Opposition Brief — Iowa Tribe of the Iowa Reservation v. United States

INDEX

Hil

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Conclusion 10

CITATIONS

Cases:

Beaumont, S. L. & W. Ry. v. United States, 282

US. 74

Braniff Airways, Inc. yv. Civil Aeronautics Board,

306 F. 2d 739

Buttz v. Northern Pacific R.R., 119 US. 55 ___

Confederated Tribes of Warm Springs Reserva-

tion V. United States, 1T7 C.Cis. 184

Iowa Tribe of the Iowa Reservation in Kansas

and Nebraska, et al. v. United States, 6 Ind.

CLComm. 464

Johnson and Graham's Lessee Vv. Mcintosh, 8

Wheat. 543

Minneapolis & St. Louis R. Co. v. United States,

361 U.S. 173

Northwestern Bands of Shoshone Indians v. United

States, 324 U.S. 335 6,

Quapaw Tribe v. United States, 128 C.Cis. 45

Red Lake, Pembina and White Earth Bands Vv.

United States, 164 C.Cis. 389

Sac and Fox Tribe vy. United States, 161 C.Cis. 189,

certiorari denied, 375 U.S. 921

Sec end For Tribe v. United State>, 179 C.Cis. 8,

E

iit;

8

Cases—Coptinued

Snake or Piute Indians v. United States, 125 C.Cis.

241

Spokane Tribe v. United States, 163 C.Cis. 58 ___

United States Vv. Santa Fe Pacific R.R., 314 US.

339

Worcester V. Georgia, 6 Pet. 515

Statutes:

Indian Claims Commission Act, August 18, 1946,

Section 19, 60 Stat. 1049, 1054, 25 U.S.C. 70r. 2,9

7 Stat. 229 3

7 Stat. 231 3

in on 8

3u the Supreme Court of th. United States

OcToserR TERM, 1971

No. 71-514

THe Iowa TRIBE OF THE IOWA RESERVATION IN

KANSAS AND NEBRASKA, ET AL., PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

2

JURISDICTION

The judgment of the Court of Claims was entered

on July 14, 1971. The petition for a writ of certio-

rari was filed on October 12, 1971. The jurisdiction

of this Court is invoked under 28 U.S.C. 1255(1).

See Section 20(c) of the Indian Claims Commission

Act of August 13, 1946, 60 Stat. 1054, 25 U.S.C.

70s(c).

QUESTIONS PRESENTED

1. Whether the finding of the Indian Claims Com-

mission that the petitioners did not have aboriginal

title to the lands involved was supported by substan-

tial evidence.

2. Whether the 96-page opinion of the Indian

Claims Commission _1eets the statutory requirement

that the Commission .nake findings of fact.

STATUTE INVOLVED

Section 19 of the Indian Claims Commission Act

of August 13, 1946, 60 Stat. 1049, 1054, 25 U.S.C.

70r, provides in pertinent part:

The final determination of the Commission

shall be in writing, shall be filed with its clerk,

and shall include (1) its findings of the facts

upon which its conclusions are based; (2) a

statement (a) whether there are any just

grounds for relief of the claimant * * *.

3

STATEMENT

Petitioners originally filed a petition with the In-

dian Claims Commission seeking to recover additional

compensation for lands petitioners claimed by aborig-

inal and/or recognized title. The claimed .lands

(known as Cession 69) are in north-central and

northeastern Missouri and were ceded to the United

States by each tribe by separate but similar trea-

ties signed on August 4, 1824. 7 Stat. 229 and

7 Stat. 231. The Commission held in its original

opinion that each petitioner had aboriginal title to a

separate portion of these lands, but further held that

the central area between the areas awarded to each

was held by neither. 6 Ind. Cl. Comm. 464, 482, 493.

This decision was appealed to the United States Court

of Claims on several grounds, including the claim

that the Commission erred in holding that aboriginal

title could not be acquired against the United States

after the United States acquired the lands by the

Louisiana Purchase in 1803. 6 Ind. Cl. Comm. at

502. The Court of Claims affirmed in part, and re-

versed and remanded only to the extent of requiring

the Commission to determine whether either petitioner

acquired. aboriginal title after 1803 to any portion of

the unawarded central area. Sac and Fox Tribe v.

