Appendix — United States v. Southern Ute Tribe or Band of Indians

Supreme Court brief1971

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& IN THE

ere, otf he ang Bates

OcTOBER TERM, 1970

No. 515

UNITED STATES,

Petitioner,

—v.—

SOUTHERN UTE TRIBE OR BAND OF INDIANS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF CLAIMS

INDEX

E Relevant Docket Entries—Indian Claims Commission

Relevant Docket Entries—Court of Claims 5

Answer

Petitioner's Exceptions to Defendant’s Accounting . 19

a First Amendment to Petitioner’s Exceptions to Defendant’s

Accounting 22

Findings of Fact, Opinion of the Commission and First

. Interlocutory Order 24, 37, 56

Court of Claims Order (Remand) 57

| Court of Claims Order (Amendment to Remand ) 59

ii INDEX

Additional Findings of Fact of the Commission 60

Order transmitting Findings of Fact to the Court of Claims 66

Majority Opinion and Dissent, Court of Claims (Judgment) — 68, 97

Certificate of the Record—Court of Claims — =

Excerpts from Petitioner's Exhibit No. 24 131

Excerpts from Petitioner's Exhibit No. 25 141

Order of the Supreme Court of the United States granting

petition for a writ of certiorari 1

DOCKET—INDIAN CLAIMS COMMISSION

FILINGS—PROCEEDINGS—APPEARANCES

Contract No. 167 Docket No. 328

SouTHERN UTE TRIBE OR BAND OF INDIANS

Attorney of Record:

ERNEST L. WILKINSON

National Grange Bldg., 9th Floor

1616 H St. N. W.

Washington 6, D. C.

[Title Omitted in Printing]

Date filed

Aug. 10, 1951 20 copies of petition filed, with ack. of service.

s * * a

May 29, 1956 Answer filed.

Jun. 22, 1956 Motion for limited summary judgment as tu

2nd & 3rd defenses filed by claimant.

* * * *

Nov. 4, 1960 Order overruling motion for limited S.J. al-

ternatively motion to strike the “second de-

fense” and the “third defense” (J-774)

* * * *

May 17, 1968 Petitioner's proposed exhibits 1 through 22.

May 20, 1963 Dfnt’s proposed exhibits 1 through 18.

May 20, 1963 Dfnt’s proposed exhibit No. 19 (Supplement).

June 12, 1963 Petitioner’s Exceptions to Dfnt’s Accounting.

* e * *

Sept. 30, 1963 Ptr’s First Amendment to Exceptions to De-

fendant’s Accounting.

Date filed

Oct. 3, 1968 Dfnt’s proposed rebuttal exhibits 14a, 14b,

20 and 21.

* s * *.

Oct. 29, 1968 Transcript of hearing held Oct. 8, 9, 1963. (pp.

1-184). (Ipp 1-184)

* * * a

Feb. 18, 1964 Ptr's Proposed Findings of Fact conclusions

of Law and Brief on Liability

* * * *

Aug. 11, 1964 Dfnt’s Requested Findings of Fact, Objec-

tions and Brief on Liability.

. * * *

Sept. 9, 1964 Ptr’s Objections to Dfnt’s Findings of Fact

and REPLY BRIEF.

Sept. 14,1965 Ptr's motion for leave to file additional ex-

hibit No. 27.

Sept. 17, 1965 Order admitting additional evidence, Ptr’s Ex-

hibit 27. (J-1027).

Sept. 23, 1965 Ptr’s Exhibit 28 (GAO Report) received in

evidence at hearing this date.

Nov. 1, 1965 Ptr’s Supplemental Memorandum re Account-

ing Issues.

* * * 3

Nov. 8, 1965 Dfnt’s Response to Ptr’s Supplemental Mem-

orandum re accounting issues.

Nov. 8, 1965 Transcript of Argument, which was held

Sept. 23, 1965. (pp 1-66).

* * * *

May 6, 1966 First Interlocutory Order and Opinion of the

Commission. Findings of Fact

Aug. 4, 1966 Pofendant's Notice of Appeal from the Inter-

locutory order of the Indian Claims Commis-

sion filed May 6, 1966, determining liability.

Copy of Appeal sent to Wilkinson Firm.

—

Date filed

Sept. 1, 1966 Receipt from the U. S. Court of Claims on

Record on Appeal.

* * * a

Oct. 24, 1966 Supplemental Record on Appeal sent to U. S.

Court of Claims.

May 16, 1967 Order dated May 15th, 1967 from the U. 8.

Court of Claims remanding case to the Indian

Claims Commission with instructions to hear

additional evidence and to make and report

to the U. S. Court of Claims Findings of Fact.

Oct. 16, 1967 Order from the United States court of Claims

denying appellant’s motion for rehearing and

appellee’s motion to vacate order of remand.

Mar. 20, 1968 Petitioner’s Motion for an Order calling on

the Department of Justice to produce docu-

ments.

Mar. 22, 1968 Supplement to Defendant’s Digest of Exhibits

and Defendant’s Exhibits 22 and 23.

2 * * 7

Apr. 15, 1968 Motion of Defnt’s Objections to Ptr’s Motion

for order calling on the Department of Justice

to Produce Documents.

Apr. 17, 1968 Order Requiring Production of Documents

and Instituting Investigation.

Apr. 22, 1968 Transcript of hearing on Argument held April

17, 1968, 1 Vol.

3 . „ *

May 2, 1968 Commission’s Order admitting affidavit in

evidence subject to cross-examination of affi-

ant by the parties. (J-1108)

May 24, 1968 Certificate of Counsel and Digest of Pertinent

Material from Case No. 46640

Submitted by W. Braxton Miller from J ustice

Dept.

—$_

Feb. 7, 1969

June 27, 1969

Response of Dfnt’s to Order of the Commis.

sion Requiring Production of Documents and

Instituting Investigation.

Ptr’s Proposed Additional Findings of Fact

submitted.

Dfnt’s Request for Additional Findings of

Fact under special Order of the Court of

Claims, Objections to Findings Proposed by

Petitioner and Brief.

Ptr’s Objections to Dfnt’s Requested Findings

of Fact and Reply to Objections.

ADDITIONAL FINDINGS OF FACT and

ORDER TRANSMITTING FINDINGS OF

FACT TO THE COURT OF CLAIMS.

* = * *

THE UNITED STATES

SOUTHERN UTE TRIBE OR BAND OF INDIANS

Appeal from the Indian Claims Commission, Dkt. No. 328

For Pltf.:

GLEN A. WILKINSON

1616 H Street, N. W.

Washington, D. C. 20006

Atty. of Appellee

For U. S.:

W. BRAXTON MILLER

For Appellant

Petition Filed Aug. 26, 1966

Date

Proceedings

Dec. 30, 1966

. 9, 1967

1, 1967

Record on appeal from the Indian Claims

Commission filed. (Ind. Cis. Dkt. No. 328).

Parties notified. (Appeal by U. S., No. fee).

Brief of United States (Appellant) filed.

Copies (10) to appellee.

Supplement to Record on Appeal filed. Parties

notified.

* * * *

Appellee’s brief filed. Copies (10) to appel-

lant.

* * * *

Appellant's reply brief filed. Copies (10) to

appellee.

Argued and submitted on appeal.

— —

Proceedings

June 18, 1967

June 14, 1967

June 29, 1967

Oct. 9, 1967

July 17, 1969

Sept. 4, 1969

Sept. 11, 1969

Sept. 16, 1969

Sept. 80, 1969

Court entered order remanding the case to the

Indian Claims Commission with instructions

at set forth in the order. Copy to parties and

to Indian Claims Commission.

Appellant's motion for rehearing filed. Copies

(2) to atty.

Appellee’s motion to vacate order of remand

filed. Copy to appellant.

Appellant’s response to appellee’s motion to

vacate filed. Copies (2) to appellee.

Court entered order denying appellant’s mo-

tion for rehearing and appellee’s motion to

vacate order of remand and deleting and va-

cating words and punctuation appearing in

the order entered May 15, 1967, as set forth

therein. Copy to parties and to Indian Claims

Commission.

Additional findings of fact of Indian Claims

Commission filed by Clerk of the Commission.

Parties notified.

Appellant’s motion to set case for additional

argument filed. Copies (4) to appellee. AL-

LOWED SEP 15 1969 and set for argument

on the November, 1969, calendar.

Appellee’s response to motion to set case for

additional argument filed. Copies (3) to ap-

pellant.

Appellee’s motion for leave to file supple-

mental citations of authority filed. Copies (3)

to appellant. ALLOWED SEP 30 1969.

Appellee’s supplemental citations of authority

filed. Copies (3) to appellant.

Nov. 3, 1969

Mar. 20, 1970

May 28, 1970

Aug. 12, 1970

Nov. 19, 1970

Nov. 25, 1970

Argued and submitted on appeal from the In-

dian Claims Commission. Notice to I. C. C.

of compensation due in accordance with the

opinion. Opinion by Judge Nichols. Dis-

senting opinions by Judge Skelton and Chief

Judge Cowen.

Appellant’s request for writ of certiorari filed.

Copies (5) to appellee.

Notice of filing in the Supreme Court of the

United States of petition for certiorari on

August 10, 1970, No. 515, October Term, 1970.

Notice to I.C.C.

Order of the Supreme Court dated November

16, 1970 allowing certiorari filed. (Request for

transmittal of record contained in covering

letter from Supreme Court Clerk).

Record in re certiorari forwarded to Clerk,

Supreme Court of the United States. (No

fee—U:S.)

[Title Omitted in Printing]

BEFORE THE INDIAN CLAIMS COMMISSION

No.

SOUTHERN UTE TRIBE OR BAND OF INDIANS, PETITIONER

vs.

THE UNITED STATES OF AMERICA, DEFENDANT

PETITION

Petitioner, the Southern Ute Tribe or Band of Indians,

respectfully represents:

1. Petitioner: The petitioner is a tribe or band of

Indians maintaining an organization known and recog-

nized by defendant as the Southern Ute Tribe of the

Southern Ute Reservation, whose members reside gen-

erally on the Southern Ute Reservation in Colorado.

2. Statutory Authority for Suit: This petition is filed

under and pursuant to the Act of August 13, 1946 (60

Stat. 1049), conferring jurisdiction on the Indian Claims

Commission to hear and adjudicate claims of tribes, bands

or identifiable groups of American Indians against the

United States, and the claims herein are asserted under

Section 2 of said act.

3. Attorneys’ Contract: Petitioner has entered into a

contract with Wilkinson, Boyden & Cragun, a law part-

nership composed of Ernest L. Wilkinson, John S. Boy-

den, John W. Cragun and Glen A. Wilkinson, to prose-

cute its claims against the United States, which contract

has been duly approved by the Commissioner of Indian

Affairs, for and in behalf of himself and the Secretary of

— Interior, as required by law, and is in full force and

ect.

4. Claims Not Pending: No claim asserted herein, nor

any part thereof, is included in any suit pending in the

Court of Claims or in the Supreme Court of the United

States, and no claim asserted herein, nor any part there-

has been filed in the Court of Claims under legislation

effect August 13, 1946, the date of approval of the

thereof, except as hereinafter set forth, and is justly en-

titled to recover therefor from the United States, after

the allowance of any credits or set-offs.

6. Defendant Owes Fiduciary Duty: At all times men-

tioned in this petition, defendant was the guardian and

trustee of the property and affairs of the petitioner; as

such defendant was subject to a high degree of fiduciary

obligation and was required to deal fairly and honorably

with petitioner, its property and property rights.

. Prior Action by Congress: No action has been taken

by Congress, nor by any of the departments of defendant,

with respect to the claims herein asserted, except that

Congress by Act of August 18, 1946 (60 Stat. 1049)

provided a forum for the litigation of said claims.

8. Unlawful Disposal of Land and Failure to Account:

a. By Act of Congress of June 15, 1880 (21 Stat. 199),

the Confederated Bands of Ute Indians, which included

petitioner, ceded to the United States “all the territory of

the present Ute Reservation in Colorado,” composed of

nearly 16,000,000 acres of land, except “the unoccupied

agricultural lands on the La Plata River” on which mem-

bers of the petitioner agreed to “remove and settle” and

which was to constitute a reservation for petitioner.

b. By Section 3 of the Act of Congress of February

20, 1895 (28 Stat. 676), the reservation promised to

petitioner by the Act of June 15, 1880, supra, was de-

scribed as follows:

— —

“* * * there shall be, and is hereby, set apart and

reserved all that portion of their present reservation

lying west of the range line between ranges

and fourteen west of the New Mexico principal meri-

dian, and also all of townships thirty-one and thirty-

two of ranges fourteen, fiteen, and sixteen west of

the New Mexico principal meridian and lying in the

Territory of New Mexico, subject, however, to the

right of the Government to erect and maintain agency

buildings thereon and to grant rights of way through

the same for railroads, irrigation ditches, highways,

and other necessary purposes; and the Government

shall maintain an agency at some suitable place on

said lands so reserved.”

c. The reservation described in paragraph 8b contained

approximately 1,075,000 acres. By proclamation of the

President of April 18, 1899 (31 Stat. 1947), in accord-

ance with the provisions of the Act of February 20, 1895,

supra, approximately 523,079 acres of that reservation

were opened to settlement and disposal under the public

land laws, and approximately 157,641 acres were set aside

in a schedule of legal descriptions thereto attached for

the selection of allotments by the Indians. The approxi-

mately 528,079 acres opened to settlement and disposal

are described in said proclamation as follows:

“* * * Beginning at the point established by S. 8.

Gannett, Special Indian Agent, in June, 1897, at the

intersection of the 107th meridian and the 37th par-

allel of latitude; thence north 15 miles along the

eastern boundary of the reservation; thence westerly

along the north boundary of the Southern Ute In-

dian Reservation to its intersection with the range

line between ranges thirteen and fourteen west of

the New Mexico Principal Meridian; thence south

fifteen miles on said range line to the south boundary

of the State of Colorado; thence easterly along the

south boundary of the State of Colorado to the place

of beginning.”

Under the Act of February 20, 1895, supra, the lands

within the area so described could be disposed of under

the desert, homestead and townsite laws and under the

al, mineral, stone and timber laws, except that no home-

stead settlers should receive title to any portion of such

lands at less than $1.25 per acre.

d. Under the Act of February 20, 1895, supra, from

the moneys realized from the sale of said lands, there

was to be paid to the Indians in the manner provided

therein the sum of $50,000; an additional $20,000 was

to be invested in sheep to be divided per capita among

the Indians; an additional $2,000 was to be paid to cer-

tain chiefs of the tribes and “the balance of the money

realized from the sale of the lands, after deducting ex-

of sale and survey,” was to “be held in the Treas-

ury of the United States in trust for the sole use and

benefit of said Southern Ute Indians.”

e. Purporting to act under the authority of the afore-

said acts and proclamation, or otherwise, defendant there-

after unlawfully disposed of the following acreages of

land, comprised within the area of the approximately

523,079 acres referred to in paragraph 8c hereof, for

which petitioner is informed defendant received no com-

pensation and consequently made no accounting to peti-

tioner :

Free Homesteads 219,087.89 acres, more or less

Soldiers’ Additional Homesteads 480.51 acres, more or less

Other Reservations of Land 360.00 acres, more or less

Homestead Applications 617.27 acres, more or less

220,495.17 acres, more or less

f. In addition, defendant has disposed of the following

acreages of land comprised within the area of the ap-

proximately 523,079 acres enumerated in paragraph 8c

hereof, for which petitioner is informed defendant re-

ceived proceeds in an amount unknown to petitioner but

known to defendant, of which defendant has made no

accounting to petitioner:

Desert Entries 45,452.48 acres, more or less

Timber and Stone Entries 18,208.78 acres, more or less

Cash Entries 16,840.59 acres, more or less

Isolated Tracts 1,407.87 acres, more or less

Public Sales

468.51 acres, more or less

80.00 acres, more or less

81,953.18 acres, more or less

g. From the approximately 157,641 acres referred to

in paragraph 8c hereof (set aside for allotments), ap-

proximately 63,045.61 acres were allotted to the Indians,

leaving approximately 94,596.39 acres unallotted.

h. From the approximately 523,079 acres referred to

in paragraph 8c hereof (set aside for settlement and dis-

posal under the public land laws), approximately 220,630

acres were not sold or entered under the public land laws.

i. By an order of the Secretary of the Interior of

September 14, 1936, acting under authority of Section 3

of the Act of June 18, 1934 (48 Stat. 984), all the un-

allotted and undisposed of lands offered for settlement

and entry, containing approximately 315,227 acres, were

restored to and made part of the Southern Ute Reserva-

tion.

9. Damages:

Coal Cash Entries

a. The disposal of the approximately 220,495.17 acres

of land by defendant was in violation of the Acts of June

15, 1880 and February 20, 1895, and the proclamation of

the President of April 13, 1899 constituted a taking of

said land, resulting in damage to petitioner in an amount

equivalent to the value of said land at the time of taking

together with a sum sufficient to compensate petitioner

for the damage resulting from the delay in payment.

b. The disposal of the approximately 220,495.17 acres

of land by defendant, contrary to the aforesaid statutes

and proclamation, constituted unfair and dishonorable

conduct on the part of defendant and caused damage to

petitioner in an amount equivalent to the value of said

land at the time of taking together with a sum sufficient

to compensate petitioner for the damage resulting from

the delay in payment.

e. Defendant's failure to account for the proceeds from

approximately 81,953.18 acres disposed of as set forth in

paragraph 81 was in violation of the aforesaid statutes

and proclamation and the obligation imposed upon a

trustee, and caused damage to petitioner in an amount

to that received by defendant, which amount is un-

mown to petitioner, but is known to defendant.

d. Defendant’s failure to account for the proceeds from

the sale of approximately 81,953.18 acres constituted un-

fair and dishonorable conduct on the part of defendant,

and ea damage to petitioner in an amount equal to

that received by defendant, which amount is unknown to

petitioner, but is known to defendant.

