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

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. SOUTHERN UTE TRIBE

OR BAND OF INDIANS

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

No. 515. Argued March 1, 1971—Decided April 26, 1971

Respondent’s claims for compensation and accounting are barred

by res judicata since they relate to land “formerly owned or

claimed by [the Confederated Band of Utes] in western Colorado,

ceded to [the United States] by the Act of June 15, 1880” and

thus were subject to a final settlement reduced to a consent

judgment, to which respondent was a party, made in 1950.

Pp. 3-15.

191 Ct. Cl. 1, 423 F. 2d 436, reversed.

BRENNAN, J., delivered the opinion of the Court, in which Burcer,

C. J., and BIAcxk, HAN, Srewart, Wuire, Mans HALL, and

BiackMUN, JJ., joined. Docs As, J., filed » dissenting opinion.

woquem te nnn g Jann

3 i

Hminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 515.—Ocrosrr Tzrm, 1970

United States, Petitioner, On Writ of ‘Cae te the

U. °

United States Court of

Southern Ute Tribe or Claims 1

Band of Indians.

[April 26, 1971]

Mr. Justice BRENNAN delivered the opinion of the

Court.

In 1951 the Southern Ute Tribe or Band of Indians,

a part of the Confederated Bands of Utes, brought this

claim before the Indian Claims Commission.“ The claim

asserted that the United States had violated its fiduciary

duty to respondent by (1) disposing of 220,000 acres of

land as “free homesteads” although obligated by 21 Stav.

203-204 (1880) and 28 Stat. 678 (1895) to sell the acreage

for the respondent’s benefit; and (2) by failing to account

for the proceeds of 82,000 acres of land, which proceeds

were, under the same acts, to be held for the respondent’s

benefit. The Government’s basic defense was res judicata

by reason of Court of Claims consent judgments entered

in 1950 between the United States and the Confederated

Bands of Utes, including the respondent. Confederated

1 The claim was filed pursuant to the Indian Claims Commission

Act, 25 U. S. C. §70a. See also 25 U. S. C. § 70k. N

2 The 1950 cases were brought under the Jurisdictional Act of 1938,

52 Stat. 1029. The settlement reduced to consent judgment princi-

pally relied upon by the Government is that in Case No. 46640, 117

Ct. Cl. 433, 436 (1950). Related stipulations are reported at 117 Ct.

Cl. 434-435, 439, 440-441. The aggregate amount of the settlements

exceeded $31 million. The United States also unsuccessfully asserted

below defenses of failure to state a claim and failure to join

all necessary parties. Those questions are not before us.

2 UNITED STATES v. SOUTHERN UTE INDIANS

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

(1950). The Indian Claims Commission rejected the

defense, 17 Ind. Cl. Comm. 28 (1966); but the Court of

Claims, in an unpublished order, App., at 57-58, re-

manded for the taking of additional evidence. On re-

mand the Commission again rejected the defense, 21 Ind.

Cl. Comm. 268 (1969), and the Court of Claims affirmed,

two judges dissenting. 423 F. 2d 346 (1970). We

granted certiorari. 400 U. S. 915 (1970). We reverse.

The consent judgment entered in the Court of Claims

gave effect to a settlement agreement which fecited a stip-

ulation of the parties that:

A] judgment. . . shall be entered in this cause

as full settlement and payment for the complete ex-

tinguishment 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 16, 1880

(21 Stat. 199), which (a) the United States sold

for cash . . . (b) disposed of as free homesteads . . .

and (c) set aside for public purposes [between 1910

and 1938]. ... There is filed herewith and made

a part of this stipulation Schedule 1, which contains

the legal descriptions of [lands] . . . disposed of by

defendant as free homesteads and the remaining.

acres . . . set aside by the defendant for public pur-

poses. However, the judgment to be entered

in this case is res judicata, not only as to the land

described in Schedule 1, but. . also as to any

land formerly owned or claimed by the plaintiffs in

western Colorado, ceded to defendant by the Act of

June 16, 1880 ....” 117 Ct. CL, at 436-437 (em-

phasis added).

The lands involved in the present suit were not included

in Schedule 1; rather, the Government relies upon the

UNITED STATES v. SOUTHERN UTE INDIANS 3

clause that the consent judgment was “res judicata . . .

also as to any land... ceded to defendant by the Act

of June 15, 1880. ö ö

Both the Indian Claims Commission and the Court of

Claims rejected the Government's res judicata defense on

the ground that the claim concerning the lands involved

in this action was not compromised by the 1950 settle-

ment because those lands were not among the lands

“eeded to defendant by the Act of June 15, 1880.”

