Petitioners Reply Brief — Shoshone Tribe v. United States

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‘ rr ee " y J

Nos. 216 and 228.

—_ — a

Lt

. K

IN THE

Supreme Court of the Gnited States

OcrosBer TrEro.

SHOSHONE Tripe or [xpraxs OF THE WINpD River RESERV«-

TION IN Wyomina, Petitioner

y.

Tue Unxirep Srares.

Tuk Unrrep States, Petitioner

v

SHOSUONE TRIBE oF INDIANS oF THE Wiyp RIver

RESERVATION IN WYomina.

On Writs of Ceriiorari to the Court ef Claims.

PETITIONER'S REPLY TO BRIEF FOR THE UNITED

| STATES.

__

Tug Suosuonr TriBe or INDIANS OF

THE WInp River RESERVATION IN |

Wyomina, i

~ By Grorce M. Tunison, li

Counsel for Shoshone Tribe. 1

" Ciarnrs J. Kaprrer, , i

' ALBERT W, JEFFERIES, ° i

‘Francis S, Howe tt, | \

Of Counsel. . i

i

neon i

Vizuss O¢ Bykon S. ADAMs, WAStING? Ox, D; C. I

INDEX.

Supgecr Inpex.

EB Ae I i hee ka edie Xe ccc kcdank: Rye

2. Effect of the Act of March 3, RS eee ee

a ae DOE er ee ete

4

CASES.

Alaska Pacific Fisheries v. U. S.,-248 U. S., 78, 89.... 4-13

Blackfeet Indians v. U. S., 81 Ct. Cl., 101............

Choctaw Nation v. U. G., 119 U. G., 2... ck cas

manne W. Trem, 206 U. G, GEG. conc cc Oe. cde cchwas

popmemeny WO). Tg Be Uc Ty BO os Sak wid xs

Fellows v. Denniston, 5 Wall. 761 ......-............

Fort Berthold Indians v. U. S., 71. CL, 308........... 11-1:

Holden v. Joy, 17 Wall., 211-244......... Ore ae ef

International Paper v. U. S., 282 U.S. 399......0...

Iowa Indians v. U. S., 68 Ct. Cl., 585................

Leavenworth R. R. Co. ¥. U. 8, 82 U. 8, 733-42......

Holden v. Joy, 17 Wall., 211-44 ..:....... CCC EN ree

Lone Wolf v. Hitchcock, 187 U. S., 1554.............

Mitchel v. U. S., 9 Pet. 756; 15 Pet. 84..........-...

White River Utes v. U. S., 45 Ct. CL, 440............

STATUTES.

Ordnance of 1787, 1 Stat. 52 0.0... ccc cece eee cece. 7-9

Act of March 3, 1883, 22 Stat. 582-90........ Ppeeere 5-6

Act Web. &, 1687, 24 Btat., B91 . 2... cciccccccouscs

Act Feb. 16, 1889, 25 Stat., Ee ere re Teer rey

_ Act Feb. 11, 1920, 41 Stat., 404 ..............00005.

~ Act April 28, 1920, 41 'Stat., 585 ...............0005. ,

Act March 3, 1927, 44 Stat., 1349..........4 eee ere 4,

Act July 1, 1902, 32 Stat., 641 ............0.0.0 cc ee.

ee te dd ee "ths

|

i

i

i

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aaah nities nciahaene aah eincialettintetniatinctaninntmmntimmentnten, Viemmashinetsl dann atibishanos en uae en int Dea)

ii Index Continued.

TREATY AND Reports. Page

Ee BE oe Ca br wa ns keke id dwun ikke vena es 2

House Report No. 1628, 69th Cong. 2nd Sess......... 1

House Report No. 1983, 69th Cong. 2nd Sess......... 2

Py Ne 6 Lak AREA Rhee he weds e WA ks Ake webwe ee. 2.

hb Ot ed teh & wkd Da beh bax od bekaaics 1-12

ne a eat a hd me cw wa eee a leat 2

OD a sc canny Sevelacbie cha bbabennws 7

Opp. Atty. Gen. Vol. 34, p. 161............6.00.05. dD, 8

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4

ee

IN THE

Supreme Court of the Cniten States

OcToBER TERM.

