*1 The UNITED STATES
v. OR BAND UTE TRIBE
SOUTHERN INDIANS. OF
Appeal No. 7-66. Claims. Court of
United States
March *2 Miller, Washington, C., Braxton
W. D. Atty. with whom was Asst. Gen. Shiro Kashiwa, appellant. Wilkinson, C., Washington, A.
Glen D. attorney appellees. of record for Wil- kinson, Cragun Washington, Barker, & C., D. of counsel. WEN, Judge,
Before CO Chief LARAMORE, DURFEE, DAVIS, COL- LINS, NICHOLS, Judg- SKELTON and es. Judge.
NICHOLS, appeal This ease comes to us on a decision of the Indian Claims Com- which, interlocutory mission in an order May 16, 1966, dated appellant, found the appellee, liable Band, (1) the Southern Ute Tribe or just compensation taking 230,547.44 land, (2) acres of and for a “further complete” accounting for funds held Although in trust. appeal notice August 4, 1966, briefing filed on argument and oral we remanded to the supplemental findings Commission for Upon making requested fact. find- ings again the Commission transmitted us, whereupon the case to lying parties, re- briefs, again on earlier submitted presented argument. oral Since the supplemental findings Commission's support tended original decision, its appeal the issues pre- now on are those viously posed. incorporated composed tribe Capote of the Moache and bands, allege that the United States vio- agreement treaty lated a made with their Congress ancestors and ratified Briefly, treaty, the terms of the dispute, provided are not in the western sector of the Southern Ute reservation be set aside for all those who accept would allotments in sever- alty. The eastern sector was for South- accept ern Utes who would allotments. portion sec- of their reservation. this latter lands in east-central unallotted opened lies settlers to be white The relevance tor were consequences it effect- price geographical not less than cash $1.25 for the referring convenience, (For proceeds, per certain off- All save ed. acre. sets, geographical use we will sectors be held these numbers taken trust the exclusive benefit Area *3 Map 1899, Royce’s April these C. In from Charles Southern Utes. officially opened public (1) Land Cessions lands were of Colorado 1896-1897, 1947). May 1900, entry (31 Ann.Rep., Part (18th B.A.E. Stat. Congress carving however, passed Free II)). By slice of land out this nearly 179, 566), (31 (Royce U.S.C. cession § Homestead Act Stat. 43 Area original 179) into reservation allowed settlers to obtain 1868 which severed Royce monetary parts. disproportionate Area considera- land without two mostly just larger part, lay 616, north tion. The now seek Southern Utes 230,547.44 compensation ran miles across acres a corridor 20 to the east land that defendant donated to between 566 their thus north and south Wedged between homesteaders the 1895 and to the west. violation Utah primary treaty. the southern defense is and Defendant’s the New Mexico border relating Cession, boundary free Brunot how- all claims to these dispositions ever, been settled of the reserva- the remainder 617). finally by adjudication. (Royce prior dis-We This narrow Area agree across, strip, rea- from the res- with this contention ran miles following boundary point a sons stated in the discussion ervation’s eastern border, analysis. just and short of the Utah miles boundary. occupants of its The western mid-1800’s, In the Indians oc- Ute still remain Area 617 were and cupied region span- an extensive Moache, Capote Weeminuche Colorado, ned western northern New Bands, Utes. then known as the Southern Mexico and Utah. On March Moache, Tabequache, these Indians —the agreement By another ratified Weeminuche, Capote, Yampa, (21 Grand Riv- Act of June Stat. er and Uintah Bands of Utes —ceded 180), Kappler Bands the Confederated aboriginal ceded, cede, United purported to certain exchange for a million 15.7 exceptions, of their dimin- the remainder wholly acre reservation situated within ished Because of the 1868 reservation. (Treaty the boundaries cession, Colorado. importance critical of this 990). Kappler 15 Stat. quote pertinent sections verbatim. Subsequently, the bands came to ****** be known Tabequach- under different The names: The chiefs and headmen Uncompahgre Utes; es were called bands of the confederated Weeminuche, Moache, Capote agree promise their best to use Utes; Yampa, Southern and the procure people to endeavors with Uintah, Grand River and the White Riv- to cede their consent Collectively er Utes. these three Bands territory States all the informally organized styled except Colorado, Ute Reservation the Confederated Bands Utes. provided set- as hereinafter for their tlement. years Treaty Some of forged agree another Bru- The to remove Southern Utes —the upon unoccupied ag- Cession of 1873. to and settle Kappler 151). discovery large The ricultural lands on the Riv- La Plata Colorado; deposits er, valuable mineral on the there should if prompted Ute sufficiency Reservation had the Unit- not be such lands persuade vicinity ed States to the Confederated the La Plata and in its River Colorado, upon Bands cede million acres un- 3.7 then such other may be agricultural settle occupied lands as One-third to those who on the vicinity in its Plata River or La River and La Plata [the on the found Utes]; vicinity Mexico. one-half those in New settling on Grand River and vicin- agree to re- Uncompahgre Utes Utes], ity [Uncompahgre and one- agricultural upon settle move to and settling sixth those on the Uintah River, mouth near the lands on Grand Reservation [the White River Utes]. River, Colorado, if of the Gunnison quantity agricultural Third. That sufficient consideration there, territory found if not then the cession of land shall be made upon unoccupied agricultur- the said such other confederated bands of Nation, vi- be found in that al lands as Territory cinity Utah. addition the annuities clothing provisions sums agree to re- River Utes White stipulated provided and [otherwise upon agricultur- move settle to and *4 agrees treaty], law or to set in al Uintah lands on the Reservation apart hold, perpetual and as a trust Utah. Indians, for the said Ute a sum of * * * * * money, equivalent or its in bonds of chiefs of The said and headmen the United which shall be promise bands of confederated Utes produce sufficient to the sum of people consent of obtain their fifty per annum, thousand dollars territory of the the cession of their fifty sum which of thousand dol- reservation as above on the follow- per lars shall capita be distributed ing express conditions: annually to them forever. of First. That Government Fourth. That as soon as the Pres- States cause the lands United of may ident the United States deem surveyed apart properly so set to be necessary expedient, agen- among and to divided said be Uncompahgres for cies and * * severalty Indians *. Southern Utes be removed to and points, established at suitable to be ****** selected, upon hereafter the lands Second. That so soon as con- apart, to be set and to aid sent of the several of tribes support of the said Utes until such Ute Nation shall have been obtain- they as support time shall be able to agree- provisions ed to the of this themselves, and the mean ment, President time the United States Government States shall cause to be distributed establish will and maintain schools among them in cash the sum Utes, in the settlements of the and sixty thousand dollars of annuities necessary make all provision for ** *, so much more Con- education of their children. gress may appropriate pur- for that Fifth. [Prior treaties are reaf- pose; that a commission shall firmed.] superintend be sent the removal ficient agricultural upon and settlement see that such settlement they their future are pastoral well being duly provided Utes, support, and to with suf- ef- upon authorized [******] Sec. ratification Utes [Five for Commissioners were to assess ratification, agreement improve- fected, they census South- ments and take a furnished with Utes, necessities], Uncompahgre [other and that ern ** * money Utes], appropriated [A]nd to be River Con- White gress purpose ap- also select for that be shall shall [commissioners] severalty portioned among bands allot them different lands and provided, Indians, following as herein Utes in said manner: removal, location, government act superintend the benefit applied Indians, thereon, and to be said and then settlement payment the lands at perform [$1.25] such other services do and per may them be ceded to Secretary acre of the Interior as the be liable to whether mineral or character, except lands, act: same terms as other lands of like ject when sold the bands of shall be held and deemed to be viding imbursing the and ceptance by shall mentioned therein as are said proceedings of said commissioners said conditions, restrictions and limitations missioners shall cause so as therein completion * * * sums ation herein acter as set forth in the * the lands so quantity Interior cause to be dent ed in said act. consider settlement in the execution See. [*] allotted, accordance with issue *5 ** provisions shall be Provided, agreement; conveyed agreement be paid at the same said disposal Indians, [*] first the Ute be made to each and all and whenever the be necessary out or set the title to which entry That the commissioners, each and provided. surveyed, agreement, subject *, required, severalty * * said United States allotted, approved by sacredly (cid:127)» That none of said the homestead of to the United disposal proceeds he shall cause in the vicinities under the laws and settlement under of the confederated and Indians, survey for them to do existing quantity to cash price -X provisions provided Secretary every apart otherwise, all under the States, with the same of And applied the said com- allotments authorized to and enumer- and this said Indians and on the provided [*] sufficient a secure the report entry only the Presi- allotee for law; and char- is, by said sale upon released in this patents public public to re- lands, direc- [*] nam- shall law; sub- pro- and not ac- all submitted its mission penny. conclusion that that though Commission by the Act of 1895 and Restoration of retary ership not cede their reservation ments. The Southern Utes were 617) Area 617 confederates