Brief for the United States — Northwestern Bands of Shoshone Indians v. United States

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Inthe Supreme Court of the Bnited States

OCTOBER TERM, 1944

fur NORTHWESTERN BAnpbs OF SHOSHONE LNDIANS,

PETITIONERS

9)

we

THE UNITED STATES :

ett,

WRIT OF CERTIORARI TO THE COURT OF CLAJMS

BRIEF FOR THE UNITED STATES

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a

Opinion beiow-..-. ~~. - - - et aE I OO POE E Oo ee

Jurisdiction — ~~ ~~~. ST aah eye RE = Piaf a aa

Question presented... _-. ta ahaesin aah oP nn Aa a de nee

Treaties and statutes involved.....-. -_-.. .-.--- Fee Mame

Statement pee Gans

Summary of argument. - oe ane oe a ea a i rs

Argument:

The Court of Claims correctly determined that the claim

upon whieh the present suit is based did not arise under or

grow out of the Treaty of July 30, 1863, as required by the

Jurisdictional Act of February 28, 1929. ._. -_---- Lae

A. The Jurisdictional Act of February 28, 1929, re-

quires that petitioners’ claim arise under or grow

*

out of the Treaty of July 30, 1863... meee

B. The Court of Claims correctly determined that

petitioners’ claim did not arise under or grow cut

of the Treaty of July 30, 1863_.

Conclusion - -

Appendix - - -

CITATIONS

Cases:

Assiniboine Indians v. United State , 77 C. Cis. 347, appeal

dismissed and certiorari denied, 292 U.S. 606

Beecher v. Wetherby, 95 U.S. 517

Choctaw Nation v. United States, 318 U.S. 423 : 24,2

Coos Bay Indian Tribe, et al. v. United States, 87 C. Cls. 143,

certiorari denied, 306 U. S,653- - 12;

Cramer v. United States, 261 U.S. 219

Creek Nation v. United States, 318 U.S. 629.

Crow Nation v. United Staies, 81 C. Cis. 238

Duwamish, et al., Indians v. United States, 79 C. Cis. 530,

certiorari denied, 205 U.S. 755 ]

Fort Berthold Indians v. United States, 71. C. Cls. 308

Indians of California, The v2 United States, 9S C. Cls. 583

Shoshone Tribe v. United States, 299 U.S. 476

United Ntotes. v. Choctaw and Chickasaw Nations, 179

U.S. 494

13,

now N NS

—

Il

Cases-—Continued. Page

United States v. Creek Nation, 295 U.S. 103__- Sie 13

Unued States vy. Klamath Indians, 304 U. 8.119 __- 13

United States vy. Mille Lac Chippewas, 229 U.S. 498. 30

United States vy. Northern Pacific Ry. Co., 311 U.S. 3i7,

347-344_ i aA abies 28

E’mited States v. Omaha Tribe of indians, 253 U.S. 275 _- 22

United States v. Santa Fe Pacifie R. Co., 314 U.S. 339 15, 23, 26

United States v. Shoshone Tribe, 304 U.S. 111. = 13

United States v. Sisseton and Wahpeton Bands of Siouz

Indianz, 208 U.S. 561 ; ; 22

Wichita Indians, The, et al. v. United States, 89 C. Cis. 378 12,

14,15

Acts and treaties:

4 Kappler 1065_ - ‘ 29

Fort Laramie Treaty of September 17, 1851____. ; 28

Act of July 5, 1862, 12 Stat. 512__- : _ as 18

Eastern Shoshone Treaty of July 2, 1863__- 2, 7, 8, 11, 19, 2

Northwestern Shoshone Treaty of July 30, 1863 ____. 2.

7,8 12, 13, 15, 16, 17, 19, 21, 23, 24, £7

Western Shoshone Treaty of October 1, 1863__ 2,8

Shpshone-Goship Treaty of October 12, 1863. __- . 2,8

Mixed Bands Treaty of October 14, 1863. = 2,8

Act of February 23, 1865, 13 Stat. 432... ‘ 20

Eastern Shoshone Treaty of July 3, 1868_. 9, 20

Act of February 28, 1929, 45 Stat. 1407 (Jurisdictional

RCNA Res pe ee SURE ae

Miscellaneous:

Cohen, Handbook on Federal Indian Law (1942), pp. 62-63

Royce, Indian Land Cessions (1599) pp. 676-888_____._-

8. Rep. 519, 70th Cong., Ist sess_..

pe ee 2, 12, 13, 15, 32

Inthe Supreme Court of the United Sintes

OcroOBER TERM, 1944

No. 63

THe NORTHWESTERN BANDS OF SHOSHONE INDIANS,

PETITIONERS

v.

THE UNITED STATES

ON WRIT OF CERTIORARI TO THE COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion (R. 63-76) of the Court of Claims

is reported in 95 C. Cls. 642.

JURISDICTION

The judgment of the Court of Claims was en-

tered January 3, 1944 (R. 79). The petition

for a writ of certiorari was filed April 21, 1944,

the time for filing having been extended (R. 115),

and was granted May 29, 1944. The jurisdiction

of this Court is invoked under section 3 (b) of

the Act of February 13, 1925, ¢. 229, 43 Stat. 938,

(1)

2

939, as amended by the Act of May 22, 1939, e.

140, 53 Stat. 752 (28 U.S. C. see. 288 (b)).

QUESTION PRESENTED

Whether the Court of Claims correctly deter-

mined that the claim upon which the present suit

is based did not arise under or grow out of the

Treaty of July 30, 1863, as required by the Juris-

dictional Act of February 28, 1929.

: TREATIES AND STATUTES INVOLVED

a

The Northwestern Shoshone Treaty of July 30,

1863, appears in the record at pp. 43-44. The

Kastern Shoshone Treaty of July 2, 1863, the

Western Shoshone Treaty of October 1, 1863, the

Shoshonee-Goship Treaty of October 12, 1863,

and the Mixed Bands Treaty of Octeber 14, 1863,

appear im the record at pp. 40-42, 44-47, 47-49,

and 49-51, respectively. The Jurisdictional Act

of February 28, 1929, e. 377, 45 Stat. 1407, is set

forth in the Appendix, infra, pages 31-33.