Nos. 216 and: 328.

LL

‘

SHOSHONE TRIBE OF InpIANS OF THE Winp River Reserva-

TION IN Wyoming, Petitioner

Wa

Tue Unirep Srares.

Tur Unirep States, Petitioner SO

v.

Suosuone Tripe or INDIANS OF THE Winp River

RESERVATION IN Wyomina.

On Writs of Certiorari to the Court of Claims.

PETITIONER? S REPLY TO BRIEF FOR THE UNITED

~ STATES.

DATE OF “TAKING”,

(1) On page 18 of defendant’s brief filed December 10,

1936, counsel state that House Report No. 1628, 69th Con-

Sress, 2nd session, dated December 16, 1926, on 8. 2301, re-

ferred to the Arapahoes as having been ‘‘moved’’ to the

SS EES eR

SPR Thee Seat ae

. aes eke

SUR IIE AEE ONE

id cath webb a Dhl he TA a de Di Rae tan nd ental s ted Whi caer

° , ye

; |

Shoshone reservation in the ‘‘winter of 1877-78.’’ In

House Keport No. 1983, 69th Congress, 2nd session, dated

Kebruary 4, 1927, on H. R. 16888, being identical with the

present Jurisdictional Act, which report was made just a

month: before the bill S. 5523 was approved by the Presi-

dent, it was stated the Arapahoes had been moved upon the

Shoshone reservation in the ‘‘fall of 1877.’? This report

says:

“The principal ¢laim of the Shoshone Indians is

based upon the alleged violation by the United States

of article 2 of the treaty with.the eastern band of the

Shoshone Indians concluded at Fort Bridger, Utah

Territory, on July 3, 1868. The Shoshone Indian Res-

ervation, by the terms of the treaty, was set apart—

for the absolute and undisturbed use and occupation

of the Shoshone Indians herein named, and for such

other friendly tribes or individual Indians as from

time they may be willing, with the consent of the United .

States, to admit among them, and the United States

now solemnly agrees that no persons except those

herein designated and authorized so to do, |

shall ever be permitted to pass over, settle upon, or

reside in the territory described in this article for the

use of said Indians, and henceforth they will and do

hereby relinquish all title, claims, or rights in and to

any portion of the territory of the United States, ex-

cept sueh as is embraced within the limits aforesaid.

This is followed in Article II by the following dec.

laration:

No treaty for the cession of any portion of the reser-

rations herein described which may be held in com-

mon shall be of any force or validity as against the

said Indians, unless executed and signed by at least

a majority of all the adult male Indians occupying of

interested in the same; and no cession by the tribe shall

be understood or construed in such manner as to de-

prive, without his consent, any individual member of

the tribe of his right to any tract of land selected by

- him, as provided in article 6 of this treaty.

»

anes a SesieinssetDvk

eda NL eS cat ade SOS, Sn a Ge Mal

3

Notwithstanding these specific agreements on the part

of the United States and against the protests of the

Shoshone tribe, the northern band of the Arapahoes,

under military escort, was moved upon the reserva-

tion of the Shoshones in the fall of 1877. To disarm

the Shoshones, they were assured by the military anu-

thorities that the Arapahoes would be removed from

the reservation the following year, but no such re-

moval ever too place. The Shoshones have frequently

pratested against the alleged unlawful appropriation

> Of the reservation but have received no consideration

from the Government. On the contrary, the Govern-

ment has not only permitted the Arapahoes to remain

upon the reservation but has turned over to them ap-

proximately one-half of the lands and provided allot-

ments for them. Funds realized from the sale of lands

or otherwise have been placed to the joint credit of the

~two tribes and the whole reservation and tribal funds

treated ag though the Arapahoes were legal joint own-

ers with the Shoshones. Such action by Government

officials has at no time been sanctioned by Congress

and is without legislative authority.