Decision of this case turns, then, upon the proper in-

terpretation of the agreement, embodied in the Act of

1880, between the United States and the Ute Indians

as it relates to the settlement agreement, reduced to judg-

ment in 1950, between the same.parties. The determi-

nation of that interpretation requires a somewhat lengthy

factual recitation.

In the latter half of the 19th century, what is now the

Confederated Bands of Utes, composed of the Uncom-

pahgre Utes, the White River Utes, and the Southern

Utes, exchanged their aboriginal lands in New Mexico,

Utah, and Colorado for a reservation of approximately

15.7 million acres lying wholly within Colorado. 13 Stat.

673 (1864); 15 Stat. 619 (1868). Although the acreage

was undivided, the White River Utes lived in the northern

portion of the reservation, the Uncompahgre Utes in-

habited the central part, and the Southern Utes occupied

the southern region. The reservation, however, survived

little longer than a decade in this form. In 1874 the

Utes approved the Brunot Cession of 3.7 million acres

of the east-central portion of the reservation after valu-

able mineral deposits had been discovered there. 18

Stat. 36 (1874). The result of the cession was almost

The United States admits that the stated consideration was not

promptly paid. Brief for Petitioner, at 5. See also J. Dunn, Mas-

sacres of the Mountains 583-587 (1958). ;

4 UNITED STATES v. SOUTHERN UTE INDIANS

to sever the reservation, leaving the Southern Utes

wedged between the southern boundary line of the

Brunot Cession and the New Mexico border, at the

southern-most part of the reservation on a strip of land

15 miles wide and 110 miles long. This strip, which

includes the lands at issue here, is referred to by the

parties as Royce area 617, and the remainder of the

reservation after the Brunot Cession is referred to as

Royce area 616.“

Within eight years only the Southern Utes remained

in Colorado: the White River Utes and the Uncompahgre

Utes departed for Utah before 1882 as a consequence of

the massaere in 1879 of Indian Agent Meeker and others

at White River station. The public outcry over this

incident led to negotiations with the Confederated Bands

which produced the Act of 1880.

The central feature of the Act of 1880 was the ter-

mination of tribal ownership in the reservation lands,

and the limitation of Indian ownership to such lands as

might be allotted in severalty to individual Indians.

The purposes of that provision were to destroy the tribal

structure and to change the nomadic ways of the Utes

by forcibly converting them from a pastoral to an agri-

cultural people. See 10 Cong. Rec. 2059, 2066 (1880).

The Act recited that it was enacted to accept “the agree-

ment submitted by the confederated bands of Ute

Indians in Colorado, for the sale of their reservation in

said State... . 21 Stat. 199 (1880). Thus, it was

provided that the Confederated Bands “cede to the

United States all the territory of the present Ute Reser-

vation in Colorado, except as hereinafter provided for

their settlement.” 21 Stat. 200 (1880). The settlement

*These derive from a map of Indian land cessions drawn by

Charles Royce in connection with a published study “Indian Land

Cessions,” 18th Ann. Rep., B. A. E. 1896-1897, Part. II.

UNITED STATES v. SOUTHERN UTE INDIANS 5

provisions stipulated that the White River Utes would

leave Colorado “and settle upon agricultural lands on the

Vintah Reservation in Utah,” ibid., and “that the Un-

compahgre Utes agree to remove to and settle upon agri-

cultural lands on Grand River, near the mouth of the

Gunnison River, in Colorado,” ibid., or if insufficient

agricultural land was found there, go to Utah (which

they soon did). The Southern Utes were 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 La Plata River and in

its vicinity in Colorado, then upon such other unoccupied

agricultural lands as may be found on the La Plata River

or in its vicinity in New Mexico.” Ibid. Finally, it was

provided that “all the lands not so allotted, the title to

which is, by the said agreement of the confederated bands

of the Ute Indians, and this acceptance by the United

States, released and conveyed to the United States, shall

be held and deemed to be public lands of the United

States and subject. to disposal,” but only for the financial

benefit of the Utes. 21 Stat. 203-204 (1880).