STATEMENT

7

Pursuant to the Act of February 28, 1929, e.

oa7, 49 Stat. 1407, which conferred jurisdiction on

the Court of Claims to determine claims which

petitioners might have against the United States

‘artsing under or growing out of” the North-

western Shoshone Treaty of July 30, 1863, and

related treaties, petitioners breught suit in the

Court of Claims on March 28, 1931, to recover

ha 3

compensation for the alleged taking by the United

States of lands claimed to have been secured to

them by the Northwestern Shoshone Treaty (R.

1-24). ii

The Court of Claims found the facts as follows

(R. 27-62):

The Shoshone Nation of Indians was located in

the territories of Washington and Utah and, to-

gether with affiliated bands of Bannock Indians,

roamed over and used as its abode a vast area

of approximately 80,285,000 acres of land. The

Shoshone and Bannock Indians claimed this area

as their home to the exclusion of other tribes of

Indians, and their claim was generally recognized

by other tribes of Indians. The area they claimed

as their home became a part of the states of Wyo-

ming, Colorado, Utah, Idaho, and Nevada. Peti-

tioners were a part of the several bands of the

Shoshone Nation of Indians. The territory peti-

tioners claim to have occupied as their home con-

sists of 15,643,000 acres of land of which 6,067,-

000 acres are located in the southeastern part of

Idaho, 6,389,000 acres in the northwestern corner

of Utah, and 3,187,000 acres in the northeast cor-

ner ef Nevada. The total population of the Sho-

shone and Bannock Indians in 1863 was about

9,700. Petitioners’ population was between 1,500

and 1,800. (R. 27-28.)

In the 1850’s and earlier the Government had

practically no knowledge of the Indians who in-

4

habited the region which became southern Idaho,

eastern Oregon, northern Nevada and northerti

Utah, their tribal distinctions, racial affiliations,

or the specific areas occupied by particular tribes

or bands of Indians. The Shoshone tribe always

desired to be peaceful and friendly to the whites

and to the Government. As a tribe they. never

engaged in war with the United States. Between

1849 and 1863, however, some of the Shoshones

of the Northwestern Bands caused white emi-

grants and the Government considerable trouble

by depredations and warlike acts because of the

driving away of game and the destruction of food

supply. The destruction of game and_ other

sources of food reduced the Shoshones, particu-

larly the Northwestern Bands, to a condition of

practical starvation, making it necessary for them

to ‘‘steal or starve’’. (R. 28-29.)

During this period the Government was

supplyang these Indians with little or nothing in

the way of food supplies. Government agents

and superintendents frequently went among

these Indians, especially those inhabiting the

routes of western travel, for the purpose of pre-

serving peace, and as a means to that end gave

the Indians presents which were gratefully re-

ceived. These Indians professed friendship

for the white people and the Government and

showed a real desire for peace. They begged

the Government agents for provisions and

5

,

supplies. Desiring to improve the condition of

these Indians and to prevent attacks and depreda-

tions which were being committed on white emi-

grants by some of petitioner-bands of Indians

because of the driving away of game and the de-

struction of their food supply, these agents

constantly recommended to tke Government

that some provision be made to furnish them

with the means to aid the Indians by giving them

food and supplies, which would have the effect of

bringing about peace and friendship with the In-

dians. They also urged the making of a treaty

with the Shoshone tribe, which desired to be

friendly, in order to provide for the Indians and

for the safety of emigrants and settlers. The

Commissioner of Indian Affairs and the Secretary

of the Interior made similar recommendations.

(R. 31-32.)

However, Congress took no steps’ to this end

until 1862 when by the Act of July 5, 1862, 12

Stat. 512, 529, $20,000 was appropriated to defray

expenses of making a treaty with the Shoshones,

the Secretary of the Interior having reported to

Congress that while the lands of the Indians were

unfit for cultivation and would probably not be

required for settlement for many years, a treaty

was desirable because of ‘‘the control which the

Government would thereby be enabled to exercise

over them, by which additional security would be

given to the settlers in the Territory, and to the

—

6

\

Overiand Mail and Telegraph Lines’’ (R. 32-33).

On July 22, 1862, the Commissioner of Indian

Affairs instructed the commissioners who had

been appointed to negotiate a treaty with the

Shoshones that the Government did not have suffi-

cient knowledge to state definitely the boundaries of

the country inhabited and claimed by the Sho-

shones but that they understeod it was the country

“through which lies the route of the overland mail,

and the emigrant route * * * and it is mainly

to secure the safety of travel along these routes that

a treaty is desirable’; that while the treaty would

not be negotiated ‘‘with a view to the extinguish-

ment of the Indian title to the land,’’ the United

States’ assurances of a desire fer amicable relations

and the payment of $20,000 in annuities should en- .

able them to procure from the Indians agreement

for the security of the overland mail and emigrant -

routes and ‘‘also a definite acknowledgment as well

of the boundaries of the entire country they claim,

as of the limits within which they will confine

themselves, which limits it is hardly necessary to

state should be as remote from said routes as prac-

ticable’’; and that the treaty should be so framed

as to express that while on the one hand the United

States, being aware of the inconvenience to the

Indians resulting from the driving away and

destruction of game along the route travelled by

whites, was willing to compensate them fairly for

the same, the Indians on the other hand acknowl-

‘

-

4

edged the stipulated annuities as a full equivalent

therefor and pledged to refrain from depredations

and maintain peacable relations with the United

States and their citizens (R. 33-35). Because the

Shoshones were scattered over a vast extent of

country, the treaty commissioners had difficulty

in establishing contact. with them and it became

necessary to meet with their various bands under

their vayious chiefs and -headmen at several points

(R. 35-39).

