Northwestern Bands of Shoshone Indians v. United States v. 10 8212 13, 1944

• Decision Date: 12 March 1945
• Docket Number: No. 63,63
• Parties: NORTHWESTERN BANDS OF SHOSHONE INDIANS v. UNITED STATES. Argued Nov. 10—13, 1944
• Court: U.S. Supreme Court

324 U.S. 335

65 S.Ct. 690

89 L.Ed. 985

NORTHWESTERN BANDS OF SHOSHONE INDIANS

v UNITED STATES.

No. 63.

Argued Nov. 10—13, 1944.

Decided March 12, 1945.

Rehearing Denied April 9, 1945.

See 324 U.S. 890, 65 S.Ct. 1010.

Motion to Recall and Amend Mandate Denied June 11, 1945.

See 325 U.S. 840, 65 S.Ct. 1552.

Mr. Ernest L. Wilkinson, of Washington, D.C., for petitioners.

Mr. Robert E. Mulroney, of Washington, D.C., for respondent.

Mr. Justice REED delivered the opinion of the Court.

The Northwestern Bands of Shoshone Indians, petitioners here, seek to recover from the United States damages estimated at fifteen million dollars for the taking of some fifteen million acres of the lands held by these Indians by aboriginal or immemorial title. This title was alleged by the Indians to have been recognized by the United States by the treaty between the petitioners and the United States at Box Elder, Utah Territory, July 30, 1863. 13 Stat. 663.

The suit was begun in the Court of Claims against the United States by the bands pursuant to a special jurisdictional act of Congress of February 28, 1929, 45 Stat. 1407. The Act consented to suit and recovery against the United States upon the following conditions:

'That jurisdiction be, and hereby is, conferred upon the Court of Claims, notwithstanding lapse of time or statutes of limitations, to hear, adjudicate, and render judgment in any and all claims which the northwestern bands of Shoshone Indians may have against the United States arising under or growing out of the treaty of July 2, 1863 (Eighteenth Statutes, page 685—2 Kappler, 848); treaty of July 30, 1863 (Thirteenth Statutes, page 863 (663) 2 Kappler, 850); Act of Congress approved December 15, 1874 (Eighteenth Statutes, page 291), and any subsequent treaty Act of Congress, or Executive order, which claims have not heretofore been determined and adjudicated on their merits by the Court of Claims or the Supreme Court of the United States.'¹

This Court has jurisdiction to grant certiorari under the jurisdictional act and § 3(b), Act of February 13, 1925, 43 Stat. 939, as amended by Act of May 22, 1939, 53 Stat. 752, 28 U.S.C.A. § 288(b); see Colgate v. United States, 280 U.S. 43, 50 S.Ct. 22, 74 L.Ed. 157. Certiorari was granted in view of the importance of the question in Indian affairs. 322 U.S. 721, 64 S.Ct. 1261.

The suit is based upon the unlawful taking after the alleged recognition of the Indian title by the Box Elder treaty. We do not read the petition as claiming any right to compensation for the extinguishment of an Indian aboriginal title, which was unrecognized or unacknowledged by the Box Elder treaty. Under the words of the jurisdictional act, 'arising under or growing out of the treaty,' suit is authorized only for rights acknowledged by the treaty. The act does not authorize a suit for loss of Indian tribal rights arising from any other acts of the United States. If the treaty recognized the aboriginal or Indian title, the authority to sue for the taking under the jurisdictional act is not questioned.² No claim is brought forward by petitioners arising under or growing out of the other treaties, acts or orders which are referred to in the jurisdictional act. See Northwestern Bands of Shoshone Indians v. United States, 95 Ct.Cl. 642, 680.³

The Court of Claims determined that the claim for the taking of land sued upon by petitioners did not grow out of the Box Elder treaty. Certiorari was sought and granted to determine whether there was 'recognition' or 'acknowledgment' of the Indian title by this treaty through the language employed or by the Act of entering into a treaty with the Indians as to the use by the United States of lands which were claimed by the petitioners.

Even where a reservation is created for the maintenance of Indians, their right amounts to nothing more than a treaty right of occupancy. Shoshone Tribe v. United States, 299 U.S. 476, 496, 57 S.Ct. 244, 251, 81 L.Ed. 360. Prior to the creation of any such area, formally acknowledged by the United States as subject to such right of Indian occupancy, a certain nation, tribe or band of Indians may have claimed the right because of immemorial occupancy to roam certain territory to the exclusion of any other Indians and in contradistinction to the custom of the early nomads to wander at will in the search for food. United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260. This claim has come to be known as Indian title and is likewise often spoken of as the right of occupancy. To distinguish from a recognized right of occupancy, we shall refer to the aboriginal usage without definite recognition of the right by the United States as Indian title.