The purpose of the bill is to permit the Shoshones to

submit their claims for alleged appropriation of prop-

erty to the Court of Claims, and your committee feels

that in view of the strong showing made the bil] should

be enacted without further delay.’’ (Italies supplied.)

If, as contended by defendant’s counsel, Congressional

reports must be consulted -to develop and comprehend the

intention of Congress in passing the Jurisdictional Act, it

should be here noted that the above report shows that Con-

gress kigew that the use of Shoshone lands had been ap-

propriated without the sanction of Congress and that the

Shoshone title to the lands was to be cancelled, thus bring-

ing the case within the rule of ‘‘Just compensation’’—Act’

February 8, 1887, 24 Stat. 391. See. 10 of that acts reads

as follows: |

7

That nothing in this act shall be so construed as to

affect the right and power of Congress to grant the

right of way through any lands granted to an Indian,

4

or a tribe of Indians, for railroads or other highways,

or telegraph lines, for the public use, or to condemn

such lands to public uses, upon making just compensa-

tion. (Italics supplied.)

A reservation for Indians is a recognized public purpose :

Alaska Pacific Fisheries v. United States, 248 U. S., 78;

Donnelly v. United States, 228 U. S., 243. ;

It was found by the Court below that the Arapahoes

first appeared on the Shoshone reservation March 18, 1878,

_ **without previous knowledge of the Shoshones (Ree. 46,

47). The Court below found that their coming upon the Sho-

shone reservation was only temporary, until a reservation

at Red Buttes, near the mouth of the Sweetwater, could be

prepared for them; that the matter of permanent location

was not discussed, the Commissioner of Indian Affairs

failing to answer the Agent’s letters bearing on the sub-

ject (Ree. 46, 47). The statements in the Congressional

Reports above quoted although contradictory were intended

as a mere general statement concerning the probable time

the Arapahoes ‘‘moved’’ upon the Shoshone reservation,

and had nothing whatever to do with the actual time of

‘“‘taking.’’ The Jurisdictional Act provided no time of

‘“*taking’’ (Ree. 77); that was left tg the courts to deter-

mine if they found there was a ‘‘taking’’. The Court be-

low found matters relating to the location of the Arapahoes

in an indefinite state; no one asserted in 1878 that there

would be a ‘‘taking’’; there was no evidence showing

the United States had actually appropriated one-half

interest in the Shoshone reservation between 1878 and 1891

when on the latter date the letter of the Commissioner

clearly indicated that the Arapahoes were to remain on

the Shoshone reservation permanently. As the matter of

‘*taking’’ was wholly indefinite prior to 1891, and the letter

of the Commissioner of 1891 being the only official state-

ment indicating an appropriation as of that date (the

Arapahoes themselves in 1886 having made inquiry con-

. cerning their uncertain status on the Shoshone reservation

5

Ree. pp. 11, 76), it must be recognized there is color of evi-

dence of attempted ‘“‘taking’’ in the 1891 letter, whereas

prior to 1891 there is nothing but a maze of indefiniteness

and doubt (Ree. 50). .

However, petitioner contends the only substantial evi-

dence of actual taking is the act of March 3, 1927, which

provided ‘for the cancellation of the Shoshone title in the

‘lands used and appropriated for the benefit of the United

States and the Arapahées:

The Jurisdictional Act for the first and only time, afforded

the Shoshones an opportunity to present their constitu-

tional claims for compensation for taking their property

for public use. Congress in effect agreed to pay all dam-

ages they have suffered on condition that the decree of the

court should cancel Shoshones titles to their property

claimed by the terms of the treaty. The terms may have '

been harsh, but just compensation is to be fixed in the

damages to compensate. Therefore the presumption is that

Congress intended to do Justice to its wards and that the

courts would award damages that would amount to that

just compensation contemplated by the Constitution.

EFFECT OF THE ACT OF 1883.

