Shoshone Tribe of Indians of the Wind River Reservation In Wyoming v. United States United States v. Shoshone Tribe of Indians of the Wind River Reservation In Wyoming 17 8212 18, 1936

• Citation: 81 L.Ed. 360,299 U.S. 476,57 S.Ct. 244
• Decision Date: 04 January 1937
• Docket Number: Nos. 216,328,s. 216
• Parties: SHOSHONE TRIBE OF INDIANS OF THE WIND RIVER RESERVATION IN WYOMING v. UNITED STATES. UNITED STATES v. SHOSHONE TRIBE OF INDIANS OF THE WIND RIVER RESERVATION IN WYOMING. Argued Dec. 17—18, 1936
• Court: United States Supreme Court

299 U.S. 476

57 S.Ct. 244

81 L.Ed. 360

SHOSHONE TRIBE OF INDIANS OF THE WIND RIVER RESERVATION IN WYOMING

v UNITED STATES.

UNITED STATES

v. SHOSHONE TRIBE OF INDIANS OF THE WIND RIVER

RESERVATION IN WYOMING.

Nos. 216, 328.

Argued Dec. 17—18, 1936.

Decided Jan. 4, 1937.

Messrs. George M. Tunison and Albert W. Jefferies, both of Omaha, Neb., for Shoshone Tribe.

[Argument of Counsel from pages 477-480 intentionally omitted] Messrs. Homer S. Cummings, Atty. Gen., and H. W. Blair, Asst. Atty. Gen., for the United States.

[Argument of Counsel from pages 481-483 intentionally omitted] Mr. Justice CARDOZO delivered the opinion of the Court.

The Shoshone Tribe of Indians of the Wind River Reservation in Wyoming has sued the United States in the Court of Claims for the breach of treaty stipulations, whereby the tribe has been permanently excluded from the possession and enjoyment of an undivided half interest in the tribal lands. Jurisdiction to hear the claim was conferred upon the Court of Claims by an Act of March 3, 1927 (44 Stat. 1349, part 2), which, so far as its provisions are now material, is quoted in the margin.¹ The court gave judgment for the claimant. 82 Ct.Cl. 23. Neither party to the controversy was satisfied with the award of damages, the claimant finding it too low and the government too high. There were cross-petitions for certiorari. To fix with certainty and justice the rights and duties of the government in its relations with an Indian tribe, the writs were allowed, and the case is here accordingly.

By Treaty of July 3, 1868 (15 Stat. 673), the Shoshone Tribe of Indians relinquished to the United States a reservation of 44,672,000 acres in Colorado, Utah, Idaho, and Wyoming, and accepted in exchange a reservation of 3,054,182 acres in Wyoming, with other benefits not now important. The United States agreed that the territory described in the treaty now generally known as the Wind River Reservation would be 'set apart for the absolute and undisturbed use and occupation of the Shoshone Indians * * * and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them.' 15 Stat. 674, art. 2. Reinforcing this covenant, there was a solemn pledge of faith by the United States that no persons, except a few specially enumerated, and governmental agents engaged in the discharge of duties enjoined by law, should 'ever be permitted to pass over, settle upon, or reside' in the territory so reserved. Article 2. The loyalty of the Shoshone Tribe to the people of the United States has been conspicuous and unfaltering. A fidelity at least as constant and inflexible was owing in return.

In 1869, a band of the Northern Arapahoes, separating from the main body of the nation, was wandering about the country, looking for a home. The Arapahoes had been allies of the Sioux. who were the foes of the Shoshones. None the less, the wanderers expressed a wish to have a refuge and a settlement on the Wind River Reservation. They came upon the reservation in 1870, and were informed by Washakie, Chief of the Shoshones, that they would be permitted to stay there for a short time while the government was seeking to place them elsewhere. After a few months they moved away. The government had no success, however, in providing them with a satisfactory home, and they continued to cast longing eyes toward the fair and fertile acres set apart for their ancestral foes. At the instance of the Commissioner of Indian Affairs, acting in co-operation with the Secretary of the Interior, a new attempt was made in October, 1877, to bring the tribes together and relieve the growing tension developing between them. One Irwin, formerly the Indian agent on the Wind River Reservation, discussed the problem with Washakie. He said that the President had no intention of placing the Arapahoes on the Shoshone Reservation, but that the desire was merely to insure peace between the tribes and to find a place for the Arapahoes nearby, on a separate tract of land close to the eastern boundary. Washakie agreed that there should be peace, but insisted that the traditional enemies of his tribe be placed at a safe distance, predicting that close contact would bring friction and fresh hostility.

