284 F.2d 361 (Fed. Cir. 1960), 1-59, Crow Tribe of Indians v. United States

Docket Nº:1-59.
Citation:284 F.2d 361
Case Date:November 02, 1960
Court:Court of Federal Claims

Page 361

284 F.2d 361 (Fed. Cir. 1960)




No. 1-59.

United States Court of Claims.

November 2, 1960

Page 362

Carl S. Hawkins, Washington, D.C., for The Crow Tribe of Indians. Ralph G. Wiggenhorn, Wiggenhorn, Hutton, Schiltz & Sheehy, John M. Schiltz, Billings, Mont., Wilkinson, Cragun & Barker, John W. Cragun, and Charles A. Hobbs, Washington, D.C., on the briefs.

Maurice H. Cooperman, Washington, D.C., with whom was Asst. Atty. Gen. Perry W. Morton, for the United States.

MADDEN, Judge.

These are cross-appeals from a decision of the Indian Claims Commission. The Commission decided that under the Indian Claims Commission Act of 1946, 60 Stat. 1049, 25 U.S.C.A. s § 70 et seq., the Crow Tribe of Indians was entitled to recover additional compensation for 30,530,764.8 acres of land, situated in what is now south central Montana and north central Wyoming, which the Tribe ceded to the United States by the Treaty of May 7, 1868, 15 Stat. 649. In its petition to the Commission the Tribe alleged that prior to the date of that treaty, it owned 38,531,174 acres, and that by the Treaty of 1868 it ceded all of its lands, except for a reservation containing 8,000,409.2 acres, to the United States for an inadequate and unconscionable consideration.

The Commission considered the case in two stages. First, the Commission held that the United States had, by the Treaty of Fort Laramie, signed on September 17, 1851, 11 Stat. 749, recognized the Indians' title to the lands in question. 3 Ind.Cls.Comm. 147. The Commission then considered the question of the value of the lands and of the consideration received, and concluded that the lands had a market value in May of 1868 of an average of $0.40 per acre, but that the Tribe

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had received less than $0.054 per acre. 6 Ind.Cls.Comm. 98. The Commission held that this consideration was unconscionable.

The Government appeals from the holding that the Tribe's title to the land had been recognized, and from the Commission's overruling of its defenses of res judicata and lack of jurisdiction. The Crow Tribe appeals from the Commission's valuation of the lands, contending that it was too low.

In order to recover for the value of the lands it ceded to the United States in 1868, the Tribe was required to show that it possessed a compensable interest in those lands at that time. This could have been shown in either one of two ways. First, the Tribe could have shown that it had 'Indian title' to the lands in question; that is, that it used and occupied those lands from time immemorial, to the exclusion of all others. 1 On the other hand, it could show that at some time prior to 1868 the United States had recognized or acknowledged that the Tribe had title to the lands. The Tribe took the position, and the Indian Claims Commission agreed, that by the Treaty of Fort Laramie, signed in 1851, the United States had recognized the Tribe's title to the lands. The significance of the question of whether the Tribe's title had been recognized lies in the fact that if the Tribe did have such recognized title, it was not required to prove actual use and occupancy of the lands.

The Government says that the Treaty of Fort Laramie was not a treaty of recognition. Although we think that it is abundantly clear that prior decisions of this court, 2 which we will discuss below, have held that the treaty did recognize the Tribe's title to the lands described therein, we think it appropriate to make some observations upon the treaty and the preparation and negotiations which led up to it, since the Government has in this case seen fit to urge so vigorously a position which has already been rejected by this court.

The occasion for and circumstances of the making of the Treaty of Fort Laramie are recited in the decision of this court in the Fort Berthold case, supra, 71 Ct.Cl. at pages 329-331 and will be further discussed in this opinion.

The treaty itself, 11 Stat. 749, IV Kapp. 1065, contains, among others, the following provisions:

'Article 1. The aforesaid nations, parties to this treaty, having assembled for the purpose of establishing and confirming peaceful relations amongst themselves, do hereby covenant and agree to abstain in future from all hostilities whatever against each other, to maintain good faith and friendship in all their mutual intercourse, and to make an effective and lasting peace.