The plain wording of the Act cedes to the United States

all of the nonallotted acreage of the reservation, including

that in the 15-mile strip (Royce area 617) occupied by

the Southern Utes. The Court of Claims’ opinion ac-

knowledges this, stating that:

“The most significant aspects to be gleaned from

this [1880] Act . . . is that the Confederated Bands

(Southern Utes included) seemed to cede their entire

reservation—Royce Area 616 and 617—and moreover

promised to accept allottments in severalty in vari-

ous sectors within and beyond reservation boundar-

ies. As sole consideration for these promises, the

Bands were to receive shares in the proceeds of un-

allotted land sales remaining after certain Govern-

6 UNITED STATES v. SOUTHERN UTE INDIANS

ment reimbursements. The Southern Utes were

' apportioned a one-third share and like their con-

federates understood that such monies would be held

by defendant in trust for their benefit.” 423 F. 24

346, 350 (1970) (emphasis in original).

Thus, if inquiry were to end with the wording of the

1880 Act, the consent judgment barred respondent’s claim.

The Commission and the Court of Claims did not,

however, end their inquiry with the wording of the Act

of 1880. Both of those tribunals considered the conduct

of the United States in relation to respondent tribe in the

years subsequent to passage of the Act of 1880. Even

so, the basis of their rejection of the res judicata defense

does not emerge from their opinions with complete clarity.

The Court of Claims read the Commission's first opinion,

17 Ind. Cl. Comm. 28 (1966), as holding that the Southern

Utes expressly withheld the southern strip from the lands

ceded by the 1880 Act: “The Commission found that the

Act of 1880 ‘reserved’ Royce Area 617 for the Southern

Utes.” 423 F. 2d, at 350. Some language at that point

of the opinion suggested that the Court of Claims was

in agreement with that view—‘“the following sequence

of events. . . support the conclusion that plaintiffs at

any rate did not cede their reservation (Royce Area 617)

under the agreement of 1880.” Ibid. However, the

opinion later turns the decision on a different theory:

“The more tenable theory, in our estimation, is

that Congress recognized that by its protracted acqui-

escence in the Southern Ute occupation, Govern-

ment rights to the land had somehow lapsed, or the

agreement not being executed for so long a time, was

rescinded and dead. It may be that the obligation

to deal justly and honorably with the Indian wards

did not allow insistence on full implementation of

the apparent terms of the 1880 agreement. On the

6

— .

UNITED STATES v. SOUTHERN UTE INDIANS 7

other hand, the Southern Utes obviously did not

see themselves as mere squatters. The Congress

therefore decided that if the land was going to be

acquired free and clear new consideration was neces-

sary. Hence we find section 5 of the 1895 agreement

to be an explicit waiver of the Government’s rights

created in the 1880 agreement, whatever they were.

It follows then that the Southern Ute lands in con-

troversy were ceded in 1895 not 1880.“ Id., at 356.

This reasoning implies that the holding that the lands

in suit were not ceded in 1880 rests upon application of

the doctrines of estoppel, or waiver, or a compound of

those doctrines. We disagree that the history relied on

supports any of those bases for decision, even assuming

(and we have serious doubts) that the plain words of the

Act of 1880 can thus be varied to except the lands in suit

from the phrase “any land. . . ceded” in the consent

judgment. We turn, then, seriatim to the events relied

upon below.

Even before 1880 the Southern Utes had experienced

hardship in living on the southern strip. Essentially,

they were a pastoral people and the strip was so narrow

that it was difficult to keep their animals within it. In

addition, the white population to the north and south

of the strip was increasing and the resulting lines of

commerce cut across the strip.

“The Indian Bureau, realizing that this strip, by

reason of its narrowness and of its remoteness from

the other portion of the reservation, was entirely

unsuited to the use of the Indians, suggested that

negotiations be entered into with them for the cession

of that strip. In accordance with this, in 1878,

Congress passed an act authorizing such negotiations

(U.S. Stat. L., vol. 20, p. 48), and under this author-

ity a commission . . was appointed, and during

UNITED STATES v. SOUTHERN UTE INDIANS

the same year they negotiated an agreement with

the Indians whereby they agreed to exchange this

strip for another reservation.” S. Rep. No. 279,

53d Cong., 2d Sess., 1 (1894).

But before the bill was acted upon by Congress, the

Meeker Massacre occurred.“ The outcry following that

incident caused Congress to adopt the solution in the

Act of 1880 affecting all of the Ute tribes. Contrary to

the apparent view of the Commission and Court of

Claims, this segment of history does not show an inten-

tion to treat the Southern Utes differently from the other

Utes; rather, it demonstrates a congressional decision to

treat the Southern Utes as the White River and Uncom-

pahgre Utes were being treated, save that the White

River Utes were being completely banished from

Colorado.