understood that such mon- tioned a one-third share and like their beyond reservation for their benefit. The Commission found appears ies would be held in Bands were our Bands ceeds of unallotted land sales gleaned consideration for tion— moreover to cede their entire Colorado reserva- funds now usual agreement. reservation, Pursuant hereinbefore thereon shall be shall to them in the same manner the said The most (Emphasis supplied severalty Ser. No. following sequence [******] analysis, (1882)). the Act of 1880 “reserved” under the (both Royce Area 616 and 617—and provided certain Government the Interior of (Southern of chairman be On November statutory italics.) provided inconsistent with this promised for the Southern Utes. deposited discussed in various sectors within and Indians, plain to the above act significant aspects to is that And the receive Divided stated, and the interest formed language 47th law Act, these boundaries. distributed pursuance to in the this act: George infra) support throughout, report shares remainder, the Confederated included) accept of events (H.R. Doc., into outside Cong., under the lead- promises, the benefit of of 1880. (Royce Treasury of the Act Sec- to the three sub- reimburse- W. proportion respect remaining allotments Com- the Sess. 1st annually the Ute rate finding, As seemed capped as the if Many- appor- except Area trust Vol. any, pro- this sole did Al- *. without federated White the removal of reports, despite River Utes the terms one for each some trio, difficulty. of the above report Uncompahgre band discloses accomplished Both treaty, bands, con- ervation I took talk * * * During my stay alty. [******] subject In these conversations leading of their occasion men location in * * * on the res- I called sever- on Fi- vehemence. attention to the fact removal resisted surveyors doing however, persuaded nally, work were preliminary step Utah, to such location the bounds outside settle severalty] placing and the [in former reservation. Southern each family hand, many on its own land. were to receive On on other occasions all I was listened treatment forecast different single Manypenny: response, word comments of Chairman without was that Agency, terms of the [1880] La Plata to be removed Mexico. Animas, Florida, and Las When -» in a brief time I found the I all the It was River in went to [*] to and located confidently expected Colorado prevailing [*] agreement were Southern valleys [*] Pinos, opinion by the [*] [Ute] New &c., plated by ment don their adopt It will take time and careful change one if built for him on his own land. In the house, I did not to induce these Indians to aban- the new mode of life contem- going meantime, would agreement. find one on, they [way agree and while the must who desired to dwell living] manage- pro- annoyance. from Intruders open occupation tected settle- would be going prevented must be people. The settlers ment white among If them. this be done dis- valleys north of these the reserva- eventually reign, order will ef- pos- and all impatient tion were enter pletion of their not on the Animas and to there was persons. satisfaction manifested. tractors to locate these Southern Utes. This their close tlements subject that known ed and committed a assigned on which sess the ed to I constant serted regard Under pass the only the residue I could that I had occupation and language the disappointment, over the terms as a land; annoyance by evil-disposed they proximity no other the I them and *6 surveying, to and commence work had instructed the great misfortune, valleys work of the lands are and when it became of deliberately pervert- selected great Florida, the of land in to the white set- on the La Plata patents be of the streams the settlement, [1880] on the com- wrong. located will upon It agreement there was great lands are Colorado was as- issued, treaty which open- since con- dis- plain to cede their lands to the United Manypenny’s They indicate that Indians are phasis supplied). Although prevent States laws the land vations dian hundred free from exterior forts to domesticate them will fail. other lines er order and dians [fSSO] Southern words of the 1880 show that both preserve reservation, way are agreement, have intrusion and lines miles selected, an concerned, intruders. we stated Utes, pending recitals the than in relation indefinite full force all protection, of as be long Southern the the to so not located, and let give so sides as to land strip Id. treaty earlier far period guarantee upon in effect as to therein. us at 393. further meas- fifteen I regarded maintain the within Utes modify as these can be some of can see no which the seemed to as that land one agreed pause. an reser- wide, prop- these Then (Em- kept the the In- In- To suggesting By occupied by that ures. reserva- between the lands entry public closed to be indefinite- Southern and the Ute lands ex- Utes ly, impliedly suggests posed Manype.nny entry that the act [of 1882]. forego, following per- description not albeit States rights manently, map: line its under the 1880 which is laid down on said Sig- Commencing treaty vis a vis the at the southwest corner Southern Utes. nificantly, lands; Manypenny’s ceded recommendation the Ute thence extend- boundary modify treaty ing accepted the south the 1880 Ute boundary ceded the full commission. lands to western The record contains, (Emphasis however, no official State of Colorado. acknowl- edgement supplied). response. departure Consequent description seem it would From this Utes Uncompahgre River and White Department least Interior Congress promul- Royce Area already viewing the Ute Southern was territory July gated Act of permanent reservation as a Royce Area 178), all declared terms of the 1880 ces- ceded disposed public to be land Specifically, letter states sion. the Act of 1880. Sec- accordance with in, at, survey commence line provided, how- of 1882 tion ever, Ute land. the ceded corner of southwest Adhering Secretary the Interior defendant’s contention day, practicable “at earliest ascertain liter- all ceded the lands were [Royce and establish the line between interpretation this letter would al lately now or oc- 616 and the land] Area If lead to an anomalous result. cupied by the Southern starting point placed at the south- appropriated dollars was Five hundred land, corner of western point survey. provided for this Section converg- with the would coincide among things open- other that the land ing point Mexico, of the New Colorado ed in would dis- Area 616 and Utah borders. The line could not posed a cash basis not less than boundary extend to the western of Colo- per acre. $1.25 rado because it would start there. argues Plaintiff section 2 interesting It is also to note how the formally the above act the United regarded themselves Southern Utes recognized strip (Royce thin during February status time. 617) Area as the exclusive reservation 1886, Ignacio, principal chief of the Southern ex- Utes. Defendant C., Washington, D. Southern Utes visited plains merely survey attempt along with of his subordi- several other to cordon off the Utes’ land headmen, appeared nate chiefs “until could be located in several- *7 on Indian before the Senate Committee ty.” following colloquy is a Affairs. The implement To of the Act 1882 the between the and Buckskin committee Secretary obligated of the Interior was although Charley to who a subordinate to instruct district offices Ignacio, perform spokesman seemed to as accomplish Area how to dis (Sen.Rep.No.836, for the Utes Southern posal. From of the text a letter dated (1886)): Cong., 49th 1-2 1st Sess. August 4, 1882, ostensibly which . Question. Why you for do come here ? purpose ap sent out for the under the Answer. come here to see if We
proval Secretary of the of the Interior exchange cannot reser- our (Report Int., of the Sec. of Vol. H.R. h vation another. Message Doc., Cong., & Sen. & 47t 2d Q. (1882)), following: you Sess. 41 do we have the Where want reser- new [*] The second section provides # [*] [*] survey of the act [*] of the line [*] of A. vation located? We want to ent reservation. go west pres-
g53 go way reservation; yet Q. Why ? a mat- better is it fact, ter of we are bound solemn narrow reservation A. The treaty stipulations Act [Sec. go long west want and we prevent with these Indians 1882?] sell see we can’t it. if entering upon people, from white Washington Q. you with come to Do crossing said reservation. Bureau the idea subsequently Two bills were introduced you do what want? can in the Senate —S.769 and S.1916 —to ef- legisla- get expecting to A. come We fectuate of the Southern the removal tion. Utes from their reservation. These bills Q. hold title under statute? You were never enacted law into supplied). (Emphasis Yes. Id. A. Congress not until took positive steps to ameliorate the Indians’ still were Utes the Southern Thus plight. Section res- their old possession of their 133, Kappler 266) reads as right. claim of ervation follows: quit res- their wanted Utes Southern kins, Commissioner tion. The vation. acknowledged to the north 836, supra, the several rivers tlers. tional Indian the bulk lament, Mexico, ed between two dary. Interior dated routes of tion, also that the location were reservation farming amount of arable Even if croachments ernment ervation **« n [***] time. Thus there was an pastoral people not Consequent In a —the however, which was also and the To the winters then trade and Government was too encompassed an insufficient the south the Utes’ a number report were neighbors. Their livelihood April white communities wanted p. isolated the Southern Act of 1882 neighboring land. following traversing influx of white settlers 3): willing Indians were commerce followed of reasons. lay Colorado reserva- Secretary of from their They complained them being Indian Affairs Brunot Cession increasing northern New too harsh and interested (Sen.Rep.No. the reserva- J. farm, opening white set- Ute reser- settled at D. the Gov- principal C. At- whose adopt. wedg- These tradi- quan- their en- up reservation”, ment “as a further Bands ed as an ject Plaintiffs tribes of Indians for such for said band of necessary, commission to be made to and sub- dians desirable fication