10. WHEREFORE, petitioner prays that judgment be

warded to it under categories (1), (3) and (5) of Sec-

quired to render a true, complete and proper accounting

for the proceeds received by it from the disposal of the

approximately 81,953.18 acres of land, less any proper

credits or set-offs, and for such other and further relief

as the Commission may deem fair and equitable.

Respectfully submitted,

ERNEST L. WILKINSON,

Attorney of Record,

744 Jackson Place, N. W.,

Washington 6, D. C.

Francis M. GOODWIN,

JoHN W. CRAGUN,

GLEN A. WILKINSON,

Of Counsel.

(6392)

[Title Omitted in Printing]

ANSWER

Comes now the defendant, by its Assistant Attorney

General, and for its answer to the petition filed herein,

alleges and states as follows:

First Defense

1. The petition fails to state a claim upon which re-

lief can be granted.

Second Defense

2. Each and every of the claims and causes of action

set out in the petition have been adjudicated by final

judgments of the Court of Claims as hereafter set out.

3. In Court of Claims case No. 30360, deeided May

23, 1910 (45 C. Cls. 440, 453, 471), the Ute Indians, in-

cluding petitioner’s predecessors in interest, were award-

ed the net sum of $3,408,611.40 as the proceeds of all cash

sales and the value of lands reserved for public uses from

the lands ceded under the Agreement of June 15, 1880,

up to July 1, 1908. The parties plaintiff to that action

are set out in the Court’s Finding I (45 C. Cls. pp. 442-

443), and that the lands there involved included the lands

complained of in the petition herein appears from the

Court’s Findings IV-V (pp. 445-449) and from the con-

struction of the Agreement of June 15, 1880 (21 Stat.

199), and subsidiary agreements and acts, in the opinion

of the Court (pp. 456-461). The accounting in case No.

30360 was extended to June 30, 1910, by decision of the

Court of Claims of February 13, 1911 (46 C. Cis. 225).

4(a). Thereafter Sections 1 and 6 of the Act of June

28, 1988 (52 Stat. 1209), as amended, authorized and

virtually directed the Court of Claims to adjudicate all

remaining claims on the part of the Ute Indians, or any

tribe or band thereof, including compensation for any

lands formerly belonging to said bands of Ute Indians,

or any of them, taken by the United States without com-

pensation or disposed of in any manner whereby the said

Indians were deprived of the use and benefits of such

8. The exhaustive investigation and prosecution of

all valid claims under this act, including all possible

daims arising out of the transactions alleged in the peti-

tion herein, are summarized in tre decision of the Ccurt

of Claims awarding attorneys’ fees in the Confederated

of Ute Indians v. The United States, decided No-

vember 6, 1951 (120 C. Cls. 609, Fdgs. 23-28, pp. 621-

627). Judgments in decided cases, totaling over $31,-

000,000, are listed in finding 1 (p. 610) and the issues

involved are analyzed in findings 47-69 (pp. 635-648).

5(a). Cases numbered 45585, 46640, 47564 and 47566

all terminated in simultaneous judgments on stipulations

entered July 18, 1950 (117 C. Cls. 433-440) in favor of

plaintiffs, including petitioner herein.

(b). The stipulation for final judgment and the final

judgment entered in Court of Claims case No. 46640

(117 C. Cis. 486-488) are specifically pleaded as a bar

and estoppel to the claims asserted in the petition. Case

No. 46640 was filed October 15, 1945. The petition was

amended March 19, 1947, and the cause was prosecuted

under the Act of June 28, 1938, as amended, and under

the pertinent sections of the Indian Claims Commission

Act.

all allowable offsets, of over $6,000,000.00, for the com-

plete extinguishment of plaintiffs’ right, title, interest,

estate, claims and demands of whatsoever nature in and

to the land and property in western Colorado ceded by

plaintiffs to defendant by the Act of June 15, 1880, which

the United States had sold for cash between July 1, 1910,

and June 28, 1938, disposed of as free homesteads from

December 19, 1885, to June 28, 1938, and set aside for

public purposes during the period June 30, 1910, to June

27, 1938. The stipulation provides:

* * * So far as the parties with diligence have been

able to determine these descriptions represent all the

land so disposed of and set aside. However, the

judgment to be entered in this case is res judicata,

ing the aforesaid periods of time sold for cash, dis-

posed of as free homesteads and set aside for public

purposes.

The matter of division and distribution of the judgment

among 23 several bands, which ineluded petitioner, was

reservi

Third Defense

6. There is a fatal defect of parties plaintiff as here-

after set out.

7. As appears from the second defense, the bands or

tribes of Ute Indians which joined in the Agreement

ratified by the Act of June 15, 1880, are real and neces-

sary parties in interest to the claims asserted in the

petition.

8. The “Southern Utes,” referred to in the Agreement

of 1880 and at all times ‘subsequent thereto down to the

Indian Reorganization Act of June 18, 1934 (48 Stat.

984), consisted of the Capote, Muache and Weeminuche

Bands of Ute Indians. The “Southern Utes,” as so used,

are now divided into the Southern Ute Tribe, petitioner

herein, and the Ute Mountain Tribe (100 C. Cls. p. 415).

The Ute Mountain Tribe or Band has an interest in the

subject matter of the claims asserted in the petition and

is a necessary party to this proceeding.

Fourth Defense

9. The allegations of paragraph 1 of the petition are

denied, except it is admitted that petitioner is now an

organization or association known and recognized under

the name of Southern Ute Tribe of the Southern Ute

Reservation.

10. The allegations of paragraph 2 of the petition are

admitted, except that it is denied that the claims set out

in the petition are maintainable under Section 2 of the

Claims Commission Act.

11. The allegations of paragraph 3 of the petition are

gdmitted to the extent that they are supported by the copy

of said contract on file with this Commission and by the

original thereof.

12. The allegations of paragraph 4 of the petition con-

stitute a negative pregnant and, as such, an admission

that the claims, in whole or in part asserted in the peti-

tion, have been included in suits not pending, but deter-

mined in the Court of Claims or in the Supreme Court

of the United States and that said claims have been filed

in the Court of Claims under legislation not in effect on

August 13, 1946. As appears in defendant’s second de-

fense, the admission is substantially correct, except that

by amendment the authorizing act for previous cases

was extended through August 13, 1946.

13. The allegations of paragraph 5 of the petition are

denied.

14. Paragraph 6 of the petition states a conclusion of

law, which requires neither admission nor denial.

15. The allegations of paragraph 7 of the petition are

denied.

16(a). The allegations of paragraphs 8a through 8g

of the petition are contrary to the findings and opinions

of the Court of Claims in cases No. 80360 (45 C. Cls.

pp. 445-449, 454-455, 456-461) and No. 45585, decided

October 4, 1943 (100 C. Cls. 413, 415-418) and are de-

nied, except as stated in said cases and as appear in the

related public acts and documents.

(b). In response to paragraphs gh and Si of the peti-

tion, it is admitted that certain unallotted and undis-

of lands were returned to tribal ownership as set

out in the Order of the Secretary of the Interior of Sep-

tember 14, 1936 (5 Kappler 659), and all other allega-

tions are denied.

17. The allegations of paragraphs 9a through 9d of

the petition are denied on the basis of the adjudications

of the Court of Claims heretofore pleaded in defendant’s

second defense and more particularly case No. 30360 and

case No. 46640.

Fifth Defense

18. Defendant says that it has from time to time, al-

though under no obligations to do so, expended on behalf

of petitioner and petitioner’s predecessors in interest

various sums of money out of gratuity appropriations,

that accountings have been previously made therefor in

the various Court of Claims actions hereinbefore alleged,

but if liability is adjudged said accountings may have

to be re-examined and restated and will therefore be

subsequently set forth by an amendment hereto pursuant

to Rule 12 of this Commission, if it should be determined

that the defendant is liable to petitioner in any amount.

19. While at all times asserting that petitioner has

no interest in and to the subject matter of the several

claims set forth in the petition filed herein and that said

claims are not actionable, defendant further alleges that,

if any sum should be found to be due by this Commission,

petitioner is not entitled to any interest thereon.

WHEREFORE, having fully answered the petition this

defendant prays:

1. That this cause be set down for preliminary hear-

ing on the question of liability, and

2. That the petition be dismissed and the petitioner

recover nothing from the defendant.

PERRY W. MorTON,

Assistant Attorney General.

W. BRAXTON MILLER,

Attorney for Defendant.

[Certificate Omitted in Printing]

—

[Title Omitted in Printing]

PETITIONER'S EXCEPTIONS TO DEFENDANT'S ACCOUNTING

Petitioner, the Southern Ute Tribe or Band of Indians,

takes exception to defendant’s accounting in this pro-

ceeding in the following respects:

1. Petitioner excepts to any delay of more than 30

days in covering any of petitioner’s interest-bearing

moneys into the United States Treasury after they had

been received by defendant’s agents, and to the failure

of defendant to account for interest lost to petitioner

through any delay of more than 30 days in depositing

moneys in interest-bearing accounts.

2. Petitioner excepts to the failure of defendant to

disclose the length of time during which petitioner’s

moneys were withdrawn from interest-bearing accounts

and held in noninterest-bearing status before the moneys

30 withdrawn were expended by defendant’s agents or

restored to interest-bearing status, and to show the

amount of interest lost to petitioner while its moneys

were held in noninterest-bearing status.

3. Petitioner excepts to the failure of defendant to

credit interest at the rate of 5% on petitioner’s tribal

fund: “Proceeds of Southern Ute Reservation” and the

failure to show the amount of interest lost to petitioner

through the failure to credit the fund with interest as

required by law.

4. Petitioner excepts to the erroneous transfer from

its fund “Proceeds of Southern Ute Reservation” of

$193.25 to the “Confederated Bands of Utes 4% Fund”,

and to the failure of defendant to account for the inter-

est lost to petitioner as a result of the erroneous transfer.

5. Petitioner excepts to the erroneous transfer from

its fund “Interest on Proceeds of Southern Ute Reser-

vation” of $800.00 to the fund “Interest on Ute 5%

Fund, Southern Ute”.

6. Petitioner excepts to the use of its tribal funds for

all agency, educational and other expenses which were

obligations of defendant, and to the failure of defendant

to disclose (a) the amount of petitioner’s tribal funds

expended for obligations of the defendant and (b) the

amount of interest lost to petitioners as a result of this

improper use of its funds. The purposes for which peti-

tioner’s funds were used, which appear on their face to

be improper as a use of trust funds to discharge the

defendant’s personal obligations, are listed as follows

(GAO Rept., pp. 19-27, 28-36) :

Agency buildings and repairs Miscellaneous building

material

Agricultural aid Operation of coal mine

Agricultural implements and equipment Pay of carpenters

Automobiles, vehicles, maintenance and

repairs Pay of clerks

Clothing Pay of farmers

Development of Oxford tract Pay of teamsters

Fuel, light, water and sewage Pay of truck drivers

Exhibit hall Pay of herders and stock-

men

Hardware, glass, oils and paints Pay of interpreters

Household equipment and supplies Pay of laborers

Livestock Pay of mechanics

Maintaining law and order Pay of sawmill employees

Medical expenses Provisions

Mills and shops Roads and bridges

Miscellaneous agency expenses Transportation, etc., of

supplies

7. Petitioner excepts to defendant’s disbursements

from its funds which bore interest or a higher rate of

interest when money was or would have been available

from other funds bearing no interest or a lesser rate of

interest if defendant had discharged its fiduciary obliga-

tions in the light of the foregoing exceptions, and to the

failure of defendant to account for the amount of inter-

est lost to petitioners through disbursements from inter-

est-bearing funds when funds bearing no interest or a

lesser rate of interest were or should have been available.

Wherefore, petitioner demands that defendant account

in those material respects herein set forth and that judg-

ment be had by petitioner for any amounts found to be

due and owing to it as a result of defendant’s use of its

funds.

Respectfully submitted,

JOHN W. CRAGUN

Attorney of Record

WILKINSON, CRAGUN & BARKER

CLARON C. SPENCER

Of Counsel

[Title Omitted in Printing]

First AMENDMENT TO PETITIONER’S EXCEPTIONS

TO DEFENDANT’S ACCOUNTING

The petitioner’s initial exceptions to defendant’s ac

counting filed on June 11, 1963, are hereby amended by

adding thereto the following paragraphs:

“8. Petitioner excepts to the failure of defendant to

credit interest at the rate of 5% on petitioner’s tribal

fund: Indian moneys, Proceeds of Labor, Southern Ute

Indians, and to the failure to show the amount of inter-

est lost to petitioner through the failure to credit interest

as required by law.”

9. Petitioner excepts to the inadequacy of defend-

ant’s purported accounting on the further ground that

it has not been brought up to date and, therefore, does

not reflect what has been done with petitioner’s money

since 1951 when the initial General Accounting Office

report was closed.”

Paragraph 6 of the initial exceptions is amended to

expand the citation in parentheses to include pages 511

to 519 in the GAO report for the Court of Claims case

No. 47567.

The amendment is necessary. After the initial excep-

tions had been filed and during an investigation into the

General Accounting Office records in the pending Court

of Claims case Confederated Bands of Ute Indians v.

United States, No. 47567,* counsel discovered the exist-

ence of a Southern Ute fund in the Treasury entitled

Indian Moneys, Proceeds of Labor, Southern Ute In-

dians. Certain important information pertaining to this

* No. 47567 in the Court of Claims is a general accounting case

for the Confederated Bands of Ute Indians and deals with Confeder-

ated Ute funds arising from the former Confederated Ute reserva-

tion in Colorado. No. 47567 does not involve funds belonging solely

to the Southern Ute tribe. It does not involve any money or funds

arising from Southern Ute ownership of the Southern Ute Reser-

vation.

fund had been placed in the GAO report for the Court

of Claims case No. 47567 instead of in the GAO report

prepared for this case.

By the addition of paragraph 8 and the addition to

the initial paragraph 6 in its exceptions, petitioner places

in issue the defendant’s handling of petitioner’s

of Labor fund on the same grounds applied to the other

JoHN W. CRAGUN

Attorney of Record

WILKINSON, CRAGUN & BARKER

CLARON C. SPENCE!

Of Counsel

[Certificate Omitted in Printing]

17 Ind. Cl. Comm. 28

BEFORE THE INDIAN CLAIMS COMMISSION

Docket No. 328

SOUTHERN UTE TRIBE OR BAND OF INDIANS, PETITIONER

THE UNITED STATES OF AMERICA, DEFENDANT

Decided: May 6, 1966

FINDINGS OF FACT

The Commission makes the following findings of fact:

1. Petitioner, the Southern Ute Tribe of the Southern

Ute Reservation, Colorado, organized and incorporated

under the Indian Reorganization Act and composed of

the allotted Moache and Capote Bands of Ute Indians,

seeks to recover (1) just compensation for its lands taken

and disposed of by the United States and (2) for the

wrongful use by the United States of the proceeds of

other lands of petitioner.

2. The lands involved in this proceeding lie within

the boundaries of the present day Southern Ute Indian

Reservation. The reservation was originally part of a

larger reservation in western Colorado to which the

Moache and Capote Bands, together with other Ute In-

dian bands, compositely known as the Confederated Bands

of Ute Indians, held recognized title pursuant to a treaty

negotiated on March 2, 1868.

3. Historically, the Moache and Capote Bands, to-

gether with the Weeminuche Band of Ute Indians, re-

sided on the southern part of the 1868 reservation where

a separate agency was established for them on the Rio

de los Pinos in accordance with Article IV of the 1868

Treaty. Pursuant to an agreement set forth in the Act

of June 15, 1880 (21 Stat. 199), the Confederated Bands

of Ute Indians relinquished their Colorado lands in trust

to the United States except such lands as were reserved

for the Uncompahgre Utes and for the Moache, Capote

and Weeminuche Bands (referred to in the agreement

as Southern Utes”), to reside upon. Thereafter, the

Uncompahgre Band and other Ute Indian groups, iden-

tified as the White River Band, left Colorado and re-

moved to Utah, while the “Southern Utes” remained in

Colorado in the southern part of the 1868 reservation.

4. The Act of July 28, 1882 (22 Stat. 178), provided

as follows:

* * * That all of that portion of the Ute Indian

Reservation in the State of Colorado lately occupied

by the Uncompahgre and White River Utes be, and

the same is hereby, declared to be public land of the

United States, and subject to disposal from and after

the passage of this act, in accordance with the pro-

visions and under the restrictions and limitations

of section three of the Act of Congress approved

June fifteenth, eighteen hundred and eighty, chapter

two hundred and twenty-three, except as hereinafter

provisions of this act.

SEC. 2. That the Secretary of the Interior shall,

at the earliest practicable day, ascertain and estab-

lish the line between the land mentioned in section

one of this act and that now or lately occupied by

the Southern Utes in said State; and for that pur-

there is hereby appropriated, out of any money

in the Treasury of the United States not otherwise

appropriated, the sum of five hundred dollars.