In 1863 treaties were conchuded with various

branches of the Shoshone tribe. The Eastern

Shoshone Treaty: of July 2, 1863 (R. 40-42)

, Stipulated for peace and friendship between the

Indians and the United States, the protection of

the emigrant routes, the. establishment of mili-

tary agrifultural settlements and military posts

along those routes, and the protection of the

telegraph and overland stage routes. It provided

for the payment by the United States of annuities

in articles suitable for the wants and. condition

of the Indians as compensation to the Indians for

‘“‘the driving away and destruction of game along

the routes travelled by whites, and by the forma-

tion of agricultural and mining settlements.”’

The treaty also set forth a description of ‘‘the

Shoshonee country, as defined and described by

said nation.’’ The Northwestern Shoshone

Treaty of July 30, 1863 (R. 43-44) also stipulated

for peace and friendship, incorporated all of the

provisions of the Eastern Shoshone Treaty, and

616378 —44-—.2

&

provided for the payment of annuities. Article

IV thereof stated that ‘‘The country elaimed by

Pokatello, for himself and his people, is bounded

on the west by Raft River and on the east by the

Porteneuf Mountains.”’ Similar treaties were

made with the Western Shoshones, the Shoshonee-

Goship Indians, and the Mixed Bands of Shoshone

and Bannock Indians (R. 44-51). Treaty Com-

missioner James Duane Doty subsequently indi-

cated the exterior boundaries of the country

claimed by the Shoshones and the limits of the

territory occupied by the various branches of the

tribe on a map furnished by the General Land

Office (R. 51, 55). Of the treaties Commissioner

Doty wrote to the Commissioner of Indian Af-

fairs, as follows (R. 54):

The importance of these treaties to the

government and to its citizens can only be

appreciated by those who know the value

of the continental telegraph and overland

stage to the commercial and mercantile

world, and the safety and security which

peace alone can give to emigrant trains,

and to the travel to the gold discoveries in

the north, which exceed in richness—at

least in the quality of the gold—any dis-

coveries on this continent.

Each of the treaties, except the Western Sho-

shone Treaty, was ratified by the Senate with the

following amendment (R. 57): .

Nothing herein eontained shall be con-

strued or taken to admit any other or

+)

greater title or interest in the lands em-

braced within the territories described in

said treaty in said tribes or bands of In-

dians than existed in them upon the acquisi-

tion of said territories from Mexico by the

laws thereof.

The various tribes or bands of Indians accepted

their respective treaties, as amended, except the

Mixed Bands of Skoshones and Bannocks which

had become so seattered that they could not be

assembled for the purpose of obtaining their

formal consent to the amendment of their treaty.

As to the Western Shoshone Treaty, the Senate

first voted to ratify it with a similar amendment

but subsequently voted to reconsider action on the

treaty and finally ratified the treaty without

amendment except as to the amount of annuities

to be paid under the treaty. (R. 57-58.)

By Act of February 23, 1865, 13 Stat. 432, Con-

gress authorized the President to make treaties

with the various tribes of the Utah Territory for

“the absolute surrender * * *

of their pos-

sessory right to all agricultural and mineral lands

in said territory except such agricultural lands as

by said treaties may be set apart for reservations

for said Indians’? (R. 58-59). However, no fur-

ther treaties were made with the Shoshone Indians

except for a treaty of July 3, 1868, with the East-

ern Bands of the Shoshone Tribe by which those

bands of Indians ceded all lands claimed by them

except a reservation of 3,047,730 acres in the Wind

10

River section of Wyoming which was set apart for

their use and occupancy and for the use and oe-

cupancy of such other Indians as they might be

willing to admit (R. 59).

Following the Treaty of July 30, 1863, the

Northwestern Bands of Shoshone Indians became

widely scattered over northern Utah and Nevada

and southern Idaho. In 1873 the Commissioner

of Indian Affairs appointed a commission te in-

vestigate all tribes and bands in. this region, as-

certain their number, and report on the possibility

of gathering them upon one or more reservations

where they could be more immediately under the

care of the Government. After exhaustive in-

vestigation the commission reported that it had

no trustworthy information as to the number of

bands of Northwestern Shoshone Indians, and

that a number of bands of these Indiays had

taken abode on various Indian reservations in

Idaho, Wyoming, and Nevada. (R. 60.)

In Finding 15 the Court of Claims specificaily

found (R. 55-56) that in negotiating the five

treaties with the various groups of Shoshone and

Bannock Indians, the treaty commissioners and

the Indians did not negotiate for acknowledg-

ment by the United States of any exclusive Indian

title, nor for any relinquishment by the Indians

of any territorial claims they might have; that

it was not the purpose of the treaty commission-

ers to acknowledge any territorial claims on the

11

part of the Indians, and the treaty commissioners

made no attempt to ascertain accurately the

territories which the Indians may have actually

occupied, possessed and used to the exclusion of

other Indians; and that the purpose of the United

States and the treaty commissioners was to bring

about peace and friendship with the Indians by

making provision for annuities in articles suitable

to their wants and condition in order that the

routes of travel by the whites through the country

vecupied by the Indians and the white settlements

therein night be free from attacks and depreda-

tions by the Indians.

In Finding 21 the court below found (R., 58)

that prior to and at the time of the Northwestern

Shoshone Treaty of July 30, 1863, the United

States had not recognized a right of exclusive

use, occupancy, and possession in the Northwest-

ern Bands as against the United States to any of

the territory within the Mexican cession and

included in the country described in the treaty;

that the treaty of July 30, 1863, contained no

express or implied stipulation by the United

States as to anv Indian right, title, or interest in

any land, and the United States never intended

by the treaty to make any such stipulation; and

that, on the contrary, the United States ‘has

ever exercised dominion and complete ownership”’

over the territory claimed by the Northwestern

Bands of Shoshone Indians.

Upon these findings the Court of Claims con-

cluded that petitioners were not entitled to reeover

under the treaty of July 30, 1863, as for a taking

by the United States of any portion of the 15,-

643,00 acres of land for which they sought com-

pensation (R. 62). Aceordingly, judgment was

entered dismissing the petition (R. 79).