of their sult mission is also Ute Indians other retary gotiate with the band of hereby ent taking effect; determine to remove from their mission negotiated “separation location; entity, reservation as reservation, * rights, ratification such Secretary authorized to * assert is construed ** *8 Congressional negotiations said Indians and the Sec- negotiate from the Confederated * * * Interior; and such authorized, exclusively with the of the Southern if said Indians with treaty [Southern] That “exchange this act confirm- *. report the Interior may Congress appoint authority for such modi- and said com- by plaintiffs shall make it exchange [1880?] the Govern- recognition [Southern] be deemed portion if the re- necessary Ute In- of their a com- before to ne- other pres- shall strip [Royce the mile impossible It would be next to to Area 617] up thoroughfares the property sole close the and absolute across of the the Southern Utes reservation. To do that would be and that to alone right dispose had long, erect a of Perhaps “Chinese wall” 110 it.” miles believing cutting virtually damaging case, it to off be all trade in- to its and large omits tercourse all between the in- reference to this and creasing Although language act in on its brief. communities either side po- 677). purpose plaintiffs’ this of this to favor stated of act tends agreement It Act annul of it no means conclusive. was to the treaty sition merely of and the establishment enforce which authorized of 1880 sought engage severalty. the Southern settle the Indians in a commission too, purpose this, very Act, of negotiations important for the Since Utes language belatedly persuading pertinent quoted what will be them do Uncompahgre and River verbatim: White Utes vored ratification counterpart, view that vacate their cupy was still act’s had done some ing Senate an reservation erated Bands in the tions, which Cong., mained Juan evacuated reservation lands sional 1894 was be sold in accordance with the Act of agreed, the collective alized in the and settle stantiates this view. The Southern Utes Utes were where. eration as to whom the 1880 Although give up anomalous Southern the “anomalous exclusive terms is that County, emerged pursuant 2d Southern Utes would approval; Committee on Indian A reasonable Sess. Utes] the Southern limbo their executory. upon failed no additional is, although again reservation and move else- besieged routinely proceeds Utes Utah. Presumably, their situation, benefit of years earlier, namely, to yet 2-3 the consideration visu- reservation much to the a reservation in San agreement (Sen.Rep.No.279, who to receive introduced. Conced- remaining (1894)). band of the confed- having ceded their explanation prescribed propor- concurring position would six reservation. introduced, continued Utes to this act sub- did not assent consideration, years still as would Affairs be agreement on agreement dismay Its presented Southern Congres- accruing held [of Confed- it”, remove accrue. for House it' then 53d fa- re- oc- government and the amendments west and Mexico, tween thirty-one fourteen the New Provided, meridian, ments said Indians of land the same be considered Indians embraced heretofore made with said Indians: ter clusive their interest in all tribal deemed sions applicable hereto, and the treaties made in accordance with the made in Colorado, retary lotment Sec. [*] Sec. preceding lying portion lying to such as ranges 3. That of the Interior shall cause use and passage [*] subject, however, qualified the Act of [1880] (fifteen, out of herein set Mexico and also That west of That within Colorado severalty, land, of their their as [*] rights] apart such allotments New section, thirteen of the Southern Ute thirty-two occupancy Indians for the sole provided him principal to take allotments present Territory [*] this agricultural Mexico and reserved all of thereto, as present severalty, qualified not elect or sixteen west * * *; there six line be- range may Act the taking property. provided shall retain [*] to [certain reservation months of such townships elect meridian as principal fourteen shall reserva- * * * and ex- ranges far as provi- to be [*] allot- New take Sec- and af- all al- be be (H.R.Rep.No.799, 53d maintain to ratification shall the Government Cong., place (1894)). It be- agency 2-3 2d Sess. some suitable proposed that the reservation lieved reserved. lands so large the Southern too expiration That at Sec. encourage nomadic hence would passage from the six months Therefore, ways. instead, the House is- shall President a enactment declaring Committee recommended proclamation his sue eventually passed pending bill within embraced except of said February reservation the Act *9 may prescribe. tary al- of the Interior have been portions as such (Emphasis provi- supplied.) under or reserved lotted this preceding sections of sions The Southern Utes could have allot- settlement, Act, occupancy open severalty ments Area those thereupon be and lands said shall who did not these would move to a take public of part domain become a reservation in the western sector of Area sub- and shall be the United 617; unallotted eastern sector lands desert, entry ject home- under the would be sold not donated homestead- * * *; stead, laws and town-site ers, for the Southern Utes’ benefit. Un- receive homestead settler shall but no like the Act of of the Act any portion of such a title employs language ostensibly consistent acre, per at than less [$1.25] with the Act of 1880 but it a effects pay- required a cash shall be make conflicting result latter. We per at the time of cents acre ment filing plain said earlier that terms of any upon of said lands: is made the Act of the Confederated Bands provisos *. follow] [certain including agreed the Southern Utes moneys out 5. That of Sec. cede entire Colorado reservation from the sale of said first realized (Royce Areas and 617) for consid- public opened up to settlement lands so eration. Under the Act of how- paid to said Indians the there shall be ever, separately the Southern Utes fifty dollars, fol- thousand sum of again all over of their reserva- annually Five thousand dollars lows: (Royce 617) exchange Area years divided ten to be an exclusive and additional considera- among per equally of all said Indians tion ! Section 5 not states that the sex; age irrespective capita, or also proceeds, deducting balance land sales twenty the sum of thousand dollars of expenses certain Government shall be proceeds paid to said retary shall be the Sec- Treasury held in the U. S. for the sole Interior, shall in- who use and benefit the Southern sheep vest the same and divide offsetting but also that no reductions among sheep per said the said Indians rights should made in capita irrespective age equally, or prior treaties because of this considera- sex; allotments also made [certain meaning tion. The to be ascribed specific *; chiefs and headmen] point controversy section is a focal money that the balance realized parties. between the lands, deducting the sale after subscribing expenses found, survey, sale and The Commission shall be position, Treasury plaintiff’s held in the pursued a States in Act of 1880 trust sole use patterned all of conduct which course Southern Ute Indians. benefit of regarded nothing provided Utes as That times the Southern herein shall in any rightful change Area 617. manner be owners construed to or agree- rights This conduct culminated with the said In- interfere existing tfeaty ment of 1895 which the Commission dians under other recognizing regarding any “ultimate act” viewed as an annuities or trust funds rights. ownership plaintiffs’ or Defendant thereon. the interest by offering appraisal one contests this foregoing provi- Sec. 6. That the addi- It contends that the its own. sions Act shall take effect actually “special consideration tional only upon acceptance thereof and given gratuitously the South- benefits” by majority consent of all thereto them to take ern to induce the male adult now located benefits, severalty. ad- residing reservation, upon the expense mits, proffered “at the acceptance shall be obtained at once regulations other Ute Bands.” under such as the the United States Secre- *10 356 debatable, Although insistence full wards did allow on it believe is implementation apparent weighs substantially in fa- of the terms
the evidence
agreement.
hand,
interpretation.
the other
the 1880
On
vor of the Commission’s
obviously
persuaded
defendant’s
did not see
that
Southern Utes
are not
We
squatters.
post
clear di-
as mere
The Con-
conduct followed
themselves
1880
gress therefore
that
if the land
ambivalent, with some
decided
rection.
It was
going
acquired
plaintiffs’
case and
free and
was
clear
actions favorable
time,
necessary.
During
how-
Hence
all
new consideration
others not.
agreement
ever,
we find section
the Southern
5
1895
fact remains
explicit
an
to remain on their
to be
waiver of the
were allowed
Govern-
Utes
rights
years
agree-
surveyed
after ment’s
reservation for 15
created
1880
right
ment,
they
cession,
purported
follows
and the
whatever
were.
It
their
further
then that
remove them
con-
the Southern Ute
without
controversy
or exercised. Here
were ceded in
not 1880.
sent
not asserted
1895
given
interpretation
we have an
position
by
is bolstered
treaty
by
thereto.
1880
both
(5
659),
Kappler
Restoration
of 1938
recognized
Congress
sit-
this anomalous
which the Commission
as defend
found
necessary to ten-
uation and deemed it
recognizing
ant’s second ultimate act in
De-
for the land.
der new consideration
plaintiffs’
rights.
ownership
an
or
theory
“special
fendant’s
benefits’’
Secretary
der
of the Interior
is
express
supported
lan-
neither
pursuant
sued
sections 3
7
legislative
guage
by the
nor
of the Act
Reorganization
18,
of June
surrounding
history
passage. Al-
its
984)
1934
Southern Utes
though
reports
the Un-
earlier
described
ownership
were restored to their
tribal
compahgre
re-
River Ute
and White
disposed
all
lands not
of under
hostile, due to their
as somewhat
movals
paragraph
Act of 1895. The first
of this
unwillingness
leave, Congress did not
order reads as follows:
encourage
necessary
think it
then to
* * * [Ppursuant
provi-
monetary
their exodus with
inducements.