SEC. 3. That all entries, settlements, or locations

heretofore made, under any law of the United States,

by duly-qualified persons, upon a strip of land ex-

tending northerly and southerly, not exceeding ten

ziles in width, within that part of the Ute Indian

Reservation in the State of Colorado lately occupied

by the Uncompahgre and White River Ute Indians,

and bounded on the east by the one hundred and

seventh meridian of longitude west from Greenwich,

shall legally date from the time they were respec-

tively made; and the rights of said persons shall be

in all respects the same as if the lands had been

legally subject to their claims when the same were

initiated: Provided, however, That if homestead en-

tries have been made on said strip, the lands 80 en-

tered shall be paid for in cash, after proof which

would be satisfactory under the pre-emption laws:

And provided, further, That none of said lands shall

be disposed of for any consideration other than

nor for a less price than one dollar and twenty-five

cents per acre.

5. Under authority of the Act of June 15, 1880 (21

Stat. 199), and the Act of July 28, 1882 (22 Stat. 178),

and within the original reservation established in 1868,

@ reservation was surveyed for the “Southern Utes”,

Moache, Capote and Weeminuche Bands approximately

110 miles long, east and west, and 15 miles wide, identi-

fied as Royce Area No. 617, Colorado. The Moache and

Capote Bands resided in the eastern part and the Wee-

minuche Band resided in the western part of the newly

surveyed reservation.

6. By the Act of May 1, 1888 (25 Stat. 113, §4),

Congress authorized negotiations with the Moache, Ca-

pote and Weeminuche Bands as follows:

The Secretary of the Interior is hereby authorized

to appoint a commission, consisting of three ns,

with authority to negotiate with the band of Ute

Indians of southern Colorado for such modification

of their treaty and other rights, and such exchange

of their reservation, as may be deemed desirable by

said Indians and the Secretary of the Interior; and

said commission is also authorized, if the result of

such negotiations shall make it necessary, to nego-

tiate with any other tribe of Indians for such por-

tion of their reservation as may be necessary for

said band of Ute Indians of southern Colorado if

said Indians shall determine to remove from their

present location; the report of said commission to

be made to and subject to ratification by Congress

before taking effect; and for this purpose the sum

of then thousand dollars, or so much thereof as may

be necessary, is hereby appropriated, which shall be

immediately available.

The Commissioners appointed to negotiate with the In-

dians were successful in obtaining an agreement whereby

the Indians would exchange their reservation in Colorado

for a new reservation in the Territory of Utah, but Con-

gress declined to act upon the agreement and, instead,

passed the Act of February 20, 1895 (28 Stat. 677),

which provides in pertinent part as follows:

Smith, Thomas S. Childs, and R. B. Weaver, com

missioners on the part of the United States, with

the Southern Ute Indians of Colorado, bearing date

November thirteenth, eighteen hundred and eighty-

eight, be, and the same is hereby, annulled, and the

treaty made with said Indians June fifteenth, eight-

een hundred and eighty, be carried out as herein

provided, and as further provided by general law

for settling Indians in severalty.

SEC. 2. That within six months after the pas-

sage of this act the Secretary of the Interior shall

cause allotment of land, in severalty, to be made to

such of the Southern Ute Indians in Colorado as may

elect and be considered by him qualified to take the

same out of the agricultural lands embraced in their

present reservation in Colorado, such allotments to

be made in accordance with the provisions of the

Act of Congress approved June fifteenth, eighteen

hundred and eighty * * *. And the amendments

thereto, as far as applicable hereto, and the treaties

heretofore made with said Indians

SEC. 3. That for the sole and exclusive use and

occupancy of such of said Indians as may not elect

or be deemed qualified to take allotments of land in

severalty, as provided in the proceding section, there

shall be, and is hereby, set apart and reserved all

that portion of their present reservation lying west

of the range line between ranges thirteen and four-

teen west of the New Mexico principal meridian,

and also all of townships thirty-one and thirty-two

_—

of ranges fourteen, fifteen, and sixteen west of the

New Mexico principal meridian and lying in the

Territory of New Mexico

SEC. 4. That at the expiration of six months

from the passage of this Act the President of the

United States shall issue his proclamation declaring

the lands embraced within the present reservation

of said Indians except such portions as may have

been allotted or reserved under the provisions of the

preceding sections of this Act, open to occupancy

and settlement, and thereupon said lands shall be

and become a part of the public domain of the United

States, and shall be subject to entry under the desert,

homestead, and town site laws and the laws govern-

ing the disposal of coal, mineral, stone, and timber

lands; but no homestead settler shall receive a title

to any portion of such lands at less than one dollar

and twenty-five cents per acre, and shall be required

to make a cash payment of fifty cents per acre at

the time filing is made upon any of said lands * * *.

SEC. 5. That out of the moneys first realized

from the sale of said lands so opened up to public

settlement there shall be paid to said Indians the

sum of fifty thousand dollars, as follows: Five

thousand dollars annually for ten years, and, when

paid, the money to be equally divided among all of

said Indians per capita, irrespective of age or sex;

also the sum of twenty thousand dollars of said pro-

ceeds shall be paid to the Secretary of the Interior,

who shall invest the same ir sheep and divide the

said sheep among the said Indians per capita equal-

ly, irrespective of age or sex; also to Ignacio, head

chief; to Buckskin Charlie, as chief of the Moaches,

and Mariano, as chief of the Weeminuches, the sum

of five hundred dollars each; also to Tapucke and

Tabewatch, as chiefs of the Capotes, the sum of two

hundred and fifty dollars each; that the balance of

the money realized from the sale of lands, after de-

ducting expenses of sale and survey, shall be held

in the Treasury of the United States in trust for

the sole use and benefit of said Southern Ute In-

dians. That nothing herein provided shall in any

manner be construed to change or interfere W!

SEC. 6. That the foregoing provisions of this Act

take effect only upon the acceptance thereof

and consent thereto by 2 majority of all the male

adult Indians now located or residing upon the res-

ervation, which acceptance shall be at once obtained

under such regulations a5 the Secretary of the In-

treior may prescribe.

J. Following acceptance by the Indians of the provi-

gions of the Act of February 20, 1895, the Moache and

Capote Bands, occupying the eastern part of the original

reservation, accepted allotments, but the Weeminuche

8. The eastern part of the reservation occupied by the

Moache and Capote Bands, excepting allotted lands, was

opened to entry under the terms of the Act of February

20, 1895, by Presidential proclamation on April 13, 1899

(31 Stat. 1947). Years later, on September 14, 1938, all

of the opened lands which had not been disposed of by

the United States were restored by order of the Secretary

of the Interior, to tribal status as part of the present day

Southern Ute Reservation belonging to petitioner.

9, Following the opening of the Moache and Capote

lands to entry, Congress passed the Act of May 17, 1900

(31 Stat. 179), entitled “An Act Providing for Free

Homesteads in the Public Lands for Actual and Bona

CTC

Fide Settlers, and Reserving the Public Lands for that

Purpose.“ That Aet provides in pertinent part as follows:

That all settlers under the homestead laws of

the United States

ent with the Provisions

ed.

) home-

nd without

10. After the Moach

to entry in 1899 and bef,

of the Interior

in 19

Free homesteads 230,066.98 acres

Soldier’s additional homesteads 480.51 acres

Total 280,547.44 acres

No payment has been made to petitioner for the 230,-

547.44 acres of land so taken and disposed of. ;

11. From certain sales of petitioner’s lands the de-

fendant collected and deposited in the Treasury of the

United States in varying amounts, beginning July 26,

1899, and ending June 30, 1928, the total sum of 3215,

977.58. The proceeds of petitioner’s land sales were re-

corded on the books of the Treasury to petitioner’s credit

in a fund entitled “Proceeds of Southern Ute Reserva-

tion.” The United States thereby became the borrower of

petitioner’s money and had the use of it under Revised

Statutes § 3644 which provides:

All moneys paid into the Treasury of the United

States shall be subject to the draft of the Treasurer.

And for the purpose of payments on the public ac-

count the Treasurer is authorized to draw upon any

of the depositaries, as he may think most conducive

to the public interest and to the convenience of the

public creditors. Each depositary so drawn upon

shall make returns to the Treasury and Post Office

Departments of all moneys received and paid by him,

at such times and in such forms as shall be directed

4 the Secretary of the Treasury or the Postmaster

neral.

12, By the Act of April 1, 1880 (21 Stat. 70), Con-

gress authorized the Secretary of the Interior:

* * * To deposit, in the Treasury of the United

States, any and all sums now held by him, or which

may hereafter be received by him, as Secretary of

the Interior and trustee of various Indian tribes, on

account of the redemption of United States bonds, or

other stocks and securities belonging to the Indian

trust-fund, and all sums received on account of sales

of Indian trust lands, and the sales of stocks lately

purchased for temporary investment, whenever he

is of the opinion that the best interests of the In-

dians will be promoted by such deposits, in lieu of

investments; and the United States shall pay interest

semi-annually, from the date of deposit of any and

all such sums in the United States Treasury, at the

rate per annum stipulated by treaties or prescribed

by law, and such payments shall be made in the

usual manner, as each may become due, without

further appropriation by Congress.

The rate of interest to be paid on the proceeds of sales

of Indian trust lands is 5% as prescribed by Revised

Statutes § 3659:

All funds held in trust by the United States, and

the annual interest accuring thereon, when not other-

wise required by treaty, shall be invested in stocks

of the United States, bearing a rate of interest not

less than 5 per centum per annum.

No interest was paid on the proceeds of sales of peti-

tioner’s lands until January 31, 1930, when the fund

“Proceeds of Southern Ute Reservation” began to be cred-

ited with interest at 4% per annum, purportedly under

the authority of the Act of February 12, 1929 (45 Stat.

1164), as amended by the Act of June 13, 1930 (46 Stat.

584), which provides as follows:

That all funds with account balances exceeding $500

held in trust by the United States and carried in

principal accounts on the books of the Treasury De-

partment to the credit of Indian tribes, upon which

interest is not otherwise authorized by law, shall

bear simple interest at the rate of 4 per centum per

annum.

SEC. 2. All tribal funds arising under the Act

of March 3, 1883 (22 Stat. 590), as amended by the

Act of May 17, 1926 (44 Stat. 560), now included

in the fund “Indian Money, Proceeds of Labor,”

shall, on and after July 1, 1930, be carried on the

books of the Treasury Department in separate ac-

counts for the respective tribes, and all such funds

with account balances exceeding $500 shall bear sim-

_—

ple interest at the rate of 4 per centum per annum

from July 1, 1930.

SEC. 3. The amount held in any tribal fund ac-

count which, in the judgment of the Secretary of the

Interior, is not required for the purpose for which

the fund was created, shall be covered into the sur-

plus fund of the Treasury; and so much thereof as

is found to be necessary for such purpose may at

any time thereafter be restored to the account on

books of the Treasury without appropriation by Con-

SEC. 4. The interest accruing on Indian tribal

funds under this Act shall be subject to the same dis-

position as prescribed by existing law for the respec-

tive principal funds.

Interest credited on the fund “Proceeds of Southern Ute

Reservation” was reflected in the noninterest-bearing

fund “Interest on Proceeds of Southern Ute Reserva-

tion.”

13. The defendant has paid interest, under the Act

of April 1, 1880 (21 Stat. 70), on the money of other

Indians deposited in the Treasury after their lands were

opened and sold by defendant under statutory terms and

conditions substantially the same as those contained in

the Act of February 20, 1895 (28 Stat. 677 ).

14. From time to time, beginning on May 13, 1892,

and ending on June 29, 1940, the defendant also received

and deposited money belonging to petitioner in the Treas-

ury to petitioner’s account in the fund “Indian Moneys,

Proceeds of Labor, Southern Ute Indians.” The total

sum deposited was $19,124.22 derived from the following

sources :

Advertising fees Sale of farm and dairy

products

Coal royalties Sale of iron

Grazing fees Sale of livestock

Interest on official accounts

Lease of tribal lands Sale of rifles,

separator, and

typewriter

—

* for damages to telephone Sale of subsistence

Payments for railroad right of way Sale of timber

Payment for threshing services Sale of water

Rental of livestock Trespass fees

Rental of school building

Sale of agricultural implements

No interest was paid on any part of the money deposited

in the fund until January 9, 1931, when interest began

to be credited at 4% per annum and was recorded in the

fund “Interest on Proceeds of Labor, Southern Ute In-

dians.”

16. Petitioner has challenged the defendant’s use of

petitioner’s money for the following purposes, as listed

in defendant’s accounting:

Agency buildings and repairs Miscellaneous building

material

Agricultural aid Pay of carpenters

Agricultural implements and equipment Pay of clerks

Automobiles, vehicles, maintenance and

repairs Pay of farmers

Clothing Pay of teamsters

Development of Oxford tract Pay of truck drivers

Fuel, light, water and sewage Pay of herders and stock-

men

Exhibit hall Pay of interpreters

Hardware, glass, oils and paints Pay of laborers

Household equipment and supplies Pay of mechanics

Livestock Pay of sawmill employees

Maintaining law and order Provisions

Medical expenses Roads and bridges

Mills and shops Transportation, etc., of

supplies

Miscellaneous agency expenses

Inasmuch as the propriety of the above expenditures

by defendant remains to be determined, it will be neces-

sary to have further hearings and evidence with regard

to.

1 When the defendant expended moneys from peti-

tioner’s interest-bearing and noninterest-bearing funds,

the balances in noninterest-bearing funds were not ex-

bausted before expenditures were made from interest-

bearing funds, when both types of funds were equally

available for such expenditures.

If defendant had credited petitioner's two interest-

bearing funds with interest when the money came into

defendant’s possession beginning in 1892 and 1900, al-

lowing a reasonable period for delay in deposit, substan-

tial sums of noninterest-bearing funds would have been

available to free interest-bearing funds from the charges

which defendant made against those funds both before

and after interest began to be credited on those funds.

By reason of the expenditure of interest-bearing funds

before the expenditure of moneys from the noninterest-

bearing funds and by reason of the failure of defendant

to credit the interest-bearing funds with interest prior

to 1930, the plaintiff has lost interest upon its interest-

bearing funds. Since the interest so lost would have been

deposited in noninterest-bearing funds it has not been

available further to reduce expenditures from the inter-

est-bearing funds.

18. Defendant has acknowledged an erroneous credit

of $7.74 to the Confederated Bands of Ute Indians and

erroneous transfers of $193.25 from the “Proceeds of

Southern Ute Reservation” fund and $800 from the “In-

terest on Proceeds of Southern Ute Reservation” fund.

19. Petitioner is entitled to recover just compensation

for 230,547.44 acres of land taken by defendant and dis-

of as free homesteads or soldiers’ additional home-

steads, based upon the value of such lands as of the date

of taking together with interest sufficient to contribute

the present full equivalent of that value paid contempo-

raneously with the taking. The value of the land and

the date of taking will be determined at a subsequent

proceeding.

90. Petitioner is entitled to recover the total amount

by which its funds would have been increased (1) through

the payment of interest at 5% per annum, beginning not

later than 30 days after the money came into defendant's

possession, on moneys received by defendant from sales

of petitioner’s lands; (2) through the payment of inter-

est at 4% after July 1, 1930, on any other interest.

bearing moneys until actually expended by the defendant

for valid purposes; (3) if the erroneous transfers ac-

knowledged by defendant had not been made; and (4)

through expenditures from noninterest-bearing moneys

before expenditures from moneys which earned or should

have earned interest.

ARTHUR V. WATKINS

Chief Commissioner

Wu. M. Hott

Associate Commissioner

T. HAROLD Scorr

Associate Commissioner

[Title Omitted in Printing]

„ = be a

OPINION OF THE COMMISSION

Scott, Associate Commissioner, rendered the opinion of

the Commission.

Petitioner herein, the Southern Ute Tribe, a duly or-

‘ved tribe of Indians with the right to maintain this

action has, by petition duly filed, prayed the Commission

for judgment against defendant under Clauses 1, 3 and

5 of Section 2 of the Indian Claims Commission Act (60

Stat, 1049) “* * * for an amount which will provide

fair and just compensation for the approximately 220,-

495.17 acres of land unlawfully disposed of by defendant,

and that defendant be required to render a true, com-

plete and proper accounting for the proceeds received by

it from the disposal of the approximately 81,953.18 acres

of land, less any proper credits or set-offs, * * *”.

The specific allegations of the petition upon which

titioner relies as a basis for the above prayer are 8e

and 8f and the corresponding allegations of damages

found in 9a through 9d.

Paragraphs 8e and 9a and 9b concern themselves with

the disposal of Free Homesteads, Soldiers’ Additional

Homesteads, Other Reservations of Land, and Homestead

Applications. After a search of the records of the Bureau

of Land Management petitioner has increased the acreage

alleged to 280,547.44 acres and has dropped the Home-

stead Application class and the Other Reservations of

Land class.

Paragraphs 8f and 9c and 9d concern themselves with

certain other types of land disposals and request an ac-

counting for the proceeds therefrom alleged to have been

received by defendant.

Defendant relies upon the defenses of res judicata, de-

fect of parties, and lack of jurisdiction by the Commis-

sion based upon the alleged failure of petitioner to state

a cause of action for an accounting for certain funds

prior to the expiration of the date for filing claims before

this Commission, i.e., August 13, 1951.

2 —

Underlying the defense of res judicata is the contention

of defendant that all of the Colorado Reservation belong-

ing to the Confederated Bands of the Ute Indians was

ceded under the Treaty of June 15, 1880. This defense

is directed to the proposition of whether or not defendant

is liable to petitioner for the disposal of land under the

Free Homestead Law instead of by sale to settlers. In

order to properly assess this question it is necessary to

go into the background of the relationship between the

Ute Indians and defendant.

