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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1945
- **Citation:** 324 U.S. 335

## Text

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Inthe Supreme Court of the Bnited States

OCTOBER TERM, 1944
fur NORTHWESTERN BAnpbs OF SHOSHONE LNDIANS,
PETITIONERS

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we

THE UNITED STATES :

ett,

WRIT OF CERTIORARI TO THE COURT OF CLAJMS

BRIEF FOR THE UNITED STATES

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0121%3A06. Public record. Not legal advice.