20,
February
sions of the Act of
1895
contrary,
reported by
it
On
* * * the
Ute Band of
administering
Commissioner
the White
Colorado ceded to the
military
River Utes that
force was con-
large
United
States a
area of
templated
accomplishing
their with-
reservation
the State
Colorado
(H.R.
2018,
drawal.
Doc. Ser. No.
su-
expressly
established
benefit
pra). Given the
existed
relations
treaty
15,
between the United
Government
States
(Emphasis
supplied).
*.
during
period
and American Indians
Thus,
officials do not
defendant’s
it is difficult now to
view the former
concede that
the lands were ceded
acting
gratia wholly.
ex
The Southern
enlighten
also
as to
us
time,
slightly
numbered
retrospectively
applied
status
1,000. Certainly,
over
if
agreement.
a
Such
statement
gift
wanted to
a
make
it could
agency bearing
executive
done so
still
far
fallen
short
meaning
treaty
of a
must be accorded
promises
embodied
section 5.
great weight.
Creek Nation East
theory,
The more
tenable
our Mississippi v.
estimation,
Congress recognized
denied,
cert.
379 U.S.
protracted acquiescence
its
denied,
S.Ct.
13 L.Ed.2d
reh.
occupation,
Southern Ute
Government
U.S.
S.Ct.
13 L.Ed.2d
rights
lapsed,
the land
had somehow
(1964).
being
or the
executed for
I.
long
time,
so
was rescinded and dead.
obligation
principal
It
be that
A.
to deal
Defendant’s
contention
justly
honorably
with the Indian
the Southern Utes’ claims have been
findings, plaintiffs’ witness,
mental
adjudication
finally
prior
settled
signatory
stipulation
*11
presence
con-
and the then
evaporates in the
of our
attorney
relies,
of record
upon
for the
it
Confederated
which
The cases
clusion.
Bands, gave testimony entirely
accounting
namely
consistent
case No.
the 1910
original findings.
with the
(45
(1910))
Commission’s
Ct.Cl.
Defendant, however, insisting
(117
No. 46640
case
1950 settlement
stipulation
self-explanatory
was
(1950)),
in-
were both
parties
the intent of the
arising
would
out of
have to be
to settle claims
tended
exclusively.
discerned
the written instrument
The Ju-
the 1880 cession
put
788)
declined to
(35
witnesses. Of the
Act of 1909
Stat.
risdictional
signatories, only
Government
one is still
the ac-
to hear
which enabled this court
counting
living
Sonosky, Esquire,
J.
who
Confederated
claim of
—Marvin
is a member of our bar and is
expressly
now in
to claims
Bands
arising
limited
private practice. Having
independent
no
Act of
Hence
out
precise
recollection of the
exceeding
extent
any
of this
claims
limits
stipulation,
Sonosky
Mr.
unable
adjudicated in the
mandate which were
give
testimony.
useful
indicate,
He
accounting
improvidently
did
however, in an affidavit submitted to the
limited was the Jurisdic-
heard. Not so
Commission, that
attorney
as the
1209)
tional
Act of
charge of
litigation
pre-
1950 Ute
he
authorized the
settlement cases.
pared
recommending
a memorandum
contrary,
ju-
set-
this act conferred
On
tlement. Defendant
adjudicate
legal
withheld
upon
from the
all
risdiction
us to
Commission this memorandum
equitable claims
In-
and relat-
which the Ute
papers declaring
ed
any
them to be
or
individual
the work
dians
tribe or band
products of
attorneys
may
against
Depart-
thereof
have
ment of Justice and
privileged
arising
any
therefore
States as to claims
under
treaty
Attorney
Order of the
stipu-
General
No.
States.
(July 4,
381-67
1967).
lation—the bulwark of defendant’s case
—upon
judgment
which we entered
recently
We have
considered in Weiss
however,
qualified
case No.
(1967),
v. United
phasis
also
Amendment
cer
Adams
which declared
un-
concepts which
salient
lence
tain Ute land ceded under
par-
“indispensable”
joinder of
derlie
disposed
but not
of “to be the absolute
judgment for
By rendering a
rule.
ties
property
In Con
States”.
prejudice
claim
plaintiffs, we do not
Bands, supra, we
started
federated
the
Utes since
Mountain
absent Ute
proposition
“[t]he interests
longer
Accord-
is no
extant.
claim
obligations
created
judgment, de-
consequent
ingly,
to such
readily
not fit
do
into conventional
any inconven-
will
suffer
fendant
legal concepts,
trusts, agencies,
such as
litigating
harassment of further
or
ience
obligations,
debts or contractual
hold
issue. We therefore
mortgages
security
(p.
interests.”
consisting
Moache
425) (Emphasis supplied). We went on
*13
Capote bands,
presently
sole
are
problem
comment that “[t]he
[was]
instant
exclusive owners of
complicated by
further
the fact that one
pur-
eligible
they
Hence
claims.
* * *
sovereign
was a
par-
remedy
their
without additional
sue
did, regardless
which could and
ties.
agreement,
terms
pleas
do what it
argu-
oral
Defendant
at
C.
conceded
ed
proceeds,
with
lands and their
plaintiffs’
that should
that
ment
we find
giving
privilege
having
the Indians the
of
extinguished by the 1950
claims were not
settlement,
rights
legal
long
their
determined
at
plaintiffs
and should we find
sovereign
intervals
deigned
when the
claims,
sole owners of
then it
their
immunity
to waive its
from
away
gratuitously giving
for
is liable
425).
(p.
short,
suit.”
not
Questions
plaintiffs’
quantum,
land.
arms’-length
typical
rela
contract
however,
by
are still raised
defendant.
tionship. Declining to
whether
consider
First, it contends that the Commission’s
duty
the Government
assumed the
finding
com-
that defendant is
liable
trustee,
found
we
under
the Indians
230,547.44
pensate
sup-
for
is not
acres
agreement
inter
1880 retained an
Second,
ported by substantial evidence.
right
proceeds
est in the land—the
interest,
payment
to avoid
in order
says
from sales—and this interest was
liable,
all,
it is
if at
breach
destroyed by the enactment of Adams
contract,
just
pay
rather than to
com-
these
Given
Amendment.
circumstances
pensation
taking.
for a 5th amendment
right
we held the destruction of this
taking
Deferring
acreage
be a
under
issue for
5th
amendment.
Commission,
Presently
explore
we are
we now
confronted
nature
with a like
agreement
liability.
argue
set of
of defendant’s
circumstances.
Plaintiffs
patterned
agree
under
the 1895 Act
their ancestors
the 1880
1895—
rights
whatever
ment—embodies
had in
interest
and interests
similarly
exchange
legal
trust to
which
defendant
evade accurate
Again,
proceeds.
beneficial interest
classification.
in the
as Confederated
below,
Bands, we
Sustained
the Commission
have a situation
where
plaintiffs
disposal
cavalierly
Government
assert that
the free
sov
exercised its
ereign power
giving thought
of their
with no
consid-
without
substitute
providing consoling justification,
eration offered
defendant was a tak-
let
entitling
ing
By
under the 5th
alone
amendment
immediate
chance
redress.
just compensation.
them the
tiffs,
Plain-
the Free Homestead
of support
179)
promised
position,
cite
sums
“all
cases,
money
but
find to
so
several
the one
we
released
if
[herein]
belong
withholding
taking
would
released
eminent domain
in a
paid
money by
tribe shall be
to such Indian tribe
or use of
the Federal Govern-
By
ment.”,
pp.
proceed-
fail-
United States
at
455-456. We then
ing
good
legislative promise
consequences
to make
ed to discuss the anomalous
consideration, defendant,
plaintiffs’ theory
engender
of substitute
would
with
effect,
plaintiff’s
regard
dealt with
land as
show
to “claimants who could
property.
its absolute
our
Guided
rea-
some sort of title to funds in the
soning
Bands,
Treasury”
hold
not.
and those who could
Confederated
plaintiffs,
noted
form
We
further
that “[m]ere
meaning,
usually
retained
interest
the ceded
sometimes has
where,
lands, namely,
right
here,
forms
receive sales
the choice of
proceeds
equivalent
haphazard
or the
As
seems
Con-
thereof.
accidental.