(2) In reference to the statements of defendant’s coun-

sel concerning the intention of Congress in passing the act

of March 3, 1883 (Brief, 32, 33), it may be pointed out that

Congress as far back as 1871 in the Stockbridge-Munsee

case indicated its poliey toward the ownership of natural

resources on Indian reservations, and such policy, notwith-

standing the alleged Jarge amounit involved, has been con-

sistently adhered to up to the present. The statement of

counsel that Congress was not aware of the effect of the

act of 4883 is disproved by the passage of a large number

of subsequenf ac{s doing exactly what was provided in the

act of 1883. That policy is and no doubt has always been

that the United States never intended to deprive the In-

dians of any part of their patrimony. It was a policy

6 te

based on right and justice, and the amount involved had no

bearing or influence on Congress in adopting and con-

tinuing such policy. It is to be observed that Government

counsel in their brief have wholly ignored the legislation

of Congress onthe subject as set forth:by Mr. Attorney

General Stone in his opinion and in petitioner’s brief,

Counsel for the defendant on page 31 of their brief quote

the act of 1883, which provided that the proceeds of all

pasturage and sales of timber, coal and other products,

should be placed to the credit of Indian tribes; and say on

page 32 there was no authority to remove and sell.

The question arises, how could there be sale without re-

moval? This act impliedly gives the Secretary of the Inte-

rior power of removal (removal being merely an adminis-

‘trative act), if the Commissioner and the Seeretary had no

such general authority by virtue of having charge of all

Indian affairs, and as guardian of the Indians.

On page 32 counsel say that when the act of March 3,

1883 was. passed it was well known Indian reservations

contained valuable stands of timber and large and rich

mineral deposits, proved later to be worth hundreds of

millions of dollars.

Does counsel imply, if such resourees were known, that

Congress was ignorant of such fact? If Congress was

ignorant, then as it had provided in said act the Secretary

shall make detail report at its next session it became. fully

aware of the effects of said act of 1883; still Congress did

not repeal said act, but on the contrary at nearly every

session passed additional acts confirming the proceeds from

the natural resources on Indian reservations in the Indians.

On page 34 counsel state that ‘‘it is apparent that Con-

gress did‘ not understand the act of 1883 as conferring

upon ‘the Indian tribe any title to the timber, minerals, or

other products of the reservation, since by the act of Feb-

‘ruary 16, 1889, it was provided the President might au-

thorize individual Indians residing on reservations to fell,

cut, remove, sell or otherwise dispose of the dead timber

7

standing or fallen for the sole benefit of the individual In-

dians performing the labor.’’

The answer to this contention is, that as Congress had

recognized the right to the timber, ete., in the Indian tribes,

and the tribe under the supervision of the Secretary had

the right to the proceeds arising from its sale; neverthe-

less in order to give employment to individual Indians, and

whose individual labor produced the results, Congress con-

sidered it wise to encourage such thrift so far as dead

timber was concerned. This act of 1889 was merely a sub-

sidiary act to the act of 1883, and in passing it Congress

undoubtedly conformed to the wishes of the tribes in the

matter. After six years of experience under the act of

1883 Congress must have been aware of the effects of the

said act; so reported to it by the President or the Secre-

tary of the Interior. Under the plenary power of Congress

over the Indians it had the power to supplement the act of

1883 without the consent of the tribe, but in all these mat-

ters it is well known that the Secretary or the Commis-

sioner advises with the tribes before recommending legis-

lation such as the act of 1889.

In 1787 it was ordained by the United States in Congress

assembled, That— °

“The utmost good faith shall always be observed

towards the Indians; their Iands and property shall

never be taken from them without their consent ; and

in their property, rights and liberty, they never shall

be invaded or disturbed, unless in just and lawful wars

authorized by Congress; but laws founded in justice

and humanity shall from time to time be made for pre-

venting wrongs being done to them, and for preserving

peace and friendship with them:’’ (1 Stat. 52—4 Kap-

pler, 1065.)

