Crow Tribe of Indians v. United States

*374 WHITAKER, Judge

(dissenting).

The plaintiff tribe bases its right to recover on the primary proposition that prior to September 17,1851, it had “occupied, possessed, and owned, and, for many years immediately prior thereto from time immemorial, had continuously held, occupied, possessed and owned” certain described land comprising 38,531,174 acres. It does not claim under any grant from the United States; for instance, because the lands were set apart to it as a reservation; its claim is based alone on aboriginal ownership, that is, exclusive use and occupancy from time immemorial. If this claim of exclusive use and occupancy from time immemorial is not sustained, then plaintiff’s claim fails.

A mere claim to the lands along with other rival claimants is not sufficient to show aboriginal ownership, or “Indian title”, as it is sometimes called; it must be exclusive use and occupancy. Alike an individual’s claim of title to land by adverse possession, a claim of Indian title must be shown by possession adverse to all the world, to the exclusion of all the world. The Supreme Court in United States v. Santa Fe Pacific Railroad, 314 U.S. 339 , at page 345, 62 S.Ct. 248 , at page 251, 86 L.Ed. 260 , said:

“Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes) then the Walapais had ‘Indian title.’ ” [Italics mine.]

In order to prove that it had had exclusive use and occupancy of these lands from time immemorial the plaintiff tribe relies alone on the Treaty of Fort Laramie of September 17, 1851, and the Indian Claims Commission bases its decision alone on the terms of this treaty. I do not think the treaty shows plaintiff had exclusive use and occupancy from time immemorable.

The treaty is set out in the opinion of the majority. I call particular attention to Article 5 thereof. It reads in part:

“The aforesaid Indian nations do hereby recognize and acknowledge' the following tracts of country, included within the metes and boundaries hereinafter designated, as. their respective territories, viz: * ”

Then follows a rough description of the territories assigned to each tribe, and the article continues:

“It is, however, understood that, in making this recognition and ac-knowledgement, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.” [Italics mine.]

Several tribes were parties to this treaty, the Sioux, the Cheyennes, the Arrapa-hoes, the Crows, and perhaps another tribe or two. The treaty dealt with 163,-000,000 acres of land. All the named tribes roamed over this vast domain at. will. No one of them claimed any particular part of it, but each of them claimed the right to hunt and fish and otherwise use and enjoy the entire area. Warfare between the tribes was not infrequent because each of them claimed an equal rights in the lands. No one of them exercised exclusive use and occupancy over any part of them.

The Fort Laramie Treaty recognized that each tribe claimed rights in the entire 163,000,000 acres, because in Article-5, which set apart portions of the 163,-000,000 acres to each tribe, it was nevertheless provided “the aforesaid Indian nations * * * do not surrender the privilege of hunting, fishing, or passing over any of the, tracts of country heretofore described.” [Italics mine.]

*375 It seems to me impossible to maintain that plaintiff tribe has shown exclusive use and occupancy from time immemorial of the acreage for which they sue, in view of Article 5 of the Fort Laramie Treaty. If they have not, they have not made out the case stated in their petition. They have not shown that they were the owners of the property on account of which they sue.

Parties must prove the case stated in their petitions. That is the case the defendant is called on to defend. It is not called upon to defend against a claim the plaintiff might have made but which it did not assert in the petition. But if we suppose that plaintiff had asserted a claim growing out of the Fort Laramie Treaty, instead of one recognized by it— that it acquired rights under that treaty which it had not had before — what is the result?

This court has previously considered this question and has .decided that the Fort Laramie Treaty did set apart reservations for the respective tribes. The first case was Fort Berthold Indians v. United States, 71 Ct.Cl. 308 . In that •case, we held that the treaty set aside reservations for the Indians who were parties to the Fort Laramie Treaty, and judgment was granted “upon the basis of the amount they [the Indian tribe] might have obtained for the large areas at the time they were taken.” This was followed in Assiniboine Indian Tribe v. United States, 77 Ct.Cl. 347 . In Crow Nation v. United States, 81 Ct.Cl. 238 , in which the tribe was suing under a .special jurisdictional act, the question was not raised, but the case was tried on ■the assumption that the Fort Laramie Treaty did create a reservation for plaintiff. The same is true in Blackfeet, et al., Nations v. United States, 81 Ct.Cl. 101 , under a similar treaty.

None of these cases went to the Supreme Court. However, the question of what rights the Indians acquired under the Fort Laramie Treaty was considered and decided by the Supreme Court in United States v. Northern Pacific Ry. Co., 311 U.S. 317 , 61 S.Ct. 264, 278 , 85 L.Ed. 210 . The question presented in that case was whether the grant of public lands to the railway by the act of July 2, 1864, embraced lands said to be reserved to the several Indian tribes by the Fort Laramie Treaty. The railway claimed that the lands were not Indian reservations, but public lands; but the Attorney General filed a bill in the District Court for the Eastern District of Washington, alleging in paragraph XXIX that the grant expressly excepted reserved lands and that the Fort Laramie Treaty had set aside these lands as a reservation for the Indians, and they were Indian reservations at the time of the grant to the railway in 1864.