Bands,
impelled
this interest was
siderations
like these have
Confederated
destroyed by
shy away, generally,
defendant’s exercise
from
of sov-
courts
designating
ereign power.
withholding
We hold therefore that
or divert-
disposal
ing
free
the lands was a tak-
the defendant
funds
ing
plaintiffs’ property right
treasury
under the
as an eminent domain tak-
entitling
just
ing.”,
argues
5th amendment
p.
them to
456. Defendant
here
compensation.
exempting
that its
making
homesteaders
payments
cash
and its failure to
holding
is not in conflict
proceeds
reimburse
loss
Tribes,
Confederated
& Kootenai
Salish
at most were breaches of
contract
cert.
etc.
v. United
which,
deplor-
breaches of trust
if
even
denied,
385 U.S.
17 L.
87 S.Ct.
able, do not constitute a 5th amendment
(1966).
pertinent
Ed.2d 145
facts
taking. Defendant’s breach of contract
*14
of that case are as
The Govern
follows:
argument
springs
doubtless
from our
legislation
ment in 1904 enacted
reasoning
Salish,
in
where-
Confederated
using plaintiff
authorized
ies,
Indians' mon
noted,
though
argued
in
we
even
not
trust,
defray
expenses
held in
plaintiffs, that defendant’s use of Indian
surveying
their land. Since we had
project
for
monies
a
which it had earlier
prior treaty
earlier found that
a
promised to finance itself was a breach
obligated
Government had
itself
as
agreement,
plaintiffs’
of
rights
violated
surveying,
sume the cost of
167 Ct.Cl.
rights,
were contractual
and that
(1964),
pre
subsequently
405
the issue
“taking away
rights,
of contractual
sented was whether its use of Indian
rupture
contract,
via a
of the
treaty
trust
in violation of
funds
taking
equivalent
course not
to a
taking
a
under the 5th amendment. We property
Amendment.”,
under the Fifth
rejected this claim for
two reasons:
p.
(Emphasis
original).
at
455.
in
First,
“legal
we
noticed
since
title
applicable
to a
breach of a con-
mere
deposit
Treasury
to the funds on
perhaps
tract
repudia-
not to its overt
lay in the United States
[the]
Lynch
States,
tion.
v. United
840,
292 U.S.
was, most,
Indians’ interest
at
that of a
571,
(1934).
54
L.Ed.
S.Ct.
beneficiary, and a trustee’s failure to But,
held,
as we have
we need not find
up
imposed upon
live
to the standards
that latter situation here since whatever
taking
him is not a
from the
title
legal
parties’
the exact
nature of the
in-
obligation.”,
cestui but a breach of
obligations
terests and
under the 1895
p.
reason,
at
455. Our
how
second
agreement, they are more than contractu-
ever,
“deeper objection”:
raised an even
“Money
al.
treasury,
in
Federal
Thus defendant’s breach
trust
even on
deposit,
simply equated
argument
Admittedly,
cannot be
with
must also fail.
un-
private property.
such
Where
are
der the
funds
defendant
requires extraordinary
promised
involved it
cir
to hold
monies
trust
for
here,
cumstances,
plaintiffs; hence,
might
an
find
to as
this res it
alleged
accounting
un-
for an
for
a claim
trustee.
Still
a
called
have been
well
moneys
for
unresolved,.however,
received
some
is defend-
clear and
81,953.18-
disposed
question.
acres of land
to the lands
as
ant’s status
ways other than as free home-
interpretations
various
of the
In our earlier
claim,
Responding
disposal provisions
steads.
to this
defend-
whose
Accounting
interchangeable
ant
a
Of-
with
submitted
General
sufficiently
are
accounting
pro-
report
(GAO)
bar,
fice
describ-
we never
act at
those
being
ceeds derived from sale of certain lands
trustee
an actual
as
ed defendant
1895, together
pursuant
to the Act of
said
Specifically, we
to the lands.
as
accounting
on
classify
interest
unnecessary
with
the Gov-
it was
during
period
proceeds
from
the 1880
as to
a trustee
as
ernment
February
1951.
p.
question, 100 Ct.Cl. at
Plaintiffs,
studying
report,
“comparable to a
position
occupied
a
exceptions
These
to its contents.
p.
defend-
filed
If
trust”,
112 Ct.Cl.
12',
exceptions
reading
filed on June
were
is correct
ant
Confederated
subsequently
exceptions were
standing
proposition
Amended
as
Stilish
September 30,
per
ineligible
on
1963. The Com-
filed
of trust
that breaches
mission,
interlocutory
order,
in its
de-
tak-
5th amendment
se
treatment
clared
reply
that defendant
should make
ings,
that defendant
then
complete accounting
line
further
solely
as to the
a trustee
not or
specified rulings
plain-
say
on each of
question.
would with
otherwise
To
exceptions.
overturning
tiffs’
previous deci-
our
necessitate
enactment of
Adams
sion that
Defendant
this decision
contests
on
obvious,
taking.
It is
Amendment was
grounds
procedural
objec-
but makes no
however,
Navajo
from
Tribe of
tion to the
substance
Com-
F.2d
176 Ct.Cl.
v. United
rulings
excep-
plaintiffs’
mission’s
(1966)
is not
United States
procedural
tions. The
are these:
defenses
interest,
paying
exonerated
First,
accounting
alleged
claim
taking, merely
domain
be-
an eminent
originally
petition
plaintiffs’
filed
obligations
of the United States
cause
adjudication.
already
prior
rendered
respect
lands involved
Second,
subsequent accounting
claims
being,
claim were denominated as
by way
exceptions
amended in
among
things,
those
trustee.
other
of a
untimely
additional
claims.
filed
*15
taking
Since
occurred when the
each
under
Hence the Commission
25 U.S.C.
ownership
fi-
of a homesteader became
(1964)
jurisdiction
rule
had no
70k
§
nal,
States, 302
Creek Nation v. United
Third,
on
these claims.
Commission’s
620-622,
U.S.
[Emphasis supplied.] A now Act and the passed manifestly apparent open makes it was this for Act of 1895 area cession, disposal en- no no reservation was under the terms of Act of Rather, compassed. who But the Indians 1880. the Southern still Utes were given them, (and continued) years were thirteen more would take allotments stalling, to a so the remainder and those who refused were moved after allot- Mexico and western ments of their reservation in New set-aside land area was ready govern- (This is the site Colorado. settlement. The keep land ment wished to Ute Mountain Reservation—this set-aside area this purposes intact in the case now before the for allotment allot- is not in issue until court.) made, paragraph the land ments The remainder of so two was 1882, provide allotments were inserted Area 617 after Act of bar) surveying assigned (this a the land at line between the is opened opened, under for settlement the home- and the lands set aside for (It Keeping tempo- the first should stead laws for time. allotments. rarily area under be noted that the sale land intact allotments was the sole legal (before purpose was a violation of the the homestead laws effect sole why, believe, majority opinion I That of this court in this Act 1880. is case) again the Indians includ- Act of There is 1950 settlement with “ * * * disposed complete as free land absence words of ces- ed 19, 1885, Therefore, sion this the- homesteads from December or reservation. * * 437.]) ory by appellees at advanced is without [Id. any argument that re- So merit. be
ceded to the Indians 1895 cannot fact, theory has been advanced sustained. by the would Southern Ute Indians which uphold opinion of In- enable us to directly theory leads to the third Rather, dian Claims Commission. by appellees regarding advanced its re- government successfully has shown that acquisition tention or ently pres- of the lands opinion re- must be Commission’s theory, before court. This set (117 versed. The 1950 settlement forth in the Motion to Vacate Order of Remand and in the most current oral ar- 433, 436) applicable, because the lands The at bar were included appellees that case. gument court, before the states in effect absolutely bound and barred 1880, that the lands were “set-aside” in ease; doctrine of res officially recognized as Southern Ute judicata Any cuts other con- them off. argu- lands in the Act of 1882. This violation of the clusion would preme Su- just ment, prior arguments, as the miss- holding Court’s United States argu- es the mark. The first half of this Engine Cramp Ship v. Building Co., & Wm. & Sons ment is The true. lands were indeed set- 27 S.Ct. U.S. shown, aside but we have (1907), where the L.Ed. purpose taking for the allotments. Court said: The remainder after allotments was re- conveyed leased and to the United Stipulations of this kind are not to clearly and therefore within the 1950 set- by any efficiency of their be shorn (Case tlement with the Indians No. narrow, technical, and construc close 46640). part argu- The second language general “all and tion. The misinterpretation ment is a of the clear debts,” indicates all manner of etc. purpose July 28, terms and of the Act of ending every an intent to make an 178). By the time of arising matter under or virtue Act, Uncompahgre and White River If intend leave contract. Utes had moved from former Colo- unsettled, things open some rado Reservation to the areas set aside be made manifest. intent so to do should * the Act of 1880 for their allotments. at 27 S.Ct. [Id. Therefore, this vacated land area was 678-679.] stipulation is on the of all language concerned. These “er- $215,989.95 paid inclusive, clearer, more rors” amounted to un- more all even Supreme quoted der section 3 of the final than paid judgment $215,977.58 says en- 5 of the section It Court. judicata, “not Act of here res true error in that case
tered
*20
recogniT;-
made
the Commission in not
only
described
Schedule
to the land
as
*
* *
ing
any
for-
the true
former
but,
to
nature
this
com-
also
promise
plaintiffs
appellees’
merly
and settlement of
or
the
owned
claimed
Colorado,
to defendant
claims.
in western
(21 Stat.
