UNITED STATES v. SOUTHERN UTE TRIBE OR BAND OF INDIANS
No. 515
Supreme Court of the United States
April 26, 1971
402 U.S. 159
Argued March 1, 1971
Lawrence G. Wallace argued the cause for the United States. On the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Peter L. Strauss, and Edmund B. Clark.
Glen A. Wilkinson argued the cause for respondent. With him on the brief was Richard A. Baenen.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
In 1951 the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indian Claims Commission.1 The claim asserted that the United States had violated its fiduciary duty to respondent by (1) disposing of 220,000 acres of land as “free homesteads” although obligated by
The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that:
“[A] judgment . . . shall be entered in this cause as full settlement and payment for the complete extinguishment of plaintiffs’ right, title, interest, estate, claims and demands of whatsoever nature in and to the lаnd and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold
for cash . . . (b) disposed of as free homesteads . . . and (c) set aside for public purposes [between 1910 and 1938]. . . . There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of [lands] . . . disposed of by defendant as free homesteads and the remaining . . . acres . . . set aside by the defendant for public purposes. . . . However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but . . . also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880. . . .” 117 Ct. Cl., at 436-437 (emphasis added).
The lands involved in the present suit were not included in Schedule 1; rather, the Government relies upon the clause that the consent judgment was ”res judicata . . . also as to any land . . . ceded to defendant by the Act of June 15, 1880 . . . .”
Both the Indian Claims Commission and the Court of Claims rejected the Government‘s res judicata defense on the ground that the claim concerning the lands involved in this action was not compromised by the 1950 settlement because those lands were not among the lands “ceded to defendant by the Act of June 15, 1880.”
Decision of this case turns, then, upon the proper interpretation of the agreement, embodied in the Act of 1880, between the United States and the Ute Indians as it relates to the settlement agreement, reduced to judgment in 1950, between the same parties. The determination of that interpretation requires a somewhat lengthy factual recitation.
In the latter half of the 19th century, what is now the Confederated Bands of Utes, composed of the Uncоmpahgre Utes, the White River Utes, and the Southern
Within eight years, only the Southern Utes remained in Colorado: the White River Utes and the Uncompahgre Utes departed for Utah before 1882 as a consequence of the massacre in 1879 of Indian Agent Meeker and others at White River station. The public outcry over this incident led to negotiations with the Confederated Bands which produced the Act of 1880.
The plain wording of the Act cedes to the United States all of the nonallotted acreage of the reservation, including that in the 15-mile strip (Royce Area 617) occupied by the Southern Utes. The Court of Claims’ opinion acknowledges this, stating that:
“The most significant aspects to be gleaned from this [1880] Act . . . is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation—Royce Area 616 and 617—and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share and like their confederates understood that such monies would be held by defendant in trust for their benefit.” 191 Ct. Cl., at 10, 423 F. 2d, at 350 (1970) (emphasis in original).
Thus, if inquiry were to end with the wording of the 1880 Act, the consent judgment barred respondent‘s claim.
The Commission and the Court of Claims did not, however, end their inquiry with the wording of the Act of 1880. Both of those tribunals considered the conduct of the United States in relation to respondent tribe in the years subsequent to passage of the Act of 1880. Even so, the basis of their rejection of the res judicata defense does not emerge from their opinions with complete clarity. The Court of Claims read the Commission‘s first opinion, 17 Ind. Cl. Comm. 28 (1966), as holding that the Southern Utes expressly withheld thе southern strip from the lands ceded by the 1880 Act: “The Commission found that the Act of 1880 ‘reserved’ Royce Area 617 for the Southern
“The more tenable theory, in our estimation, is that Congress recognized that by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and hоnorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that if the land was going to be acquired free and clear new consideration was necessary. Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government‘s rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.” Id., at 19-20, 423 F. 2d, at 356.
This reasoning implies that the holding that the lands in suit were not ceded in 1880 rests upon application of the doctrines of estoppel, or waiver, or a compound of those doctrines. We disagree that the history relied on supports аny of those bases for decision, even assuming (and we have serious doubts) that the plain words of the Act of 1880 can thus be varied to except the lands in suit from the phrase “any land . . . ceded” in the consent
Even before 1880 the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing and the resulting lines of commerce cut across the strip.
“The Indian Bureau, realizing that this strip, by reason of its narrowness and of its remoteness from the other portion of the reservation, was entirely unsuited to the use of the Indians, suggested that negotiations be entered into with them for the cession of that strip. In accordance with this, in 1878, Congress passed an act authorizing such negotiations (
U. S. Stat. L., vol. 20, p. 48 ), and under this authority a commission . . . was appointed, and during the same year they negotiated an agreement with the Indians whereby they agreed to exchange this strip for another reservation.” S. Rep. No. 279, 53d Cong., 2d Sess., 1 (1894).
But before the bill was acted upon by Congress, the Meeker Massacre occurred.5 The outcry following that incident caused Congress to adopt the solution in the Act of 1880 affecting all of the Ute tribes. Contrary to the apparent view of the Commission and Court of Claims, this segment of history does not show an inten-
The Act of 1880 provided that “a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support . . . .”