The railway demurred to this part of the bill. The matter was referred to a special master, who held in an extensive opinion that the treaty did not create Indian reservations. He said the purpose of the treaty was to establish peace between the tribes and the United States and between the several tribes, and nothing more. The District Court affirmed, as did also the Supreme Court.

We quote from the Supreme Court’s opinion at some length:

“Paragraph XXIX of the bill alleges that by treaties of September 17, 1851, and October 17, 1855, the United States ‘reserved’ certain lands for Indian tribes. * * *

“In accordance with the master’s recommendation, the court below sustained the motion to dismiss paragraph XXIX on the ground that the lands in question were granted to the company by the Act of 1864 and the Resolution of 1870. We think the court was right.

“By an Act of June 30, 1834, all lands lying west of the Mississippi River, not within the States of Missouri and Louisiana or the Territory of Arkansas, were designated as Indian country. The fee of all this territory was in the United States, subject to the Indian right of occupancy. The treaties of 1851 and 1855 did not alter the status of the lands described in them. The pur *376 pose of those treaties was to establish peace and amity between warring Indian tribes inter sese and between the tribes and the United States. To this end the country or territory of each tribe was described and the tribes agreed to respect the boundaries named in the treaties. * * *

“Section 3 limits the land grant to lands as to which the United States ‘have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption, or other claims or rights, at the time the line of said road is definitely fixed, * * *.’ The Government contends that this section excludes lands embraced within the treaty limits for the reason that the treaties ‘reserve’ all the lands described in them for the signatory Indian tribes. We think the contention is unsound.

“As we have noted, the treaties did not create technical reservations as have many other treaties and acts of Congress. They did not set aside a defined territory for the exclusive use of a tribe nor contain the usual provisions for an Indian Agent for schools, assistance in farming operations, etc. The country described in the Treaty of 1851 amounts to 163,-000,000 acres and, that described in the Treaty of 1855 to 37,000,000 acres. In the case of one of the tribes, if the treaty were considered to create a technical reservation it would have allotted to each man, woman, and child in the tribe more than eighteen square miles. 1 ”

The special master, the District Court, and the Supreme Court had before them the opinions of this court in the Fort Berthold and the Blackfeet cases, supra. Their opinions are in direct contradiction to what we said in the Fort Berthold case, and assumed in the Blackfeet case.

The case then comes down to this: The Fort Laramie Treaty did not recognize that the Crows had had from time immemorial exclusive use and occupancy of the area set apart to them under the Fort Laramie Treaty, and it did not create a reservation for the plaintiff tribe. However, I do think the Fort Laramie Treaty did give to each Indian tribe something it had not had before.

Before the Treaty, each of the tribes, the Sioux, the Cheyennes, the Arrapa-hoes, and the Crows were rival claimants to the entire 163,000,000 acres. By the Treaty this 163,000,000 acres were divided up and portions were set apart to each tribe. No tribe had the exclusive right to the use and enjoyment of the part set apart to it, but it did have sort of a prior right therein. Bht by no stretch of the imagination could it be asserted that it was intended by the treaty to give to each tribe title to the vast domain set apart to each. As pointed out by the Supreme Court in the Northern Pacific case, supra,, in the case of one of the tribes this would have given to each man, woman and child more than 18 square miles, about one-fourth of the area of the city of Washington. The area set apart to plaintiff tribe is larger than the State of Ohio. It could not have been intended to vest in them title to such a vast domain. So^ far as I can see, all they received under the treaty was a better right to hunt and' fish in the area set apart to them than the other tribes had.

For the deprivation of this right, it may be they are entitled to compensation, but that compensation is certainly much less than that payable for the taking of lands to which plaintiff tribe had title or the right to exclusive use and enjoyment. The Indian Claims Commission and the majority thought 40 cents an acre was. fair compensation for the taking of title. The tribe was paid .054 an acre for what, was taken. I think this was fair com *377 pensation for what the tribe had and what the defendant took.

So, even if we consider the case the tribe might have made, it still has not shown that the consideration paid was unconscionable. Hence, the Indian Claims Commission should have dismissed its petition.

Pot these reasons I dissent.

I am authorized to say that Chief Judge JONES joins in this dissent.

. It is of interest to note that 163,000,-000 acres is an area larger than that of any state in the United States, except only Alaska and Texas. The amount of 8,000,000 acres set apart by the treaty of 1868 as a reservation for the Grow Indians is larger than the states of Massachusetts and Rhode Island combined, and the 30,000,000 acres, is larger than the state of Ohio.