United States v. Goshute Tribe or Identifiable Group, Appeal No. 6-74.

• Decision Date: 19 March 1975
• Docket Number: Appeal No. 6-74.
• Citation: 512 F.2d 1398
• Parties: The UNITED STATES of America, Appellant, v. The GOSHUTE TRIBE OR IDENTIFIABLE GROUP, Represented by the Confederated Tribe of the Goshute Reservation, Appellee.
• Court: U.S. Claims Court

512 F.2d 1398

The UNITED STATES of America, Appellant, v. The GOSHUTE TRIBE OR IDENTIFIABLE GROUP, Represented by the Confederated Tribe of the Goshute Reservation, Appellee.

Appeal No. 6-74.

United States Court of Claims.

March 19, 1975.

Dean K. Dunsmore, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for appellant.

Robert W. Barker, Washington, D. C., attorney of record for appellee. Wilkinson, Cragun & Barker and Donald C. Gormley, Washington, D. C., John S. White, E. Foster DeReitzes, Washington, D. C., and John S. Boyden, Salt Lake City, Utah, of counsel.

Before COWEN, Chief Judge, DURFEE, Senior Judge and NICHOLS, Judge.

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

NICHOLS, Judge.

The United States has appealed from a decision of the Indian Claims Commission, 31 Ind.Cl.Comm. 225 (1973), awarding The Goshute Tribe Or Identifiable Group, Represented By The Confederated Tribe Of The Goshute Reservation (hereinafter The Goshutes), the total sum of $7,253,122, less credits for payments and for offsets, still to be determined, with respect to a tract of 5,952,000 acres in Utah and Nevada. The Commission determined that the taking or extinguishment date of that tract was January 1, 1875, and valued the premises at $5,980,122 as of then. It also awarded $1,273,000 as compensation for removal of minerals before the taking date. We affirm.

The appellant would support the $5,980,122 award if that were all, but challenges it if the predicated taking date of January 1, 1875, leaves open a further liability for prior removal of minerals. It denies that it is subject to the latter liability, as determined, but would fix taking date earlier than the one used, if necessary for entire compensation. It also claims the benefit of an estoppel, perhaps just as accurately a stipulation, that the mineral removal damages would not be claimed if the Commission selected January 1, 1875, as the taking date. We have given its contentions careful consideration but cannot sustain them.

The Goshutes were in aboriginal times part of the Shoshones, but the Commission has found that, as a distinct tribe or identifiable group, they used and occupied the involved area exclusively. They lacked a political organization larger than the village until continued white contact resulted in a loose tribal organization with a Chief. 11 Ind.Cl.Comm. 387, 407-08, 416 (1962). They now occupy reservations at Deep Creek and Skull Valley, 128,196.35 acres, part of their aboriginal heritage, and have so occupied them since approximately the selected taking date. 31 Ind.Cl.Comm. 225, 227 (1973).

The first non-Indian settlements in the area were established by Mormons in 1849, but there was no real development until the discovery of silver and other minerals there in 1863.

I

By the Treaty of Tuilla Valley, October 12, 1863, 13 Stat. 681, The Goshutes and the United States agreed to establish peace and friendship. The Goshutes agreed to cease all depredations and that military posts, highways and a railway might be built through their territory.

Article 4 of the Treaty reads as follows:

* * * It is further agreed by the parties hereto that the country of the Goship tribe may be explored and prospected for gold and silver, or other minerals and metals; and when mines are discovered they may be worked, and mining and agricultural settlements formed and ranchos established wherever they may be required. Mills may be erected and timber taken for their use, as also for building and other purposes, in any part of said country.

By Article 6, The Goshutes agreed to abandon their roaming life, live in reservations, and become farmers or herdsmen whenever the President should deem it expedient for them to do so.

By Article 7, the United States agreed to pay The Goshutes $1,000 per annum, in kind, for twenty years, to compensate them for the "inconvenience" of having their game driven away or destroyed, and by the formation of agricultural and mining settlements in their territory.

There is no finding of The Goshutes being driven off their land by force. Numbering 400 to 700, they occupied it but sparsely. Conditions became difficult for them for the reasons specified in the treaty. They became dependent on Government largesse. By the found taking date, January 1, 1875, they were substantially all in the reservations established for them.