Under the Treaty of March 2, 1868 (15 Stat. 619) the

defendant granted a reservation in Colorado to the Tabe-

quache, Moache, Capote, Weeminuche, Yampa, Grand

River and Uintah Bands of Ute Indians.

These bands subsequently became known as the Un-

compahgre Utes (Tabequache), the Southern Utes (Mo-

ache, Capote, and Weeminuche), the White River Utes

(Yampa, Grand River, and Uintah) and the three groups

were known as the Confederated Bands of Utes, although

there was no formal confederation.

The part of this reservation occupied by the Southern

Utes lay along the southern border of the 1868 reserva-

tion and is today still designated as the Southern Ute

Reservation.

Under the Act of June 15, 1880 (21 Stat. 199) the

Confederated Bands of Utes relinquished their lands in

trust to the defendant except for certain lands reserved

for the Uncompahgre Utes and for the Moache, Capote

and Weeminuche Bands, referred to in said Act as the

Southern Utes.

The Act of July 28, 1882 (22 Stat. 178) provided for

the opening of the lands lately occupied by the Uncom-

pahgre and White River Utes and for the surveying of

the line between the land so opened and that occupied by

the Southern Utes.

This line established a boundary between the Southern

Utes and the lands opened for sale. This created a strip

of territory 110 miles long by 15 miles wide. The strip

had already been created in fact as a result of the Brunot

Cession of 1874 which took a portion of the Ute reserva-

tion prior to the Cession of June 15, 1880 (21 Stat. 199).

(See Docket No. 927, 11 Ind. Cl. Comm. 180) This 110

mile long area is referred to as Royce Area 617, Colorado.

The Moache and Capote Bands resided in the eastern

and the Weeminuche Band resided in the western

of the area. :

By the Act of May 1, 1888, Congress authorized the

sion and the Southern Utes, Congress declined to ratify

it and, instead, passed the Act of February 20, 1895 (28

Stat. 677) which provided that the Treaty of June 15,

1880 be carried out. Section 2 of the Act of 1895 stated

that allotments would be made to the Southern Utes

4e * * out of the agricultural lands embraced in their

resent reservation in Colorado * * *” as provided in

the Act of June 15, 1880. 4

Section 3 of the 1895 Act / made provision for those

Southern Utes who did not tage allotments to occupy that

part of “* * * their present rvation * * which lay

west of the range line betw ranges thirteen and four-

teen west of the New Mexico principal meridian and

added all of Townships 91 and 32 of Ranges 14, 15 and

16 west of the New Mexico principal meridian and lying

in the Territory of New Mexico.

Section 4 provided for the opening of the remainder

of the lands by Presidential Proclamation after six

months from the passage of the Act, said lands to become

thereafter a part of the public domain “* * * and shall

be subject to entry under the desert, homestead, and town

site laws and the laws governing the disposal of coal,

mineral, stone, and timber lands; but no homestead set-

tler shall receive a title to any portion of such lands at

less than one dollar and twenty-five cents per acre, and

shall be required to make a cash payment of fifty cents

— Pras at the time filing is made upon any of said

Section 5 provided for compensation to the Southern

Utes and “* * * that the balance of the money realized

from the sale of lands, after deducting expenses of sale

and survey, shall be held in the Treasury of the United

States in trust for the sole use and benefit of said South-

ern Ute Indians. * * *”.

Section 6 stated that the provisions of the Act should

take effect only upon the acceptance thereof and consent

thereto by a majority of all the male adult Indians then

located or residing upon the reservation.

The consent of the Southern Utes was duly obtained

and the Moache and Capote Bands accepted allotments

in the eastern part of the area and the Weeminuche, de-

clining allotments, remained on the western part, includ-

ing the area of New Mexico which was added by the 1895

Act. This group is now known as the Ute Mountain Tribe

of the Ute Mountains Reservation.

On April 13, 1899 (31 Stat. 1947) the remaining un-

allotted lands in the eastern part of the area were opened

to public entry. That portion of be lands which had

not been disposed of was returned to tribal ownership

on September 14, 1938.

From the above summary of the background of the

relations between petitioner and defendant since the 1880

Agreement, it seems apparent that defendant has by its

actions acknowledged the contention of petitioner that

the area known as the Southern Ute Reservation was not

ceded by the 1880 Agreement. Defendant’s contention

that the language of the 1880 Agreement is plain and

that it ceded all of the Colorado land belonging to the

entire Ute Indian group, except that to be allotted, can-

not stand in the face of the treatment by defendant of

that portion of the lands occupied by the Southern Utes.

Every action by defendant concerning the Southern Ute

Reservation has been based upon the proposition that

the Southern Utes were still the rightful owners of the

area. The two ultimate acts along that line were the

1895 Act which placed the proceeds of actual sales in a

Southern Ute trust fund and the restoration of the undis-

posed of lands to Southern Ute tribal ownership in 1938.

The further argument is made that the Act of July

1882 (22 Stat. 178) and the Act of February 20, 1895

(28 Stat. 677) were supplementary to the 1880

ment (21 Stat. 199) and were merely an attempt to

force compliance by the Southern Ute with the terms of

the 1880 Agreement wherein they had agreed to accept

- gllotments.

This argument would be more persuasive were it not

's subsequent action. Defendant has not

followed a course of conduct with regard to the Southern

Ute Reservation which tends to verify such a construc-

tion. On the contrary, as briefly outlined above, the ac-

tions of defendant have been overwhelmingly opposed to

tion in this regard is the treatment accorded the same

ent when it was used by defendant in the case of

Confederated J The United States,

100 C. Cis. 413, 429-433. There the Court held that de-

fendant acquired under the Agreement of 1880 only the

right to sell the lands for the Utes and not the lands

themselves. Consequently it was held that the taking in

that instance occurred under the Adams amendment in

1938 unless the land had been disposed of earlier to indi-

boundaries of the 110 mile long by 15 mile wide area were

acknowledged by defendant as never having been disposed

of by the Southern Utes under the 1880 Agreement. In

this instance the term Southern Utes is used to include

all three bands because up until the separation of the

Weeminuche Band under the Act of February 20, 1895

(28 Stat. 677) they too had an interest in the whole.

There is, however, no claim made herein by the present-

day Southern Utes for any of the reservation set apart

for the present-day Ute Mountain Utes under the 1895

Act.

Defendant’s reliance upon Court of Claims case No,

30360, The Ute Indians v. The United States, 45 C. Cig

440, is misplaced in view of the Commission’s decision

that the June 15, 1880 Agreement (21 Stat. 199) did

not effect the disposition of the Southern Ute Reserva-

tion. The accounting had in that case which included

any of the Southern Ute lands disposed of under the

February 20, 1895 Act (28 Stat. 677) was clearly be

yond the jurisdiction of the Court of Claims under the

terms of the Jurisdictional Act of March 3, 1909 (35

Stat. 788-789) which conferred jurisdiction upon the

Court to carry out the terms of the June 15, 1880 Agree.

ment.

The error which caused the proceeds already placed to

the credit of the Southern Ute Tribe to be included in

that judgment was just that, an error on the part of all

concerned. Under the terms of the 1895 Act those funds

had been handled separately from the funds of the other

Ute tribes. The lands had been opened at different times

by different acts from those involving the Confederated

Ute lands and the money had been placed in a trust fund

to the credit of the Southern Utes, whereas the money

received from land sales under the 1880 Agreement was

placed to the public treasury instead of to the credit of

the Confederated Utes.

Defendant also relies upon other litigation between the

Confederated Ute Bands and itself. Specifically, defend-

ant pleads the cases found in 100 C. Cls. 413, 112 C. Cls.

123, and 117 C. Cls. 443, being the series of cases be-

tween the Confederated Bands of Ute Indians and de

fendant which arose under the Jurisdictional Act of June

28, 1938 (52 Stat. 1209) as amended. This litigation

did not include any of the lands of the Southern Ute

Tribe which are in controversy in this case.

The stipulation entered into between the Confederated

Utes and defendant as a part of the judgment in those

cases was limited to lands ceded under the Act of June

15, 1880 (21 Stat. 199) and under the Jurisdictional Act,

as amended, of June 28, 1938.

While petitioner herein, the Southern Utes, was a con-

stituent part of the petitioner therein, Confederated Utes,

—————

—

it is not precluded from bringing this different cause of

under its own name and in its own right. By the

game terms, any language in the stipulation settling the

under the 1938 Jurisdictional Act will not bar de-

prior cases and neither petitioner nor defendant 1s bound

by the proceedings therein with regard to the matters

being litigated in this case.

As stated in Tait v. Western Md. Ry. Co., 289 US.

620, 623 (1933):

* * * *

The scope of the estoppel of a judgment depends

upon whether the question arises in a subsequent

determined in the later action is the same as that

litigated and determined in the original action.

Cromwell v. Sac County, 94 U.S. 351, 352, 353;

Southern Paci R. Co., v. United States, 168 U.S.

1, 48; United States v. Moser, 266 U.S. 236, 241.

* * * *

As we have stated above, this is a separate and distinct

cause of action by 2 different petitioner for lands dis-

of pursuant to the Act of February 20, 1895 (28

from their rese

called for by the

677).

The question as to whether the taking was one under

the Fifth Amendment to the Constitution seems to be

well settled under several decisions of the Supreme Court

and the Court of Claims, which decisions have been fol-

lowed by this Commission.

The title under which the Southern Utes held their

reservation was recognized by the Treaty of March 2,

1868 as being in the Confederated Utes of which

were then a part. Thereafter defendant by several dif-

ferent actions mentioned earlier in this opinion reaffirmed

the title of the Southern Utes to their reservation after

the Act of June 15, 1880 separated them by placing the

remainder of the original reservation under the control

of defendant.

The taking of petitioner’s recognized title by defendant

constituted a taking under the Fifth Amendment to the

Constitution for which petitioner is entitled to recover

just compensation based upon the value of the lands as

of the date or dates of taking, together with interest

thereon sufficient to produce the present full equivalent

of the value of those lands as of the date or dates of

taking. Creek Nation v. United States, 295 U.S. 108

(1935).

The taking of these lands by defendant covered a pe-

riod of many years because they were disposed of as free

homesteads and soldiers’ additional homesteads, so each

taking occurred when the ownership of each individual

became final. Creek Nation v. United States, 302 US.

620, 622 (1938).

As suggested in the Creek case cited above, the dates

would normally be the date of the patent to the indi-

viduals. Since this would be a burdensome job it is sug-

gested that an average date or dates be worked out by

the parties subject to the approval of the Commission.

It would appear that defendant’s asserted defense of

lack of necessary parties is a constituent part of its claim

that the entire Colorado Reservation of the Confederated

Utes was ceded in 1880. Had that been the case then

the present-day Ute Mountain Utes as well as the re-

mainder of the Confederated Utes would have been neces-

sary parties. Since it has been determined that peti-

dity.

hich the Ute Mountain Utes might

pave, if any, would be separate from the claim of peti-

«mer, Petitioner herein claims no land in the present-

Ute Mountain Reservation.

of petitioner’s case concerns the han-

of its trust fund moneys arising from

the sale of the Southern Ute Reservation lands under

the terms of the Act of February 20, 1895.

Defendant contends t im i

25 U. S. C., Sec. 70k. This period expired on August

defendant contends that this accounting

1963 by means of exceptions by

petitioner to defendant’s accounting report filed in re-

neys received by defendant for some 81,-

land disposed of in various ways other

than as free homesteads or soldiers’ additional home-

As stated previously this allegation is found in

paragraph Sf and the allegations of damages are found

in paragraphs 9c and

Defendant presented to petitione

by the General Accounting Office i

tion contained in the petition. This report set forth,

her things, an accounting of the proceeds derived

from the sale of certain lands pursuant to the Act of

February 20, 1895, together with an accounting of the

interest on said proceeds during the period from Febru-

ary 12, 1929 to June 30, 1951.

Petitioner, after receiving this report, proceeded to file

exceptions to certain matters contained therein. These

exceptions were filed June 12, 1963.

On September 30, 1963 petitioner filed an amendment

to its exceptions, adding thereby two more exceptions, the

last of which calls for an extension of the accounting

defendant “up to date”. 15

Defendant’s objection goes specifically to the fact that

petitioner has requested an accounting in its petition for

certain specific items and has now raised by means of the

exceptions mentioned above, and after the receipt of de-

fendant’s General Accounting Office Report, certain gen-

eral accounting claims not referred to in its petition.

Defendant’s contention, carried to its ultimate concly-

sion, would seem to place upon petitioner the burden of

knowing what defendant had done with its money before

filing its petition. This would be unreasonable on its face,

Petitioner cannot be expected to know what its trustee

has done with money under its control until such time

as petitioner is presented with the figures,

The essential question is whether petitioner is to be

penalized for not calling for a general accounting instead

of an accounting for specific items which it had reason,

based upon the terms of the Act of February 20, 1895,

to suspect might have been mishandled by defendant.

This is a matter peculiar to our organic act with its

definite period of limitations. It is not readily apparent

how a similar question could arise under general law

since limitations would not, as a normal rule, begin to

run until the aggrieved party knew, or should have

known, that his trustee had created a cause of action

through the handling of the trust moneys.

We think that much the same principle should apply to

a similar situation under our enabling legislation and

that the issues raised by petitioner as a result of defend-

ant’s accounting are reasonable in that petitioner was

not in a position to know whether defendant was prop-

erly executing its duties as trustee. Defendant, being in

the unique position of not having to file periodic account-

ings to its Indian wards, should not be allowed to take

advantage of that fact for its own protection.

We are of the opinion that the allegation for a specific

accounting which brought forth the accounting report

and thereby revealed other and further apparent misuse

of petitioner’s funds, is a sufficient basis for requiring

a further and complete accounting from defendant with

regard to those items questioned by petitioner in its ex-

tions.

Erbe Commission is aware that defendant restrieted the

zatroduction of the General Accounting Office Report to

the issue of liability for the land allegedly disposed of

free and the specific accounting for lands as stated in

the petition. However, defendant cannot restrict the pur-

for which its evidence is introduced and thereby

deny petitioner the right to an accounting for which a

is has been established in the petition.

The exceptions to defendant’s accounting filed by peti-

tioner are à part of the pleadings in the case and wil

not be set forth in the findings or opinion. However, it

is necessary to discuss them for the purpose of clarity

and understanding of the Commission’s ruling with re-

to each of them. They will be referred to by num-

ber as they appear in the pleadings.

It should be noted at this point that defendant rested

its defense entirely upon other grounds and has not yet

Commission defendant is called upon to file a further

accounting and is entitled to know as nearly as possible

the extent to which it will be required to expend the

present accounting report. The Commission will entertain

such further proceedings as may in its opinion be neces-

questions arising under existing agreements between peti-

tioner and defendant, i. e., the Act of February 20, 1895

(28 Stat. 677), wherein by Section 5 it was agreed that

certain moneys of the Southern Ute Tribe would be held

in trust and to such Acts, ie., Act of April 1, 1880 (21

Stat. 70), providing for interest on sums received from

the sale of Indian trust lands; Section 3659 of the Re-

vised Statutes (31 U.S.C. § 547a) which establishes the

rate of interest on such sums at not less than 5% per

annum; and Act of February 12, 1929 (45 Stat. 1164)

as amended by Act of June 13, 1930 (46 Stat. 584), pro-

viding that funds in excess of $500 held in trust by de-

fendant in principal accounts upon which interest was

not otherwise payable, should bear simple interest at the

rate of 4% per annum.

The Commission does not intend to express any opinion

concerning the duties or obligations of the Congress un-

der its plenary power over Indian affairs.

Exception No. 1 concerns petitioner’s right to have its

moneys covered into the Treasury of the United States

without undue delay. The Court of Claims in the case of

The Menominee Tribe of Indians v. United States, 107

C. Cls. 28, 32-33 (1946) stated that 30 days was a rea-

sonable time in which to deposit moneys belonging to the

Menominee Tribe. The ruling thereon was based upon an

implied agreement by defendant under the Acts involved

to make a prompt deposit of the money. The Commission

is of the opinion that the duty owed by defendant in its

fiduciary capacity (See Seminole Nation v. United States,

314 U.S. 286 (1942) and Menominee Tribe of Indians v.

United States, 101 C. Cls. 10, 19) is sufficient cause to

insure that administrative delays shall not deprive an

Indian tribe of interest upon those funds on which it may

be entitled to draw interest. Defendant shall supply the

pertinent information insofar as the records will permit.

Exception No. 2 questions the practice of defendant with

regard to the advancement of tribal trust funds to dis-

bursing agents. Petitioner alleges on information and be-

lief that there exists in many cases an inordinate delay

between the time money is credited to the account of the

disbursing agent, thereby stopping the payment of inter-

est, and the time of its actual disbursement. During this

period of time defendant has the use of this money with-

out the payment of interest, petitioner alleges. This in-

formation is not reflected in the General Accounting

Office Report and so it is impossible to tell whether the

allegation is correct. Petitioner, as cestui que trust

is entitled to demand of the trustee all information about

the trust for which he has any reasonable use”. (Bogert,

Trusts & Trustees, § 961). Defendant, as trustee, is un-

—

der a duty to furnish such information, insofar as possi-

ble.

Exception No. 3 deals with defendant’s alleged failure

to credit interest at the rate of 5% on petitioner’s tribal

fund “Proceeds of Southern Ute Reservation” and the

failure of defendant to show in its accounting the loss

oecasioned thereby.

Since the statutes appear to be quite clear with regard

to the duty of defendant to deposit such funds (21 Stat.