, SUMMARY OF ARGUMENT “96

The Jurisdictional Act of February 28, 1929,

©. 304, 49 Stat. 1407 (Appendix, infra, pp. 31-33

is limited to claims “arising under or growing ‘out

of” the Northwestern Shoshone Treaty of July

30, 1863. Cf. Duwamish, et al., Indians v.

United States, 79 ©. Cls. 530, 599-600, certiorari

denied, 295 U.S. 755; Coos Bay Indian Tribe, et al.

v. United States, 87 C. Cls. 143, certiorari de-

nied, 306 U. 8. 653; The Wichita Indians, et ‘al.

v. United States, 89 C. Cls. 378, 420. Petitioners

cannot recover herein, therefore, unless the Treaty

of July 30, 1863, is the source of the right of

oecupaney upon whien the present suit is based.

The Court of Claims expressly found (R. 55-

56,58) that the primary purpose of the Treaty of

July 30, 1863, was to establish peace and friend-

ship between the Government and the Indians of

the Sheshone Nation, and to free routes of travel

from Indian molestation, in consideration of the

payment of annuities, and that the Treaty was .

not intended to deal with the Indians’ right of

eccupaney to the lands claimed by them. The

13

bid

evidence amply supports this conclusion. Since

the Treaty of July 30, 1863, neither acknowiedged

nor extinguished petitioners’ asserted right of oc-

eupaney, the claim sued upon here is not one

“arising under or growing out of’ the Treaty.

ARGUMENT

THE COURT OF CLAIMS CORRECTLY DETERMINED THAT THE CLAIM

UPON WHICH THE PRESENT SUIT IS BASED DID NOT ARISE UNDER

OR GROW OUT OF THE TREATY OF JULY 30, 1863, AS REQUIRED

BY THE JURISDICTIONAL ACT OF FEBRUARY 25, 1929

A. The Jurisdictional Act of February 28, 1929,

requires that petitioners’ claim arise under or

grow out of the Treaty of July 30, 1863.—The

present suit brought in the Court of Claims can-

not be maintained unless petitioners’ claim for

compensation is one ‘‘arising under or growing

out of’ the Northwestern Shoshone Treaty of

July 30, 1863, as required by the Jurisdictional

Act of February 28, 1929 (Appendix, infra, pp. 32-

34). The lands claimed to have been taken by the

United States, therefore, must be held by right of

oecupaney derived from the Treaty, and not

merely by right of occupancy based upon im-

memorial possession, or so-called Indian title.

Cf. United States v. Creek Nation, 295 U.S. 103;

Shoshone Tribe v. United States, 299 U.S. 476;

United States v. Shoshone Tribe, 304 U.S. 111;

Fort Berthold Indians v. United States, 71 €. Cls.

308; Assiniboine Indians ¥. United States, 77 ©.

14

Cls. 347, appeal dismissed and certiorari denied,

292 U. S. 606; Crow Nation v. United States, 81

C. Cls. 238; Duwamish, et al., Indians v. United

States, 79 C. Els. 530, 599-600, eertiorari denied,

295 U. S. 755. The language of the statute is

clea¥ and unambiguous. Congress plainly did not

intend to authorize the Court of Claims to take

jurisdiction of claims based solely upon immemo-

rial possession, and not having their source in

the Treatv. When Congress intends to authorize

recovery on such claims, its legislation usually

makes explicit provision therefor. Cf. Coos Bay

Indian Tribe, et al. v. United States, 87 C. Cls.

148, certiorari denied, 306 U.S. 653; The Wichita

Indians, et al. v. United States, 89 C. Cls. 378, 400;

The Indians of California vy. United States, 98

C, Cls. 583. Thus in the Coos Bay case, the juris-

dictional act expressly permitted suits *‘arising

under or growing out of the original Indian title,

claim, or rights of the-said tribes’’. Moreover,

when Congress permits suits on claims based on

immemorial possession, it is customary that the

statute should define with reasonable exactness

the area within which aboriginal rights may be

asserted, thus limiting the extent of the United

States’ potential liability. The jurisdictional act

in the Coos Bay ease circumscribed by metes and

bounds the area within which elaims of original

occupancy rights might be asserted. In The In-

dians of California case, the jurisdictional aet

15

authorized recovery on claims for the loss of lands

expressly delimited in the eighteen, unratified

treaties with the California Indian tribes.’

Since the Jurisdictional Act extends: only to

occupancy rights derived from the Treaty of July

30, 1863, the taking by the United States of any

aboriginal rights petitioners may have had in

these lands can not be imade the basis of recovery

in this suit. To construe the Jurisdictional Act

as permitting recovery on claims based solely on

aboriginal title would expose the United States to

a potential hability which Congress did not show

‘Although the United States has several times submitted

to suit on claims based solely on aboriginal title, it has

not vet been determined that the United States is under

any legal liability to compensate an Indian tribe for a

deprivation ef its aboriginal rights. The Coos Bay and

The Wichita Indians cases, supra, denied recovery for

want of proof of the claimed aboriginal titles. In Zhe

Indians of California case, the Court of Claims granted

a recovery but this was on the basis of a provision in

the jurfédictional act declaring that “the loss to the said

Indians on account of their failure to secure the lands

and compensation provided for in the eighteen unratified

treaties is sufficient ground for equitable relief.” United

Ntates v. Santa Fe Pacific R. Co. 314 U.S. 339, Beecher

v. Wetherby, 95 U.S. 317, and similar cases, which declare

that th nited States’ power over claimed Indian titles

is plenary and its extinguishment cf such titles raises no

justiciable issues, make it problematical whether a depri-

vation of an aboriginal title will ground a legal liability

on the part of the United States to make compensation,

even where it has consented to be sued on such a claim.

Since the Jurisdictional Act here involved is limited to

treaty claims, the question is not reached in this case.