The Act of 1880 provided that “a commission shall

be sent to superintend the removal and settlement of the

Utes, and to see that they are well provided with agri-

cultural and pastoral lands sufficient for their future

support. 21 Stat. 201 (1880). The Commission

visited the Southern Utes to carry out that mandate and

in 1881 its chairman reported to Congress:

“During my stay on the reservation I took oc-

casion . . to talk to the leading men . . on the

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-

liminary step to such location [in severalty] ....

5 While apparently the “massacre” involved only the White River

Utes, all Utes were blamed. See exchange of correspondence during

the uprising among the Indian agents, Secretary of the Interior,

Governor of Colorado, and others printed in S. Ex. Doc. No. 31, 46th

Cong., 2d Sess. (1880). See also J. Dunn, Massacres of the

Mountains (1958), and P. Sheridan, Record of Engagements with

Hostile Indians 88-91 (1882).

UNITED STATES v. SOUTHERN UTE INDIANS 9

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

these Indians to abandon their present [way of liv-

ing] and adopt the new mode of life contemplated

by the agreement.

“In the mean time, and while the change is going

on, they must be protected from annoyance... .

To prevent intrusion and guarantee proper order and

protection I can see no other way than to so modify

the [1880] agreement, . as to maintain the ex-

terior lines of the strip of land one hundred miles long

and fifteen wide, and preserve all the land within

these lines for an indefinite period as an Indian reser-

vation .. Then the land selected, and upon

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

from intruders.” H. R. Ex. Doc. I, pt. 5, 47th Cong.,

Ist Sess., 393 (1882).

But Congress did not create the recommended reser-

vation. Instead, Congress took action consistent with

adherence to the plan of the Act of 1880. There had

been great pressure to open Royce areas 616 and 617 to

homesteading after the Act of 1880 had resulted in the

removal of the Uncompahgre and White River Utes.

The Southern Utes were, however, still occupying the

southern strip, Royce area 617. The apparent result was

the Act of July 28, 1882, 22 Stat. 178, which declared that

all of the northern portions of the reservation formerly

occupied by the Uncompahgre and White River Utes,

Royce area 616, were now public lands to be disposed of

for the benefit of the Utes in accordance with the Act of

1880. Section 2 of that statute provided that the Secre-

tary of the Interior “shall, at the earliest practicable day,

ascertain and establish the line between” the two Royce

areas. 21 Stat. 178 (1882). We find nothing in the leg-

islative history of that statute to support a finding that it

10 UNITED STATES v. SOUTHERN UTE INDIANS

evidenced a congressional conclusion that the southern

strip had not been ceded by the Act of 1880. On the con-

trary, the thrust of the legislative history is that the line

was drawn to assure that there would be no interference

with the land in Royce area 617 available for allotment to

the Southern Utes under the Act of 1880. H. Rep. No.

799, 53d Cong., 2d Sess., 2 (1894); S. Rep. No. 279, 53d

Cong., 2d Sess., 2, 3-4 (1894).°

The Court of Claims also found support for its con-

clusion in what was said to a congressional committee by

a Ute spokesman for the Southern Utes at a meeting

in the District of Columbia in 1886. The spokesman

stated that the delegation had come “to see if we cannot

exchange our reservation for another... The pres

ent reservation is narrow and long and we want to go

west and see if we can’t sell it.” S. Rep. No. 836,

49th Cong., Ist Sess., 1 (1886). The Court of Claims

viewed this as demonstrating that “the Southern Utes

were still in possession of their part of their old reserva-

tion under claim of right.” 423 F. 2d, at 353. We do

not doubt that the Southern Utes regarded the lands they

occupied as “our reservation,” but we fail to see how this

nullifies the conveyance of the strip made by the Act of

1880. On the contrary, there is cogent evidence that the

United States totally rejected the Indians’ claim that the

strip was ‘our reservation.” After two bills to effectuate

the removal of the Southern Utes failed to pass, Congress

enacted 25 Stat. 133 (1888) empowering “[t]he Secretary

of the Interior . . to appoint a commission . . with

* The Court of Claims found proof that “the Interior Department

at least was already viewing the Southern Ute territory as a perma-

ment reservation not ceded under the terms of the 1880 cession,” 423

F. 2d, at 352, in a description of the line in an 1882 letter to the

district land offices. We find nothing in the letter to that effect, and

in any event, it could hardly be the basis for disregarding the con-

gressionally expressed design.