70) and make them productive (31 U.S.C. § 547a) in its

capacity as trustee, then it is bound to credit such interest

and to show its calculations in doing so in order that

petitioner may check the results of such calculations. See

Sioux Tribe of Indians v. United States, 105 C. Cls. 725,

801-802 (1946) ; Wootton Land & Fuel Co., v. Ownbey,

965 Fed. 91, 99-100 (C.C.A. 8, 1920).

Exception No. 4 concerns the erroneous transfer of

$198.25 from petitioner’s fund “Proceeds of Southern

Ute Reservation” to the “Confederated Bands of Utes

4% Fund” and the interest lost by such transfer.

This exception seems clear on its face and defendant

must account for the transfer and the interest lost there-

by. The money involved belonged to the Southern Utes

and not to the Confederated Bands.

Exception No. 5 deals with a similar erroneous trans-

fer of $800 from petitioner’s fund “Interest on Proceeds

of Southern Ute Reservation” to the fund “Interest on

Ute 5% Fund, Southern Ute.”

Page 17 of the G. A. O. Report shows this to have been

an erroneous transfer and petitioner is entitled to an

accounting and correction.

Although not mentioned in the exceptions there is

shown on Page 7 of the G. A. O. Report an erroneous

credit of $7.74 to the Confederated Bands. This would

seem de minimus but petitioner is, nevertheless, entitled

to an accounting and correction.

Exception No. 6 deals with a variety of expenditures

from petitioner’s funds which petitioner alleges are im-

proper as being obligations of defendant. Petitioner then

specifically excepts to the failure of defendant to disclose

(a) the amount of petitioner’s tribal funds expended for

obligations of the defendant, and (b) the amount of in-

terest lost to petitioner as a result of this alleged im-

proper use of petitioner’s funds by defendant.

This appears to be a situation wherein petitioner would

deprive defendant of its right to defend its actions as

trustee whether right or wrong. To force defendant to

judge its actions and convict itself is improper. The

G. A. O. Report sets forth the various expenditures and

it then becomes a question of their legality under the

agreements and statutes which may be applicable. Their

legality is a question which ultimately must be deter-

mined by the Commission. Until that determination

is made there can be no calculation of damages, if any,

through loss of interest.

This is the same type of problem which this Commis-

sion had in mind when it stated in its opinion in Siouæ

Tribe, et al v. United States, 12 Ind. Cl. Comm. 541, 549,

that it would not force defendant to point out its own

wrongs under the guise of having to carry the burden

of proof. The filing of an exception to the G.A.O. Report

whereby the same procedure is attempted will not be

permitted.

Since the specific expenditures set forth within Excep-

tion No. 6 carry with them in the G. A. O. Report the

amount expended through June 30, 1951, the Commission

presumes that the broad language of Subsection 6(a) of

Exception No. 6 must be intended to refer to other as

yet undisclosed expenditures and in that light is of the

opinion set forth immediately above.

As to those specific items mentioned in Exception No.

6, it shall be incumbent upon defendant to satisfy this

Commission as to their legality. (The Sioux Tribe of

Indians v. United States, 105 C. Cls. 725, 801-802) Until

that decision is reached there can be no accounting by

defendant with regard to these specific items insofar as

loss of interest, if any, is concerned.

Exception No. 7 goes into the broad problem of defend-

ant’s expenditures from various funds belonging to peti-

tioner. It is petitioner’s contention that defendant’s fi-

duciary obligation required it to expend petitioner’s money

in a manner so as to conserve it to the best advantage

—

titioner. Specifically petitioner contends that wher-

ever defendant chose to disburse money from a fund or

ccstui que trust. 22

On the evidence before us it appears that the situation

with regard to the expenditures from various funds does

not differ in this case from that of the Menominee Tribe

v. United States, 101 C. Cls. 10, 21 (1944), wherein the

Court stated:

We conclude, therefore, that to whatever extent

the Secretary of the Interior could have, in the course

of prudent management of the affairs of the Indians,

and without impairing funds which he reasonably

thought it was necessary to keep supplied for the

purpose of meeting authorized expenditures, used the

non-interest-bearing funds or those bearing the lower

rate of interest, and instead used funds bearing in-

terest, or a higher rate of interest, the Government

is under a duty to pay to the plaintiffs the interest

thereby lost by them.

Defendant will furnish the appropriate information in

its supplemental accounting.

Exception No. 8, filed by way of amendment after dis-

covery by petitioner of the information contained in the

G.A.0. Report for Case No. 47567 before the Court of

Claims, consists of an objection to the failure of defend-

ant to credit interest at the rate of 5% on its fund “In-

dian Moneys, Proceeds of Labor, Southern Ute Indians”

and to the failure of the G.A.0. Report to show the

amount of interest lost thereby.

Petitioner ends this exception with the statement

as required by law”. There is in evidence no statute or

statutes requiring the payment of interest at 5% on mis-

cellaneous funds. The only statute to which our attention

has been called is that of February 12, 1929 (45 Stat.

1164), as amended by the Act of June 13, 1930 (46 Stat.

584) which requires that tribal funds included in the

fund “Indian Money, Proceeds of Labor” should bear

simple interest after July 1, 1930 at the rate of 4%,

Insofar as the accounting shown in Petitioner’s Ex-

hibit No. 25 (accounting in Case No. 47567) is deficient

under those statutes, defendant shall prepare a proper

accounting.

It is the opinion of the Commission that on the record

before us petitioner is entitled to 4% interest from the

date of the applicable statute of June 13, 1930 (46 Stat.

584) and not to the 5% claimed. It is also entitled to

have the accounting brought up to date, including the

interest due, if any.

Petitioner contends that the moneys received by de-

fendant from sales of timber, water and iron, from graz-

ing fees and from land leases, are proceeds of the land

and constitute an element of value in those lands and 80

should have interest credited at 5% the same as the land

proceeds. Petitioner cites United States v. Klamath In-

dians, 304 U.S. 119, 122 (1938) as support for this con-

tention.

We do not agree that this case is in point. In that

case the Indians would have been denied the value of the

timber had it not been included in the value of the land.

This is not the case here. The value of these elements

has been received by petitioner and we are now talking

of the amount of interest to be paid by defendant under

the appropriate statutes on those funds after they come

under defendant’s control as trustee.

It is our opinion that once those elements were con-

verted to money in the Treasury they assumed the char-

acter of general funds and as such fell under the statute

calling for 4% interest rather than the statute requiring

5% interest on moneys from trust lands.

Petitioner also amends Exception No. 6 to include the

specific expenditures listed in the portion of the G. A. O.

Report in Case No. 47567 known as Petitioner’s Exhibit

No. 25 in this case. The same ruling applied in Excep-

tion No. 6 would apply to these expenditures. Defend-

ant, as trustee, must satisfy this Commission as to their

legality under the Sioux case cited in Exception No. 6,

and no further accounting can be had until this is done.

Exception No. 9 raises the question as to the adequacy

of defendant’s G. A. O. Report since it does not account

beyond June 30, 1951.

This is a question of first impression with this Commis-

sion. The closest analogy to this situation within the

ission's decisions is the matter of offsets. In the

case of The Kiowa, Comanche and Apache Tribes v.

United States, 5 Ind. Cl. Comm. 72, 109-111, the right

of defendant to present claims for gratuitous offsets be-

yond the cutoff date for filing cases before the Commis-

sion was upheld.

of Claims decision in the Sioux Tribe of Indians v. United

States, 105 C. Cls. 725, 811-812, wherein the Court did

allow offsets by defendant after the closing date of the

jurisdictional act permitting the suit.

The Sioux case was an accounting case just as this

part of the present case is. The Court stated as follows:

Plaintiff does not ask that final judgments be now

entered for the amounts of the balances shown, but

contends that since it was the duty of defendant un-

der the allegations of the original petition to make

a complete accounting with reference to these and

other trust funds, and such accounting has not been

rendered subsequent to June 30, 1925, judgments

should be entered that plaintiff is entitled to recover

with respect to the balances and that further pro-

ceedings should be had under Rule 39 (a) to deter-

mine, on further accounting, the exact amounts, if

any, for which final judgments should be entered. In

other words plaintiff says that after we have decided

the issues presented we should order a further ac-

counting as to the balances and allow plaintiff an-

other opportunity to raise further issues if it should

so desire.

There must be an end to the cases. We cannot

keep them open indefinitely for plaintiff’s convenience

in order that it may have several trials and decisions

in each case as to its legal right to recover on the

issues presented and which may be later presented

before closing the cases on final accounting as to the

offsets, if any, against such amounts as may be due

under the decision on the issues presented when the

cases were prepared, argued and submitted. Rule

39 (a) was not intended to authorize or provide for

several trials on questions as to legal rights of an

Indian Tribe to recover, or to permit piecemeal trials

in chief. Plaintiff knew when it received the ac

counting report on April 19, 1932, that the account-

ing ended on June 30, 1925, and no mention was

made of the matter until the briefs in the seven cases

were filed. The cases were argued and submitted

on the specific issues decided herein, and if plaintiff

believes that it has other or further claims it must

petition Congress for relief or for further permis-

sion to sue thereon. Plaintiff has had its day in

court as to the right of recovery on all issues which

it saw fit to raise, prepare and submit for decision.

The time has passed for asking for a remand for a

further or supplemental accounting on matters con-

cerning questions required to be tried and submitted

in the first trial under Rule 39(a). Cf. Cherokee

Nation v. United States, 102 C. Cls. 720, 760.

It will be noted from the above quoted language that

the basis for the Court’s refusal to permit a further ac-

counting from defendant was based upon the failure of

petitioner to raise the question in a timely manner. The

case had been completed upon the issues presented after

petitioner had the G. A. O. Report and knew its closing

date. It is obvious that the Court could foresee an endless

round of trials with defendant updating offsets and peti-

tioner updating accounting claims. Primarily, however,

the Court appeared to feel that petitioner had failed to

take advantage of its opportunity to raise the matter

before the deadline for filing under the jurisdictional act.

We have held herein that petitioner is not barred from

raising the accounting issues under Section 12 of our

organic act and so any claim for an up-to-date accounting

is still a “live” claim as well.

We too accept the necessity for an end to those cases

under the same circumstances as in the Sioux case

would feel bound to follow the decision of the Court of

Claims therein.

the necessity of accounting further for its handling of

itioner’s Money and the issues are not yet closed by

our act is silent as to both questions it appears equitable

that both parties be treated the same with respect to the

offsets of defendant and the accounting due petitioner.

This matter will now proceed to a determination of the

until a decision is reached with regard to the specific

ditures alleged by petitioner to have been improperly

made by defendant. The parties shall proceed immediately

to present to this Commission their evidence and argu-

ments concerning the expenditures listed in Finding of

Fact No. 16 and those set forth in Court of Claims Case

No. 47567 and which are listed in Petitioner’s Exhibit

No. 25 in this case wherein they properly belong.

Upon the decision as to these expenditures defendant

will be required to file its supplemental accounting.

An order to the above effect will be entered.

T. HAROLD SCOTT

We concur: Associate Commissioner

ArTHUR V. WATKINS

Chief Commissioner

WX. M. HOLT

Associate Commissioner

[Title Omitted in Printing]

First INTERLOCUTORY ORDER

UPON the findings of fact this day entered in this

cause and which are made a part of this order, the Com-

mission concludes as a matter of law that petitioner is

entitled to just compensation for 230,547.44 acres of peti-

tioner’s land disposed of by defendant without payment

to said petitioner, and it is

FURTHER CONCLUDED as a matter of law that

petitioner is entitled to a supplemental accounting from

defendant with regard to the matters set forth in the

findings of fact and in accordance with the opinion of

the Commission this day filed, and it is therefore

ORDERED that this cause shall proceed to a deter-

mination of the date or dates of taking of petitioner’s

lands and the value of said lands upon such date or dates,

and

THAT the parties herein shall forthwith present to

this Commission their contentions with regard to the

specific items of expenditure by defendant from peti-

tioner’s fund or funds which have been challenged by

petitioner as being improper, including those items set

forth in Finding of Fact No. 16 and those items in Peti-

tioner’s Exhibit No. 25, which were challenged by way

of exception.

Dated at Washington, D. C., this 6th day of May, 1966.

ARTHUR V. WATKINS

Chief Commissioner

Wo. M. Hout

Associate Commissioner

T. HAROLD Scott

Associate Commissioner

—

IN THE UNITED STATES COURT OF CLAIMS

App. 7-66

THE UNITED STATES, APPELLANT

SoUTHERN UTE TRIBE OR BAND OF INDIANS, APPELLEE

Before COWEN, Chief Judge, LARAMORE, DURFEE, DAVIS,

CoLLINS, SKELETON and NICHOLS, Judges

ORDER

This case comes before the court on the appeal by the

United States from the interlocutory order of the Indian

Claims Commission entered May 6, 1966, in its Docket

No. 328. Upon consideration thereof, together with the

opposition of the appellee, the court is of the opinion

that, in the light of the appellee’s acknowledgment at

the oral argument that the lands involved in this case

were ceded to the United States by the Act of June 15,

1880, but were in effect re-ceded to the appellees by the

Act of February 20, 1895, the case should be remanded

to the Commission for the hearing of additional evidence

and the making of findings of fact with respect to the

intention of the parties to the stipulation upon which a

final judgment was entered in Court of Claims Case No.

46640 (117 Ct. Cl. 436) on July 13, 1950.

NOW, THEREFORE, IT IS ORDERED that this case

be and is hereby remanded to the Indian Claims Commis-

sion with instructions to hear additional evidence, in-

cluding but not limited to testimony of the signatories

to the stipulation mentioned above, and to make and

report to this court findings of fact on the question as to

whether by said stipulation, it was the intention of the

parties thereto that the final judgment entered in Court

of Claims Case No. 46640 would be res judicata as to the

land involved in this case. Cf. Standing Rock Sioux Tribe

of North Dakota and South Dakota v. United States, No,

259-63, order of November 14, 1966.

BY THE CourRT

WILSON COWEN

Chief Judge

May 15, 1967

CourT OF CLAIMS

IN THE UNITED STATES COURT OF CLAIMS

App. 7-66

THE UNITED STATES, APPELLANT

SoUTHERN UTE TRIBE OR BAND OF INDIANS, APPELLEE

Before COWEN, Chief Judge, LARAMORE, DURFEE, DAVIS,

CoLLINS, SKELETON and NICHOLS, Judges

ORDER

This case comes before the court on appellant’s motion

for rehearing and appellee’s motion to vacate order of

remand. Upon consideration thereof, together with the

response thereto and without oral argument,

IT IS ORDERED that the said motions be and the

same are denied.

IT IS FURTHER ORDERED that the following words

and punctuation, appearing in the first paragraph, start-

ing at line 6 thereof, of the order entered herein on May

15, 1967, be and the same are deleted and vacated: “, in

the light of the appellee’s acknowledgment at the oral

argument that the lands involved in this case were ceded

to the United States by the Act of June 15, 1880, but

were in effect re-ceded to the appellees by the Act of

February 20, 1895,”.

By THE COURT

WILSON COWEN

Chief Judge

Filed Oct. 9, 1967

Court of Claims

—

21 Ind. Cl. Comm. 268

BEFORE THE INDIAN CLAIMS COMMISSION

Docket No. 328

SOUTHERN UTE TRIBE OR BAND OF INDIANS, PLAINTIFF

THE UNITED STATES OF AMERICA, DEFENDANT

Decided: June 27, 1969

ADDITIONAL FINDINGS OF FACT

Statement

Plaintiff filed a petition with the Commission on Au-

gust 10, 1951, praying among other things for fair and

just compensation for approximately 220,495.17 acres of

land unlawfully disposed of by defendant. On May 6,

1966, the Commission in the case of Southern Ute or

Band of Indians v. United States, 17 Ind. Cl. Comm. 28,

entered findings of fact and issued an interlocutory order

concluding as a matter of law that plaintiff was entitled

to just compensation for 230,547.44 acres of plaintiff’s

land disposed of by the defendant without payment to

plaintiff. The defendant appealed from said order con-

tending, among other things, that all claims concerning

the 230,547.44 acres of land had been fully settled, paid,

extinguished and adjudicated in a previous case before

the Court of Claims (Case No. 46640, Confederated

Bands of Ute Indians v. United States, 117 Ct. Cl. 433,

436 (1950) ).

On May 15, 1967, the Court of Claims issued an order

of remand with instructions to the Commission to hear

additional evidence, including but not limited to testmony

of the signatories to the stipulation in the Confederated

Ute case, swpra, and to make and report to that Court

findings of fact on the question as to whether by said stip-

ulation it was the intention of the parties thereto that

— —

hear!

the production of documents. The second hearing involved

the taking of evidence as to the intention of the parties

at the time of the signing of the stipulation in Court of

Claims Case No. 46640.

At both hearings the defendant took the position that

the stipulation spoke for itself and that the intentions

of the parties would have to be determined within the

contended that all memoranda, letters, notes, instructions,

and other data that were relevant to the stipulation and

the compromise settlement were the “work product” of

privileged material protected by Order No. 381-67 of

the Attorney General, effective July 4, 1967.

Pursuant to an order of the Commission, the defendant

furnished the Commission with the correspondence be-

tween the Department of Justice and the Bureau of Land

Management in Denver, Colorado, relative to the prepa-

ration of Schedule 1 of the stipulation. The letters were

relevant only to the extent that they corroborated the

testimony of Dr. Wilkinson (attorney for plainiiif and

signatory to the stipulation) as to why the word “dili-

the defendant at the time of signing of the stipulation.