610638448

Ee

A

16

that it intended to assume. Not confining them-

selves to the meager territorial deseriptions con-

tained in the Northwestern Shoshone Treaty of

July 30, 1863, petitioners set forth in their peti-

tion in the Court ef Claims an elaborate definition

of the territory claimed to have beencheld by im-

memorial oecupaney (R. 17). Petitioners claim

6,255,000 acres west of Raft River—over one-

third of the total number of 15,643,000 acres

claimed in this suit-—-which admittedly are net

even referred to in the Northwestern Shoshone

Treaty. ~And, in their petition for a writ of

certiorari, petitioners suggest that even though

the Treaty of July 30, 1863, does not fix the area

of their claimed domain, they should be permitted

to submit proofs thereon. We submit, however,

that Congress clearly intended that the Treaty

*“Tribal Indians claim by right of occupancy such vast

and unlimited areas of lands * * * that had it ever been

the political policy of the Government to accord them the

same proprietary right that attaches to a title superior to

that of occupancy, and open the courts to suits as and for

their taking when thrown open to public settlement by the

United States, Congress and the courts would have left open

no doubts on the subject.

“Indian special jurisdictional acts, of which there are

many, exemplify the established rule that resort to the courts

by tribal Indians has always been restricted to adjudica-

tion of treaty rights and losses suffered by acts of Congress

with respect thereto.” Dumanrish, ef al.. Indians v. United

States, 79 C. Cls. 5380, 599-600, certiorari denied, 295 U. S.

-—-

ede.

17

alone should determine the extent of the liability

assumed by the United States.’

B. The Court of Claims correctly determined

that petitioners’ claim did not arise under or grow

out of the Treaty of July 30, 1863.—Indian right

of occupancy is a question of fact depending on

possession of a definite area of land to the, exclu-

sion of other tribes. United States v. Santa Fe

Pacific R. Co., 314 U. 8. 399, 345. By the same

token, whether the United States by treaty in-

tended to acknowledge Indian right of occupancy

to lands claimed by them ts also a question of fact,

at least where, as here, the answer depends upon

consideration of the purpose of the Treaty, as dis-

closed by its historical background and subsequent

practical construction by the parties.

The Northwestern Shoshone Treaty contained

no provision whereby the United States acknowl-

edged that petitioners had title by right of oceu-

pancy to the lands they claimed. Nothing in the

circumstances surrounding the making of the

Treaty suggests that the United States contem-

plated or the Indians understood that the Treaty

* The letter of the Secretary of the Interior proposing the

legislation (S. Rep. 519, 70th Cong., Ist Sess., quoted in Pe-

titioners’ Brief, p. 17) is not inconsistent with the construc-

tion we place upon the Act. His characterization of pet-

tioners’ claims as being asserted “under the treaties men-

tioned” can hardly be regarded as equivalent to a considered

judgment that such claims were derived from rights ae-

knowledged by the Shoshone Treaties.

18

would deal with the question of the Shoshones’

Indian title to any definite area of land. Thus,

although in 1861 the Superintendent for the Utah

Territory had advised the Commissioner of In-

dian Affairs that the Shoshones were willing to

cede their claimed territory (R. 31), the Seere-

tary of the Interior in the following year wrote

to the House Committee on Indian Affairs, which

was considering the desirability of entering into

treaties with the Indians of Utah Territory with

a view to purchasing their lands, as follows (R.

33) : Pf

The lands owned by the #fidians are, most

of them, unfit for cultivation, and it is not

probable that any considerable portion

of them will be required for settlement for

many years. The principal inducement to

make treaties with those tribes is the con-

trol which the Government would thereby

be enabled to exercise over them, by which

additional security would be given to set-

tlers in the Territory, and to the Overland

Mail and Telegraph Lines.

And, following the Act of July 5, 1862, 12 Stat.

912, 529, appropriating $20,000 to defray the ex-

penses of negotiating a treaty with the Shoshones,

the Commissioner of Indian Affairs, on July 22,

1862, instructed the treaty commissioners that (R.

34):

It is not expected that the‘treaty will be

negotiated with a view to the extinguish-

ment of the Indian title to the land, but it

19

is believed that with the assurances you are

authorized to make of the amicable rela-

tions which the United States desires to

establish and perpetuate with them, and by

the payment of Twenty thousand dollars of

annuities in such articles as by the Presi-

dent may be deemed suitable to their wants

for which you are authorized to stipulate,

you will be enabled to procure from them

such articles of agreement as will render the

routes indicated secure for travel and free

froni molestation; aiso a definite acknowl-

edgment:as well of the boundaries of the

entire country they claim, as of the limits

within which they will confine them-

| Wess ied hes

In accordance with these instructions, the pro-

visions of the Treaty dealt only with the question

of securing protection for routes of travel used

by whites from Indian motestation in return for

payment of annuities. The precise language used

in the Shoshone treaties is noteworthy. The ter-

ritorial boundaries set forth in the Northwestern

Shoshone Treaty were those of “the country

claimed by Pokatello, for himself and his people’’

(R. 44). The Eastern Shoshone Treaty similarly

identified the Eastern Shoshone country ‘tas de-

fined and described by said nation’? (R. 41).

Nowhere in any of the Treaties did the United

States acknowledge that the Shoshones owned by

immemorial possession the lands described by the

Treavdes in these general terms.

20

Subsequent to the Treaty, the Northwestern

Shoshones became widely scattered over northern

Utah and Nevada and southern Idaho. In 1873

the commission appointed to investigate all the

tribes and bands in this region was unable to ob-

tain any reliable data as to the location or popu-

lation of the Northwestern Shoshones. The com-

mission found that some few (about 17) had

gone to the Wind River reservation in Wyoming,

which had been set apart in 1868 for the Eastern

Shoshones; that others (about 400) had gone to

the Fort Hall Indian reservation in Idaho; and

that a number (about 300) had been assigned a

small reservation in northeastern Nevada from

which they were subsequently removed to the

Western Shoshones’ Duck Valley reservation in

southwestern Idaho and northern Nevada (R.