No-instance can be cited by defendant’s counsel where

the Congress ever attempted to take for the use and benefit

of the United States any natural resource located or found

g

on the lands of any Tndian treaty reservation without ade-

quate compensation therefor, In every instance, so far as

counsel for the Shoshones are aware, Congress conceded to

the Indians every element of value on such reservations,

and has never gone to the extent of claiming by reason of its

sovereign pre-emption rieht to purchase that such right of

purchase included ownership of the land or the natural re-.

sources above and below the surfice thereon. If the United

States as the holder of the naked fee, or as Chief Justice

Marshall said, as the holder of “the exclusive right of pur-

chasing such lands as the natives were willing to sell’’,

owned every clement of value on such reservations outside

of use and occupation, then Congress has never asserted

such rights of ownership. All that Congress has reserved

to itself is the right to say whtn and to whom said natural

resources shall be disposed of, and to see the Indians are

not overreached; and it acquired this right because of its

sovereignty and as the guardian and trustee for the In.

dians, and also to see that “‘the sale of the land is not made

to any other-Governments or their subjects”? (ITolden v.

Joy, 17 Wall. 211, 244). All these attributes of power and

supervision over the Indians lodged in the United States

are not inconsistent with the beneficial ownership of all

elements of value contained within their reservation bound-

aries being in the Indians.

The United States has exacted its consent to the removal

and disposal of natural resourees on Indian reservations,

as general guardian of the Indians, not only as to reserva-

tions in which the Indians held the usual Indian title, but

also as to reservations where the Indians held a fee simple

title. Congress has passed many acts governing the re-

‘moval, sale.and disposal of the natural resourees on the

reservations of the Five Civilized Tribes (32 Stat. 641) and

other tribes holding their lands by patent. In this respect

Congress has not distinguished between the nature of titles

held, and in no instance so far as is known has Congress

claimed any ownership whatever in the natural resources

9

of either kind of reservations. Congress has plenary power

over the tribal property of the Indian tribes, which as in-.

terpreted by Congress itself, includes lands and resources.

Such interpretation is conclusively shown by the many gen-

eral and special acts cnumerated in the appendix to peti-

tioner’s brief, pages 75, 76. These acts and the early

treaties mentioned by Mr. Attorney General Stone in his

Opinion cited on pazes 65-68 of petitioner’s brief, clearly

indicate that the bencficial ownership of the natural re-

sources on Indiaif reservations exists and always has ex-

isted in the Indians, and the acts and treaties above re-

ferred to are simply reaffirmations of such beneficial owner:

ship. All that the Congress ever claimed was its steward-

ship over the property of the Indians; it has never asserted

the right to go upon such reservations and denude their

resources for the benefit of the United States; it has always

adhered to’ the declaration-enuneciated in the Ordinance of

1787, above quoted, and all its acts since that declaration

has been to the effect that. the United States neither claims

nor seeks profit at the expense of the Indians,

In the earlier days when the intention of Congress re-

garding the property rights of Indians in their reservation

lands had not been fully expressed, this Court said:

Leavenworth R. R. Co. v. United States, 92 U. S. 733-

742:

“In the exercise of their choice, they (Indians)

might oceupy their lands forever.”’ :

Lone Wolf v. Hitchcock, 187 U. 8., 554:

Indian possession has always been recognized as

complete and conclusive until terminated by ‘conquest

or by the exercise of that plenary power of guardian-

ship to dispose of tribal property of the Nation’s

wards without their consent.

Holden v. Joy, 17 Wall. 211-244:

Unmistakably their. (Indian) title was absolute, sub-

ject only to the preemption right of purchase acquired

10

by the United States as the suecessors of Great Britain

and the right to prohibit the sale of the lands to any

other governments or their subjects.

Mitchel vy. United States, 9 Pet. 756—15 Pet. 84:

The right of the Indians to their lands is not that of

mere occupancy and perpetual possession, but a right

of property held under the guaranty of treaties.