'Art. 2. The aforesaid nations do hereby recognize the right of the United States Government to establish roads, military and other posts, within their respective territories.

'Art. 3. In consideration of the rights and privileges acknowledged

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in the preceding article, the United States bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the people of the said United States, after the ratification of this treaty.

'Art. 4. The aforesaid Indian nations do hereby agree and bind themselves to make restitution or satisfaction for any wrongs committed, after the ratification of this treaty, by any band or individual of their people, on the people of the United States, whilst lawfully residing in or passing through their respective territories.

'Art. 5. The aforesaid Indian nations do hereby recognize and acknowledge the following tracts of country, included within the metes and boundaries hereinafter designated, as their respective territories, viz:

* * *

* * *

'The territory of the Crow Nation, commencing at the mouth of Powder River on the Yellowstone; thence up Powder River to its source; thence along the main range of the Black Hills and Wind River Mountains to the headwaters of the Yellowstone River; thence down the Yellowstone River to the mouth of Twenty-five Yard Creek; thence to the headwaters of the Muscleshell River; thence down the Muscleshell River to its mouth; thence to the headwaters of Big Dry Creek, and thence to its mouth.

* * *

* * *

'It is, however, understood that in making this recognition and acknowledgment the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.'

The Government's argument seems to be that because Article 5 of the Treaty speaks of recognition and acknowledgment by the Indian nations rather than by the United States, the Treaty was merely one of peace and friendship among the several tribes and between them and the United States.

This construction has been fully considered and rejected by this court in the past, and we reject it again. It is true that the language of the Treaty is not the technical language of recognition of title. Nevertheless, we think that the participation of the United States in a treaty wherein the various Indian tribes describe and recognize each others' territories is, under the circumstances surrounding this treaty, and in light of one of the overriding purposes to be served by the treaty, i.e., securing free passage for emigrants across the Indians' lands by making particular tribes responsible for the maintenance of order in their particular areas, a recognition by the United States of the Indians' title to the areas for which they are to be held responsible, and which are described as 'their respective territories.' Indeed, the provision of Article 4 of the Treaty that the various tribes were to make satisfaction for 'any wrongs committed * * * on the people of the United States, whilst lawfully residing in or passing through their respective territories' implies the recognition by the United States in the tribes of a principal attribute of sovereignty, that is, the power of internal police. An examination of the documents pertaining to the preparations for and negotiation of the Treaty supports this conclusion.

When the Treaty of Fort Laramie was signed in 1851, gold had recently been discovered in California. Increasing numbers of people journeying westward were crossing the lands of the Indians. Buffalo and other game fell prey to the travelers' need for food (and sometimes to their need for sport). See Executive Document No. 1, House of Representatives, 30th Cong., 2d Sess., p. 442. Timber and forage were consumed in increasing quantities. The Indians resented these inroads, and their resistance often made the westward journey a perilous one.

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The United States recognized that the serious losses of supplies which were vital to their subsistence gave the Indians cause for dissatisfaction, and the Government was anxious to make the way safe for the travelers. Mr. W. Medill, the United States Commissioner of Indian Affairs, in a letter dated June 15, 1849, suggested to the Secretary of the Interior that some inducement be offered the Indians to influence them to cease their attacks upon the emigrants. He stated:

'* * * They (the Indians) look upon the intrusion of the large bodies of emigrants into their country, and particularly the consequent great destruction of buffalo, which is their almost sole reliance for subsistence, with great jealousy and discontent; * * *

'* * * (A)s, until recently, they have, unmolested, held undisputed possession of the country, which they regard as their own, it is not to be expected that the passage of such large bodies of emigrants thro' it, and their ravages upon the buffalo, can take place without exciting in them dissatisfaction if not animosity; or that they will remain at peace and abstain from attacks and depredations upon the emigrants, unless some strong inducements are held out to influence them to do so. Under these circumstances, whatever may be the nature and extent...

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