60), making a total of about 700. By the

\Act of February 23, 1865, 13 Stat. 432, Congress

authorized the President tc make treaties with

the various tribes of the Utah Territory for

‘the absolute surrender * * * of their pos-

sessory right to all the agricultural and mineral

lands in said territory except such agricul-

tural lands as by said treaties may be set apart for

reservations for said Indians’”’ (R. 58-59). Al-

though the United States pursuant to this Act en-

tered into the Treaty of July 3, 1868, with the

Eastern Shoshones by which the latter ceded all

the lands claimed by them except the 3,047,730

21

acres in the Wind River section of Wyoming

which was set apart for their use and occupancy,

no further treaties were made with the North-

western Shoshones (R. 59). On the contrary,

the United States always exercised complete do-

minion over the area petitioners claim to have

owned by immemorial possession (R.58).'

After considering the available evidence, the

Court of Claims found that the Treaty of July 30,

1863, was not negotiated for the purpose of ac-

knowledgment by the United States of petitioners’

Indian title to the area claimed by them; that the

treaty commissioners were not instructed and did

not attempt to conduct any negotiations of tlus

nature; and that, on the contrary, the primary

purpose of the Treaty was to bring about peace-

ful and amicable: relations between the United

States and the Indians of the Shoshone Nation by

making provision for the payment of annuities in

goods and supplies so that routes of travel through

the portion of the country occupied by the Sho-

shones might be free from attacks and depreda-

tions (R. 55-56). The Court of Claims also found

that when the Treaty was made, the United States

* Petitioners’ identity as “Northwestern Bands of Sho-

shone Indians” was practically lost in the 1880’s (see R.

61-62). Extensive inquiry has failed to disclose even an

estimate as to the present population of petitioner-bands of

Indians. In event of recovery herein a special roll would

have to be prepared to determine the identity and number

of Indians comprising petitioner-bands.

22

had not recognized petitioners as having any In-

dian title to any of the territory within the Mexi-

can Cession and included in the lands described in

the Treaty by Pokatello and now claimed by pe-

titioners; that the Treaty of July 30, 1863, con-

tained no express or implied recognition by the

United States that petitioners had any right or

interest in any lands; that the ‘‘matter of Indian

use and occupancy rights or the extinguishment

of any claim or right which the Indians might

make or have to such use and oceupanecey * * *

did not enter into the negotiations and was left

out of consideration in the drafting and making

of’ the Treaty; and that the United States has

exercised dominion and complete ownership over

the lands for which petitioners now seek compen-

sation (7é).

Petitioners contend that these findings are

wrong as a matter of law, and that this Court

should itself weigh the evidence and determine

that the Treaty of July 30, 1863, was intended to

and did acknowledge the Northwestern Shoshones’

Indian title to the lands described therein. We

submit, however, that the record furnishes ample

support for the conclusion reached by the Court of

Claims, and that petitioners have advanced no

basis upon which this Court would be warranted |

in disturbing the findings made by the court below.

Cf. United States v. Sisseton and Wahpeton Bands

of Siour Indians, 208 U.S. 561, 566; United Stutes

v. Omaha Tribe of Indians, 253 U.S. 275, 281, 283.

23

United States v. Santa Fe Pacific R. Co., 314

U. S. 339, holding that the traditional policy of the

United States has been to concede the possible

existence of Indian rights of occupancy based on

immemorial possession within the Mexican Ces-

sion as well as elsewhere in this country, does not

support petitioners’ contentions. That case es-

tablishes only that petitioners could have had, as

they claim, the right of occupancy to all of the

lands involved, even though the greater part of

the lands is within the Mexican Cession. The

Santa Fe case has no bearing upon the question

here, namely, whether the Treaty of July 30, 1863,

was intended to recognize petitioners’ Indian title

to the lands described therein. Petitioners argue

that the Treaty of July 30, 1863, proceeded in ree-

ognition of rather than in opposition to petition-

ers’ claimed right of occupancy, and the Treaty

must, therefore, be held as a matter of law to have

acknowledged their claimed right of occupancy.

In the Santa Fe case, also, the Railroad Land

Grant proceeded in recognition of and not in op-

position to the Walapai Indians’ claimed right of

occupancy. This Court held only that the Wala-

pai Indians were entitled to prove, if they could,

that they had the Indian right of occupancy

claimed by them. So here the burden rested upon

petitioners to prove that the Treaty of July 30,

1863, acknowledged their Indian right of oe-

24

cupanecy. This issue of fact was fully contested

in the Court ef Claims and was resolved against

petitioners. A favorable finding of fact on this

issue Was an essential prerequisite to petitioners’

recovery. Cf. Choctaw Nation vy. United States,

318 U.S. 423, 432.

There can be no doubt of the authority of the

United States to make a treaty with an Indian

tribe without conceding the validity and-extent of

the India title the tribe may claim. The Gov-

ernment has done so manly times with respect to

the tribes of the Far West. Cf. Cohen, Hand-

book on Federal Indian Law (1942), pp. 62-63.

On many occasions it has made treaties with sev-

eral tribes which asserted conflicting or overlap-

ping claims to the same territory. See Royee,

Indian Land Cessions (1899), pp. 676-888: The

Wichita Indians, et al. v. United States, 89 C. C's.

378, 420-421. It cannot be said, therefore, that as a

matter of law the United States may not enter into

a treaty which is wholly neutral with respect to the

validity of territorial claims made by the Indians.

Territorial descriptions contained in a treaty are

not in themselves of controlling significance as to its

purpose. All of the relevant factors must be

eons ter d. When the issue is, as here, whether

a treaty has recognized or acknowledged a claimed

tribal right of occupancy, the effect to be given the

presence of territorial descriptions in the treaty

25

depends upon alt the circumstances surrounding

its adoption. Cf. Choctaw Nation v. United

States, 318 U. S. 423, 432. The boundaries men-

tioned in the Northwestern Shoshone Treaty were

of the country ‘‘claimed*’ by Pokatello’ (R. 44),

and those stated in the Eastern Shoshone Treaty

were of the Shoshone country ‘‘as defined and de-

scribed by said nation’* (R. 41). These territorial

descriptions purported to be nothing more than

representations by the Indians as to the extent of

their territorial claims. Moreover, the descrip-

tions were given in very general terms, and. the

Northwestern Shoshone Treaty failed to describe

the 6,255,000 acres lying west of the Raft River,

which petitioners now contend was also part of

the territory owned by them. These territorial

descriptions are obviously lacking in the precise-

ness normally to be found in treaties intended to

acknowledge Indian rights of occupancy. The

record discloses what we believe and the Court of

Claims found, to be the proper explanation for

the presence of territorial descriptions in the Sho-

shone Treaties. As the court below stated (R.