UNITED STATES v. SOUTHERN UTE INDIANS 11

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 Ibid. Despite the

reference to “their reservation,” the premise of this stat-

ute was obviously that amelioration of the plight of the

Southern Utes would require “modification of their treaty

and other rights” as they had been fixed in the Act of

1880. Even the Court of Claims thought the Act of

1888 little support for the respondents’ contention:

“Although the language of this act tends to favor

plaintiffs’ position it is by no means conclusive. It

merely authorized the establishment of a commission

to engage the Southern Utes in negotiations for the

purpose of persuading them to do belatedly what

the Uncompahgre and White River Utes had done

some years earlier, namely, to vacate their reserva-

tion 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.” 423

F. 2d, at 353-354.

The Commission formed pursuant to the Act of 1888

did succeed in negotiating an agreement with the South-

ern Utes, under which the Southern Utes would have

been moved to a reservation in San Juan County,

Utah. The Court of Claims observed that in such case

“[p]resumably, their evacuated reservation lands would

then be sold in accordance 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 visualized in the 1880 agreement as

accruing to the Southern Utes would still accrue.” 423

F. 2d, at 354. In cther words, the treatment of the

12 UNITED STATES v. SOUTHERN UTE INDIANS

Southern Utes would be precisely that accorded the

Uncompahgre and White River Utes when they left

Colorado. But this event only serves to furnish stilj

more proof that the Government remained firm in its

position that the strip was ceded by the Act of 1880.

This is confirmed by the congressional reaction when

the agreement was submitted for approval—nothing

happened for six years and the agreement was again

introduced in 1894. The opinion of the Court of Claims

depicts the situation:

“Conceding the ‘anomalous position [of the Southern

Utes} of having ceded their reservation and yet re-

maining on it’, the Senate Committee on Indian Af-

fairs favored ratification (Sen. Rep. No. 279, 53d

Cong. 2d Sess. 2-3 (1894)). Its House counterpart,

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 encourage their nomadic ways. There-

fore, 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.”

423 F. 2d, at 354.

This recital refutes, rather than supports, the notion that

the United States followed a pattern or course of conduct

after 1880 which regarded the Southern Utes rather than

the United States as the owners of Royce area 617.

Finally, we cannot agree with the Court of Claims

that § 5 of the Act of 1895 is “an explicit waiver of the

Government’s rights created in the 1880 agreement, what-

—

UNITED STATES v. SOUTHERN UTE INDIANS 13

ever they were.” 423 F. 2d, at 356. The Act of 1895,

in addition to annulling the 1888 agreement, expressly

confirmed the Act of 1880 and directed the Secretary

of the Interior to proceed with allotments in severalty

to the Southern Utes “in accordance with the provisions

of the Act of [1880].” 28 Stat. 677 (1895). It went on

to settle the grievances of those Southern Utes who

wanted their own reservation rather than allotments in

severalty by providing that “there shall be . . . set apart

and reserved all that portion of their present reservation

lying west of” a defined line in the strip. 28 Stat. 678

(1895). We do not see how the United States could

have “set apart and reserved” a portion of the strip for

a reservation unless the strip belonged to it. The re-

mainder of the strip to the east of the new reservation

was to be available for allotments in severalty to individ-

ual Southern Utes and the land not allotted was to “be

and become a part of the public domain” to be sold for

the benefit of said Utes. Ibid. Section 5 allocated the

from sales of the land opened to public settle-

ment. We look in vain for anything in that section to

support conclusion of the Court of Claims that it con-

tains an “explicit waiver” by the United States of its

rights under the Act of 1880 and that “[i]t follows then

that the Southern Ute lands in controversy were ceded

in 1895 not 1880.” 423 F. 2d, at 356. The Senate Re-

port recommending passage of the Act of 1895 belies that

conclusion. The report repeats, once again, the pre-

viously stated position of the Congress that “[o]n

March 6, 1880, [the Utes] . . . ceded the whole of their

reservation in Colorado to the United States, except such

lands, if any, as might be allotted to them in severalty.”

