Alcea Band of Tillamooks v. United States, 45230.
| Decision Date | 03 January 1950 |
| Docket Number | No. 45230.,45230. |
| Citation | 87 F. Supp. 938,115 Ct. Cl. 463 |
| Parties | ALCEA BAND OF TILLAMOOKS et al. v. UNITED STATES. |
| Court | U.S. Claims Court |
Everett Sanders, Washington, D. C., and L. A. Gravelle, Washington D. C. (John G. Mullen, North Bend, Or., E. L. Crawford, Salem, Or., Edward F. Howrey and Douglas Whitlock, Washington, D. C., on the brief), for plaintiffs.
Clifford R. Stearns, Portland, Or., with whom was A. Devitt Vanech, Asst. Atty. Gen., for defendant.
This suit was originally brought by plaintiffs and seven other Indian tribes under clause (b) of section 1 of the Act of August 26, 1935, 49 Stat. 801, which gave this court jurisdiction to hear and determine all claims arising under or growing out of the original Indian title, claim, or rights in, to, or upon lands occupied by Indian tribes and bands described in the unratified treaty of August 11, 1855, published in Senate Executive Document No. 25, Fifty-third Congress, first session, p. 815. In a decision dated April 2, 1945, 59 F.Supp. 934, 103 Ct.Cl. 494, and affirmed by the Supreme Court, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29, we held that four of the tribes, the Tillamooks, Coquille, Too-too-to-ney, and Chetco, had identified themselves as entitled to sue under the jurisdictional act; that they had proved their original Indian title to certain described lands; that the four tribes had proved an involuntary and uncompensated taking of these lands, and that original Indian title was an interest, the taking of which without plaintiffs' consent was compensable.
A further hearing has been held and the case is now before us for determination of the amount of compensation to which the four plaintiff tribes are entitled under the Fifth Amendment, measured by the value of the lands taken on November 9, 1855, plus an additional amount measured by a reasonable rate of interest to make just compensation. From this must be offset amounts expended by the Government as gratuities on behalf of the four tribes, and an amount representing the value on November 9, 1855, of their interests in the land comprising the reservation allotted to the four tribes.
The boundaries of the lands exclusively occupied by the four tribes are set out in findings 8, 9, and 10 of the findings in our prior decision, and are incorporated herein by reference. The acreage of the lands of the four tribes embraced in such boundaries and taken by defendant on November 9, 1855, is as follows:
Acres
Tillamooks .................... 1,152,410
Coquille ...................... 722,530
Too-too-to-ney ................ 464,490
Chetco ........................ 433,150
_________
Total acreage ............. 2,772,580
Plaintiffs contend that the value as of November 9, 1855, of the 2,772,580 acres of land of the four tribes is as follows:
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| | Value |
Tribe | Acres | per acre | Total value
-------------------------------|-----------|----------|--------------
Tillamooks ................... | 1,152,410 | $2.67 | $3,075,975.25
Coquille ..................... | 722,530 | 7.03 | 5,078,182.00
Too-too-to-ney ............... | 464,490 | 3.33 | 1,547,865.00
Chetco ....................... | 433,150 | 2.30 | 996,908.50
|___________|__________|______________
All lands ............... | 2,772,580 | 3.86 | 10,698,830.75
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Plaintiffs also contend that interest at the rate of 5% per annum should be added as part of just compensation. Plaintiffs concede that from the value of their lands must be deducted the value of their interests, as of November 9, 1855, in the lands comprising the reservation alloted to them and located on the Tillamooks' tribal lands. Plaintiffs also agreed that from any amount determined to be due them there should be offset any payments made to them by the United States, including gratuities.
The defendant contends that the four tribes named as plaintiffs are not identifiable groups of Indians in existence, in Oregon, at the present time; that the land taken had a market value in 1855 of approximately 9 cents per acre; that set-offs for gratuitous expenditures should be proportioned annually according to the amount spent in each year since 1855 before calculating the additional amount, measured by interest, for that year in order to make just compensation; and that a fair rate of interest to make just compensation is 4 percent.