“During my stay on the reservation I took occasion . . . to talk to the leading men . . . on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location [in severalty] . . . . I did not find one who desired a house, or would agree to dwell in one if built for him оn his own land. It will take time and careful management to induce these Indians to abandon their present [way of living] and adopt the new mode of life contemplated by the agreement.
. . .
“In the mean time, and while the change is going on, they must be protected from annoyance. . . . To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the [1880] agreement . . . as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation . . . . Then the land selected, and upon which the Indians are to be located, can be kept free
from intruders.” H. R. Exec. Doc. No. 1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 393 (1882).
But Congress did not create the recommended rеservation. Instead, Congress took action consistent with adherence to the plan of the Act of 1880. There had been great pressure to open Royce Areas 616 and 617 to homesteading after the Act of 1880 had resulted in the removal of the Uncompahgre and White River Utes. The Southern Utes were, however, still occupying the southern strip, Royce Area 617. The apparent result was the Act of July 28, 1882,
“Although the language of this act tends to favor plaintiffs’ position it is by no means conclusive. It
merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act‘s exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory.” 191 Ct. Cl., at 15, 423 F. 2d, at 353-354.
The Commission formed pursuant to the Act of 1888 did succeed in negotiating an agreement with the Southern Utes, under which the Southern Utes would have been moved to a reservation in San Juan County, Utah. The Court of Claims observed that in such case “[p]resumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880 and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreemеnt as accruing to the Southern Utes would still accrue.” 191 Ct. Cl., at 16, 423 F. 2d, at 354. In other words, the treatment of the Southern Utes would be precisely that accorded the Uncompahgre and White River Utes when they left Colorado. But this event only serves to furnish still more proof that the Government remained firm in its position that the strip was ceded by the Act of 1880.
This is confirmed by the congressional reaction when the agreement was submitted for approval—nothing happened for six years and the agreement was again introduced in 1894. The opinion of the Court of Claims depicts the situation:
“Conceding the ‘anomalous position [of the Southern Utes] of having ceded their reservation and yet remaining on it‘, the Senate Committee on Indian Affairs favored ratification (Sen. Rep. No. 279, 53d
Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H. R. Rep. No. 799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20, 1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty.” 191 Ct. Cl., at 16, 423 F. 2d, at 354.
This recital refutes, rather than supports, the notion that the United States followed a pattern or course of conduct after 1880 that regarded the Southern Utes rather than the United States as the owners of Royce Area 617.
Finally, we cannot agree with the Court of Claims that § 5 of the Act of 1895 is “an explicit waiver of the Government‘s rights created in the 1880 agreement, whatever they were.” 191 Ct. Cl., at 19-20, 423 F. 2d, at 356. The Act of 1895, in addition to annulling the 1888 agreement, expressly confirmed the Act of 1880 and directed the Secretary of the Interior to proceed with allotments in severalty to the Southern Utes “in accordance with the provisions of the Act of [1880].”
We therefore hold that the claim in this case is res judicata under the 1950 consent judgment enforcing the settlement agreement “as to any land . . . ceded to defendant by the Act of June 15, 1880.”9
Reversed.
MR. JUSTICE DOUGLAS, dissenting.
Though the facts of this case are complex, they present but one major question, whether the lands in question were “ceded to defendant by the Act of June 15, 1880,” and included in a consent judgment entered by the Court of Claims in 1950.
More precisely, what was the status of these lands (Royce Area 617) between 1880 and 1895? Were they ceded in 1880, yet not released by the Indians until 1895? How can it be said that Royce Area 617 was ceded in 1880 yet retаined until 1895, since, as the Court of Claims stated, “the Southern Utes were allowed to remain on their surveyed reservation for 15 years after the purported cession, and the right to remove them without their further consent was not asserted or exercised.” 191 Ct. Cl. 1, 19, 423 F. 2d 346, 356.
As of 1880, the Confederated Bands of Ute Indians occupied a reservation of 12,000,000 acres in western Colorado. The White River Utes and the Uncompahgre Utes occupied the northern portion (Royce Area 616), and the Southern Utes occupied an almost separated southern sectiоn (Royce Area 617). In 1880, the Utes entered into a treaty with the United States. It provided that the chiefs would persuade their people
“to cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.
“The Southern Utes agree to remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico.”
Act of June 15, 1880, 21 Stat. 200 .
The cession of the territory was on the express condition:
“That the Government of the United States cause the lands so set apart to be properly surveyed and to be divided among the said Indians in severalty . . . .”
Id., at 200-201 .
The Secretary of the Interior was authorized to have the land surveyed for allotment. Commissioners were to make the allotments,
“and all the lands not so allotted, the title to which is, by the said agreement of the confederated bands
of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States . . . .” Id., at 203 .
