Sioux Tribe of Indians v. United States

• Decision Date: 11 May 1942
• Docket Number: No. 798,798
• Citation: 86 L.Ed. 1501,62 S.Ct. 1095,316 U.S. 317
• Parties: SIOUX TRIBE OF INDIANS v. UNITED STATES
• Court: U.S. Supreme Court

316 U.S. 317

62 S.Ct. 1095

86 L.Ed. 1501

SIOUX TRIBE OF INDIANS

v UNITED STATES.

No. 798.

Argued April 10, 1942.

Decided May 11, 1942.

Mr. Ralph H. Case, of Washington, D.C., for petitioner.

Mr. Charles Fahy, Sol. Gen., for respondent.

Mr. Justice Byrnes delivered the opinion of the Court.

This is an action to recover compensation for some 5 1/2 million acres of land allegedly taken from the petitioner tribe in 1879 and 1884. The suit was initiated under the Act of June 3, 1920, 41 Stat. 738, permitting petitioner to submit to the Court of Claims any claims arising from the asserted failure of the United States to pay money or property due, without regard to lapse of time or statutes of limitation. The Court of Claims denied recovery and we brought the case here on certiorari. 315 U.S. 790, 62 S.Ct. 631, 86 L.Ed. —-.

The facts as found by the Court of Claims are as follows:

In 1868 the United States and the Sioux Tribe entered into the Fort Laramie Treaty, 15 Stat. 635. By Article II of this treaty a certain described territory, known as the Great Sioux Reservation and located in what is now South Dakota and Nebraska, was 'set apart for the absolute and undisturbed use and occupation' of the Tribe. The United States promised that no persons, other than government officers and agents discharging their official duties, would be permitted 'to pass over, settle upon, or reside in the territory described in this article, or in such territory as may be added to this reservation for the use of said Indians.' For their part, the Indians relinquished 'all claims or right in and to any portion of the United States or Territories, except such as is embraced within the limits aforesaid.' No question arises in this case with respect to the lands specifically included within the Reservation by this treaty.

The eastern boundary of the Great Sioux Reservation, as constituted by the Ft. Laramie Treaty, was the low water mark on the east bank of the Missouri River. ¹ The large tract bordering upon and extending eastward from the east bank of the river remained a part of the public domain open to settlement and afforded easy access to the Reservation. As a result great numbers of white men 'infested' the region for the purpose of engaging in the liquor traffic. Anxiety over this development led the Commissioner of Indian Affairs on January 8, 1875 to suggest to the Secretary of the Interior that he request the President to issue an executive order withdrawing from sale and setting apart for Indian purposes a certain large tract of the land along the eastern bank of the Missouri River. In the Commissioner's letter to the Secretary of the Interior, and in the latter's letter of January 9th to the President, the reason advanced for the proposed executive order was that it was 'deemed necessary for the suppression of the liquor traffic with the Indians upon the Missouri River.' On January 11, 1875, the President signed the suggested order. It described the territory affected and provided that it 'be, and the same hereby is, withdrawn from sale and set apart for the use of the several tribes of Sioux Indians as an addition to their present reservation.' On two occasions thereafter, once in February and again in May, white persons who had settled on the land in question prior to the issuance of the executive order and who feared that its effect was to deprive them of their holdings, were informed by the Commissioner of Indian Affairs that the object of the executive order was 'to enable the suppression of the liquor traffic with the Indians on the Missouri River,' that it did not affect the existing rights of any persons in the area, that it was not 'supposed that the withdrawal will be made permanent,' and that no interference with the peaceful occupancy of the territory had been intended.

On March 13, 1875, the Commissioner of Indian Affairs addressed another letter to the Secretary of the Interior. In it he recommended that the Secretary request the President to withdraw from sale and set apart for Indian purposes another tract of land bordering the Great Sioux Reservation, this time to the north and northeast. The reason given was similar to that for which the first order had been sought: 'viz.: the suppression of the liquor traffic with Indians at the Standing Rock Agency'. As a 'further reason for said request' the Commissioner stated that 'the Agency buildings, as no located at Standing Rock, are outside the reservation as defined by (the Fort Laramie) treaty * * * but are included in the tract proposed to be withdrawn.' The Secretary forwarded the Commissioner's report to the President with his concurrence, repeating that the 'enlargement of the Sioux reservation in Dakota' was 'deemed necessary for the suppression of the liquor traffic with the Indians at the Standing Rock Agency.' On March 16, 1875 the President issued a second executive order describing the tract of land involved and declaring that it 'be, and the same hereby is, withdrawn from sale and set apart for the use of the several tribes of the Sioux Indians as an addition to their present reservation in said Territory.'