1880
June
the
point
One additional
should be raised
199),
disposed
free
of as
regarding the effect of
No. 46640.
case
* *
up all
To tie
homesteads
court
This
ordered
case remanded
ends,
went
court
1950
this
loose
Claims Commission
1967
“
**
*
pe-
The
farther, and
even
with instructions to hear additional evi-
plaintiffs
shall
deem-
herein
be
tition of
dence
signing
the intention of the
stipula-
to this
ed
to conform
amended
stipulation.
The
testi-
The
[Id., 117
at 437.]
tion.”
comprehensive
Ct.Cl.
rehearing
mony taken at the
was
that
stipulation
of the
terms
Wilkinson, signatory
Dr. Ernest L.
to the
judgment
46640 show
No.
for
ease
stipulation
in case No.
every
up
up and close
clean
intent
Georgette
Hall,
Lee
took
Betor
who
government’s
arising
out of
claim
govern-
preparing
The
Schedule 1.
and their
dealings
Ute
position
stipula-
ment took the
that the
land.
Reservation
Colorado
former
spoke
itself,
parties’
for
and that the
intent
of an
manifestation
is no
There
intentions should be determined from the
any
Appellees’
claim.
reserve
Further,
four corners of the instrument.
squarely
four cor-
within
claim falls
government
documents,
produced
the
contending
no
settlement,
has
ners of the 1950
requested
that all such
ma-
settled,
already
paid, and
been
therefore
product
terial was
neys
the work
attor-
extinguished.
Justice, and,
Department
And,
be-
the tribe
further bound
is
therefore,
pro-
privileged information
in this
it made
cause of the concession
Attorney
tected
order
General.
stipulation,
stipulation.
ac-
1950
surprisingly,
Wilkinson,
Dr.
attor-
Not
ney
parties to
cepted by
this court and
appellees,
it
testified that
suit,
plaintiffs concede
“The
read
any of
was not his intention to include
accounting
proper
been
has
that due and
presently
in the 1950
at bar
to the
made
stipulation.
appropriate
point
It is
during the
for cash
for those
sold
anything else,
if
had said
he
out that
he
period
to June
from
have made
ridiculous
would
himself
this
At the time
concession
1938.”
statement would have con-
other
No.
made,
Report for case
the GAO
appellees’
and his
tradicted
brief
own
attorneys
had been mailed
46640
position
firm’s
in this case. No
law
report
Utes.
the Southern
given
weight can be
these additional
21)
from
(Def’s
sales
No.
included
Ex.
findings
And
case
fact.
portion
1880
Ute
Southern
magnitude
cannot be decided because
Tribe
the Act of 1895.
cession
disagreement by
with the
the court
accounting
due
conceded
government’s policy of
nondisclosure
(Sales
proper.
from the products.
con-
The Commission
work
up portion
Cession
of the 1880
cluded that:
No.
in case
accounted
were
* *
(1910))).
the intention of
was not
[I]t
Royce Area
Wilkinson
include
Dr.
dis-
Commission
The Indian Claims
stipula-
signed time he
at the
factor, saying missed this crucial
evi-
merely
There
tion in
errors
Case
amounts included
attor-
decision to do
dence
to the intention
so. This remand
neys
signed
stipulation
open
on be- was an
invitation for a collateral
who
government
judgment,
*.
attack on
1950'
which is
[21
half
our
(1959).]
appear
made it
Ind.Cl.Comm.
not
permissible
doing
what it
our court did
know
therefore
This additional
evidence is
judgment
it entered the
when
set-
insufficient;
legally
factually
also
ap-
tling, comprising,
paying
all
This is due to the well-
insufficient.
pellees’
every
claims of
kind and charac-
parol
evidence can
settled doctrine
regarding all of
ter
its lands ceded
proceedings
admitted in collateral
which included
explain judgments
judicial
vary
or
land in suit.
stipulation
A
such as was en
records.
But, says
majority,
the Indians
an act of
court
tered
No. 46640 is
*21
recover,
theory,
should still
on the
itself
the
force and effect as all
has
same
quite anomalous,
Chattanooga
Nashville,
Act of
judgments.
that
the
1880
&
ambiguous,
States,
and,
Ry.
somewhat
there-
St. Louis
v.
113 U.S.
United
fore,
(1885);
subsequent governmental
261,
the
460,
acts
Appellees distinguish have failed to Judge writing case, Madden, for the ma- or to show that an error was major- jority, Act of 1880: made the court in The construed the ity’s opinion likewise fails to follow this 6, 1880, agreement was March On case, deal or to with it. the chiefs and headmen made involving later ratified The next case the Act of which was tribes, up to cede 1880 to come Confederated Band members of the States, remaining lands in of Ute Indians 100 Ct. Colorado v. United States, providing (1943), re- first 413 dealt with the United after Cl.
371 every single In to some case which come allotments has certain individual involving before this court Act of [Em- tribes. members 1880, this supplied.] court found that the Act phasis 421.] has [Id. ceded to the United States all of holding by this is another clear Here lands in the former Ute Reservation question presently in court that the Colorado, excepting only the land trans- the In- the lands ceded were ferred to individual Indians as allot- government in 1880. dians to majority ignores The ments. these cases to de- heard a suit the court as if were not in the In its books. which lands were taken termine compensate living zeal to Indians for the terms thereof within value ancestors, the claimed harm done their judgment. Bands Confederated majority sight loses of the fact States, United Indians v. Ute already amply have Indians been re- (1948). accepted the 1943 The court imbursed for the land at bar in 1950. In- The of the Act construction sincerely The Southern Utes distinguish this case. have failed dians theirs, believed that involving litigation the Act next wrong. Indians too can be In another case, Confederated is the of 1880 case in which the Utes were States, Indians United Ute v. Bands (involving land), Supreme different four (1950), in which 117 Ct.Cl. long Court set out rule established 47566) (Nos. causes governing interpretation treaties, my conten- It is course settled. agreements acts, and between the In- No. 46640 settled that cause dians and the United States: presently on which the Indians claims long While it has been the suing. treaty rule that a with Indians is to case, court Soon carry be construed so as to out attorneys’ fees serv- heard suit obligations Government’s accord- Bands rendered to the Confederated ices understanding ance with fair decision. in the 1950 which resulted Indians, guise cannot, under the v. Bands Confederated interpretation, create Presidential (1951). States, 120 Ct.Cl. authority none, nor where there was very is now court firm which law congressional rewrite acts so as in this representing the Southern something they them ob- make mean bringing determine suit case viously intended were not mean. Findings of Fact its services. value Nation Choctaw v. United 25(b) another case No. *24 423, 431, 432, 63 U.S. S.Ct. us, and, I before the case answer cannot, 678, 87 L.Ed. under 877. We plain- suggest, which answer to an would any acceptable interpretation, rule of specially bound. us now before are tiffs hold that the Indians owned the lands court found: The merely they thought Solic- because so. (a) carry itous as Government is to good promises out its in to the Indians reservation, (b) original Ute The faith, are rec- satisfied by treaty the In- established between per- 1868, ord that has Government in dians and States 15,000,000 promised. the west- all it [Con- embraced acres on formed slope the In- In 1873 ern of Colorado. v. Ute Indians Bands of federated seg- a to the United States dians ceded 179-180, States, 169, 330 U.S. in of the res- ment southern 650, (1947), L.Ed. 655, 67 91 823 S.Ct. containing 3,000,000 acres. ervation aff’g, 569, F.Supp. 33 64 106 Ct.Cl. to the Unit- the Indians ceded In 1880 (1946).] States, remainder reser- ed in the case before I am satisfied containing 12,000,000 vation, acres. performed it government all has [Emphasis supplied.] us [Id. 623.] 372 1, all of it or not already paid ule nor whether the In- promised and has listing listed, was cor- nor whether their claim. dians for great make a deal The Indians rect. pointed It should out that when this case do over their claim 45585, (Nos. 46640, and four 47564 cases listed in 617 was land 47566) were in Confederated settled immaterial, because This Schedule. States, Band of Ute Indians v. United judg- stipulation parties and 1950, 433 in the settlement 117 Ct.Cl. and settlement stated ment full pure compromise was one all the extinguishment complete payment for the agree- The of the Ute Indians. claims plaintiffs’ na- claims whatsoever ment was not reached of settlement 1880, and the lands ceded ture in negotiations fact, quickly. com- not, 1 or and listed Schedule whether
