This claim arises under the Indian depredation act of March 3, 1891 (26 Stat. at L. 851, chap. 538, U.S.Comp. Stat. 1901, p. 758), and presents the question whether, after the expiration of three years from the filing of the petition in the court of claims, a tribe of Indians not originally named in the petition can be brought into the action by amended petition, with a view to proceeding against such tribe to judgment. The record discloses that the original petition was filed on October 24, 1891; the amended petition on November 4, 1902. The Attorney General filed a plea setting up the bar of the statute, which plea was overruled, and thereafter, upon issue joined and testimony taken, judgment was rendered against the tribe of Indians so brought in by the amended petition.
The act in question was before this court in United States v. Gorham, 165 U.S. 316, 41 L. ed. 729, 17 Sup. Ct. Rep. 382, and in that case it was held that, where the Indian tribe cannot be identified, a judgment for the amount of the claim can be rendered against the United States. In the opinion of the court in that case, the act was analyzed and its various sections construed; and it only remains to consider so much of the act and its purposes as will lead to a solution of the question now under consideration.
The provisions of the 1st section of the act are positive, that all claims existing at the time of the taking effect of the act shall be presented to the court by petition, as therein provided, within three years after the passage of the act, or be forever barred. This section, by itself considered, would seem to conclude the right of the petitioner to bring in a new party to the preceeding after the expiration of three years, in such wise as to preclude the right to rely upon the bar of the statute. For obvious reasons, a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the action, has a right to treat the proceeding, as to him, as commenced by the process which brings him into court. Miller v. M'Intyre, 6 Pet. 61, 8 L. ed. 320. Conceding this proposition as applied to ordinary actions, it is urged that this proceeding is so peculiar in character as to take it out of the general rule. Section 3 of the act provides:
"That all claims shall be presented to the court by petition, setting forth in ordinary and concise language, without unnecessary repetition, the facts upon which such claims are based, 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, the property lost or destroyed and the value thereof, and any other facts connected with the transactions, and material to the proper adjudication of the case involved."
"That the court shall determine, in each case, the value of the property taken or destroyed at the time and place of the loss or destruction, and, if possible, the tribe of Indians or other persons by whom the wrong was committed, and shall 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."