In mid-May of 1875 the Secretary of War transmitted to the Secretary of the Interior a letter from the officer in command of the Southern District of the Military Department of Dakota in which it was pointed out that a small tract of land along the eastern bank of the Missouri River opposite the southern corner of the Sioux Reservation was still open to settlement and afforded 'a very nice point for whiskey sellers and horse thieves'. Upon the basis of this letter, the Commissioner recommended to the Secretary of the Interior and the Secretary recommended to the President the issuance of still a third executive order withdrawing the described tract from settlement. On May 20, 1875 the executive order was issued in the same form as its two predecessors.

Finally upon a similar complaint from the Acting Agent of the Standing Rock Agency that a small piece of land to the north of the reservation was being used as a base of operations by persons selling liquor and ammunition to the Sioux Indians, the Commissioner of Indian Affairs and the Secretary of the Interior recommended a further order to 'effectually cut off these whiskey dealers'. In his letter to the Secretary dated November 24, 1876, the Commissioner stated: 'It is not proposed to interfere with the vested rights, or the legitimate business of any settler who may be upon this tract.' The President issued a fourth executive order in the usual form on November 28, 1876. On December 13, 1876 the Commissioner notified the agent at Standing Rock that the order had been issued, and added that it was 'not intended to interfere with the vested rights of any settler upon the tract or with the legitimate business pursuits of any person lawfully residing within its limits.'

About two and a half years after the last of these four executive orders withdrawing lands from sale and setting them apart for the use of the Sioux, the Commissioner of Indian Affairs submitted to the Secretary of the Interior a report upon a suggestion that the orders be modified so as to permit the return of the lands to the public domain. The report, dated June 6, 1879, reviewed the problems arising from the liquor trade during the years following the Fort Laramie treaty, recalled that the purpose of the four executive orders of 1875 and 1876 had been to eliminate this traffic, observed that they had 'to a great extent accomplished the object desired, viz: the prevention of the sale of whiskey to the Indians', and concluded that any change in the boundaries established by the executive orders would 'give renewed life to this unlawful traffic, and be detrimental to the best interests of the Indians'.

Three weeks later, however, upon reconsideration, the Commissioner informed the Secretary that in his opinion the lands included in the executive orders of 1875 and 1876 might be 'restored to the public domain, and the interests of the Indians still be protected.' In explanation he stated:

'These lands were set apart for the purpose, as alleged, of preventing illegal liquor traffic with the Indians. At the time, said lands were set apart there was no law providing a punishment for the sale of liquor to Indians, 'except to Indians in the Indian country', but, by the Act of February 27, 1877, (19 Stat. 244) persons who now engage in liquor traffic with Indians, no matter in what locality, are liable to a penalty of $300, and two years imprisonment, and, therefore, the necessity for so large a reservation for the protection of these Indians, in this repsect (sic) does not now exist.'²

Accordingly, he recommended that the lands withdrawn from sale by the President in 1875 and 1876 be returned to the public domain with the exception of three small tracts directly opposite the Cheyenne, Grand River, and Standing Rock agencies. On August 9, 1879 an executive order to this effect was promulgated and the land with the exceptions indicated was 'restored to the public domain'. Five years later the Commissioner informed the Secretary that the Grand River Agency had ceased to exist and that the agents at Cheyenne and Standing Rock considered it no longer necessary to withhold the tracts opposite their agencies from the public domain 'for the purpose for which they have thus far been retained.' Consequently, an executive order was prepared and signed by the President on March 20, 1884, restoring these three small pieces of land to the public domain, 'the same being no longer needed for the purpose for which they were withdrawn from sale and settlement.'

One additional event remains to be noted. In the Indian Appropriation Act for 1877, approved August 15, 1876, 19 Stat. 176, 192, Congress provided: '* * * hereafter there shall be no appropriation made for the subsistence of said Indians (i.e., the Sioux), unless they shall...