delivered the opinion of the court:
The Lipan and Mescalero Apache tribes invoke the Indian Claims Commission Act, 25 TJ.S.C. § 70a (1964), for compensation for the loss of their ancestral lands within the State of Texas. They seek to hold the United States responsible for the actions of its officers, agents, and troops who in 1858 and 1859 — appellants allege — joined with Texas forces to drive the Indians from their lands. They also claim that the Federal Government is liable for its failure to intervene (when it was under an alleged duty to do so) to protect their lands from being settled under the State’s public lands program.
I
On this motion to dismiss we must accept the factual allegation that the claimant tribes had used and occupied designated lands in Texas to the exclusion of other peoples for many years. Such continuous and exclusive use of property is sufficient, unless duly extinguished, to establish Indian or aboriginal title. See, e.g., Sac and Fox Tribe v. United States,
The Claims Commission has found, however, that, even if the claimants had once possessed aboriginal title to the lands, that right of occupancy was lost after 1836 when Texas became an independent country. The Commission appeared to believe that the survival of aboriginal title depends upon affirmative recognition by the sovereign and that the Republic “did not accord the Indian[s] the right of occupancy * *
To the extent that the Commission and the appellee believe that affirmative governmental recognition or approval is a prerequisite to the existence of original title, we think they err. Indian title based on aboriginal possession does not depend upon sovereign recognition or affirmative acceptance for its survival. Once established in fact, it endures until extinguished or abandoned. United States v. Santa Fe Pac. R.R., supra,
The correct inquiry is, not whether the Republic of Texas accorded or granted the Indians any rights, but whether that sovereign extinguished their pre-existing occupancy rights. Extinguishment can take several forms; it can be effected “by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise * * United States v. Santa Fe Pac. R.R., supra,
The materials considered by the Commission and presented to this court do not show the required clear and plain indication that the Republic ended claimants’ rights in their ancient lands.
The appellee’s scattered references do not add up to such a convincing showing. We are directed to the Republic’s course of dealings with the Cherokee Indians. In 1835, the Consultation, the governing authority preceding the formation of the Provisional Government, recognized that the Cherokees had derived rights to their lands from the Mexican Government; that the governor and general council of the Texas Republic, when established, would guarantee peaceable enjoyment of their rights; and that “they [the Cherokees] are entitled to our commiseration and protection, as the just owners of the soil.”
The Government also relies upon broad policy statements of President Lamar, the second chief executive of the Republic, and on certain legislation enacted during his tenure (December 1838-December 1841). He may have advocated expulsion or extermination of hostile Indians, and resettlement on reservations for friendly ones, but his words and speeches would not, in themselves, amount to an extinguishment of Indian title. (The other Presidents of the Republic did not follow or announce the same policy.) An Act of the Republic of Texas (1840) did authorize the President to survey vacant lands on which all the “friendly Indians within the Republic shall be placed as soon as circumstances permit.” Appellee argues that this enactment is inconsistent with governmental acquiescence in Indian title and thereby effects extinguishment. We cannot declare, however, that the contemplation of possible future action contingent on other circumstances is clear evidence of present extinguishment. The 1840 Act looks to the future; its words embody a delegation of authority to the executive to act if and when he considers it appropriate. It does not purport to affix or alter any rights as of the moment.
Finally, the Government would have us hold that extin-guishment occurred in 1845. Under treaties negotiated in 1843 and 1844 the Republic established a series of trading posts to foster trade and commerce with the Indians. On February 3, 1845, the appellee contends, the Republic’s legislature made it evident that these posts were to comprise
These fragmentary materials do not indicate that the Texas Republic, in 1845, altered its previous practice and adopted a policy of extinguishing all aboriginal title. The very words of the administrative reports show that the officials sought and obtained the consent of each of the tribes affected before the actual relocation. Such precautionary measures are as consistent with a policy of acceptance of, or acquiescence in, Indian title as the converse. At most, the reports indicate that the Lipans, by agreeing to resettle near the San Gabriel River, relinquished aboriginal title to land in the vicinity of the San Antonio River. See Buttz v. Northern Pac. R.R.,
Thus, the materials the appellee cites are weak and equivocal. On the other hand, there are a number of indications that the Republic, for much of its brief history, adopted the general policy of encouraging peaceful relations with the Indians and of discouraging mutual encroachments — a
II
Since there is insufficient proof of extinguishment by the Republic, the claimant tribes necessarily possessed Indian title, based on aboriginal occupancy, when Texas attained statehood on December 29, 1845. Under the terms of its admission, it retained “all the vacant and unappropriated lands
Our view is different: that the State could not extinguish Indian title (at least without the Indians’ consent) and that only the Federal Government had the power, to abrogate aboriginal ownership by unilateral action. It makes no difference that the lands were State-owned; the Federal Government’s power stemmed, not from the ownership of public lands in this instance, but more importantly from the general grant of the right to deal with Indians. The Constitution has vested in the national government the authority to regulate Indian affairs:
“That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several States, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions.” Worcester v. State of Georgia, supra,31 U.S. (6 Pet.) at 438 .
