United States v. Romaine

• Citation: 255 F. 253
• Decision Date: 06 January 1919
• Docket Number: 3153.
• Parties: UNITED STATES v. ROMAINE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

255 F. 253

UNITED STATES v. ROMAINE et al.

No. 3153.

United States Court of Appeals, Ninth Circuit.

January 6, 1919

The United States brought suit to quiet the title of the Indians of the Lummi Indian reservation to certain lands alleged to be within the boundaries of the reservation, but which had been sold to the defendants as tidelands by the state of Washington. On January 22, 1855, the United States by treaty with certain Indian tribes, in consideration of their relinquishment of larger tracts of land, set apart to them among other lands, 'the island called Chah-choo-sen situated in the Lummi river at the point of separation of the mouths emptying respectively into Bellingham Bay and the Gulf of Georgia, all of which tracts shall be set apart, and so far as necessary surveyed and marked out for their exclusive use.' 12 Stat. 928. On November 22, 1873, President Grant made proclamation establishing the Lummi Indian reservation in the following terms: 'It is hereby ordered that the following tract of country in Washington Territory be withdrawn from sale and set apart for the use and occupation of the Dwamish and other allied tribes of Indians, viz Commencing at the eastern mouth of Lummi river; thence up said river to the point where it is intersected by the line between section 7 and 8 of township 38, range 2 east of the Willamette meridian; thence due north on said section line to the township line between townships 38 and 39; thence west along said township line to the low-water mark on the shore of the Gulf of Georgia; then southerly and easterly along the said shore, with the meanders thereof, across the western mouth of Lummi river and around Point Francis; thence northeasterly to the place of beginning-- so much thereof as lies south of the West fork of the Lummi river being a part of the island already set apart by the second article of the treaty with the Dwamish and other allied tribes of Indians made and concluded January 22, 1857.'

The controversy involves the question of the true location of the mouth of the East fork of the Lummi river, later called the Nooksack. The appellant contends that the mouth of the river at the time of the treaty was at or near a point marked by a conspicuous rock called by the Indians 'Treaty Rock.' The appellees contend that the mouth of the river was at a point now marked by two cottonwood trees, nearly opposite the old church, about a mile and a half or two miles westerly from Treaty Rock. Upon the evidence the court below sustained the contention of the appellees and dismissed the bill. From that decree the appeal is taken.

Robert C. Saunders, U.S. Atty., and Ben L. Moore, Asst. U.S. Atty., both of Seattle, Wash.

J. W. Romaine, C. E. Abrams, A. M. Hadley, and W. H. Abbott, all of Bellingham, Wash., for appellees.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The appellant introduced in evidence certain hydrographic maps made by the United States Coast and Geodetic Survey, one in 1856 and one in 1887. The court below disregarded these maps, saying, 'I do not think that the hydrographic maps are of any weight in this testimony in contradiction to the evidence that is presented'; and, relying upon the testimony of certain white witnesses, the court reached the conclusion that the testimony of the Indian witnesses and the other evidence adduced by the appellant were insufficient to sustain its contention.

We are unable to agree with the trial court as to the effect which should be given to the hydrographic maps of the United States Coast and Geodetic Survey as evidence in this case. We think the maps should be given full credence, and should be taken as absolutely establishing the truth of all that they purport to show. The map of 1856 indicates a large area of tideland at the mouth of the Nooksack river, and the river flowing in an easterly direction past the land which subsequently became the Hedge donation claim. The map of the survey made in 1887 shows the main channel of the river flowing along the south boundary of the Hedge donation claim, and thence easterly and in the direction of Treaty Rock, and, while it shows two or more small streams diverging therefrom and passing through the lands in controversy near the center thereof, it shows that there was no channel or stream whatever at or near the westerly side of the lands. Capt. George R. Campbell, United States engineer and hydrographic surveyor, testified to the accuracy of official hydrographic maps, stating that all the features connecting the shores with the water are accurately outlined and surveyed and tied to permanent landmarks, that these surveys are made with extreme accuracy, and that all are worked on an astronomical basis and are chained and taped a number of times, and that the government is always careful to do as accurate work as is possible on a coast line and in its marine coast survey work. Such testimony was hardly necessary, we think, for the court might properly take judicial notice of the accuracy of the official plats of the United States Coast and Geodetic Survey.

The evidence shows that in the interval since the date of the treaty the position of the mouth of the river has not always been the same; that from 1855 to 1888 the main channel ran past the cottonwoods and easterly along the south side of the Hedge donation claim, and thence southeasterly to a point near Treaty Rock; that in 1889 the river cut through the south bank near the cottonwoods, and flowed thence into the bay in a southerly direction; that in 1908 the river made a new channel through the low-lying lands of sections 8 and 17, cutting in twain the east half of the Hedge donation land claim, and flowing thence, as it still continues to flow, southeasterly in the old channel of 1855; that during these periods there was a small intermediate channel between the old channel of 1855 and the new channel of 1889, containing in different seasons varying amounts of water, and there is evidence to indicate that 8 or 10 years before 1889 there were times when a quantity of water ran substantially in the line which became the main channel of the years 1889 to 1908.

A. R. Campbell, who was employed by the United States to survey portions of the Lummi Indian reservation in the year 1905, produced a plat of the survey, which was admitted in evidence. He testified, and it is conceded, that at that time the main channel was west of the lands in controversy. His instructions were to survey that portion of the reservation lying east of the main channel of the Nooksack river as it existed at that time, and south of the old channel. The outlines of his map are shown in the following diagram:

(Image Omitted)

Capt. George R. Campbell testified that in 1917, in pursuance of instructions from Washington, he surveyed the northeast boundaries of the Lummi Indian reservation, and the map of his survey was received in evidence. He testified that an old channel, which he marked on the map '1855 to 1888,' was traceable on the ground, and that the same was marked by old stumps of trees on the bank. A diagram of the outlines of his map is subjoined:

(Image Omitted)

Several of the Indians of the Lummi reservation testified as to the understanding of the Indians at the time of the treaty, and the position at that time of the eastern mouth of the Nooksack river. George Tsilano, in his 100th year, who was 38 years of age at the time of the treaty, testified that Gov Stevens, on behalf of the government, pointed out to the Indians the ground which would be given to them, and told them that the eastern side of the reservation would be a line running from Point Francis to Treaty Rock. He testified that it was always understood that the big rock would be the eastern boundary of the reservation, and that the eastern boundary line was from Point Francis to that rock; that he remembered very accurately the location of the mouth of the Nooksack river in 1855, and that it was a little bit above the rock; that there was a well-defined bank on the south bank of the river; that the river was deep, and that there was a large body of land south and west of it, always exposed at high tide. Henry Kavina, an Indian, who was 15 years of age at the time of the treaty, testified that he was present at the making of the treaty, that his father was one of the chiefs who participated in making it, that the easterly boundary line ran from Treaty Rock down to Point Francis, and that the mouth of the river was near Treaty Rock. Albert Descanum, who was 18 years of age at the time of the treaty, testified that Henry Kavina's father, who was an old chief, and a number of other old men who were at the treaty, all had said that the eastern line of the reservation was from Point Francis out to Treaty...