8. Rep. No. 279, supra, at 2. We discern nothing in 8 5

save some revision of the formula for allocation of the

proceeds of the sales of the unallotted lands in the portion

14 UNITED STATES v. SOUTHERN UTE INDIANS

of the strip east of the reservation." We find absolutely

no language that the Southern Utes made any cession

thereby, and, indeed, we are convinced that the

is consistent only with the fact that they had no land

to ode.“ The Act of 1895 simply resolved the impasy

* Section 5 of the Act of 1895 provides in pertinent part:

“That out of the moneys first realised 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 dollan

annually for ten years . . 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 proceeds shall be paid to the of

the Interior, who shall invest the same in sheep and divide the said

ith the

rights of said Indians under any other existing treaty regarding any

annuities or trust funds or the interest thereon.” 28 Stat. 678

of Royce area 617 yet undisposed of:

“[P]ursuant to the provisions of the Act of February 20, 1895 (28

Stat. L., 677), the Southern Ute Band of Indians in Colorado ceded

to the United States a large area of their reservation in the State of

Colorado established expressly for their benefit under the treaty of

June 15, 1880 (21 Stat. L., 199),” S. Doc. No. 194, 76th Cong., 3d

Sess., 659 (1938) (compiled by C. Kappler).

The Court of Claims suggested that these words demonstrated that

“[petitioner’s] officials . . . not only concede that the lands were

ceded in 1895, but they also enlighten us as to the status it retro-

spectively applied to the 1880 agreement.” 423 F. 2d., at 356.

As we have said in this opinion, we find no creation of a reserva-

tion for the Southern Utes in the Act of 1880, nor can we find any

words of cession in the Act of 1895. In addition, rather than attach-

UNITED STATES v. SOUTHERN UTE INDIANS 15

over the allotments in severalty which had existed for

15 years because of the Southern Utes’ reluctance to

them. The United States created a new reserva-

tion for them, while still permitting allotments to

those Southern Utes willing and qualified to engage in

farming. This plan was clearly constructed in reliance

upon, not in derogation of, the cession made under the

Act of 1880.

We therefore hold that the claim in this case is res

judicata under the 1950 consent judgment enforcing the

settlement agreement “as to any land . . . ceded to de-

fendant by the Act of June 15, 1880.“

Reversed.

—

ing the significance suggested by the Court of Claims, the quoted

words are more properly to be treated as careless draftemanship: the

time of cession, whether 1880 or 1895, was of absolutely no conse-

quence to the act of restoration of undisposed lands in 1938. Finally,

the quoted words do not support the application here of the principle

that courts should give weight to a consistent reading of an am-

biguous document by the agency charged with its enforcement. As

our opinion shows, we do not find either the Act of 1880 or that of

1895 ambiguous. Moreover, what consistency the parties have

shown in the enforcement of those acts, cuts against the contention

of the respondent.

©The Court of Claims unreported order remanded the case 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

propriety of the remand, see Delaware Indians v. Cherokee Nation,

193 U. S. 127, 140-141 (1904); United States v. William Cramp &

Sons Ship & Engine Building Co., 206 U. S. 118, 128 (1907), but

do not decide the question since it does not appear that the decision

of the Court of Claims turned on any evidence of the intention of

the parties to the stipulation.

SUPREME COURT OF THE UNITED STATES

No. 515—Ocroszr Term, 1970

United State, Petitioner,) On Writ of Certiorari to the

1 5 Tribe or United States Court of

ern Claims.

Band of Indians,

(April 26, 1971]

Mr. Justr® Douce As, dissenting.

Though tle facts of this case are complex, they pre-

sent but one major question, whether the lands in ques-

tion were “eded to defendant by the Act of June 15,

1880,” and neluded in a consent judgment entered by

the Court o Claims in 1950.

More preisely, what was the status of these lands

(Royce Ares 617) between 1880 and 1895? Were they

ceded in 189), yet not released by the Indians until 1895?

How can it be said that the Royce Area 617 was ceded in

1880 yet retsined until 1895, since, as the Court of Claims

stated, “the Southern Utes were allowed to remain on

their surve:ed reservation for 15 years after the pur-

ported cesson, and the right to remove them without

their furtht consent was not asserted or exercised.”

423 F. 2d 56.

Twice tle facts have been considered, once by the

Indian Clams Commission and once by the Court of

Claims. Aid both have resolved the question presented

in favor of the respondent, Southern Utes. That result

below is anply supported by the record.

As of 180, the Confederated Bands of Ute Indians

occupied a reservation of 12,000,000 acres in Western

Colorado. The White River Utes and the Uncompahgre

Utes occuyied the northern portion (Royce Area 616),

*

2... UNITED STATES v, SOUTHERN UTE hee

! 42

and the Southern Utes occupied an almost separated

southern section (Royce Area 617). In 1880, the Utes

entered into a treaty with the United States. It pro-

vided that the chiefs would persuade their people

“to cede to the United States all the territory of the

present Ute Reservation in Colorado, except as here-

inafter 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 La Plata River

and in its vicinity in Colorado, then upon such other

unoccupied agricultural lands as may be found on

the La Plata River or in its vicinity in New Mexico.”

