197 Ct. Cl. 775 | Ct. Cl. | 1972
: Asserting three general grounds of error, the Suquamish Tribe appeals from an award made to it by the Indian Claims Commission. The first contention is that the area in the State of Washington awarded to the Tribe under the doctrine of aboriginal ownership is too small. A very substantial part of this claim, as now made in this court, was not made before the Commission. We do not consider this post-award and post-appeal enlargement of the area claimed, on the established principle that these matters should have been presented to the factfinding tribunal; no adequate excuse is offered for the failure to do so. The Commission is an independent body with power to “hear and determine”, not a mere arm of this court or an advisory board. See §§ 1-2 of the Indian Claims Commission Act, 25 U.S.C. § 70-70a. In § 20(b) of the Act, 25 U.S.C. § 70s, Congress made it clear that, in cases coming from the Commission, we were to be an appellate or reviewing court, not a court of first instance. From the beginning, we have followed that concept, refusing to treat appeals as trials de novo or to consider the proceedings before the Commission as mere preliminaries to a “real trial” here. See Osage Nation of Indians v. United States, 119 Ct. Cl. 592, 97 F. Supp. 381, cert. denied, 342 U.S. 896 (1951), and many succeeding decisions, including Lummi Tribe of Indians, 181 Ct. Cl. 753, 757 (1967). It follows that claimants cannot wait to present their full claim until they reach this court.
As for the Commission’s refusal to grant all of the area
The second alleged error is that the valuation of the awarded area (about 90 cents an acre) was too low. Here, too, appellant seeks to present matters not raised before the Commission, and again we refuse to consider them.
The last of the questions appellant raises on appeal is that the United States should have made allotments to individual Suquamish under Article 7 of the Treaty of Point Elliott, 12 Stat. 927, 929 (1855). There is no need to spell out the details of this argument because it, too, was not raised below, as it should have been if appellant desired it to be a part of this litigation. It is to be noted, in addition, that this very claim was rejected on legal grounds, in a suit under an earlier jurisdictional act, in Duwamish Tribe of Indians v. United States, 79 Ct. Cl. 530, 577-80 (1934), cert. denied, 295 U.S. 755 (1935), which is binding on appellant as a plaintiff in that case. United States v. Creek Nation, 196 Ct. Cl. 639 (1971). Insofar as the Tribe seeks to contend, belatedly, that Article 7 of the Point Elliott Treaty should be revised under
Affirmed.
The findings show that the Commission properly took account of the various classes of land involved in the Suquamish area.
Appellant attacks the appraiser’s position on the basis of two 19th century reports on timber which were not presented below and which, for that reason, we should not consider. See note 1, supra. Reference is also made to testimony In another case which is likewise not properly before us.