promise a and settlement extended over plaintiffs’ petition was deemed amended government period years. of three The stipulation. conform $14,000,000, sum first offered the interest, offsets, plus in full less settle- attorneys Indians and their The by the This refused Utes. ment. impeach estopped own to attack government $20,000,- then offered judgment they stipulation which 000, offsets, including interest, less they signed accepted which which was refused. Wakelee, paid. 156 have been v. Davis 555, 680, 689-690, L.Ed. 15 S.Ct. 39 U.S. attorneys $30,- demanded The Utes’ Industries, (1895); Livesay Inc. v. 578 000,000 in settlement of all the claims Co., 378, Livesay 202 F.2d 382 Window parties agreed Finally, and cases. (5th denied, 1953), cert. 346 U.S. Cir. compromise $20,000,000, settlement 369; American S.Ct. 98 L.Ed. interest, amounting plus in all to the sum Taussig, 255 Nat’l Bank v. & Trust Co. $31,938,473.43. This amounted (7th 1958), de Cir. cert. F.2d $15,600 each Indian. nied, L.Ed. U.S. S.Ct. joint stipulation then entered into a for, payment settlement was judgment compromise settlement re accord and and an satisfaction demands, right, title, of all claims and claims, including of, all lease of their interest, and estate of whatsoever nature I instant before us suit. those in and to the in western Colorado attorneys this court mention the because the Ute Indians to the United fees, attorney as it did must fix the Act of 1880. All case, previous as an not ex amount negotiations are shown in the these recovery. ceeding They percent of opinion in the case of court Con- recovery previous con shared in the v. United federated Bands of Ute Indians tingent in this share fee basis will (1951) I on the basis. consider one same attorneys asking this court they are bound the circumstances attorney $3,193,847.- allow them fee stipulation, settlement, judg alleged great They 35.2 all the detail in 1950 ment to the same extent done, they work had which was consider- Indians are bound. negotiated able, had how long compromise and how and settlement *25 agreement. Necessary it reach Parties took to a settlement Lack of Plaintiff significance of all of is to show in is In- There another fatal flaw the lump a sum the com- settlement was us, case flaw dians’ side of the before promise jury in the of a verdict nature requires the which a reversal of decision the Indians all the claims of Ute is there this ease. This because (in- reference to in 1880 the land ceded parties necessary before the lack of here). cluding It did the land involved Sched- court. matter what land was listed $2,800,000 allowed. The sum of was any who took allotments First, the east were be observed should mainly Capotes River, and Muaches and the Uneom- the claim that White appellees might now had the pahgre before court. Utes or Uintah following of Resolution lost was Capotes, The Act of the 1880 moved (Def This reso- 1, s Ex. 18. (un- the and Muaches the Weeminuches Congress accepted and car- lution was der the name of the collective Southern of the Act 2 of section into effect ried Utes) question to the land area now in 1951, 194.) August 21, 65 Stat. purpose taking the of allotments. * * * Then, 1895, (3) moved to the Ute some site the Southern [T]hat present of the (including Ute Mountain Reservation Ute Mountain the Band the west and some took allotments Utes) possess own shall foreover (It noted that east. be included should [this Reservation appellee Southern Ute had offi- west of Tribe Ute Reservation established 1938, Range cial until the resi- reservation when the Act of 1895 and (unallotted, of due unsold and unallotted lands unsold residue lands Royce Area 617 was restored tribal the San National not taken for Juan range ownership by Secretary Forest) order of the of 14 which were east ownership Prior order the Interior. restored to tribal possessory any Sep- Secretary interest of these Southern of the Interior of the any any held in Utes land was their claim individ- free tember 1938] ual interest in their allot- individual the Uintah Ute Indian Tribe * * ments.) Ouray *. Reservation * * * Under section 5 of the Act of all (4) neither [T]hat Utes, in- (including Ute bands the Southern Utes Southern cluding day present Uncompahgre, Ute Mountain Utes) Mountain nor appellees, Tribe and the shared shall have Utes River Uintah White special from the to be sold against for the benefits other claim each (See 28 Stat. past of funds or the allotments. alloca- distribution ** 678.) specifically land; set The Act even *. tions of realized, moneys aside, out the first parties, however, in- The fatal lack paid an amount to “Buckskin Char- original signatories the various volves Mariano, lie, Moaches, chief as Agreement The Southern of 1895. Weeminuches, as was [who recover, chief of cannot be- court before the Utes * * of the Ute tribe] Mountain present day Mountain Ute cause Tabewatch, Tapucke [and] Southern are a who Capotes chiefs Tribe, suit. are not to the Ute only prop- perfectly passage of the At It is clear that the time of granted erty appellees’ bands known there three ancestors were Utes; allotments, only property collectively and the the Southernn granted present Moaches), Capotes Ute (or the ancestors Muaches above, I Tribe the land which As have said Mountain the Weeminuches. group And Indians Reservation. now the Ute Mountain the Act of one right proceeds from re- in western to a reservation chose to move (the Mexico, maining the other lands sold basis of this New Colorado granted case) all of the Southern individual allot- chose take (ancestors portion eastern ments in the Tribe) by refusing group allot- Tribe and Ute Mountain Area 617. The Therefore, the Ute ments, western of 1895. the Act moved the new suit, party mainly Tribe, reservation, composed not a to this Mountain arising every claim (see appellees’ 13- has an brief at interest Weeminuches join Appellees’ failure 14), Moun- from this land. the Ute and became known as *26 necessary recog- officially lack Tribe, a fatal so them results and were tain parties. The individual nized in 1940. brief, attempt appellees only In their to deal became owners Utes of individual allotments, remaining problem this serious within and the with government, paragraphs pro- space (see brief at of three held 13-14). reasoning put mildly, go Indians, To it ceeds to all of the Weemi- pure nuches, Capotes Muaches, regardless fan- statements forth are and set tasy. Appellees say 1895 of whether on Ute that lived the new effect, Reservation, was, “In cross-relin- allot- a Mountain or on an rights quishment the allotted between ment. unallotted Utes Southern agree hindsight ap- I do not with the thinking, simply This is and is wishful proach majority problem to this plainly specific terms contradicted interpretation of its reliance on and gives of the Act the bene- 62(a) ap- of this Rule court. This rule proceeds to all fits from the Act plies only originally suits filed in both allotted unallot- Southern a court. The case before us is not such effect, is nor ted. There neither case, originally is one was filed fact, any nor in law such “cross-relin- Commission, Indian with the Claims rights. quishment” of brief then rules, its which has own and we hear- are says “the unallotted Southern Utes ing that, appeal. only the case Not surrendered their interest in the eastern separate but this court has its own rules portion present of ‘their reservation’ and appeal, it Indian cases hears on the allotted Southern Utes surrendered adopted entitled “Rules portion.” interest the western Court of of the United States Claims again fantasy. simply This The Act is Governing Appeals from rights of 1895 reserves of all South- Consequently, Claims Commission.” (Weeminuches, Capotes ern Utes event, 62(a) apply. any does not Rule Muaches, or, present day Mountain Ute interpretation of this rule Tribe) Tribe to the Southern Ute meaningless. They majority renders it remaining proceeds of sale of lands. effect, say, that the rule means party third an who not even outside Appellees say, then “The Southern pending, suit is know the must affirma- accepted separation and two timely claim) tively (file intervene a land-owning groups, its own each with so, and, if does not do is sat- he rule reservation, Through were created. says. is not what the isfied. This rule voluntary cross-relinquishment of their language: unequivocal It states legislation, appropriate interests under * * * [Pjersons having joint the allotted Southern Utes became the in- part sole owners of the eastern terest adverse (Brief parties Southern Ute 14.) made be Reservation.” shall be and shall First, land-owning joined groups, plaintiffs. two on the same side as reservation, any person join each with its not own who should as a When so, may plaintiff created. interest the allotted to do be he refuses involuntary plaintiff. Indians held in each indi- [Em- land was made an supplied.] phasis vidual allotment. No reservation part Royee eastern 617 was cre- Area seen, provides may be this rule As ; contrary, only ated to the individual al- having persons be interest “shall” Second, lotments were neither created. joined made plaintiffs. and “shall” be through hypothetical “cross-relinquish- compulsory This is ment,” through legisla- “appropriate nor optional. Also, is rule, where (it interesting tion” note that we applicable, contemplates persons “appropriate cited to of this having suit an interest at time legislation”), day