The Ute Commission was formed. In 1881 it reported to Congress. The Uncompahgre and White River Utes had been moved, but the Southern Utes were still on their reservation. The Chairman of the Commission had decided that it would be unwise to move them.1 The allotments, a condition of the cession, were not made. In 1882, Congress declared Royce Area 616 to be public land (
As of this time it appears that neither the Southern Utes nor officials of the United States thought that Royce Area 617 had been ceded by the Act of 1880. The Southern Utes still considered it their reservation3 and the Commissioner of Indian Affairs apparently felt likewise4—all of which is inconsistent with the theory that there had been a cession of it in 1880.
In 1888, Congress authorized the Secretary of the Interior to appoint a commission to negotiate with the Southern Utes. They agreed to settle in Utah, but Congress would not approve the agreement. Congress then passed the Act of 1895,
“That within six months after the passage of this Act the Secretary of the Interior shall cause allotment of land, in severalty, to be made to such of the Southern Ute Indians in Colorado as may elect and be considered by him qualified to take the same out
“That at the expiration of six months from the passage of this Act the President . . . shall issue his proclamation declaring the lands embraced within the present reservation of said Indians except such portions as may have been allotted or reserved under the provisions of the preceding sections of this Act, open to occupancy and settlement.” § 4,
28 Stat. 678 . (Emphasis supplied.)
The money realized from the sale of the lands set aside was to be held for the sole benefit of the Southern Ute Indians. Section 6 declared that the provisions of the Act were not to take effect until accepted by a majority of the male adult Indians. A majority did accept.
Some of the Southern Utes took allotments in severalty. The Weeminuche Utes, now the Ute Mountain Utes, elected, however, to settle on a tract at the west end of their “present reservation.” § 3.
A substantial amount of land in Royce Area 617 was settled by whites, and disposed of by the United States Government. The subject of the present suit before the Indian Claims Commission includes, inter alia, the proceeds from land sold and damages for land given away in violation of the Act of 1895.
In 1934, Congress allowed restoration of all land in Royce Area 617 not disposed of under the Act of 1895. (
“[P]ursuant to the provisions of the Act of February 20, 1895 . . . the Southern Ute Band of Indians in Colorado ceded to the United States a large area of
their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 . . . .” (Order of Restoration, September 14, 1938, S. Doc. No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler).) (Emphasis supplied.)
The Confederated Bands have sued the United States in the past for damages arising out of breaches of the 1880 treaty. One such suit was settled in 1950, and judgment was entered pursuant to a stipulation of the parties. A schedule of all land covered by the judgment was included, but omissions were provided for:
“So far as the parties with diligence have been able to determine these descriptions represent all the land so disposed of and set aside. However, the judgment to be entered in this case is rеs judicata, not only as to the land described in Schedule 1, but, whether included therein or not, also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 . . . .” 117 Ct. Cl. 433, 437.
None of the land in Royce Area 617 (360 sections or 21.8% of the total area which had been wrongly disposed of) was therefore included.
The Indian Claims Commission found that the United States had acknowledged by its actions that the Southern Ute Reservation was not ceded by the 1880 Agreement. Therefore, any accounting which included Southern Ute lands in Case No. 30360, 45 Ct. Cl. 440 (1910), was erroneous and beyond the jurisdiction of the Court of Claims to enter. The Court of Claims remanded this case to the Commission for a determination of the intention of the parties in entering into the 1950 stipulation. Plaintiffs produced evidence that they never intended Royce Area 617 to be covered. The broad language of the stipulation was to insure that minor omissions were covered.
The Court of Claims found that the language of the Act of 1880 appeared to be inconsistent with the findings of the Commission, but that the events from 1880 to 1895 supported its conclusion, i. e., the decision to postpone issuing allotments and to preserve the reservation, the separation of Royce Area 617 by the Act of 1882, the description of the dividing line by the Secretary of the Interior, the negotiations with thе Southern Utes to move, the belief by the Commissioner of Indian Affairs of a duty to keep white people off the “reservation,”5 the Act of 1888, and the Act of 1895 providing additional compensation for the Southern Utes6 and requiring their approval.7 The evidence weighed “substantially in favor of the Commission‘s interpretation.” The Government‘s conduct, the Court of Claims said, evidenced a recognition that “by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead.” 191 Ct. Cl., at 19, 423 F. 2d, at 356.
“Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government‘s rights
This holding was supported also by the language employed by the Secretary of the Interior in the Restoration of 1938.8
Since the Southern Ute land was not ceded in 1880, any claims involving that land were beyond the mandate of the Jurisdictional Act of 1909,
This Court now reviews those findings and reverses. In doing so it simply remarshals the evidence for the new result, ignoring the limits of this Court‘s appellate jurisdiction over the Court of Claims. The question present is either a question of fact or, at best, a mixed question of law and fact and the determination of the Court of Claims is binding оn this Court if it is supported by substantial evidence. United States v. Swift & Co., 270 U. S. 124, 138; United States v. Omaha Tribe of Indians, 253 U. S. 275, 281. The result below is clearly supported. It is not the function of this Court to conduct a trial de novo on the issues. United States v. Felin & Co., 334 U. S. 624, 650 (Jackson, J., dissenting); United States v. Penn Mfg. Co., 337 U. S. 198, 207 n. 4.
I would affirm the judgment of the Court of Claims.