(21 Stat. 199, 200.) Act of June 15, 1880.

The cession of the territory was on the express condition:

“That the Government of the United States cause

the lands so set apart to be properly surveyed and

to be divided among the said Indians in sever-

alty....” (Id., at 200-201.)

The Secretary of the Interior was authorized to have the

land surveyed for allotment. Commissioners were to

make the allotments,

“and all lands not so allotted, the title to which is, by

the said agreement of the confederated bands of the

Ute Indians, and this acceptance by the United

States, released and conveyed to the United Staves,

shall be held and deemed to be public lands of the

United States.. (Id., at 203.)

The Ute Commission was formed. In 1881 it reported to

Congress. The Uncompahgre and White River Utes had

been-moved, but the Southern Utes were still on their

reservation. The Chairman of the Commission had de-

UNITED STATES u. SOUTHERN UTE INDIANS 8

cided that it would be unwise to move them.’ The allot-

ments, à condition of the cession, were not made. In

1882, Congress declared Royce Area 616 to be public land

(2 Stat. 178). It provided that a line be established

between Royce Area 616 and Royce Area 617. (§ 2, id.)

The Secretary of the Interior ordered the line to be

drawn (e lommencing at the southwest. corner of the

Ute ceded lands; thence extending the south boundary

of the Ute ceded lands to the western boundary of the

State of Colorado. . (Emphasis, supplied.) *

——

Inn has been suggested that the Indians refused to take the allot-

allotments.

2“From this description it would seem that the Interior Depart-

ment at least was already viewing the Southern Ute territory as a

permanent reservation not ceded under the terms of the 1880 cession.

Specifically, the letter states that the survey line commence at, not

in, the southwest corner of the ceded Ute land. Adhering to de-

fendant’s contention that all lands were ceded in 1880, a literal

interpretation of this letter would lead to an anomalous result. If

the starting point was placed at the southwestern corner of Ute

ceded land, the point would coincide with the converging point of the

4 UNITED STATES v. SOUTHERN UTE INDIANS

As of this time it appears that neither the Southern

Utes nor officials of the United States thought that Royce

Area 617 had been ceded by the Act of 1880. Te

Southern Utes still considered it their reservation and

the Commissioner of Indian Affairs apparently feli

, een onli allen

that there had been a cession of it in 1880.

In 1888, Congress authorized the Secretary of the In

terior to appoint a commission to negotiate with’ the

Southern Utes. They agreed to settle in Utah, but Con-

gress would not approve the agreement. Congress then

passed the Act of 1895, 28 Stat. 677:

m within’ six’ months after ‘the passes of ks

Act the Secretary of the Interior shall cause allot-

ment 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 amendments thereto... .” (12

id.)

“That at the expiration of six months from the

passage of this Act the President . . . shall issue his

proclamation declaring the lands embraced within

New Mexico, Colorado and Utah borders. The line could not extend

to the western boundary of Colorado because it would start there.”

United States v. Southern Ute Tribe or Band of Indians, 423 F. A

346, 352 (C. Cis. 1970).

* The Southern Utes came to Washington in 1886 to negotiate for

an exchange of their reservation for one to the west. See S. Rep.

UNITED STATES v. SOUTHERN UTE INDIANS

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,

to. occupancy and settlement. (§4,.id., at

678.) (Emphasis added.) 1

The money realized from the sale of the lands set aside

was to be held for the sole benefit of the Southern Ute

Indians. Section 6 declared that the provisions of the

Act were not to take effect until accepted by a majority

of the male adult Indians. A majority did accept.

Some of the Southern Utes took allotments in sev-

eralty. The Weeminuche Utes, now the Ute Mountain

Utes, elected, however, to settle on.a tract at the west

end of their “present reservation.” (§ 3, id.)

A substantial amount of land in Royce Area 617 was

settled by whites, and disposed of by the United States

Government. The subject of the present suit before the

Indian Claims Commission includes, inter alia, the pro-

ceeds from land sold and damage for land given away

in violation of the Act of 1895.

In 1934, Congress allowed restoration of all land in

Royce Area 617 not disposed of under the Act of 1895.

(48 Stat. 984.) The Secretary of the Interior restored

all such land to the tribal sovereignty of the Southern

Utes. That order began:

“pursuant 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 Colorado established

expressly for their benefit under the treaty of June 15,

1880. (Order of Restoration, September 14,

1938, 5 Kappler 659.) (Eraphasis added.)