present did the South- joined. suit shall filed ern Utes become sole owners the east- August at a time filed when To ern the ex- Area 617. Indians of the Ute Mountain Southern contrary, day unquestionably act interest Tribe had an *27 recovery wrong parties, 62(a), if it the Rule the name- claim. Under in the par- ly, the Southern they Utes who in the have been made live applies, should case, part time, be- eastern appellees and 617. by the ties government obliga- by appellees, the would have the do so of the cause failure necessary paying tion of the claims for this land lack of a fatal is there only twice, But, majority, The three times. the parties in this ease. finally gets applying hindsight approach situation problem ridiculous. is with its by allegations now, years the not cured after as of rule filed, present plaintiffs saying, effect, it would contentions of suit they effect good parties now to the are sole them own- make do no claim, of the Moun- run on their because Ute ers limitations has because therefore, 62(a) claim, and, satis- tain of the Southern Tribe Rule Ute plaintiffs, no present have had of this could notwith- notice suit and fied allegations by plain- standing comply bound their with failure They could, position take tiffs unknown rule, of “winner to them. with is in the reason, dispute all,” including the Ute sound this the interest of claim agree present do I cannot would no doubt Indians. Mountain they if interpretation so had notice suit and of the rule. of this this were to it. But, problem here. end does not if the The Commission itself said Congress As late as consid- Reserva- their entire Colorado Utes ceded part ered Ute Mountain Utes to abe day Ute tion “then by of the Southern Ute Band as shown as remainder Utes well Mountain the resolution carried into effect sec- have Utes would of the Confederated August (3) tion the Act of course, necessary parties.” Of been above, quoted 65 Stat. which con- * * foregoing, exactly this is shown “(3) provisions tained the happened. Utes cede all did what (including Ute Band Southern [T]he remaining Unit- reservation to the their Utes)” again in Ute Mountain sec- Therefore, the Ute ed “* (4): Southern [T]he necessary parties. Mountain Utes were (including the Ute Mountain mentioned There is another reason not Utes).” [Emphasis There is supplied.] government why the Ute Moun- question mountain but what Ute necessary parties to this tain Utes part as much a South- Utes were suit I fact that this refer to the suit. present appel- Tribe ern Ute as were Ute Tribe was filed necessary Indians, they par- lee question There is no Band of Indians. to this It is difficult to see ties lawsuit. Mountain who the Ute but what different conclu- one could reach a how west, part of much a live in the are as sion. of In- Tribe or Band the Southern Ute appellees completely failed in the as the who live dians other Indians they their are the sustain contention (of Royce nothing 617). I see east Per- owners the claims suit. sole prevent su- Mountain Utes from Ute they haps it is natural that have failed ing payment of respect, it would have because been judgment being pres- awarded to the prove otherwise, impossible for them to appellees by ent the Commission reality they the sole are not since majority case, theory in this on the in suit. owners claims part that since are a of the South- appellees’ peti- Indians, ern or Band The claim stated Tribe tion, August 10, (before the suit maintained filed benefit filing government paid expiration time for claims has 3. 17 Ind.Cl.Comm. *28 goes objection specifically the Indian Commission Defendant’s Claims sought accounting request-
Act),
petitioner
for:
to the fact
has
an
that
accounting
petition
ed an
in its
failure
account
c. Defendant’s
specific
certain
items and has now
81,-
proceeds
approximately
from
* (cid:127) * *
by
exceptions
raised
* * *
means of
in violation
953.18 acres
general accounting
certain
1880 and
the aforesaid statutes
[of
petition.
claims not referred to in its
damage to
and caused
1895]
(1966).]
Ind.Cl.Comm.
[17
equal
petitioner
amount
to that
defendant,
get
by
attempts
But
the Commission
received
amount
petitioner,
by applying
sounding
known
unknown to
but is
around this
a rule
equity,
to defendant.
that
know
tribe did not
how
funds had been mishandled with-
its
d. Defendant’s
failure
account
allowed,
in the time
and that
this knowl-
proceeds
approxi-
from the sale of
edge
light only
appel-
came to
after
81,953.18
mately
un-
acres constituted
report
lees received the GAO
in the case.
fair and dishonorable conduct on the
factually
if
Even
this statement was
cor-
damage
defendant,
part of
and caused
rect,
jurisdiction
it could not extend the
equal
petitioner
in an amount
**
enabling
Commission,
for the
Act
by defendant
*.
that received
reads:
pro
As this is more than a claim
The Commission shall receive claims
sales,
already
ceeds
this claim has
August
period
years
for a
of five
after
by
stipulation
been settled
No.
case
existing
and no claim
before
(117
(1950)).
presented
such date but not
within
claims,
accounting
additional
period may
such
thereafter be submit-
mismanage-
principally
which deal
ted
or administrative
court
(see
ment of trust
funds
brief at
Def’s
consideration,
agency for
nor
such
will
complete listing),
81-86 for
were insert-
by the
claim thereafter be entertained
filing
way
ed
the case
Congress.
(1964).]
U.S.C.
70k
[25
§
long
exceptions. This was
after the 1951
further,
in this
the evidence
case
But
expiration
date of
Indian Claims
covering
reports
shows that
GAO
(25
70k).
Commission Act
U.S.C. §
handling of the funds had
submitted
been
presented
When the tribe
these addition-
early
the Utes’ counsel as
as June
claims,
objected strenuously
al
46640),
February
(report
in case No.
beyond
scope
that
claims
Although
report,
latter
GAO
therefore,
claim, and,
initial
case,
report
in this
submitted
Supreme
admission was violative of the
coun-
was not until 1963 that
it
ruling
Court’s
in United
v. Sem-
States
sel for
Southern Utes filed these ex-
Nation,
inole
299 U.S.
57 S.Ct.
ceptions.
filing
was the
Not
late
(1937),
court
brought by plaintiffs avers in 1909 plaintiffs States, fendant has not accounted No. v. The United Indians plaintiffs paid for or cash sales jurisdictional such 30360), pursuant a act per price for lands 781, minimum acre 3, 1909, 263, 35 Stat. March c. laws the homestead judgment entered 788, plaintiffs under recovered 28, July the Act of accordance with against proceeds of defendant otherwise, 178) nor or 1882 disposals certain other sales and plaintiffs paid of such lands the value 30, up 1910. aforesaid lands to June 46640, petition findings 10, in No. 11, amended 28, 3. Plaintiff’s 19 Ind.Cl.Comm. 2. 17 Ute, Bands of The Confederated and 20. States, Court Printed Records v. United 1949. Term of Claims 380 pressed apart intention to exclude the national and reserved as res- set reserved, controversy stipulation classified, or from the does or ervations judg entry the conclusive effect from and sale alter
withdrawn v. William public United States Defendant has ment entered. land laws. Co., Engine Bldg. true, Ship Cramp plaintiffs & & Sons never rendered to 118, 676, L.Ed. complete proper S.Ct. account with re- 206 U.S. Fertilizer (1907); plaintiffs NLRB v. Ochoa spect property Corp., 368 U.S. S.Ct. funds. said trust (1961); & Utah Power 7 L.Ed.2d pray plaintiffs Wherefore Light 42 F.2d v. United Co. a full and true discov- defendant make (1930). 70 Ct.Cl. acreage sold, ery and disclosure homesteaded, or otherwise withdrawn or for other national reservations classified, public uses, or otherwise entry reserved, or withdrawn prior Land Laws
sale under the Public heretofore paid in connection defendant FIELDS, own Use Nathaniel A. To his brought by plaintiffs Foster, the suit and To the Uses of Martha Foster, Foster, paragraph 6 re- as hereinabove Sallie Florence Foster, Foster, Frank of Abe W. subject Heirs not the of the actions cited and Indian, Foster, De- Abe Creek a/k/a ceased pending re- Court which are hereof; paragraph ferred to v. adjudged liable that defendant plaintiffs appropri- The UNITED STATES. sales and such upon in such ations of lands amount No. 71-69. accounting complete and accurate of Claims. United States Court owing may find due this court March just reasonable and compensation, than but in no less event price
the minimum at which agreed sell lands.
has such agreed judges of
All the the court are was, land now in issue
language judgment entered formerly “land owned
Case No. western
or claimed
Colorado, ceded to 199),
of June during peri-
the defendant aforesaid disposed of as ods of time ** preced- homesteads free ing language stipulation —“the
judgment case is to be entered in this judicata, de- as to the land
res in-
scribed Schedule whether certainly not” —is suf-
cluded or therein
ficient the land now issue. cover
Therefore, way see no to avoid I judgment final en-
conclusion that right appellee’s tered in case bars plaintiffs or fact
recover. The unex- had an undisclosed counsel