There is only one attorney now living who participated

refreshed the recollection of the government’s then attor-

ney. Accordingly, the Commission has no evidence intro-

duced by defendant upon which to base any finding of

fact as to the defendant’s intention.

The following additional findings of fact are based

solely on the evidence taken by the Commission pursuant

to the order of remand:

21. On May 15, 1967, the Court of Claims remanded

this case to the Commission with the following order:

“NOW, THEREFORE, IT IS ORDERED that

this case be and is hereby remanded to the Indian

Claims Commission with instructions to hear addi-

tional evidence, including but not limited to testi-

mony of the signatories to the stipulation mentioned

above, and to make and report to this court findings

of fact on the question as to whether by said stipu-

lation, it was the intention of the parties thereto

that the final judgment entered in Court of Claims

Case No. 46640 would be res judicata as to the land

involved in this case.”

22. On April 23, 1968, a hearing was held before the

Commission pursuant to this order of remand.

Plaintiff presented testimony of Dr. Ernest L. Wilkin-

son, partner of the law firm of Wilkinson, Cragun and

Barker and a signatory to the stipulation in Case No.

46640. Plaintiff also presented the testimony of Georgette

Betor Lee Hall who, together with the late Charles D.

Lee, prepared Schedule 1 identifying the lands which

formed the basis of the settlement in Case No. 46640.

23. Dr. Wilkinson testified that he was attorney of

record for the Confederated Bands of Ute Indians in

Case No. 46640 and in the related Case No. 45585, and

as such was familiar with the course of negotiations

leading up to the settlement of Case No. 46640, as well

as Case No. 45585. He noted that Royce Area 616 was

involved in both Cases Nos. 46640 and 45585. In Case

No. 46640 the Confederated Bands were suing for com-

pensation for lands that had been disposed of in Royce

Area 616 prior to 1938. In Case No. 45585 they were

—_ * *

suing for compensation for lands that were undisposed

of in 1938 and were taken by the Act of Congress of

June 28, 1938 (52 Stat. 1209).

94. Dr. Wilkinson testified that the schedule of land

disposals forming the basis of the settlement in Case No.

46640 (the aforemen joned Schedule 1) was prepared by

Georgette Betor (now Georgette Betor Lee Hall) and

Charles D. Lee, who were hired with the approval of the

Court of Claims and the Department of Justice. Miss

Betor and Mr. Lee were specifically instructed to list only

Area 617 because, according to Dr. Wilkinson, referring

to his legal conclusion at the time the list was made, “in

our judgment the lands in 617 were taken under the Act

of 1895 from the Southern Utes whereas the lands in

under the Act of 1880 from the Confederated Utes.”

Dr. Wilkinson also testified that he hired Miss Geor-

gette Betor and Mr. Charles D. Lee to prepare a list of

disposals of lands involving the Southern Ute Reserva-

tion, located in Royce Area 617, separate and apart from

the list of disposals of land which they prepared for Case

No, 46640. Dr. Wilkinson stated that at the time of

settlement of Case No. 46640 he had two lists of land

disposals in hand:

(a) the list of disposals in Royce Area 616 which be-

came Schedule 1 in Case No. 46640, and

(b) the list of disposals of the Southern Ute lands in

Royce Area 617 which was used as a basis for preparing

the petition in Indian Claims Commission Docket No. 328.

25. Dr. Wilkinson testified that in his judgment the

reason the word “diligence” was employed in the stipula-

tion in Case No. 46640 was to insure that any small areas

of land not included in Schedule 1 of the stipulation would

be covered by the judgment. He testified further that

“diligence” in his opinion would not have permitted the

exclusion of an area of 360 sections of land, an area

equivalent to one mile wide and 360 miles long.

26. After Schedule 1 of the stipulation had been pre-

pared by Miss Betor and Mr. Lee, it was submitted to

the Department of Justice for verification. Some errors

were found by the Department and Schedule 1 was ac.

cordingly corrected. A letter dated May 8, 1950, from

C. V. Marmaduke, Jr., Special Assistant to the Attorney

General, Lands Division, tends to corroborate Dr. Wilkin-

son’s testimony as to his intention of including the fol-

lowing language in the stipulation: “So far as the parties

with due diligence have been able to determine these

descriptions in Schedule 1 represent all of the land 80

disposed of and set aside.” The letter, relating to Case

46640 reads as follows:

“Sir:

“In a recent telephone conversation Mr. Sonosky of

the Department requested an opinion on the advisa-

bility of making a complete check of the land descrip-

tions furnished by the plaintiffs in the above case.

“While numerous errors were disclosed by the 10%

spot check of the land descriptions, yet it appears

that a complete check would not be warranted be-

cause the draftsmen’s estimate of the amount of

acreage erroneously described would be small. * * *”

27. Dr. Wilkinson, after testifying as to the steps he

had taken to refresh his recollection, testified as follows

in describing his intention in signing the stipulation in

Case 46640:

“Well, it was clearly my intention in signing the

stipulation for the Confederated Bands of Ute In-

dians that it relates only and solely to the lands in

Area 616 and did not relate to the lands in 617

which was to be the basis for a separate suit which

we were preparing at the time. We had, of course,

Miss Betor and Mr. Lee prepare the list in 616 and

also the list in 617 and to the extent that you can

read the mind of attorneys on the other side, I give

it as my judgment and opinion that they were of the

same opinion because, in discussing the schedule No.

1 which is attached to the stipulation we always dis-

cussed it solely with reference to the land in 616 and

not in 617.”

Wilkinson to Miss Betor and

98, A letter from Dr. 25, 1950, employing them to

Mr. Lee, dated January ids in Royce 617 in the same

prepare a schedule of iarepared Schedule 1 for Royce

in which they poborate the testimony of Mr.

616, would tend to corrlanguage reads as follows:

Wilkinson. The relevant we may not be able to include

“Tt is possible thatr any of the suits we now have

the above claims undqill have to institute new suits,

pending. If not, we however, immediately on your

which we will do, k, and they can be completely

— ple. as if suit had already been

rosecuted as quick], i i record of ti

Ei Haas thereon, on dis letter.” sae

use the above captio i * a

1 and Marvin J. Sonosky sign

29. A. Devitt Vanechefendant. Mr. Vanech is dead.

the stipulation for th

Also one of the principa ge 1 Mr. Rob-

Section, Lands

act B. Mulroney, Oot of Justion, ie deed. Mr. Mares J.

Sonosky filed an affidavit with the Commission. He stated

he was the attorney in charge of the Ute litigation iden-

tified as Cases 45585, 45788, 46640, 47564 and 47566, all

in the United States Court of Claims. He stated that in

1950 he prepared for the consideration of the Assistant

Attorney General memoranda to the Attorney General

recommending settlement; that he did not retain and does

not have a copy of the memoranda of settlement or any

other settlement papers; that he does not have any inde-

pendent recollection of whether the settlement included

the extinguishment of any claims for the Colorado res-

ervations lands known 4s Royce No. 617.

Pe oll es 22 was not the intention of Dr. Wil-

the stipulatio ‘a Coe Area 617 at the time he signed

pulation in Case 46640, There is no evidence as

to the intention of the ; 3

tion on behalf of the attorneys who signed the stipula-

that can be drawn as tp Government. The only inference

of Dr. Wilkinson that their intention was the testimony

at no time during the long period

of negotiation did either he or the attorneys for the

2 discuss the question of disposition of Royce

Area 617.

/3/ Jerome K. Kuykendall

JEROME K. KUYKENDALL

Chairman

/s/ John T. Vance

JOHN T. VANCE

Commissioner

/s/ Richard W. Yarborough

RICHARD W. YARBOROUGH

Commissioner

/s/ Margaret H. Pierce

MARGARET H. PIERCE

Commissioner

/s/ Brantley Blue

BRANTLEY BLUE

Commissioner

[Title Omitted in Printing]

ORDER TRANSMITTING FINDINGS OF FACT

TO THE COURT OF CLAIMS

This matter comes before the Commission at this time

on an order entered by the United States Court of Claims

on May 15, 1967, remanding this case to the Commission

to hear additional evidence, including but not limited to

testimony of the signatories to the stipulation in Court

of Claims Case No, 46640, and to make and report to

the Court of Claims findings of fact on the question as

to whether by said stipulation, it was the intention of the

—

es thereto that the final judgment entered in Court

of Claims Case No. 46640 would be res judicata as to

the lands involved in this case. Pursuant to the Court

of Claims order the Commission has this date entered

supplementary findings of fact numbered 21 through 30

and

IT IS ORDERED that the findings of fact made by

the Commission pursuant to the order and remand from

the Court of Claims are hereby transmitted to the Court

of Claims.

Dated at Washington, D. C., this 27th day of June,

1969.

/s/ Jerome K. Kuykendall

JEROME K. KUYKENDALL

Chairman

/s/ John T. Vance

JOHN T. VANCE

Commissioner

/s/ Richard W. Yarborough

RICHARD W. YARBOROUGH

Commissioner

/s/ Margaret H. Pierce

MARGARET H. PIERCE

Commissioner

/s/ Brantley Blue

BRANTLEY BLUE

Commissioner

IN THE UNITED STATES COURT OF CLAIMS

Appeal No. 7-66

Ind. Cl. Comm. Docket No. 328

17 Ind. Cl. Comm. 28

21 Ind. Cl. Comm. 268

(Decided March 20, 1970)

THE UNITED STATES

SOUTHERN UTE TRIBE OR BAND OF INDIANS

W. Braxton Miller, with whom was Assistant Attorney

General Shiro Kashiwa, for appellant.

Glen A. Wilkinson, attorney of record for appellees.

Wilkinson, Cragun & Barker, of counsel.

Before COWEN, Chief Judge, LARAMORE, DURFEE,

Davis, COLLINS, SKELTON and NICHOLS, Judges

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

NICHOLS, Judge, delivered the opinion of the court:

This case comes to us on appeal from a decision of the

Indian Claims Commission which, in an interlocutory

order dated May 16, 1966, found the appellant, the United

States, liable to the appellee, the Southern Ute Tribe or

Band, for (1) just compensation for taking 230,547.44

acres of land, and for (2) a “further and complete” ac-

counting for funds held in trust. Although notice of ap-

peal was filed on August 4, 1966, after briefing and oral

remanded to the Commission for supple-

mental findings of fact. Upon making the requested find-

ings the Commission again transmitted the case to us,

whereupon the parties, relying on earlier submitted briefs,

in presented oral argument. Since the Commission’s

emental findings tended to support its original deci-

sion, the issues now on appeal are those previously posed.

The Southern Utes, an incorporated tribe composed of

States violated a treaty agreement made with their an-

cestors and ratified by Congress in 1895. Briefly, the

which are not in dispute, provided

in severalty. e

who would accept allotments. The unallotted lands in

this latter sector were to be opened to white settlers for

the cash price of not less than $1.25 per acre. All pro-

be held by defendant

In the mid-1800’s, the Ute Indians occupied an exten-

sive region which spanned western Colorado, northern

New Mexico and Utah. On March 2, 1868, these Indians

—the Tabequache, Moache, Capote, Weeminuche, Yampa,

Grand River and Uintah Bands of Utes—ceded their

aboriginal lands to the United States in exchange for a

15.7 million acre reservation situated wholly within the

boundaries of Colorado. (Treaty of 1868, 15 Stat. 619,

2 Kappler 990). Subsequently, the bands came to be

known under different names: The Tabequaches were

called the Uncompahgre Utes; the Moache, Capote and

Weeminuche, the Southern Utes; and the Yampa, Grand

River and Uintah, the White River Utes. Collectively

these three Bands were informally organized and styled

as the Confederated Bands of Utes.

Some years after the Treaty of 1868 another agreement

was forged—the Brunot Cession of 1873. (18 Stat. 36,

1 Kappler 151). The discovery of large and valuable

mineral deposits on the Ute Reservation had prompted

the United States to persuade the Confederated Bands to

cede 3.7 million acres of the east-central portion of their

reservation. The relevance of this agreement lies in the

geographical consequences it effected. (For convenience,

in referring to these geographical sectors we will use the

Royce Area numbers taken by the parties form Charles

C. Royce’s Map of Colorado (1) Indian Land Cessions

(18th Ann. Rep., B.A.E. 1896-1897, Part II)). By carv-

ing out this slice of land (Royce Area 566), the cession

nearly severed the original 1868 reservation into two dis-

proportionate parts. Royce Area 616, the larger part,

lay mostly north of 566, but a corridor 20 miles across

ran north and south between 566 to the east and Utah

to the west. Wedged between the New Mexico border

and the southern boundary of the Brunot Cession, how-

ever, was the remainder of the reservation (Royce Area

617). This narrow strip, 15 miles across, ran from the

reservation’s eastern boundary to a point just 20 miles

short of the Utah border, its western boundary. The

occupants of Royce Area 617 were and still remain the

Moaehe, Capote and Weeminuche Bands, then known as

the Southern Utes.

By another agreement ratified by the Act of June 15,

1880 (21 Stat. 199, 1 Kappler 180), the Confederated

Bands ceded, or purported to cede, with certain excep-

tions, the remainder of their diminished 1868 reserva-

tion. Because of the critical importance of this cession,

we quote the pertinent sections verbatim.

The * * * chiefs and headmen of the confederated

bands of Utes * * * agree and promise to use their

best endeavors with their people to procure their con-

dent to cede to the United States all the territory of

the present Ute Reservation in Colorado, except as

hereinafter provided for their settlement.

The Southern Utes agree to remove to and settle

upon the unoccupied agricultural lands on the La

Plata River, in Colorado; and if there should not be

a sufficiency of such lands on the Le Plata River and

in its vicinity in Colorado, then upon such other un-

occupied agricultural nds as may be found on the

La Plata River or in tts vicinity in New Mexico.

The Uncompahgre Utes agree to remove to and

settle upon agricultural lands on Grand River, near

the mouth of the Gunnison River, in Colorado, if a

sufficient quantity of agricultural land shall be found

there, if not then upon such other unoccupied agri-

cultural lands as may be found in that vicinity in the

Territory of Utah.

The White River Utes agree to remove to and set-

tle upon agricultural lands on the Uintah Reserva-

tion in U * * a *

The said chiefs and headmen of the confederated

bands of Utes promise to obtain the consent of their

people to the cession of the territory of their reser-

vation as above on the following express conditions:

First. That the Government of the United

States cause the lands so set apart to be properly

surveyed and to be divided among the said In-

dians in severalty /

sixty thousand dollars of annuities * * *, and so

much more as Congress may appropriate for

that and that a commission shall be

sent to superintend the removal and settlement

of the Utes, and to see that they are well pro-

vided with agricultural and pastoral lands suf.

ficient for their future support, and upon such

settlement being duly effected, that they are

furnished with [other necessities], and that the

money to be appropriated by Congress for that

purpose shall be apportioned among the different

bands of Utes in the following manner: One-

third to those who settle on the La Plata River

and vicinity [the Southern Utes]; one-half to

those settling on Grand River and vicinity

{Uncompahgre Utes], and one-sixth to those

settling on the Uintah Reservation [the White

River Utes].

Third. That in consideration of the cession

of territory to be made by the said confederated

bands of the Ute Nation, the United States, in

addition to the annuities and sums for provi-

sions and clothing stipulated and [otherwise

provided by law or treaty], agree to set apart

and hold, as a perpetual trust for the said Ute

Indians, a sum of money, or its equivalent in

bonds of the United States, which shall be suf-

ficient to produce the sum of fifty thousand

dollars per annum, which sum of fifty thousand

dollars shall be distributed per capita to them

annually forever.

Fourth. That as soon as the President of the

United States may deem it necessary or ex-

pedient, the agencies for the Uncompahgres and

Southern Utes be removed to and established at

suitable points, to be hereafter selected, upon the

lands to be set apart, and to aid in the support

of the said Utes until such time as they shall be

able to support themselves, and that in the mean

time the United States Government will estab-

lish and maintain schools in the settlements of

the Utes, and make all necessary provision for

the education of their children.

Fifth. [Prior treaties are reaffirmed.]

—

Sec. 2 [Five Commissioners Were authorized to

present the agreement to the Utes for their ratifica-

tion, and upon ratification to assess improvements

and take a census of the Southern Utes, Uncompah-

gre Utes, and White River Utes]. * * * [Alnd they

[commissioners] shall also select lands and allot

them in severalty to said Indians, as herein provided,

and superintend the removal, location, and settlement

of the Indians thereon, and do and perform such

other services as the Secretary of the Interior may

consider necessary for them to do in the execution

of the provisions of this Act.

made to each and all of the said Indians, in quantity

and character as set forth in the agreement

and whenever the report and proceedings of said

commissioners * * * are approved by the President

a * he shall cause patents to issue to each and

every allotee for the lands so allotted, with the same

conditions, restrictions and limitations mentioned

therein as are provided in said agreement; and all

the lands not so allotted, the title to which is, by the

said agreement of the confederated bands of the

providing for the disposal of the public lands, at the

same price and on the same terms as other lands of

like character, except as provided in this act: Pro-

vided, That none of said lands, whether mineral or

otherwise, shall be liable to entry and settlement un-

der the provisions of the homestead law; but shall

be subject to cash entry only in accordance with,

existing law; and when sold the proceeds of said

sale shall be first sacredly applied to reimbursing the

United States for all sums paid out or set apart un-

der this act by the government for the benefit of said

Indians, and then to be applied in payment for the

lands at [$1.25] per acre which may be ceded to

them by the United States outside of their reserva-

tion, in pursuance of this agreement. And the re-

mainder, if any, shall be deposited in the Treasury

as now provided by law for the benefit of the said

Indians, in the proportion hereinbefore stated, and

the interest thereon shall be distributed annually to

them in the same manner as the funds provided in

this act: * . (Emphasis supplied throughout, ex-

cept usual statutory italics.)