The Confederated Bands have sued the United States

in the past for damages arising out of breaches of the

1880 treaty. One such suit was settled in 1950, and

6 UNITED STATES v. SOUTHERN UTE INDIANS

judgment was entered pursuant to a stipulation of the

parties. A schedule of all land covered by the judgment.

was included, but omissions were provided for:

“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 judicate,

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 west-

ern Colorado, ceded to defendant by the Act of

June 15, 1880... .” (117 C. Cls. 433, 437.)

None of the land in Royce Area 617 (360 sections or

21.8% of the total area which had been wrongly disposed

of) was therefore included.

The Indian Claims Commission found that the United

States had acknowledged by its actions that the Southern

Ute Reservation was not ceded by the 1880 Agreement.

Therefore any accounting which included Southern Ute

lands in Case N. 30360, 45 C. Cls. 440 (1910), was erro-

neous and beyond the jurisdiction of the Court of Claims

to enter. The Court of Claims remanded this case to

the Commission for a determination of the intention of

the parties in entering into the 1950 stipulation. Plain-

tiffs produced evidence that they never intended Royce

Area 617 to be covered. The broad language of the stip-

ulation was to insure that minor omissions were covered.

“Diligence” would not have permitted the exclusion of

360 sections of land. The Government refused to pro-

duce any documents which might have disclosed the in-

tent of its signatories, claiming this was the “work prod-

uct.” The Commission found no intent to include land

in Royce Area 617 in the stipulation.

The Court of Claims found that the language of the

Act of 1880 appeared to be inconsistent with the findings

of the Commission, but that the events from 1880 to 1895

S

UNITED STATES v. SOUTHERN UTE INDIANS 7

supported its conclusion, i. e., the decision to postpone

‘suing allotments and to preserve the reservation, the

separation of Royce Ares 617 by the Act of 1882, the

description of the dividing line by the Secretary of the

move, the belief by the Commissioner of Indian Affairs

of a duty to keep white people off the reservation, the

Act of 1888, and the Act of 1895 providing additional

ion for the Southern Utes * and requiring their

approval.’ The evidence weighed “substantially in favor

of the Commissions interpretation.“ The Government’s

conduct, the Court of Claims said, evidenced a recogni-

tion that “by its protracted acquiescence in the Southern

Ute occupation, Government rights to the land had some-

how lapsed, or the agreement not been executed for so

long a time, was rescinded and dead.” 423 F. 2d, at 356.

“Hence we find section 5 of the 1895 agreement to

be an explicit waiver of the Government’s rights

created in the 1880 agreement, whatever they were.

It follows then that the Southern Ute lands in con-

troversy were ceded in 1895 not 1880.” Ibid.

This holding was supported also by the language em-

ployed by the Secretary of the Interior in the Restoration

of 1938.“

5 Note 4, supra.

*The treaty of 1880 required that the proceeds from sales of all

land ceded under that agreement must be credited to the benefit of

all Utes. To credit the money received only to the account of

Southern Utes would be a violation of the treaty if the land was

ceded in 1880.

If the land had been ceded under the 1880 agreement, acceptance

of the Act of 1895 was completely unnecessary.

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.” 423 F. 2d, at 356.

8 UNITED STATES v. SOUTHERN UTE INDIANS

Since the Southern Ute land was not ceded in 1880, any

claims involving that land were beyond the mandate dt

the Jurisdictional Act of 1909 and improvidently head

in 1910, Likewise the 1950 judgment was no ber,

Neither party had intended it to apply to Royce Ares

617. If the intention of the parties was irrelevant, the

stipulation on its face would not apply to “areas not

effectively ceded.” 423 F. 2d, at 358.

This Court now reviews those findings and reverses

In doing so it simply remarshalls the evidence for the

new result, ignoring the limits of this Court’s appellate

jurisdiction over the Court of Claims. The question

present is either a question of fact or, at best, a mixed

question of law and fact and the determination of the

Court of Claims is binding on this court if its supported

by substantial evidence. United States v. Swift & Co,

270 U. 8. 124, 138; United States v. Omaha Tribe of In-

dians, 253 U. S. 275, 281. The result below is clearly

supported. It is not the function of this Court to con-

duct a trial de novo on the issues. United States v. Felin

& Co., 334 U. S. 624, 650 (Jackson, dissenting) ; United

States v. Penn. Mfg. Co., 337 U. S. 198, 207 n. 4.

I would affirm the judgment of the Court of Claims