United States v. Alcea Band of Tillamooks

• Citation: 91 L.Ed. 29,329 U.S. 40,67 S.Ct. 167
• Decision Date: 25 November 1946
• Docket Number: No. 26,26
• Parties: UNITED STATES v. ALCEA BAND OF TILLAMOOKS et al. Re
• Court: United States Supreme Court

329 U.S. 40

67 S.Ct. 167

91 L.Ed. 29

UNITED STATES

v ALCEA BAND OF TILLAMOOKS et al.

No. 26.

Reargued Oct. 25, 1946.

Decided Nov. 25, 1946.

Mr.

Walter J. Cummings, Jr., of Washington, D.C., for petitioner.

Mr.Everett Sanders, of Washington, D.C., for respondents.

The CHIEF JUSTICE announced the judgment of the Court and delivered an opinion, in which Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS, and Mr. Justice MURPHY joined.

Eleven Indian tribes have sued the United States in the Court of Claims under the Act of 1935,¹ which gives that court jurisdiction to hear and adjudicate cases involving 'any and all legal and equitable claims arising under or growing out of the original Indian title, claim, or rights in * * * the lands * * * occupied by the Indian tribes and bands described in' certain unratified treaties negotiated with Indian tribes in the Territory of Oregon.

Four of the tribes,² he Tillamooks, Coquilles, Too-too-to-neys and Chetcos, successfully identified themselves as entitled to sue under the Act, proved their original Indian title³ to designated lands, and demonstrated an involuntary and uncompensated taking of such lands. The Court of Claims thereupon held that original Indian title was an interest the taking of which without the consent of the Indian tribes entitled the latter to compensation. In answer to government contentions that original Indian title, in the absence of some form of official 'recognition', could be appropriated without liability upon the part of the sovereign, the Act of 1848,⁴ establishing the Territory of Oregon, was cited by the Court of Claims as affording any recognition required to support the claim for compensation. The issues decided, not previously passed upon by this Court and being of importance to the administration of Indian affairs, prompted this Court to grant certiorari. The case was argued during the 1945 term and on April 1, 1946, was restored to the docket for reargument before a full bench.

The events giving rise to the claims here occurred as part of the opening and development of the Territory of Oregon. After creating a government for that territory by the Act of 1848,⁵ Congress in 1850 authorized the negotiation of treaties with Indian tribes in the area. Under the latter Act,⁶ Anson Dart, later succeeded by General Joel Palmer, was appointed Superintendent of Indian Affairs for the Oregon region and was instructed to negotiate treaties for the extinguishment of Indian claims to lands in that district. On August 11, 1855, Palmer and respondent tribes concluded a treaty providing for the cession of Indian lands in return for certain money payments and the creation of a reservation. The treaty was to be operative only upon ratification. It was not submitted to the Senate until February, 1857, and was never ratified.

Pending expected ratification, and following recommendations from Palmer, the President on November 9, 1855, created a reservation, subject to future diminution and almost identical with that provided for in the treaty. A large part of this reservation, called the Coast or Siletz Reservation, consisted of lands to which the Tillamook Tribe held original Indian title. Almost immediately the Tillamooks were con ined to that portion of their land within the reservation, and the other three respondent tribes, as well as other tribes, were moved from their original possessions to the reservation. In 1865 an Executive Order reduced the size of the reservation; in 1875 Congress by statute approved the Executive Orders of 1855 and 1865, and in order to open more land for public settlement, removed additional land from the reservation. By an Act of 1894,⁷ Congress officially accepted and approved the res- ervation as it then existed, and thenceforward did not take reservation lands without compensation.

The claims of respondent tribes are for the wrongful taking which occurred when they were deprived of their original possessions by the Executive Order of November 9, 1855. Even as to the Tillamooks, the Court of Claims found the taking complete as of November 9, 1855, since this tribe was forced to share its former lands with other Indians, and since the reservation was, in any event, only a conditional one, subject to being opened for public settlement at the will of the President. Petitioner disputes neither this finding nor the proof of original Indian title as of 1855.