The most significant aspects to be gleaned from this

Act, with respect to our analysis, is that the Confederated

Bands (Southern Utes included) seemed to cede their

entire Colorado reservation—Royce Area 616 and 617—

and moreover promised to accept allottments in severalty

in various sectors within and beyond reservation boun-

daries. As sole consideration for these promises, the Bands

were to receive shares in the proceeds of unallotted land

sales remaining after certain Government reimburse-

ments. The Southern Utes were apportioned a one-third

share and like their confederates understood that such

monies would be held by defendant in trust for their

benefit. The Commission found that the Act of 1880

“reserved” Royce Area 617 for the Southern Utes. Al-

though the plain language of the Act appears inconsistent

with this finding, the following sequence of events capped

by the Act of 1895 and Restoration of 1938 (both dis-

cussed infra) support the conclusion that plaintiffs at any

rate did not cede their reservation (Royce Area 617)

under the agreement of 1880.

Pursuant to the above act the Ute Commission was

formed under the leadership of chairman George W.

Manypenny. On November 21, 1881, the Commission sub-

mitted its report to the Secretary of the Interior (H.R.

Doc., Vol. 10, Ser. No. 2018, 47th Cong., Ist Sess. 383

(1882). Divided into three subreports, one for each band

in the confederated trio, the report discloses that the re-

moval of the Uncompahgre and White River Utes was

not accomplished without some difficulty. Both bands,

ite the terms of the above treaty, resisted removal

with vehemence. Finally, however, they were

to settle in Utah, outside the bounds of their former

reservation. The Southern Utes, on the other hand, were

to receive different treatment as forecast by the com-

ments of Chairman Manypenny:

When I went to the Southern [Ute] Agency, I

found the prevailing opinion was that all the South-

ern Utes by the terms of the [1880] agreement were

to be removed to and located on the La Plata River

Florida, and Las Pinos, e., would be open to occu-

pation and settlement by white people. The settlers

in these valleys north of the reservation were im-

patient to enter and possess the land; and when it

became known that I had instructed the contractors

for surveying, on the completion of their work on

the La Plata to pass over to and commence work on

the Animas and Florida, there was not only dis-

appointment, but great dissatisfaction manifested. It

was asserted that I had deliberately perverted the

language of the [1880] treaty and committed a great

wrong.

Under the terms of the agreement there was No

other land in Colorado that I could have selected

upon which to locate these Southern Utes. This I re-

opened to occupation and settlement, to constant an-

noyance by evil-disposed persons.

‘i

subject of their location in severalty. In these con-

versations I called their attention to the fact that

the work the surveyors were doing was the pre

step to such location [in severalty] and the

placing of each family on its own land. On many

occasions all that I said was listened to without 3

single word in response, and I did not find one

who desired a house, or would agree to dwell in one

if built for him on his own land. It will take time

and careful management to induce

abandon their present [way of livi

new mode of life contemplated by the agreement.

In the meantime, and while the change is going on,

efforts to domesticate them will fail. To prevent in-

trusion and guarantee proper order and i

I can see no other way than to so modify the [1880]

agreement, so far as these Indians are concerned, as

to maintain the exterior lines of the strip of land

one hundred miles long and fifteen wide, and pre-

serve all the land within these lines for an indefinite

period as an Indian reservation, and let the United

States laws in relation to Indian reservations have

full force therein. Then the land selected, and upon

which the Indians are to be located, can be kept free

from intruders. Id. at 393. (Emphasis supplied).

Although we stated earlier that the plain words of the

1880 treaty seemed to indicate that the Southern Utes

agreed to cede their lands to the United States, Many-

penny’s recitals give us some pause. They show that both

sides regarded the 1880 agreement as not in effect as to

the Southern Utes, pending further measures. By sug-

gesting that the reservation be closed to public entry

indefinitely, Manypenny impliedly suggests that the

United States forego, albeit not permanently, its rights

under the 1880 treaty vis a vis the Southern Utes. Sig-

nificantly, Manypenny’s recommendation to modify the

i than $1.25 per acre.

Plaintiff argues that by section 2 of the above act the

recognized the thin strip of land

( Area 617) as the exclusive reservation of the

Southern Utes. Defendant explains this survey a8 merely

an attempt to cordon off land “until

in severalty.”

they could be located

To implement the Act of 1882 the Secretary of the In-

retary of the Interior (Report

H.R. & Sen. Message & Doc., 47th Cong., 2d Sess. 41

(1882) ), we have the following:

The second section of the act of 1882 provides for

a survey of the line between the lands occupied by

the Southern Utes and the Ute lands exposed to

entry by the act [of 1882]. The following is a descrip-

tion of the line which is laid down on said map: Com-

i e southwest corner of the Ute ceded

corner of the ceded Ute land. Adhering to defendant's

contention that all the lands were ceded in 1880, a literal

interpretation of this letter would lead to

ern boundary of Colorado because it would start there.

It is also interesting to note how the Southern U

i tus during this time.

February of 1886, Ignacio, the principal chief of

Southern Utes visited Washington, D.C., along with

eral other of his subordinate chiefs and headmen, and

peared before the Senate Committee on Indian Affairs.

(Sen. Rep. No. 836, 49th Cong., Ist Sess. 1-2 (1886)):

Question. Why do you come here for?

Answer. We come here to see if we cannot exchange

our reservation for another.

Q. Where do you want the new reservation located?

A. We want to go west of the present reservation.

Q. Why is it better to go that way?

A. The present reservation is narrow and long and

we want to go west and see if we can’t sell it.

Q. Do you come to Washington with the idea that

the Indian Bureau can do what you want?

A. We come expecting to get legislation.

Q. You hold title under statute?

A. Yes. Id. (Emphasis supplied).

Thus the Southern Utes were still in possession of their

part of their old reservation under claim of right. The

Southern Utes wanted to quit their reservation for a

number of reasons. These were pastoral people not inter-

settled at that time. Tnere Was an influx of white set-

tween two white commuhe Southern Ute reservation. To

commerce followed the slew Mexico, which was also being

vation. The Government ꝛus the Indians were wedged be-

Secretary of the Interiamities whose routes of trade and

Atkins, Commissioner ofeveral rivers traversing the reser-

following (Sen. Rep. No; was in a quandary. In a report to

«ior dated April 5, 1888, J. D. C.

It would be next f Indian Affairs acknowledged the

oughfares across tho. 836, supra, at p. 8):

to erect a Chinese + . *

— — all — a to impossible to close up the thor-

—— and yet e reservation. To do that would be

by — treaty sti wall” 110 miles long, virtually eut-

with these Indians and intercourse between the large

tering upon or unities on either side of the res-

; as a matter of fact, we are bound

Two bills were subsettipulations (Sec. 2 of Act of 18827]

8. 769 and S. 1916—s to prevent white people from en-

Southern Utes from : g .

never enacted into m tossing said reservation.

of the Interior is hereby authorized

nmission * * * with authority to

e band of [Southern] Ute Indians

nodification of their treaty [18807]

and other rights, and such of their reserva.

tion, as may be deemed desirable by said Indians

and the Secretary of the Interior; and said commis-

sion is also authorized, if the result of such negotia-

tions shall make it necessary, to negotiate with any

other tribes of Indians for such portion

reservation as may be necessary for said band of

Southern] Ute Indians * * if said Indians shall

determine to remove from their present location;

the report of said commission to be made to and

= to ratification by Congress before taking

ect; eee

Plaintiffs assert that this act confirmed the “separation

of the Southern Utes, as an entity, from the Confederated

Bands * * *.” That the Government negotiated exclusively

with the Southern Utes for the “exchange of their reserva-

ion”, is construed by plaintiffs “as a further Congres-

sional recognition that the 15 mile strip [Royce Area 617]

was the sole and absolute property of the Southern Utes

and that they alone had the right to dispose of it.” Per-

haps believing it to be damaging to its case, defendant

omits all reference to this act in its brief. Although the

language of this act tends to favor plaintiffs’ position it

is by no means conclusive. It merely authorized the es-

tablishment of r commission to engage the iy oy *

in negotiations for the purpose o persuading them to

belatedly what the Uncompahgre and White River Utes

had done some years earlier, namely, to vacate their reser-

vation and move elsewhere. A reasonable explanation for

the act’s exclusive terms is that the Southern Utes were

the only band of the confederation as to whom the 1880

agreement was still executory. The agreement which

emerged pursuant to this act substantiates this view. The

Southern Utes agreed, for no additional consideration, to

give up their reservation and remove and settle upon a

reservation in San Juan County, Utah. Presumably, their

evacuated reservation lands would then be sold in ac-

cordance with the Act of 1880 and the proceeds would be

held for the collective benefit of the Confederated Bands in

the prescribed proportions, that is, the consideration vis-

ualized in the 1880 agreement as accruing to the Southern

Utes would still accrue.

Although routinely introduced, this agreement failed

to receive Congressional approval; for six years it re-

mained in limbo much to the dismay of the Southern Utes

who continued to occupy their besieged reservation. In

1894 it was again introduced. Conceding the “anomalous

position [of the Southern Utes] of having ceded their

reservation and yet remaining on it“, the Senate Commit-

tee on Indian Affairs favored ratification (Sen. Rep. No.

279, 58d Cong. 2d Sess. 2-8 (1894) ). Its House counter-

part, although concurring in the view that the Southern

Utes presented an anomalous situation, did not assent to

ratification (H.R. Rep. No. 799, 53d Cong., 2d Sess. 2-3

(1894) ). It believed that the proposed reservation was

too large for the Southern Utes and hence would encour-

age their nomadic ways. Therefore, instead, the House

Committee recommended enactment of a pending bill

which was eventually passed as the Act of February 20,

1895 (28 Stat. 677). The stated purpose of this Act was

to annul the agreement of 1888 and enforce the treaty of

1880 which sought to settle the Indians in severalty. Since

this, too, is a very important Act, the pertinent language

will be quoted verbatim:

Sec. 2. That within six months after the passage

of this Act the Secretary of the Interior shall cause

allotment of land, in severalty, to be made to such

of the Southern Ute Indians in Colorado as may elect

and be considered by him qualified to take the same

out of the agricultural lands embraced in their

present reservation in Colorado, such allotments to

be made in accordance with the provisions of the Act

of [1880] * * * and the amendments thereto, as far

as applicable hereto, and the treaties heretofore made

with said Indians: Provided, That Indians taking

allotments as herein provided shall retain their in-

terest in all tribal p

Sec. 3. That for the sole and exclusive use and occu-

pancy of such of said Indians as may not elect or be

deemed qualified to take allotments of land in sev-

eralty, as provided ix the preceding section,

shall be * * * set apart and reserved all that portion

at some suitable place on said lands so reserved.

Sec. 4. That at theexpiration of six months from

the passage of this Ac; the President * shall issue

under the desert, hmestead, and town-site laws

„; but no homestad settler shall receive a title

to any portion of suct lands at less than [$1.25] per

acre, and shall be rewired to make a cash payment

of 50 cents per acre it the time filing is made upon

id lands: [certain provisos follow] * * *.

Sec. 5. That out ofthe moneys first realized from

the sale of said land: so opened up to public settle

from the sale of lanls, after deducting expenses of

sale and survey, shali be held in the Treasury of the

United States in trust for the sole use and benefit of

said Southern Ute Indians. That nothing herein pro-

vided shall in any manner be construed to change or

interfere with the rights of said Indians under any

other existing treaty regarding any annuities or

trust funds or the interest

Sec. 6. That the foregoing provisions of this Act

shall take effect only upon the acceptance thereof

and consent thereto by a majority of all the male

adult Indians now located or residing upon the reser-

vation, which acceptance shall be at once obtained

under such regulations as the Secretary of the In-

terior may prescribe. (Emphasis supplied.)

The Southern Utes could have allotments in severalty

in Area 617, those who did not take these would move to

a reservation in the western sector of Area 617; unallotted

eastern sector lands would be sold not donated to home-

steaders, for the Southern Utes’ benefit. Unlike the Act

of 1888, the Act of 1895 employs language ostensibly con-

sistent with the Act of 1880 but it effects a conflicting re-

sult with the latter. We said earlier that by the plain

terms of the Act of 1880, the Confederated Bands includ-

ing the Southern Utes agreed to cede their entire Colorado

reservation (Royce Area 616 and 617) for consideration.

Under the Act of 1895, however, the Southern Utes

separately ceded all over again a part of their reserva-

tion (Royce Area 617) in exchange for an exclusive and

additional consideration! Section 5 not only states that

the balance of land sales proceeds, deducting certain Gov-

ernment expenses shall be held in the U.S. Treasury for

the sole use and benefit of the Southern Utes, but also

that no offsetting reductions should be made in their rights

under prior treaties because of this consideration. The

meaning to be ascribed this section is a focal point of

controversy between the parties.

The Commission found, subscribing to plaintiff's posi-

tion, that the United States after the Act of 1880 pur-

sued a patterned course of conduct which at all times re-

garded the Southern Utes as the rightful owners of Royce

Area 617. This conduct culminated in the agreement of

1895 which the Commission viewed as an “ultimate act”

was not asserted or exercised. Here we lave an interpre-

tation given to the 1880 treaty by both parties thereto.

Congress recognized this anomalous situation and deemed

it necessary to tender new consideration for the land.

Defendant’s “special benefits” theory is supported neither

by the express language of the Act nor by the legislative

history surrounding its passage. Although earlier reports

described the Uncompahgre and White River Ute re-

movals as somewhat hostile, due to their unwillingness to

leave, Congress did not think it necessary then to encour-

age their exodus with monetary inducements. On the con-

trary, it was reported by the Commissioner administer-

ing the White River Utes that military force was contem-

plated in accomplishing their withdrawal. (H.R. Doc. Ser.

No. 2018, supra. Given the relations which existed be-

tween the United States Government and American In-

dians during this period it is difficult now to view the

former as acting ex gratia wholly. The Southern Utes at

that time, numbered slightly over 1,000. Certainly, if the

United States wanted to make a gift it could have done

so and still fallen far short of the promises embodied in

section 5.

The more tenable theory, in our estimation, is that Con-

gress recognized that by its protracted acquiescence in the

Southern Ute occupation, Government rights to the land

somehow lapsed, or the agreement not being executed

time, was rescinded and dead. It may be

tion to deal justly and honorably with the

Indian wards did not allow insistence on full implementa-

tion of the apparent terms of the 1880 agreement. On the

other hand, the Southern Utes obviously did not see them-

selves as mere squatters. The Congress therefore decided

that if the land was going to be acquired free and clear

lands in controversy were ceded in 1895 not 1880.

This position is bolstered by the Restoration of 1938 (5

Kappler 659), which the Commission found as defendant's

second ultimate act in recognizing plaintiffs’ ownership

rights. In an order by the Secretary of the Interior issued

pursuant to sections 8 and 7 of the Indian Reorganization

Act of June 18, 1934 (48 Stat. 984) the Southern Utes

were restored to their tribal ownership of all lands not

disposed of under the Act of 1895. The first paragraph of

this order reads as follows:

* * * (Pjursuant to the provisions of the Act of

February 20, 1895 * * * the Southern Ute Band of

Indians in Colorado ceded to the United States a

large area of their reservation in the State of Colo-

rado established expressly for their benefit under the

treaty of June 15, 1880 (Emphasis supplied).

Thus, defendant’s officials do not only concede that the

lands were ceded in 1895, but they also enlighten us as to

the status it retrospectively applied to the 1880 agreement.

Such a statement by an executive agency bearing on the

meaning of a treaty must be accorded great weight.

Creek Nation East of the Mississippi v. United States,

165 Ct. Cl. 479, 486, cert. denied, 379 U.S. 846, reh.

denied, 379 U.S. 918 (1964).

A. Defendant's prineipal contention that the Southern

Utes’ claims have been finally settled by prior adjudica-

upon which it namely the 1910 accounting

case No. 80860 (45 Ct. Cl. 440 (1910)) and the 1950

tlement case No. 46640 (117 Ct. Cl. 488, 486 (1950)),

were both intended to settle claims arising out of the 1880

cession exclusively. The Jurisdictional Act of 1909 (35

Stat. 788) which enabled this court to hear the account-

ing claim of the Confederated Bands was expressly limited

Stat. 1209) which authorized the 1950 settlement cases.

On the contrary, this act conferred jurisdiction upon us

to adjudicate all legal and equitable claims which the

Ute Indians or any individual tribe or band thereof may

have against the United States as to claims arising under

any treaty of the United States. The stipulation—the

bulwark of defendant’s case—upon which we entered judg-

ment in case No. 46640, however, was qualified as follows:

* * * [T]he judgment to be entered in this case is

res judicata * * * as to any land formerly owned or

claimed by the plaintiffs [Confederated Band of Utes]

in western Colorado, ceded to defendant by the Act

of June 15, 1880 * . (Emphasis supplied.)

The stipulation recited numerous parcels in 616 and none

in 617, though an effort was made for the list to be com-

prehensive. Since the Commission originally found that

the agreement of 1880 only ceded land in Royce Area 616

it concluded summarily that this stipulation did not ex-

tinguish the instant claims.

