Strong v. United States

• Decision Date: 25 June 1975
• Docket Number: Appeal No. 1-74.
• Parties: James STRONG et al., Appellants-Cross-Appellees, v. The UNITED STATES of America, Appellee-Cross-Appellant.
• Court: U.S. Claims Court

518 F.2d 556

James STRONG et al., Appellants-Cross-Appellees, v. The UNITED STATES of America, Appellee-Cross-Appellant.

Appeal No. 1-74.

United States Court of Claims.

June 25, 1975.

COPYRIGHT MATERIAL OMITTED

James R. Fitzharris, Escanaba, Mich., attorney of record, for James Strong, and others, as the representatives and on behalf of all members by blood of the Chippewa Tribe of Indians, for Robert Dominic, and others, on behalf of the Ottawa Tribe of Indians, for the Shawnee Tribe of Indians of Oklahoma, and others, appellants-cross-appellees.

Robert C. Bell, Jr., New Canaan, Conn., attorney of record, for Hannahville Indian Community, and others, appellants-cross-appellees.

Rodney J. Edwards, Duluth, Minn., attorney of record, for Red Lake Band, and others, for Lawrence Zane, and others, ex rel. Wyandot Tribe, and others, appellants-cross-appellees.

Robert S. Johnson, Topeka, Kan., attorney of record, for the Potawatomi Tribe of Indians, the Prairie Band of the Potawatomi Tribe of Indians, and others, appellants-cross-appellees.

David L. Kiley, Marion, Ind., attorney of record, for Ira Sylvester Godfroy, and others, ex rel. the Miami Indian Tribe, appellants-cross-appellees.

Paul G. Reilly, New York City, attorney of record, for the Six Nations, appellants-cross-appellees.

Louis L. Rochmes, Washington, D. C., attorney of record, for the Delaware Tribe of Indians, for the Absentee Delaware Tribe of Oklahoma, for the Citizen Band of Potawatomi Indians of Oklahoma, appellants-cross-appellees.

Edwin A. Rothschild, Chicago, Ill., attorney of record, for the Miami Tribe of Oklahoma, appellants-cross-appellees.

Jack Joseph, Chicago, Ill., attorney of record, for the Eastern Shawnee Tribe of Oklahoma, and others, for the Peoria Tribe of Indians of Oklahoma, and others, appellants-cross-appellees.

Allan Hull, Cleveland, Ohio, attorney of record, for the Kickapoo Tribe of Oklahoma, the Kickapoo Tribe of Kansas, and others, and the Ottawa Tribe of Oklahoma, and others, appellants-cross-appellees.

Robert E. Fraley, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for the United States, appellee-cross-appellant.

Before COWEN, Chief Judge, and KUNZIG and BENNETT, Judges.

ON APPEALS FROM THE INDIAN CLAIMS COMMISSION

COWEN, Chief Judge:

This case is before the court on numerous appeals, as well as the Government's cross-appeal, from various portions of an interlocutory decision of the Indian Claims Commission dated August 9, 1973. The consolidated proceedings below involved the determination by the Commission of title claims by various tribal claimants to an area of land identified on Royce's Map of Ohio as Area 11 (hereinafter called Royce Area 11), as well as claims of title by several appellants to certain smaller areas and rights of passage located north and west of Royce Area 11. The land with which this appeal is concerned was relinquished to defendant by the various tribes who signed the Treaty of Greeneville of August 3, 1795 (7 Stat. 49),¹ and by the Six Nations² who signed the treaties of October 22, 1784 (7 Stat. 15), at Fort Stanwix; of January 9, 1789 (7 Stat. 33), at Fort Harmar; and of November 11, 1794 (7 Stat. 44) at Canandaigua.

In summary, the Commission found that, except for two relatively small segments of land held "aboriginally" by the Delaware and Shawnee Tribes respectively, Royce Area 11 was not held by the ancestors of the present Indian claimants in such a manner as to require defendant to compensate them under the Indian Claims Commission Act, 60 Stat. 1049. Furthermore, the Commission determined that the appellants had no compensable interest in most of the smaller areas lying north and west of Royce Area 11. For the reasons discussed below, we hold that with one exception, the Commission's findings of fact are based on substantial evidence in the record and that its conclusions of law are correct.