Irwin telegraphed the Commissioner of Indian Affairs at Washington on October 17, 1877: 'I returned from Shoshone Agency today. Held a council and made peace between Shoshones and Arapahoes.' A written report, dated February 21, 1878, gave the details of the council. Even so, the telegram, it seems, had been misunderstood by the Commissioner, for in his annual report for 1877 (dated November 1, 1877), he said (page 19): 'In a formal council held last month by Agent Irwin with the Shoshones, their consent to the arrangement desired by the Arapahoes was obtained, and the removal of the latter is now in progress.' Ignoring many warnings in February and later that consent had been refused, the Commissioner adhered to his erroneous assumption. The consequences of his error are visible in the events that followed.

On March 18, 1878, a band of Northern Arapahoes was brought to the Reservation of the Shoshones under military escort. The reservation had been reduced to 2,343,000 acres by the cession of 700,642 acres in 1874 for a money consideration. The Shoshones believed that for hunting and for husbandry it was not in excess of present needs. The unheralded arrival of the Arapahoes was the cause of much excitement. There was a council the next day, at which the leader of the Arapahoes explained to Washakie that they and their horses were weary and without food, and in need of rest and care. Thereupon Washakie agreed that they might remain for a short time to rest their horses and themselves. But the Indian Commissioner, it seems, had not brought them to the reservation for any temporary visit. On April 2, 1878, he telegraphed the agent at the reservation to furnish the Arapahoes with the necessary food and supplies, and directed him to 'report fully by mail what other measures are necessary to locate the Band of Northern Arapahoe Indians under Black Coal,' their leader. The agent responded that the Shoshones looked upon the presence of the Arapahoes as 'an encroachment on their rights.' At the request of both tribes, he urged the calling of a council to be attended by the Department Commander, General Crook, in order that the location of the Arapahoes might be permanently settled. No reply to this request came from the Commissioner or from any one else.

The famished Arapahoes and their horses had been fed and cared for, but they did not move away. Instead of moving away, they came in increasing numbers. As early as April 8, 1878, nearly the whole tribe was on the scene. Washakie protested to the agent. The agent at frequent intervals communicated the protests to the Commissioner. There was nothing in return but silence. Months lengthened into years, and the signs accumulated steadily that the Arapahoes were there to stay. Schools were established for their benefit to the end that their youth might be adequately trained. Report of Commissioner of Indian Affairs, 1879, p. 169. Ditches were dug for the irrigation of their ranches. Report of Commissioner of Indian Affairs, 1889, p. 308. In numberless other ways their equality of right and privilege became a postulate of daily life. At length, in August, 1891, the flame of controversy blazed forth anew. The 'Woodruff Commission' had been sent to the reservation to treat with the Indians for a cession of a portion of their lands. The Shoshones took the ground that the Arapahoes should not be suffered to take part in the council and vote upon the projects. The Commission telegraphed the Commissioner of Indians Affairs, asking for instructions. In reply, August 13, 1891, the Commissioner notified the Commission: 'This office holds * * * that the Arap- ahoes have equal rights to the land on the said reservation which does not depend upon the further consent of the Shoshones, and you should conduct your negotiations with them upon that basis and with that understanding.' Accordingly, both tribes participated in the council, though a cession was not effected.

The Commissioner continued to act on the assumption that the occupancy of the Arapahoes, initiated, as we have seen, under military escort, was permanent and rightful. What is more to the point, Congress did the same. Thus, in 1897, the government by its agent concluded an agreement with the Shoshones and Arapahoes whereby the Indians ceded to the government part of the Shoshones Reservation (55,040 acres) for $60,000, to be expended without discrimination among the members of the tribes. In preliminary conferences the Shoshones protested that they alone should receive the stipulated payments. Their protest was overruled, though they succeeded in adding a proviso that nothing in the agreement was to be construed to deprive them of their annuities or benefits under any existing agreements or treaty stipulations. This agreement with its clear recognition of the occupancy of the Arapahoes and their equal interest in the land was ratified by act of Congress. Act of June 7, 1897, c. 3, § 12, 30 Stat. 62, 93, 94. Again on April 21, 1904, the government made an agreement with the two tribes for the cession of a large tract (1,480,000 acres), leaving only 808,500 acres in the diminished reservation. Again the Shoshones protested that the Arapahoes were intruders, and refused to sign without a proviso similar to the one in the agreement of 1897.² Again the government dealt with the two tribes as lawful occupants and equals. This agreement like the earlier one was ratified by act of Congress. Act of March 3, 1905, c. 1452, 33 Stat. 1016. It provides inter alia that 'any individual Indian, a member of the Shoshone or Arapahoe tribes, who has, under existing laws or treaty stipulations,...