Regular shipments out of silver ore began in 1869, when rail transportation became available. The Commission has found that the gross value of the minerals removed from the area before January 1, 1875, mostly silver, was $6,365,000 (at 304). The award for this represents a 20% royalty, the figure the Commission believes an owner could have demanded successfully. It has found that a prudent purchaser would on January 1, 1875, have paid $2,730,122 (at 301-02), for full ownership of the minerals not yet removed on that date. The remainder of the taking award, $3,250,000 (at 291), was for the surface values.

II

The Commission says, and its figures substantiate, that the taking award reflects only the value of the minerals remaining on January 1, 1875, and excludes the value of minerals already removed on that date. The theory of Government liability for the pre-taking period is that the 1863 Treaty promising a derisory $1,000 a year (in kind, not money), for unlimited access to the minerals, then already discovered, plus highways, military posts, and the railroad, to ignorant Indians, represented dishonorable dealings under Clause 5, Section 2 of the Act, 25 U.S.C. § 70a(5). We think this is too self-evident to require demonstration. Appellant says, if the Commission thought the $1,000 was inadequate it should have proceeded under Clause 3 (unconscionable consideration), and would have had to take testimony as to the value of the interest conveyed by the Treaty to compare it with the consideration paid. This would require the Commission to do things the hard way since, apparently, it would have had to value the railroad right-of-way, the highway rights-of-way, the military posts, etc., all part of the interest conveyed. It presupposes that the various clauses of the Act are mutually exclusive and the Commission must select the right Clause at its peril. There may, we think, be cases, as here, where two or more clauses covered the same factual situation, and the Commission then enjoys discretion under which to proceed. If it selects the method less onerous as to proof, that does not establish that it has abused its discretion, however reluctant some may be to have these interminable litigations ever end. Our decisions specify that a "special relationship" is necessary for a "fair and honorable dealings" claim to accrue. E. g., Aleut Community of St. Paul Island v. United States, 480 F.2d 831, 202 Ct.Cl. 182 (1973). Such a "special relationship" arises when United States officials tender a Treaty to Indians for adhesion.

The instant Goshute claims were separated off from a 47 page petition originally filed on behalf of a variety of Shoshone tribal claimants. The counts relating to The Goshutes, paragraphs 34 and ff., show that The Goshutes originally claimed that title to their tract was recognized by the Tuilla Valley Treaty, supra. Possibly this position was abandoned at some point in view of Article 8, which says the Treaty is not to be construed as admitting the Indians had any other or greater title than existed in them upon acquisition of the territories from Mexico. At any rate, the petition directs the attention of the United States to the Treaty and to any loss the Indians suffered at the white man's hands respecting the territory described in the Treaty. The petition expressly alleges want of fair and honorable dealings, and that the United States disposed of the lands to settlers and others. We think the petition was adequate to inform the United States that dishonorable dealings might be asserted against it and that it might be held liable for depredations of miners acting under its authority or pursuant to the Treaty it had exacted. We reject the United States argument to the contrary.

III

Appellant also urges an "estoppel" against appellee as regards its pretaking royalty award for minerals. In 1969, when the Commission was considering what taking date to use, appellee's counsel said that actual mining in the area commenced in the middle '70's, that if the Commission selected 1914 as the taking date, as it then considered doing, appellee would claim the minerals removed before that date as a separate item, but that the 1875 taking date would allow award for the minerals as still in the ground. Manifestly appellee's counsel was ill informed as to what he would later prove. Indian claimants may know they once had a vast domain and now have it not, without being able to supply details as to the steps the expropriation took. Experts must be retained for this and they must be given a taking date to work from. However, this statement was not offered with any accompanying colloquy that would enable us to say it was a stipulation of fact. There is nothing to show it was accepted as such. It is read by appellant as a promissory undertaking: if we can have the 1875 date, we won't claim for minerals removed before 1875 even if there were some. For counsel to give away part of his client's claim in that fashion would be most extraordinary, and the words should be read to avoid such a construction, if possible. Th...