One aspect of this federal authority is clearly the power to extinguish Indian title.
The many decisions in this area do not speak in conventional property terms — inquiring into the powers of the holder of the fee title — but are broadly concerned with those powers which are conferred upon the sovereign by the nation’s basic law. “The power of Congress * * * [to extinguish Indian title] is supreme * * *. As stated by Chief Justice Marshall in Johnson v. McIntosh, supra, p. 586, ‘the exclusive right of the United States to extinguish’ Indian title has never been doubted.” United States v. Santa Fe Pac. R.R., supra,
Appellee attempts to avoid the weight of precedent by reinterpreting two of the Court’s seminal decisions — Worcester v. State of Georgia and Johnson v. M'Intosh. In Worcester, it is said, the source of the Federal Government’s power to extinguish title was not its status as sovereign, but a compact between the State of Georgia (the fee holder) and the United States by which the State authorized the Federal Government to act. Chief Justice Marshall clearly indicated, however, that the 1802 compact was merely evidence “tending to prove * * * [Georgia’s] acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States * * Id. at 439'. Moreover, one of the treaties (Treaty of Aug. 7, 1790, 7 Stat. 35) by which the United States extinguished Indian title in Georgia land was made before the 1802 compact had been concluded — further evidence of acceptance of this “universal conviction.”
The Government also urges that the Court, in Santa Fe Pac. R.R., misconstrued Chief Justice Marshall’s words in J ohnson v. MPntosh. It submits that J ohnson dealt only with lands held by the United States and therefore that the Court did not reach the issue now at bar. Whatever the particular facts of the Johnson case, we think that the Chief Justice’s opinions, in both that and the subsequent Worcester decision, plainly confirm the exclusive power of the United States to extinguish Indian title even if the ultimate legal fee holder is a State. Santa Fe Pac. R.R. reaffirms this longstanding practice. Appellee cites Seneca Nation v. Christy,
The State of Texas is not excepted from the rule applicable to all other States. It entered the Union on an “equal footing” with the others (United States v. Texas,
Since the State of Texas was thus without power, and no one contends that the United States extinguished claimants’ aboriginal title, we hold that the Lipan and Mescalero Apache tribes, if they prove the necessary possession, had a right of occupancy to the controverted lands when the alleged illegal acts were committed in the 1850’s.
Ill
The problem then is whether the United States can be held liable in this proceeding for violating the appellants’ aboriginal rights of ownership. The Indians have stated two possible bases for recovery. First, they say that in 1858 and 1859 open warfare broke out in which United States officers, agents, and troops joined with Texas forces to drive the Apaches from their lands. Second, they claim the United States should be held to account for its failure to intervene (when it was under un alleged duty so to act) to protect their lands from being settled under the State of Texas’ public lands program. The Claims Commission held that these assertions fail to state causes of action against the Government because the United States has never held a proprietary interest in the Texas lands.
While such a finding of government ownership might have been required before Congress promulgated the Indian Claims Commission Act, it is no longer a prerequisite to every
States,
Claimants’ first allegation that United States troops drove the Apache tribes from certain of their lands properly states a cause of action under clause (4) or (5) of section 2 of the Act. Under the Treaty of May 15, 1846 (ratified March 8, 1847, 9 Stat. 844), concluded beween the United States and several Texas Indian tribes, including the “Lepan” (sic), the Indians acknowledged “themselves to be under the protection of the United States, and of no other power, state,
The compensable wrong, if proven, would be the conduct of the United States troops and officials in driving the claimants from their property. Clause (4) of the Act (“claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant”) was intended to embrace such claims based on the taking of lands which were held by Indian title, regardless of whether the lands were taken for the Government’s own use or for others. Upper Chehalis Tribe v. United States,
Appellants’ second claim, under clause (5), raises the issue of whether the United States can be held liable for its failure to protect them from the acquisition and distribution of their lands to white settlers under Texas’ public land laws. Under the Act, the United States might be liable in damages for the actions of a third party. The required nexus for liability could rest upon the Government’s “true concert, partnership, or control” with, or of, the party dealing with the Indians (Six Nations v. United States, supra,
The tribes insist that the United States, by statutes, treaties, and representations of its agents, undertook to protect their occupancy rights from the alleged encroachments. It is essential, therefore, to determine if a special relationship was created; the nature and scope of any responsibilities assumed by the United States; and whether the Federal Government met these obligations. The answers to these issues are not readily apparent from the materials presented to this court, but it is clear that the petition should not have been dismissed at this stage. We, therefore, remand the case to the Indian Claims Commission to make the necessary findings on these issues — as well as on the existence and extent, if any, of the appellants’ aboriginal ownership, and the other questions remaining in the case. Spokane Tribe v. United States,
Reversed and remanded.
Notes
It is proper to take Judicial notice of the laws and other public acts of the Republic of Texas. Unites States v. Louisiana,
The Consultation’s decree was before the Indian Claims Commission in Texas-Cherokees v. United States,
The quotations are from his first inaugural address in October 1886.
The Commission placed special reliance on this court’s decision in Wichita, Indians v. United States,