United States, 179 C. Cls. 8, 23, certiorari denied,

389 U. S. 900.

On remand, the Commission reconsidered its origi-

nal holding to determine if petitioners had acquired

aboriginal title to additional lands between 1803 and

5

the treaties of 1824. 22 Ind.CLComm, 232. The Com-

mission found (id. at 237; Pet. Separate App. 77-

78):

After examining the record with particular at-

tention to the matters pointed out by the Court

of Claims in its decision on remand and after

considering the new briefs and oral arguments

of the parties, the Commission concludes for rea-

sons which will be discussed in detail that the

plaintiffs have not met their burden of proving

actual, exclusive and continuous use and occu-

pancy of additional lands for a long period of

time prior to 1824 and that the areas of land

credited to the plaintiffs in our previous decision

should not be changed in any way.

On petitioners’ appeal, the Court of Claims, in a

per curiam opinion, was “compelled to conclude” (Pet.

Separate App. 164):

* * * first, that the controlling issues are of fact;

second, that the Commission’s determination of

those factual questions is plainly supported by

substantial evidence on the record as a whole;

and, third, that this factual determination by the

Commission is not infected by any relevant or

significant legal error.

The court emphasized that nothing in the voluminous

record proffered demands the result for which the pe-

titioners argue and that “the Commission made a

careful and conscientious effort to comply with our

mandate and to resolve the factual issue * * *” (Pet.

Separate App. 164-165).

5

ARGUMENT

1. Petitioners contend that the Commission and

the Court of Claims erred in failing to recognize the

joint or common title of the petitioners’ tribes in lands

which they occupied “together exclusively” (Pet. 11).

It is not seriously contended that the Commission or

the Court of Claims misunderstood the law of aborigi-

nal title as it has heretofore been recognized or that

the Commission lacked substantial evidence to sup-

port its application of that law to the facts of this

ease. Rather petitioners urge this Court to formulate

a new rule of aboriginal title which would recognize

common ownership by tribes in lands which they used

“together exclusively” (Pet. 11). The rule urged by

the petitioners is contrary to all authority on aborigi-

nal title, and would have no application to the facts

of this case as found by the Commission.

The test applied by the Commission was that a

claimant tribe must show “actual, exclusive and con-

tinuous use and occupancy of * * * lands for a

long period of time” (Pet. Separate App. 78) in

order to establish aboriginal title. This is the only

recognized test of aboriginal title and has received re-

peated and consistent use and approval.’ It is not

1 Northwestern Bands of Shoshone Indians v. United States,

$24 U.S. 335, 338-339; United States v. Santa Fe Pacific R.R.,

314 U.S. 339, 345; Buttz v. Northern Pacific R.R., 119 U.S.

55, 69-70; Worcester v. Georgia, 6 Pet. 515, 559; Johnson and

Graham’s Lessee V. McIntosh, 8 Wheat. 543; Confederated

Tribes of Warm Springs Reservation V. United States, 177

C.Cls. 134, 194; Red Lake, Pembina and White Earth Bands

claimed in the petition that the Commission’s findings

and application of this rule were unsupported by

substantial evidence.

Indeed, the Commission’s findings not only estab-

lished that neither petitioner tribe proved actual ex-

clusive and continuous use and occupancy of the por- |

tion of the unawarded lands which each claimed sep-

arately, but also showed that, even considered jointly,

they did not “together exclusively” (Pet. 11) occupy

the claimed lands. Thus the rule urged by the peti-

tioners has no application to their own case.

With respect to the Iowa, the Commission found

(Pet. Separate App. 114-115):

Whereas they had one or two villages at a time

at several locations within the additionally

claimed territory beginning with the War of

1812 through 1824, they had no villages in the

area prior to the War of 1812, and from 1815

through 1823 the principal Iowa villages were

outside of the claimed territory. Whereas some

members of the tribe hunted and participated in

war parties intermittently in the claimed terri-

tory prior to the War of 1812, their use thereof

was by no means exclusive but rather was chal-

lenged with reciprocal warfare and hunting by

the Osage throughout that period. The Winne-

bago, Sioux, and Sac, and probably the Potta-

watomi also made use of the claimed territory

v. United States, 164 C.Cls. 389, 393; Spokane Tribe v. United

States, 163 C.Cls. 58, 66; Sac and Fox Tribe v. United States,

161 C.Cls. 189, 201-202, certiorari denied, 375 U.S. 921;

Quapaw Tribe v. United States, 128 C.Cls. 45, 49-50; Snake or

Piute Indians v. United States, 125 C.Cls. 241, 254.