Fellows v. Denniston, 5 Wall. 761:

It has already been shown that the United States

have acknowledged the reservations to be the property

of the Seneca Nation—that they will never claim them

nor disturb this nation in their free use and enjoy-

ment, and that they shall remain theirs until they

choose to sell them. These are the guaranties given

by the United States, and which her faith is pledged to

uphold.

The Shoshone Indians, always the staunch friend and

ally of the United States, place their hope in this Court to

declare, in view of the consistent policy of Congress to-

wards the Indians in reference to the ownership of the

natural resources on Indian reser rations, that they are

and always have been, but particularly since the making of

their treaty in 1868, the owners of the ‘soil and resources

embraced within their reservation boundaries, subject to

the right of the United States to purchase and to act as

trustee for the tribe.

GRATUITIES.

(3) Defendant’s counsel on page 37 of brief are now for

the first time attempting to show that any money received

by the Shoshones from the proceeds of the sale of natural

resources on their treaty reservation under the act of 1883,

are reimbursable to the Government under “gratuities”

allowed to: be set-off by. the Jurisdictional Act. No such.

novel proposition was advanced in the Court below. Such

t

a contention is contrary to the intention of Congress as

expressed in Indian jurisdictional acts as well as in enuncia-

tions by the courts.

In the Fort Berthold case, decided Dee. 1, 1930, 71 Ct. Cl.

308, Chief Justice Booth said:

‘““The sums chargeable, we think, must be restricted

to the usually r@cognized and customary distributions

made to the Indians as tribes and bands, unless a con-

trary purpose is expressed in the act.”?

In the Blackfeet case, the Court of Claims said :

We are of the opinion that in this case it was the

intent and purpose of Congress to charge the plaintiffs.

with all sums disbursed for their benefit over and

above those provided for in treaty or other obliga-

tions. (81 Ct. Cl. 101.) ‘

Counsel for the Government in Indian cases before the

Court of Claims, have defined gratuities to be all sums ad-

vanced or expended by the United States from the Treas-

ury for the benefit of the Indians, although under no obli-

gation to do so; and this definition has been adopted by

the Court of Claims. (81 Ct. Cl, 268.) |

For Congress or the courts to say that money arising

from the removal and sale of natural products on Indian

treaty reservations when Congress has expressly provided

such money should be placed to the credit of the Indians.

- or expended for their benefit, same not being United States

funds, is a set-off would make the repeated declarations to

treat the Indian fairly and justly a hollow mockery; and as

stated by the Court of Claims in White River Utes v. The

United States, ‘Certainly no such claim would ever be

made against any people other than Indians.”’ (45 Ct. Cl.,

440.)

As stated by this Court in Choctaw Nation v. The United

States, 119 U. S., 1— |

12

‘“‘The parties are not on an equal footing and that

inequality is to be made good by the superior justice

which looks only to the substance of the right without

‘regard to technical rules.’’

¢

INCONSISTENCIES OF DEFENDANT'S COUNSEL.

(4) It is striking to note that present counsel for the

defendant have practically abandoned defenses set ‘up in

the Court below as well in their brief in support of petition

for certiorari in this Court, and are now seeking to raise

entirely new defenses.

In the court below counsel did not attack the wording of

the Jurisdictional Act, nor contend that parts of it were

ambiguous. Now counsel are attempting to show this Court

by quoting (brief, pp. 20-23) certain words Congress

omitted in Section 3 thereof which were contained in the

earlier bill, namely S. 2301, that an ambiguity was created

by such omission as to what Congress intended, overlook-

ing the fact that the first section of the Jurisdictional Act

as approved confers complete jurisdiction upon the Court

of Claims, and on appeal to the Supreme Court, to adjudi-

cate the claims of the Shoshone Indians against the United

States and to render judgment therein. While it may be

admitted that Congress might have added additional words

to Sec. 3, such as ‘‘so appropriated”’ at the end of See. 3,

notwithstanding such words are plainly inferred, to meet

the critical objection raised by counsel, nevertheless when

Section 1 and 3 are read together, it will be seen that the

| intention of Congress was plain, namely: that in the event

of judgment, the damages awarded and paid thereunder

shall annul and cancel all claim, right and title of the said

Shoshone ‘Indians in and to the lands or property appro-

priated by the United States. .