Other than the benefits flowing from the Act of 1894,⁸ none of the four respondent tribes has received any compensation for the loss of its lands. Until the present jurisdictional act of 1935, these tribes, lacking consent of the United States to be sued, were forbidden access to the courts. They alone of the tribes with whom Dart and Palmer negotiated some twenty-odd treaties between 1850 and 1855 have yet to receive recognition for the loss of lands held by original Indian title.⁹

Until now this Court has had no opportunity or occasion to pass upon the precise issue presented here. In only one act prior to 1935 has Congress authorized judicial determination of the right to recover for a taking of nothing more than original Indian title; and no case under that act,¹⁰ passed in 1929, reached this Court.¹¹ In 1930¹² Congress again authorized adjudication of Indian claims arising out of original Indian title, but expressly directed an award of damages if a taking of lands held by immemorial possession were shown. This act thus eliminated any judicial determination of a right to recover, once original Indian title was established.

Prior to 1929, adjudications of Indian claims against the United States were limited to issues arising out of treaties, statutes, or other events and transactions carefully designated by Congress. This Court has always strictly construed such jurisdictional acts and has not offered judicial opinion on the justness of the handling of Indian lands, except in so far as Congress in specific language has permitted its justiciable recognition.

The language of the 1935 Act is specific, and its consequences are clear. By this Act Congress neither admitted nor denied liability. The Act removes the impediments of sovereign immunity and lapse of time and provides for judicial determination of the designated claims. No new right or cause of action is created. A merely moral claim is not made a legal one. The cases are to be heard on their merits and decided according to legal principles pertinent o the issues which might be presented under the Act.¹³ Accordingly the 1935 statute permits judicial determina- tion of the legal and equitable claims growing out of original Indian title. That which was within the power of Congress to withhold from judicial scrutiny has now been submitted to the courts. If, as has many times been said,¹⁴ the manner of extinguishing Indian title is usually a political question and presents a non-justiciable issue, Congress has expressly and effectively directed otherwise by seeking in the 1935 Act judicial disposition of claims arising from original Indian title. 'By consenting to be sued, and submitting the decision to judicial action, they have considered it as a purely judicial question, which we are now bound to decide, as between man and man. * * *' United States v. Arredondo, 1832, 6 Pet. 691, 711, 8 L.Ed. 547.

It has long been held that by virtue of discovery the title to lands occupied by Indian tribes vested in the sovereign.¹⁵ This title was deemed subject to a right of occupancy in favor of Indian tribes, because of their original and previous possession. It is with the content of this right of occupancy, this original Indian title, that we are concerned here.

As against any but the sovereign, original Indian title was accorded the protection of complete ownership;¹⁶ but it was vulnerable to affirmative action by the sovereign, which possessed exclusive power to extinguish the right of occupancy at will. Termination of the right by sovereign action was complete and left the land free and clear of Indian claims. Third parties could not question the justness or fairness of the methods used to extinguish the right of occupancy.¹⁷ Nor could the Indians themselves prevent a taking of tribal lands or forestall a termination of their title. However, it is now for the first time asked whether the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title.

We cannot but affirm the decision of the Court of Claims. Admitting the undoubted power of Congress to extinguish original Indian title compels no conclusion that compensation need not be paid. In speaking of the original claims of the Indians to their lands, Marshall had this to say: 'It is difficult to comprehend the proposition * * * that the discovery * * * should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors. * * * It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. * * * The king purchased their lands, * * * but never coerced a surrender of them.' Worcester v. Georgia, 1832, 6 Pet. 515, 543, 544, 547, 8 L.Ed. 483. In our opinion, taking original Indian title without compensation and without consent does not satisfy the 'high standards for fair dealing' required of the United States in controlling Indian affairs. United States v. Santa Fe R. Co., 1941, 314 U.S. 339, 356, 62 S.Ct. 248, 256, 86 L.Ed. 260. The Indians have more than a merely moral claim for compensation.¹⁸

A contrary decision would ignore the plain import of traditional methods of extinguishing original Indian title. The early acquisition of Indian lands in the main progressed by a process of negotiation and treaty. The first treaties reveal the striking deference paid to Indian claims as the analysis in Worcester v. State of Georgia, supra, clearly details. It was usual policy not to coerce...