TE

7

for raiding and huntiug between 1803 and 1812,

and the Sac and Fox each had a village on the

Grand River in 1816.

With respect to the Sac and Fox, the Commission

found (Pet. Separate App. 152-153) :

From the late 1700’s until 1812, Sac and Fox

usage of the south-central portion of Cession 69

was actively challenged with warfare by the

Osage who looked on the territory north of the

Missouri as their hunting country. There is rea-

son to believe that numerous other tribes includ-

ing the Sioux, Iowa, Kickapoo, Pottawatomi,

Winnebago, Chippewa and Ottawa also used the

central and southern portion of Cession 66 for

raiding and incidental hunting through 1810 and

perhaps later. Whereas the Sac and Fox report-

edly had a village on the Grand River in the

western portion of Cession 69 in 1816 (in the

portion claimed by the Iowa plaintiffs) and a vil-

lage and/or a camp in the southeastern portion

of Cession 69 in 1818, it appears that they had

no village anywhere in Cession 69 before or after

these dates, and that with the possible exception

of the 1818 camp and/or village all of the Sac

and Fox had returned to their traditional village

sites northeast of Cession 69 by 1817. The Iowa

village on the Chariton River from 1820-1822

refutes the Sac and Fox claim to exclusive use

and occupancy of that area. From 1803 to 1816

the primary hunting grounds of the Sac and Fox

included Cession 50, the northeast corner of Ces-

sion 69, and the area north and west of Cession

69. As early as 1811 large numbers of the Sac

and Fox had largely abandoned commercial hunt-

ing to engage in lead mining and smelting in

northeast Iowa and northwestern Illinois. From

1817 through 1824 their primary hunting grounds

and raiding activities were north and west of

C:ssion 69.

While these findings were made in support of the

Commission’s ruling that neither tribe had exclusive

possession of the areas each claimed separately, they

also show that the two did not “together exclusively”

occupy those lands. Neither tribe had substantial vil-

lages in the area and numerous other tribes, in-

cluding the Osage, the Winnebago, the Sioux, the

Pottawatomi, the Kickapoo and the Chippewa hunted

and raided in the area until 1810 or 1812. Thus even

considered together, the petitioners did not have ac-

tual exclusive and continuous possession and occu-

pancy of the claimed lands for a long period of time

prior to 1824.

The exclusive use and occupancy test is a wholly

proper standard designed to give workable dimen-

sion and content to contemporaneous notions of

land use by peoples who had no concept of land title

or property in land. Cf. Northwestern Bands of Sho-

shone Indians v. United States, 324 U. S. 335, 357

(Jackson. J. concurring).

2. Petitioners’ second argument, that the Commis-

sion did not make findings on remand, is highly tech-

nical and presents no substantial question. A court

or administrative agency is not required to make spe-

cific numbered and stated findings of fact as long as

the conclusions are sufficiently definite to permit ju-

dicial review on appeal. Beaumont, S. L. & W. Ry. v.

United States, 282 U.S. 74, 86-87; Braniff Acrways,

Inc. v. Civil Aeronautics Board, 306 F.2d 739, 742

(C.A. D.C.). Cf. Minneapolis & St. Louis R. Co. v.

United States, 361 U.S. 173. The Commission’s origi-

nal findings of fact, 6 Ind.CLComm. 464, together

with subsequent 96-page opinion, were sufficient tu

permit the Court of Claims to perform its appeliate

function, and satisfy the requirements of Section 19

of the Indian Claims Commission Act, 60 Stat. 1054,

25 U.S.C. 70r.

10

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

SHIRO KASHIWA,

Assistant Attorney General.

A. DONALD MILEUR,

RAYMOND N. ZAGONE,

DEAN K. DUNSMORE,

Attorneys.

DECEMBER 1971.

W ov. S. Govennsenr poimrine orrics; 1971 451017 331