I

By far the largest area covered by the Commission's decision was Royce Area 11, consisting of approximately 18,000,000 acres and covering two-thirds of what is today the State of Ohio and a small contiguous area in Indiana.³ It is, therefore, not surprising that the most vigorous and lengthy contentions of the parties deal with this territory.⁴ Simply stated, the tribal appellants seek affirmance of the Commission's determinations that the Delaware and Shawnee Tribes had aboriginal title to certain portions of Royce Area 11, and reversal of the Commission's decision that in the remainder of Royce Area 11, there was no Indian title. On the other hand, the Government contends that no tribe is entitled to recover additional compensation for any portion of Royce Area 11, since none had aboriginal or recognized title. Defendant further argues that, if any title did exist at any point in time, it was extinguished. Thus, the Government seeks affirmance of the Commission's decision against claimants and a reversal of the decisions favorable to the Delaware and Shawnee in Royce Area 11, and to the Wyandot in Royce Area 20 and the unsurveyed area near Sandusky, Ohio.

The Commission's opinion and accompanying findings of fact trace in detail the history of Indian settlements in this area from 1650 through 1795, emphasizing the evolving relationships among the various tribes and between the several tribal groups and the French, the British, and the Americans. The findings demonstrate considerable thoroughness and attention to detail, and for the most part they are not questioned by the Indian appellants. As stated in the Opening Brief of Certain Appellants: "The issues in these appeals as to Royce Area 11 involve primarily questions of principle, not of fact."

Aboriginal title. The primary "question of principle" presented in the Indian claimants' appeals concerns the Commission's concept of "aboriginal title." Throughout its discussion of this issue, the Commission relied on past case law in determining whether claimants sufficiently proved the existence of aboriginal title at the cession date in 1795. The doctrine of aboriginal title is not new. As the court stated in Sac & Fox Tribe v. United States, 383 F.2d 991, 997, 179 Ct.Cl. 8, 20-21 cert. denied, 389 U.S. 900, 88 S.Ct. 220, 19 L.Ed.2d 217 (1967):

The right of sovereignty over discovered land was always subject to the right of use and occupancy and enjoyment of the land by Indians. This right of use and occupancy by Indians came to be known as "Indian title." It is sometimes called "original title" or "aboriginal title."

Similarly, the requirements for an Indian claimant to prove aboriginal title have been listed on numerous occasions in the past. For example, we held in Sac & Fox Tribe v. United States, 315 F.2d 896, 903, 161 Ct.Cl. 189, 201-02 cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963), that

to be accepted under the Indian Claims Commission Act, aboriginal title must rest on actual, exclusive, and continuous use and occupancy "for a long time" prior to the loss of the property. Emphasis supplied.

See United States v. Santa Fe R.R., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941); Confederated Tribes of Warm Springs Reservation v. United States, 177 Ct.Cl. 184, 194 (1966), and cases cited therein. It was with this standard that the Commission approached its task in this case.

The obstacle facing the Indian claimants in this litigation is the requirement of "exclusiveness." Generally, mixed and non-exclusive use and occupancy of an area precludes the establishment of any aboriginal title by any of the users of the subject property. Quapaw Tribe v. United States, 120 F.Supp. 283, 128 Ct.Cl. 45 (1954). The purpose of this requirement is fairly obvious. In order to award compensation to the Indians for the value of land ceded to or taken by the Government, it is essential that the Commission first determine that the land in question was truly "owned" by the ancestors of the particular claimant or claimants. Certainly, one of the primary characteristics of ownership is the desire and ability to exclude others from the area over which ownership is claimed. Confronted with a similar issue recently the court stated in United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 206 Ct.Cl. ___ (April 1975):

Implicit in the concept of ownership of property is the right to exclude others. Generally speaking, a true owner of land exercises full dominion and control over it; a true owner possesses the right to expel intruders. In order for an Indian tribe to establish ownership of land by so-called Indian title, it must show that it used and occupied the land to the exclusion of other Indian groups. True ownership of land by a tribe is called in question where the historical record of the region indicates that it was inhabited, controlled or wandered over by many tribes or groups. 513 F.2d at 1394.

"Exclusiveness" becomes a problem to plaintiffs simply because the historical record of Royce Area 11 demonstrates clearly that, with the exceptions found by the Commission, the area as a whole was "inhabited, controlled or wandered over by many tribes or groups." Indeed, claimants' own expert witnesses testified that prior to 1795 there was no exclusive use and occupancy ascertainable in the overall Royce Area 11 or in any large portion of it. Thus, without more, it would seem that the appeals grounded on claims of aboriginal title must be denied. Faced with the problem, the appellants have urged us to redefine the aboriginal title concept to fit their particular situations. According to the claimants:

`Aboriginal title' as of 1795, if it means anything, must refer either to the customs and practices of the Indians in the ceded area, at the relevant times, or to the 1795 law of the sovereign United States. The sharing of lands by tribes who had not otherwise combined in the ceded area to form a new entity, conformed to both.

This attempt to have us redefine a concept which has stood the test of...