We remanded this case to get a better idea of exactly

what the parties meant to stipulate in 1950, namely,

what they then thought was ceded by the Act of 1880. As

reflected in the Commission’s supplemental findings,

plaintiffs’ witness, a signatory to the stipulation and the

then attorney of record for the Confederated Bands, gave

testimony entirely consistent with the Commissioner’s

original findings. Defendant, however, insisting that the

stipulation was self-explanatory and that the intent of

ment on only one is still living—Marvin J.

Sonosky,

in private practice. Having no independent recollection of

unable to give useful testimony. He did indicate, however,

in an affidavit submitted to the Commission, that as the

attorney in charge of the 1950 Ute litigation he prepared

i endant

lated papers declaring them to be the work products of

the attorneys of the Department of Justice and therefore

privileged under Order of the Attorney General No. 381-

any lawsuit to raid and use the work product of his

adversaries. Mr. Sonosky apparently needed to refresh

his memory only, and introduction of his report in evi-

ecessary

imagined. Defendant in this instance has clearly not done

all it might have done to clear up any uncertainty there

may be about the intent of the parties to the stipulation,

We think we are justified in inferring that neither

our

view to the stipulation itself and other papers in that

case, we find insufficient reason there to hold it applies

to areas not effectively ceded. If we have a right to inquire

directly into the understanding of the parties at the time,

to resolve an ambiguity, defendant’s handling of the

Sonosky memorandum is pregnant with the admission

that Mr. Sonosky, his memory refreshed, would not testify

favorably to defendant. Since plaintiffs’ was

unequivocal and no reason is suggested for disbelieving it,

we conclude that the parties never intended the

tion to apply to Area 617, and therefore it did not 80

alternatively that the Weeminuches, now known as the

Ute Mountain Utes, are co-owners with plaintiffs. Because

of this alleged failure to join interested parties, defend-

ant, without citing precedent or other authority, urges

reversal.

Responding to the first assertion, we find that the Un-

compahgre and White River Utes have no interest in the

instant claims. The 1895 agreement was made between the

United States and the Southern Utes and only the latter

were to have any share in proceeds. However apparently

inequitable it may have been to grant the Southern Utes

joint interest with the Uncompahgre and White River

Utes in the Area 616 proceeds and then give them exclu-

sive interest in Area 617 proceeds, this was the stated in-

tent of Congress not to be disturbed presently by this

court. Any claim these tribes might raise against the

Government to redress this matter would emanate from a

right other than that of beneficiaries under the Act of

—

112 91

be Na

ili

C. Defendant conceded at oral argument that should we

find that plaintiffs’ claims were not extinguished by the

1950 settlement, and should we find plaintiffs the sole

owners of their claims, then it is liable for gratui

giving away plaintiffs’ land. Questions of quantum, how-

ever, are still raised by defendant. First, it contends that

the Commission’s finding that defendant is liable to com-

pensate for 230,547.44 acres is not supported by sub-

stantial evidence. Second, in order to avoid payment of

interest, it says it is liable, if at all, for breach of con

rather than to pay just compensation for a 5th amend-

ment taking.

Deferring the acreage issue for the Commission, we

now explore the nature of defendant’s liability. Plaintiffs

argue that under the 1895 Act their ancestors ceded

whatever interest they had in their lands in trust to de-

fendant in exchange for a beneficial interest in the pro-

ceeds. Sustained by the Commission below, plaintiffs as-

sert that the free disposal of their lands with no substi-

tute consideration offered by defendant was a taking un-

der the 5th amendment entitling them to the just com-

pensation. Plaintiffs, in support of their position, cite

several cases, but the one we find to be most in point

is Confederated Bands of Ute Indians v. United States,

100 Ct. Cl. 413, 430 (1943).

Attached to the Jurisdictional Act of 1938, supra, was

the so-called Adams Amendment which declared certain

Ute land ceded under the Act of 1880 but not disposed

of “to be the absolute property of the United States”. In

Confederated Bands, supra, we started with the proposi-

tion that [t] he interest and obligations created by the

agreement of 1880 do not fit readily into conventional

legal concepts, such as trusts, agencies, debts or con-

tractual obligations, and mortgages or security interests.”,

(p. 425), (Emphasis supplied). We went on to comment

that [the problem [was] further complicated by the

fact that one of the parties * * * was a sovereign which

could and did, regardless of the terms of the agreement,

do what it pleased with the lands and their proceeds, giv-

ing the Indians the privilege of having their legal rights

determined only at long intervals * when the sov-

ereign deigned to waive its immunity from suit.”, (p.

495). In short, this was not the typical arms length

contract relationship. Declining to consider whether the

ent assumed the duty of trustee, we found that

the Adams Amendment. Given these circumstances we

held the destruction of this right to be a taking under the

5th amendment. Presently we are confronted with a like

after the 1880 agreement—embodies rights and interests

which similarly evade accurate legal classification. Again,

trust, to defray the expenses of surveying their land.

Since we had earlier found that by a prior treaty the

Government had obligated itself to assume the cost of

surveying, 167 Ct. Cl. 405 (1964), the issue subse-

quently presented was whether its use of Indian trust

First, we noticed that since “legal title to

deposit in the Treasury lay in the United States

[the] Indians’ interest was, at most, that of a beneficiary

and a trustee’s failure to live up to the standards im-

posed upon him is not a taking of title from the cestui but

a breach of obligation.“, 175 Ct. Cl. at p. 455. Our sec.

ond reason, however, raised an even “deeper objection”:

“Money in the Federal treasury, even on deposit, cannot be

simply equated with private property. Where such funds

are involved it requires extraordinary circumstances,

not present here, to find an eminent domain taking in a

withholding or use of money by the Federal Government.”,

at pp. 455-56. We then proceeded to discuss the anomalous

consequences plaintiffs’ theory would engender with re-

gard to “claimants who could show some sort of title to

funds in the Treasury” and those who could not. We

noted further that Im ere form sometimes has mean-

ing, but usually not where, as here, the choice of forms

seems haphazard and accidental. Considerations like these

have impelled courts to shy away, generally, from desig-

nating the withholding or diverting by the defendant of

funds in the treasury as an eminent domain taking.”, at

p. 456. Defendant argues here that its exempting of home-

steaders from making cash payments and its failure to

reimburse plaintiffs for loss of proceeds at most were

breaches of contract or breaches of trust which, even

if deplorable, do not constitute a 5th amendment taking.

Defendant’s breach of contract argument doubtless springs

from our reasoning in Confederated Salish, wherein we

noted, even though not argued by plaintiffs, that defend-

ant’s use of Indian monies for a project which it had

earlier promised to finance itself was a breach of agree-

ment, that plaintiffs’ violated rights were contractual

rights, and that the “taking away of contractual rights,

via a rupture of the contract, is of course not equivalent

to a taking of property under the Fifth Amendment.”, at

p. 455. (Emphasis in original). This is applicable to a mere

breach of a contract but perhaps not to its overt repudia-

—

tion. Lynch v. United States, 292 U.S. 571 (1984). But,

gs we have held, we need not find that latter situation

here since whatever the exact legal nature of the parties’

interests and obligations under the 1895 agreement, they

are more than contractual. Thus defendant’s breach of

must argument must also fail. Admittedly, un the

agreement of 1895, defendant promised

trust for plaintiffs; hence, a8 to this res it might well

an a trustee, Still unclear and unresolved,

jand disposal

with those of the act at bar, we never described defendant

as being an actual trustee as to the lands. Specifically, we

said that it was unnecessary to classify the Government as

a trustee as to the 1880 lands in question, 100 Ct. Cl. at

p. 482, and that it occupied a position “comparable to

not exonerated from paying interest, as for an eminent

domain taking, merely because the obligations of the

United States with respect to the Indian lands involved

inated as being, among other

things, those of a trustee.

Since each taking occurred when the ownership of a

homesteader became final, Creek Nation v. United States,

302 U.S. 620-22 (1938), we leave it to the parties to de-

cide whether to assume the burdensome task of fixing

the date of patent for each homesteader and compute the

damages individually, or rather, as suggested by the

Commission, to fix an average date or dates for the tak-

ings and compute the damages generally.

II.

Plaintiffs’ second claim in this case is for an aceoun

of funds collected by the defendant in the course of gell.

ing plaintiffs’ land under the 1895 agreement. In their

petition filed with the Commission on August 10, 1951,

plaintiffs timely alleged a claim for an accounting for

moneys received by defendant for some 81,953.18 acres

of land disposed of in various ways other ‘than as free

homesteads. Responding to this claim, defendant sub-

mitted a General Accounting Office (GAO) report ac-

counting for proceeds derived from sale of certain lands

pursuant to the Act of 1895, together with an accounting

of the interest on said proceeds during the period from

February 12, 1929 to June 30, 1951. Plaintiffs, after

studying this report, filed exceptions to its contents. These

exceptions were filed on June 12, 1963. Amended

tions were subsequently filed on September 30, 1963. The

Commission, in its interlocutory order, declared that de-

fendant should make a further and complete accounting in

line with specified rulings on each of plaintiffs’ exceptions.

Defendant contests this decision on procedural grounds

but make no objection to the substance of any of the Com-

mission’s rulings on plaintiffs’ exceptions. The procedural

defenses are these: First, the accounting claim alleged in

plaintiffs’ originally filed petition was already rendered

by prior adjudication. Second, the subsequent accounting

claims amended in 1963 by way of exceptions were un-

timely filed additional claims. Hence the Commission un-

der 25 U.S.C. 70(k) (1964) had no jurisdiction to rule

on these claims. Third, the Commission’s order for an up-

to-date accounting was beyond its jurisdiction under 25

U.S.C. 70(a) (1964).

Regarding the first defense, we can dispose of it sum-

marily. Since we have held that the 1950 settlement case

No. 46640 was limited to settling accounts for the 1880

cession exclusively, we are compelled to find that plaintiffs’

original accounting claim which derives from the agree-

ment of 1895, was not included and is therefore still

cognizable.

The second defense, however, does not admit to such

easy disposition. Plaintiffs, perhaps content to rest on the

Commission’s reasoning, made no response to it in their

brief. The Commission excused plaintiffs’ late pleadings

even though it recognized that the exceptions raised gen-

eral accounting claims not referred to in plaintiffs’ origi-

nal petition. Despite the difficulties stemming from the

eral legal principle that “imitations [do not] * * begin

to run until the aggrieved party knew, or should have

known, that his trustee had created a cause of action

through the handling of the trust moneys.”, 17 Ind. Cl.

Comm. at p. 54. This result was deemed particularly

equitable in the light of defendant’s “ynique position”

of not having to render jodie accountings to its In-

dian wards”. “It [the Government] should not,” said the

Commission, “be allowed to take advantage of that fact

570, 585, 372 F. 2d 951, 959 (1967), and as such under

the Commission’s rule of procedure 13 (e) they relate back

to the time of original filing, thus curing the jurisdictional

time bar defect. That the Commission itself did not simi-

we allowed the late amendment because by the Sno-

qualmie’s original petition the Government “was put on

notice of the possibility that the Snoqualmie organization

might expand the scope of its claim.”, Snoqualmie at p.

589. (Emphasis supplied.) The same is true of the instant

case. Admittedly plaintiffs’ original petition requested an

accounting for certain specified items. Responding to

this petition, defendant submitted the GAO report but

not without expressly restricing its introduction to the

issues of liability raised in the petition. This precautionary

measure, which the Commission found correctly to be spe-

cious, indicated, in our opinion, that defendant knew

from the outset that to adequately respond to plaintiffs’

petition it would have to submit the GAO report which

contained various ignoble confessions. That it declined

to contest before the Commission the substance of plain-

tiffs’ exceptions underscores its concession to the obvious-

ness of its fiduciary misconduct disclosed in the report.

We therefore find that the substance of plaintiffs’ original

petition put defendant on notice that it might have to

defend against a broader claim. This finding was stated

implicitly by the Commission, 17 Ind. Cl. Comm. at p. 55:

We are of the opinion that the allegation for a

specific accounting which brought forth the [GAO]

accounting report and thereby revealed other and

further apparent misuse of petitioner’s funds, is a

sufficient basis for requiring a further and complete

accounting from defendant with regard to those items

questioned by petitioner in its exceptions. (Empha-

sis supplied.)

Thus, following Snoqualmie and Northern Paiute, we hold

that plaintiffs’ exceptions relate back to the date of the

original petition.

Defendant’s third procedural contention is that the

Commission’s order for an up-to-date accounting report

is beyond its jurisdiction. 25 U.S.C. 70(a) (1964) on

its face bars the Commission from considering any claims

accruing after August 13, 1946. In a previous interpre-

tation of this section, however, we have said that where

the Government’s initial wrongdoing giving rise to a

claim accruing before August 13, 1946, but continued

past this time, the Indian Claims Commission was free

to determine the extent of its jurisdiction in framing an

award. Gila River Pima-Maricopa Indians, et al. v.

United States, 135 Ct. Cl. 180, 186 (1956), 157 Ct. Cl.

941 (1962). We expressed agreement in that case with

the established principle that “a court once having ob-

tained jurisdiction of the persons and subject matter of

a suit, retains such jurisdiction for all purposes includ-

ing the awarding of all damages accruing up to the date

of judgment.” We hereby reaffirm our adherence to this

principle and hold the Commission correctly ordered an

up-to-date accounting for continuing Government wrong-

doings which predated and postdated the statutory time

bar.

In view of the foregoing, we affirm as to the taking

claim and all of the Commission’s determinations related

thereto, except for the finding that defendant is liable

for just compensation for taking exactly 230,547.44 acres

of land, the Commission having offered no explanation

as to how it reached this figure. In remanding to the

Commission the task of approving the amount of com-

pensation due, we therefore do not restrict plaintiffs’ re-

covery or fix defendant’s liability at the 230,547.44 figure.

We also affirm the Commission’s decision as to the ac-

counting claim. Accordingly, we return the case to it

with the task of conducting the accounting consistent

with rulings which were the subject of this appeal.

Affirmed and remanded.

SKELTON, Judge, dissenting:

I respectfully dissent. I cannot agree with the reason-

ing of the majority nor with the result they reach. In

my opinion, the Indians in this case, along with other

Southern Ute tribes, were paid $31,938,473.43 in 1950

for the identical land involved here, together with other

lands. This was the largest judgment ever awarded by

this court since it was established in 1855. The attorneys

who represented the Indians in the recovery of this tre-

mendous judgment received an attorney fee of $2,800,000.

See Confederated Band of Ute Indians v. United States,

120 Ct. Cl. 609 (1951). As will be seen in the following

pages, the same Indians and the same attorneys are be-

fore the court again in this case asking that they be paid

again (twice) for the same land, and the opinion of the

majority is going to allow them to get this double pay-

—_—

ER:

ment. This results, in my opinion, in a shocking give-

away of millions of dollars of public money of the United

States, and I cannot agree to it.

The overriding error in the opinion of the majority

is the failure to honor the doctrine of res judicata. The

crucial issue is whether the lands now at bar were in-

cluded in the judgment of this court in Confederated

Bands of Ute Indians v. United States, (Nos. 45585,

46640, 47564, 47566), 117 Ct. Cl. 483 (1950), in which,

as stated above, the plaintiff and other Ute Indians were

awarded over 31 million dollars in settlement of all of

their claims, including those involving the lands in this

case.

The judgment in No. 46640 (of over six million dol-

lars) was entered pursuant to a stipulation signed by

the attorneys for both parties to the law suit including

the attorneys for the plaintiff in the present suit. Using

language as clear and unambiguous as is possible in the

English language, the plaintiff Confederated Bands

(which included the present Southern Ute Band, appellee

in the suit before us) entered into a complete release,

extinguishment and settlement of any and all of their

claims regarding the land then at bar. The parties agreed

that:

[Judgment * * shall be entered in this cause

as full settlement and payment for the complete ex-

tinguishment of plaintiffs’ right, title, interest, es-

tate, claims and demands of whatsoever nature in

and to the land and property in western Colorado

ceded by plaintiffs to defendant by the Act of June

15, 1880 (21 Stat. 199), which (a) the United

States sold for cash between July 1, 1910, and June

28, 1938, (b) disposed of as free homesteads from

December 19, 1885, to June 28, 1938, and (c) set

aside for public purposes during the period from

June 30, 1910, to June 27, 1938. The plaintiffs con-

cede that due and proper accounting has been made

by the defendant to the plaintiffs for those lands

sold for cash during the period from June 30, 1910,

to June 28, 1938. * * * [Emphasis supplied.] IId.

at 436-37.]

: —

The stipulation then went on to describe a “Schedule 1,”

which contained the legal descriptions of approximately

1,523,236.95 acres of land embraced by the stipulation,

saying: “So far as the parties with diligence have been

able to determine these descriptions represent all the lard

30 disposed of and set aside.” IId. at 487.] This Sched-

ule 1 contains 338 pages of single-spaced, typewritten

legal descriptions of land. A land expert would find it

difficult, if not impossible, to make sense of this Schedule

1. Even if he were to analyze it, months of his time

would be required in the process. When confronted with

the schedule of lands pursuant to settling case No. 46640,

the government only ran a spot check of the schedule, and

concluded that while there were errors, it was imprac-

tical to continue the examination. Evidencing an obvious

lack of reliance on the correctness and completeness of

Schedule 1, the stipulation signed by both parties went

on to state:

However, the judgment to be entered in this

case is res judicata, not only as to the land described

in Schedule 1, but, whether included therein or not,

also as to any land formerly owned or claimed by

the plaintiffs in western Colorado, ceded to defend-

ant by the Act of June 15, 1880 (21 Stat. 199), and

by the defendant during the aforesaid periods of

time sold for cash, disposed of as free homesteads

and s

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