74), “The purpose of obtaining a description of

territory from the Indians was, as the [Commis-

sioner of Indian Affairs’] letter of instructions of

July 22, 1862, stated, to obtain as much informa-

tion as possible as to what territory the Indians

claimed, because the Government had no informa-

tion in that regard from the Indians themselves,

26

and very indefinite information otherwise as to ,

the territory which they oecupied.”’

Petitioners stress (Br. 44-47) the amendment

made by the Senate in ratifying the Treaty, as foi-

lows (R. 57):

Nothing herein contained shall be con-

strued or taken to admit any other. or

greater title or interest in the lands em-

braced within the territories described in

said treaty in said tribes or bands of Indi-

ans than existed in them upon the aequisi-

tion of said territories from Mexico by the

laws thereof.

The Court of Claims properly held, we submit,

that: ‘‘ Without the amendment the treaty did not

admit or deny aboriginal occupancy, nor did it

acknowledge the right’ of exclusive use and oc-

cupaney as against the United. States. The

amendment therefore added nothing to the treaty

in this respect.’’ (R. 74.) Manifestly, the amend-—

ment preserved the right of the United States to

deny that the Shoshones had any right or title

in lands within the Mexican Cession ‘other or

greater”’ than what they had under Mexican law,

and thus sought to make Mexican law determina-

tive of the Shoshones’ claimed right of occupan-

ey. In aceordance with obligations assiimed under

* Like United States v. Santa Fe Pacific R. Co., 314

U. S. 339, the Senate amendment involved the problem of

whether the United States’ histeric policy conceded the ex-

istence within the Mexican Cession of tribal rights of occu-

27

the Treaty of Guadalupe Hidalgo, the amendment

safeguarded sueh property rights as the Indians

might have under Mexican law. It was not con-

cerned, however, with whether the Shoshones had

any right of occupancy as they claimed. Like the

treaty itself, the Senate amendment neither ree-

ognized nor extinguished petitioners’ claimed

tribal right of occupancy. It is wholly immaterial,

therefore, on the question whether the Treaty of

July 30, 1863, gaye rise to the right of occupancy

upon which the fa te suit is based.

That petitioners’ asserted mght of occupancy

may not have been extinguished by, and may have

survived, the Treaty of July 30, 1863, is equally

inconsequential here. If the Treaty did not af-

firmatively recognize and acknowledge the peti-

tioners’ right of occupancy, appropriation by the

United States of the lands involved did not give

rise to a claim “‘arising under or growing out of”

the Treaty within the meaning of the Jurisdic-

tional Act, but only to a possible claim arising

under or growing out of their asserted right of

occupancy. Since Congress has not consented to

be sued by petitioners on a claim arising out of

pancy based on immemorial possession. Although this

Court held in the Santa Fe case that such rights could exist

within the Mexican Cession under the laws of the United

States, it recognized in its opinion (pp. 345-346 of 314 U. S.)

that, as the Senate amendment indicates, the question was

highly debatable, at least until the decision in Cramer v.

“United States, 261 U.S. 219.

28

their asserted Indian title, a suit based upon such

a claim cannot now be maintained.

Petitioners rely heavily (Br. 37-41) on the

Court of Claims’ determination that, by the Fort

Laramie Treaty of September 17, 1851, the United

States acknowledged the title of several Indian

tribes to the respective territories described in

that treaty. Fort Berthold Indians v, United

States, 71 CC. Cls. 308; Assiniboine Indians vy.

Wnited States, 77 C. Cls. 347, appeal dismissed

and certiorari demed, 292 U.S. 606; Crow Nation

v. United States, 81 C. Cls. 238." The Fort Lara-

mie Treaty and the Treaty here involved, however,

are to be distinguished on a factual basis. In the

former case, in view of its provisions and all the

circumstances leading to and following upon the

treaty, the Court of Claims found that the treaty

fas intended to acknowledge claimed tribal rights

of oecupaney; in the present case, it could not so

find. The Fort Laramie Treaty involved an in-

tention by the parties to put an end to internecine

tribal warfare as wel! as to establish peace and

amity between the tribes and the United States

and to secure protection for routes of travel, ete.

The Treaty Commissioners and the several tribes

met in couneil and after extended deliberations

*Compare United States vy. Northern PBacifie Ry. Co., 311

U.S. 317, 347-349, where the court said the Fort Laramie

treaty “did not alter the status” of the lands therein de-

scribed or “create technical reservations as have many other

treaties and acts of Congress.”

29

agreed upon the respective boundaries of the lands

claimed by the several tribes. The tribes promised

not to encroach upon each other’s territory, and

the United States agreed not only to respect the

tribes’ assigned territories, but also to protect them

in their occupancy thereof. The Treaty Commis-

sioners acted under specific instructions (71 C. Cls.

at 312) ‘‘to establish for eaeh tribe some fired

boundaries within which they should stipulate gen-

erally to reside, and each should agree not to in-

trude within the Kimits assigned to another tribe

without its consent.’’ (Italies added.) In the

treaty (4 Kappler 1065) the tribes severally *‘ rec-

ognize’’ and ‘‘acknowledge’’ their respective terri-

tories, the boundaries of which were clearly fixed.