In any event, should there be doubt as to the intention of

Congress, this court in Choate v. Trapp, 224 U. S., 665, has

said:

° di

‘‘Doubtful expressions, instead of being resolved in

favor of the United States, are to be resolved in favor

« : *

13

of a weak and defenseless’ people, who are wards of

the nation, and dependent wholly upon its protection

and good faith. This rule of construction has been

recognized, without exception, for more than a hun-

dred years, and has been applied in tax eases.’’

Also see Alaska-Pacific Fisheries vy. United States, 248

U.S. 78-89.

Reference is here made’to the Jurisdictional Acts in the

case of the Iowa. Tribe of Indians, approved April 28, 1920

(41 Stat. 585), and the ease of the Fort Berthold Indians,

approved February 11, 1920 (41 Stat. 404), in both of

which cases the Court of Claims rendered judgments in

favor of the Indians’ under the first section confained in

both acts, which first section is nearly identical with the

first seetion of the Shoshone Act. (68 Ct. Cl, 085; 71 Ct.

Cl., 308.)

In the Court below defendant made its defense on the

theory that the Shoshone Indians had consented to the ad-

mission of the Arapahoes amongst them, and had sur-

rendered to the Arapahoes one-half interest in their treaty

reservation without consideration. Abandoning this con:

tention in this Court, they now say in the cross-petition,

pages 10-11: |

‘Those in charge of Indian Affairs thought they had

| the consent of the Shoshones to the removal of the

Arapahoes for permanent settlement on the Shoshone

reservation ;”’

/

‘and upon such ‘‘thought’’ counsel claim the date of ‘‘tak-

ing’? was in 1878.

In the Court below and in the cross-petition here, defen-

dant contended that Congress, by passing appropriations

for the support of the Arapahoes, had recognized the tak-

ing of Shoshone lands. In the brief filed December 10, this

position is abandoned.

In this brief, counsel for defendant abandon the above

defenses, and boldly assert that the “‘taking’’ was in 1878,

4

14

basing their claim on a Congressional report which merely

recited ‘‘that the northern band of the Arapahoes, under

military escort, were moved upon said reservation in the

winter of 1877-78’’ (brief, page 18) ; that the Jurisdictional

Act is ambiguous or meaningless (p. 29); that the Jurisdie-

tional Act was ‘‘an offer to purchase,’’ or ‘an offer to con-

tract’’ (pp. 20, 28) and then say that the Jurisdictional Act

provided ‘‘only a forum’? (p. 26); that ‘“‘the bill undertook

to fix the compensation to be paid,’’ (p. 23) whereas the Act

left that function to the Courts; that money arising from

sale of natural resources from the Shoshone reservation

and placed to the credit of or expended for their benefit.as

authorized by Congress, is a set-off as a gratuity; and that

the Court below found no actual damages to the Shoshones

notwithstanding it found the United States had deprived

the Shoshones of one-half interest in their reservation, fixed

the value thereof, and awarded judgment. .

This Court -has met such a change of front and incop-

sistency in its opinion written by Mr. Justice Holmes in

International Paper v. The United States, 282 U. S., 399,

as follows: , |

‘The Government has urged different defenses with

varying energy at different stages of the case. The

latest to be pressed is that it does not appear that the

_action of the Secretary was authorized by Congress.

We shall give seant consideration to such a repudia-

tion of responsibility.’’

r Respectfully submitted,

Tue SHOSHONE TRIBE OF INDIANS OF

THE Wuinp River RESERVATION IN

WyYomIna, ,

By Georce M. Tuntson,

Counsel for Shoshone Tribe.

Cuarues J. Kappier,

ALBERT W. JEFFERIES,

Francis S.. HowELL,

Of Counsel.