, and in any event where identi-fied are ulti~nittelyl iable for the payment of the judgments, the United States being only a guarantor, while under this decision it would seem that, in the opinion of the court, they are not sufficiently involved as to render service upon and defense by them necessary to the integrity of these judicial proceedings. The peculiar character of the wardship of the Iudians should not, id my opinion, alter the application of the rule at conunou law as to ward and guardian in respect to these suits j but if it does, then the law should be so changed as to fit that char-acter, and the Indian given every right which is now enjoyed by the white ma; necessary to the proper defense of his property interests. Section 4 of said act provides that- It shall be the duty of the Attorney-General of the United States to appearand defend the interests of the Government and of the Indians in the suit.