The record in the earlier case, 59 F.Supp. 934, 103 Ct.Cl. 494, showed that in 1855 and thereafter there were considerable numbers of Indians comprising the four plaintiff tribes, and we held that those four tribes had sufficiently identified themselves as entitled to sue under the jurisdictional act. That decision was affirmed by the Supreme Court, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29. The exact number of the descendants of those four tribes in existence today, and who will be entitled to share in any recovery, is not properly a matter for judicial decision at this time but is rather an administrative concern of the Government in the later making of a roll of the four tribes.
The principal question now before us is the determination of the value on November 9, 1855, of the more than two million acres of land belonging to plaintiffs. In support of their respective contentions concerning that value, the parties have introduced considerable testimony of expert witnesses, and much documentary evidence consisting of ancient documents, Government reports, both state and federal, maps and histories. From this material we have made findings of fact which we will not repeat in detail except where necessary. The various elements of value which both defendant and plaintiffs have offered for consideration relate to circumstances existing in the area for a period of approximately 28 years, from 1850 to 1878, and include the following: (1) the location of the lands and their physical characteristics; (2) the history of the Oregon Territory; (3) the development of Oregon generally and of the tribal lands in particular up to 1855; (4) disposal of the tribal lands by the Government under the various federal laws relating to the disposal of public lands in Oregon; (5) private sales of lands in the tribal area; (6) sales of lands in the tribal area by the Oregon & California Railroad; (7) natural resources in the tribal lands and their development between 1850 and 1878, that is, timber, minerals (gold and coal particularly), and agriculture; (8) commerce.
From the above summarized classes of evidence the parties have reached widely divergent conclusions respecting the value of plaintiffs' lands. Defendant contends that there was a market for the tribal lands in 1855 and the lack of actual sales of such lands indicates that there was no demand for the lands at the price asked pursuant to the various land laws under which public land could be acquired. Defendant urges that this condition persisted through 1878 and that only a very small percentage of the land in the tribal area was disposed of by any means. Plaintiffs, on the other hand, contend that the evidence shows the land to have been eagerly sought after from 1850 on, and that by 1878 nearly all the land available for disposition to the public in the tribal area had been disposed of. We shall not take up in detail the numerous contentions of the parties but shall summarize the facts on which they base their contentions and as a result of which facts we have arrived at certain conclusions.
The tribal lands in suit are located along the coast of Oregon bordering on the Pacific Ocean and comprise slightly more than half the state's coastal frontage, extending from the State of Washington on the north to the State of California on the south. The most northerly of these lands is that of the Tillamooks embracing the southernmost part of Tillamook County, nearly all of Lincoln County, and, on their eastern boundaries, small parts of Yamhill, Polk, and Benton Counties. The Pacific Ocean is the western boundary and the summit of the Coast Range of mountains the eastern boundary.
Immediately south of the Tillamooks' lands, for a distance of approximately sixty air miles along the Pacific coast, are located lands not involved in this proceeding, at which southern point the lands of the Coquilles begin. The Pacific Ocean forms the western boundary of the Coquille lands which extend eastward to the summit of the Coast Range of mountains in western Douglas County. They also include the greater part of the southern half of Coos County and part of the western portion of Douglas County.
Immediately adjoining the southern boundary of the Coquille lands, are the Too-too-to-ney lands, and adjoining these lands on the south are the lands of the Chetcos. The western boundary of both lands is the Pacific Ocean and the lands lie largely within the limits of Curry County. The southern boundary of the Chetco lands is the State of California. The eastern boundary of the lands of the two tribes is in general the western boundary of Josephine County.
All of the tribal lands are in what is known as the Douglas-fir region which includes those parts of Oregon and Washington west of the Cascade Range of mountains. The greater part of the lands is covered by forests of valuable timber. The soil is generally very fertile and well adapted to the growing of farm crops, fruits and vegetables, and to grazing. Many streams of sizes varying from those of substantial navigability to small streams useful for watering purposes are found in the tribal areas. The Coast Range of mountains forming the eastern boundary of the lands is of relatively low elevation, particularly on the eastern boundary of the Tillamook lands...
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