Since Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681, decided in 1823, gave rationalization to the appropriation of Indian lands by the white man's government, the extinguishment of Indian title by that sovereignty has proceeded, as a political matter, without any admitted legal responsibility in the sovereign to compensate the Indian for his loss. Exclusive title to the lands passed to the white discoverers, subject to the Indian title with power in the white sovereign alone to extinguish that right by 'purchase or by conquest.' 8 Wheat. at pages 574, 585—588, 5 L.Ed. 681. The whites enforced their claims by the sword and occupied the lands as the Indians abandoned them. ⁴ Congress has authorized suits on the original Indian title but no recovery has as yet been obtained on that ground. See Coos Bay, Lower Umpqua and Siuslaw Indian Tribes v. United States, 87 Ct.Cl. 143; cf. Wichita and Affiliated Bands of Indians v. United States, 89 Ct.Cl. 378, 413, 414. In this case, however, the success of the claim depends not upon proof of the Indian title, which may be admitted, 95 Ct.Cl. at page 690, but upon recognition of that title by the Box Elder treaty. It is quite understandable from the point of view of both petitioners and Congress that the Government should limit its submission to suits to claims under the boundaries if acknowledged by the treaty rather than to consent to judicial examination of claims for tak- ing the unknown area of their possible Indian title.⁵ The Shoshone Indian title was in Indian country (Act to regulate trade and intercourse with the Indian tribes, 4, stat. 729; Bates v. Clark, 95 U.S. 204, 206—208, 24 L.Ed. 471) and as a consequence subject to all the uncertainties of definition of boundaries and difficulties of proof to establish aboriginal title for tribes with a shifting habitat.

The decisive question in this case is whether it was intended by the Northwestern Shoshone or Box Elder Treaty of July 30, 1863, to recognize or acknowledge by implication the Indian title to the lands mentioned in that treaty. United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 347, 62 S.Ct. 248, 252, 86 L.Ed. 260. From such recognition or acknowledgment by this treaty would flow a right of occupancy which would be compensable under the jurisdictional act.

Full findings of fact appear with the opinion below in Northwestern Bands of Shoshone Indians v. United States, 95 Ct.Cl. 642. These findings show that petitioners here, the Northwestern bands, were at the time of the treaty a part of the Shoshone tribe, a nomadic Indian nation of less than ten thousand people which roamed over eighty million acres of prairie, forest and mountain in the present states of Wyoming, Colorado, Utah, Idaho and Nevada. The group with which we are concerned was comprised of some fifteen or eighteen hundred persons and claimed, by the treaty, Indian title to some ten million acres and now claim compensation for over six million additional acres.

After the discovery of gold in California, white travelers and settlers began to traverse and people the Shoshone domain with the result that the Indians' game disappeared from their hunting grounds. Racial relations degenerated to the point that Indian depredations interfered with travel and settlement, the overland mails and the new telegraph lines. By the time of the outbreak of the Civil War the Commissioner of Indian Affairs, the agents and superintendents of the Shoshone territory were aware of the misery of the Shoshones, the dangers to the emigrant trains and need for peace to enable travel and settlement in the area. Word had reached the Commissioner from his superintendent in Utah that the Shoshone were inclined toward accepting support on limited reservations and were willing in return to cede their other lands to the United States.

On July 5, 1862, 12 Stat. 512, 529, Congress appropriated $20,000 for defraying the expenses of negotiating a treaty with the Shoshones. The appropriation followed a letter from the Secretary of the Interior to the chairman of the House Committee on Indian Affairs expressing the view that the lands owned by the Indians of Utah were largely unfit for cultivation and that it was 'not probable that any considerable portion of them will be required for settlement for many years.' A special commission was promptly appointed and instructed that it was not expected that the proposed treaty would extinguish Indian title to the lands but only secure freedom from molestation for the routes of travel and 'also a definite acknowledgment as well of the boundaries of the entire country they claim as of the limits within which they will confine themselves, which limits it is hardly necessary to state should be as remote from said routes as practicable.'

As the distances made it impracticable to gather the Shoshone Nation into one council for treaty purposes, the commissioners made five treaties in an endeavor to clear up the difficulties in the Shoshone country. These are set out in full in the report below. 95 Ct.Cl. 642. Four will be found also in 13 Stat. 663, 681, and 18 Stat. 685, 689. The fith or Mixed Band treaty was not proclaimed. It is at 5 Kappler 693. It is sufficient here...