Had the treaty not established the respective ter-

ritories of the several tribes, it could hardly have

succeeded in its purpose to establish peace and

friendship among the Indians and between therm

and the United States. As the Court of Claims

held, ‘In what other way and for what other con-

sideration could the commissioners have success-

fully accomplished their designed purpose than a

governmental recognition of certain well-described

lands as territory belonging to the Indians by

right of occupancy’? (71 C. Cls. at 331). On the

other hand, in the case of the Northwestern Sho-

shone Treaty there was a complete absence of any

purpose on the part of the United States to define

‘and establish the territory subject to the North-

30

western Shoshones’ claimed right of occupancy.

The boundaries of the country claimed by them

were not complete nor defined with preeésion. The

primary object of the treaty was to obtain peace

and friendship with the Indians, and freedom

from Indian molestation for routes of travel, by

payment of annuities.

Finally, the rules for the construetion of Indian

treaties and agreements, upon which petitioners

rely (Br. 56-60), do not warrant a different con-

struction from that made by the Court of Claims in

this case. While Indian treaties are to be con-

strued, so far as possible, in the sense in which the

Indians understood them, and in a manner which

is compatible with the full obligation of the

United States to protect the interests of a depend-

ent people, they ‘“‘cannot be rewritten or expanded

beyond their clear terms toeremedy a claimed in-

justice or to achieve the asserted understanding of

the ‘parties.”’ Choctaw_Nation v. Untted States,

318 U.S. 423, 482. Cf. Greek Natton v. United

States, 318 U. S. 629, 634; 640; United States v.

“Mille Lac Chippewas, 229 U.S. 498, 500; United

States v. Choctaw and Chickasaw Nations, 179

U. S. 494, 500. In this case, as the Court of

Claims found (Fdgs. 15, 21, R. 55-56, 58), there

was no understanding on the part of the parties to

the Treaty of July 30, 1863, that the treaty should

acknowledge petitioners’ claimed right of oe-

eupancy. Cf. Choctaw Nation v. United States,

318 U. S. 423, 432. :

31

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Claims was correct and should be af-

firmed.

Respectfully submitted.

CHARLES Fany,

Solicitor General.

NorMAN M. LITTELL,

Assistant Attorney General.

Ropert E. MULRONEY,

NorMAN MacDona.p,

Attorneys.

NOVEMBER 1944.

APPENDIX

The Act of February 28, 1929, 45 Stat. 1407,

reads as follows:

CHap. 377.—An Act Conferring jurisdic-

tion upon the Court of Claims to hear,

adjudicate, and render judgment in claims

which the northwestern bands of Shoshone

Indians may have against the United

States.

Be it enacted by the Senate and House

of Representatives of the United States of

America in Congress assembled, That jur-

isdiction be, and hereby is, conferred upon

the Court of Claims, notwithstanding lapse

of time or statutes of limitations, to hear,

adjudicate, and render judgment in any

and all claims which the northwestern

bands of Shoshone Indians may have

against the United States arising urder or

growing out of the treaty of July 2, 1863

(Eighteenth Statutes, page 685—2 Kappler,

848); treaty of July 30, 1863 (Thirteenth

Statutes, page 863-—2 Kappler, 850) ; Act of

Congress approved December 15, 1874

(Eighteenth Statutes, page 291), and any

subsequent treaty Act of Congress, or Ex-

ecutive order, which claims have not here-

tofore been determined and adjudicated on

their merits by the Court of Claims or the

Supreme Court of the United States. ,

Sec. 2. That any and all claims against

the United States within the purview of this

Act shall be forever barred unless suit be

instituted or petition filed as herein pro-

vided in the Court of Claims within five

(32)

33

years from the date of the approval of this

Act; and such suit shall make the north-

western bands of Shoshone Indians party

plaintiff and the United States party de-

fendant. The petition shall be verified by

the attorney or attorneys employed to pros-

ecute such claims under contract with the

northwestern bands of Shoshone Indians,

approved by the Commissioner of Indian

Affairs and the Secretary of the Interior

as provided by law. Official letters, papers,

documents, and records, or certified copies

thereof, may be used in evidence, and the

departments of the Government shall give

access to the attorney or attorneys for said

Indians to such treaties, papers, corre-

spondence, or records as may be needed by

the attorney or attorneys for said Indians.

Sec. 3. That in said suit the Court of

Claims shall also hear, examine, consider,

and adjudicate all claims which the United

States may have against the said north-

western bands of Shoshone Indians. Any

payment which may have been made by

the United States, including gratuities for

the benefit of any band or bands of said

Indians or for their support and civiliza-

tion, shall not operate as an estoppel, but

*may be pleaded as a set-off in | suit.

Sec. 4. That from the decision of the

Court of Claims in any suit prosecuted

under the authority of this Act an appeal

may be taken by either party, as in other

cases, to the Supreme Court of the United

States. ®

Sec. 5. The Court of Claims shall have

full authority by proper process and orders

to bring’in and make parties to such suit

any and al] persons deemed by it necessary

24

or proper to the final determination of the

matters in controversy.

Sec. 6. A copy of the petition shall, in’

such case, be served upon the Attorney

General of the United States, and he or

some attorney from the Department of Jus-

tice to be designated by him is hereby di-

rected to appear and defend the tmterests

of the United States in such case.

Sec. 7. Upen final determination of such

suit or suits the Court of Claims shall have

jurisdiction to fix and determine a reason-

able fee, not to exceed 10 per centum of

the recovery, together with all necessary

and proper expenses incurred in prepara-

tion and prosecution of the suit, to be paid

to the attorney or attorneys employed by

said northwestern bands of Shoshone In-

dians, or any of them, and the same shall be

included in the decree and shall be paid out

of any sum or sums found to be due said

bands. :

Src. 8. The balance of the proceeds of

all amounts, if,Qany, recovered for said

northwestern bands of Shoshone Indians

shall be deposited in the Treasury of the

United States to the credit of the Indians

decreed by said court to be entitled thereto,

and shall draw interest at the rate of 4 per

centum per annum from the date of the

judgment or decree and shall be subject to

appropriation by Congress only for the

health, education, and industrial advance-

ment of said Indians.