Ambrose Whitefoot and Minnie Whitefoot v. United States

293 F.2d 658

• Court: United States Court of Claims
• Decided: October 4, 1961
• Docket: 497-57
• Status: Published

Opinions

REED, Justice (Retired), sitting by designation.

This is a suit to recover compensation for the taking by destruction through inundation of certain fishing rights and other rights claimed as the individual property of plaintiffs in the Columbia River near Celilo Falls in the States of Washington and Oregon by the construction by the United States of The Dalles Dam, completed in 1956.

The plaintiffs are Indians enrolled in the Yakima Nation, a confederation created and granted a reservation by the Treaty between the United States and the Yakima Nation, June 9, 1855, 12 Stat. 951. By the treaty the various tribes composing the Nation gave up their claim by Indian title to a large expanse of territory over which they roamed in return for the United States’ recognition of a portion of the area claimed under Indian title as a reservation for the Yakima Nation and its agreement to expend $200,000 for the Yakima’s benefit, to furnish them schools, shops and a hospital, and to compensate individual Indians for substantial improvements, “such as fields enclosed and cultivated, and houses erected,” made by such individuals upon tribal property. By this treaty the Yakima Nation secured rights recognized by the United States which could not be infringed without compensation.¹

Then, as now, fishing in the Columbia for anadromous fish was important to the Indians and provided them their food, fresh and dried, and a medium for acquiring other commodities. In the treaty, therefore, this provision was made in article III:

“The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.” 12 Stat. 953.

Under this authority both Yakima Reservation Indians and Indians who live off the Reservation and around Celilo Falls have continued to fish at the Falls. Cf., United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. Many of them, including plaintiff Minnie Whitefoot, claimed the exclusive right to fish at certain points or rocks away from their reservation called fishing stations. As the Commissioner found,

“ * * * the right of particular families in the tribe to use, occupy and fish from certain of the tribally owned fishing stations was a right which was respected and recognized by the Indians from remote times. This right of individual Indian families to use, occupy, and fish from specific fishing stations amounted primarily to a right, infrequently exercised, to exclude others from using the same stations. It was a right which the Indians recognized by custom and usage as passing down from one generation to the next through the family line. The right could not be sold or transferred by its immediate holder.” ²

With the growth of commercial fishing for canning purposes and the appearance of Indian fishermen without ancestral fishing stations, disputes arose as to the use of the stations. There were no records of the claimed rights. To meet this situation the Celilo Fish Committee, composed of three Indians from each of the affected reservations, plus representatives of nonreservation Indians, was organized through the local Indian Superintendents in 1935. Frequently the Committee used the “ancient Indian custom of inheritance and succession,” to determine rights of fishing at stations.³

The growth of the Northwest and the increasing need for power and flood control caused Congress to enact water power legislation. The construction that is involved in this case is The Dalles Dam on the Columbia River between Washington and Oregon. Appropriation was made in 1950. 64 Stat. 179. Previously Congress had been advised of the fishery situation at Celilo Falls.⁴ In an appropriation act for the civil functions of the Army, 1953, 67 Stat. 197, authority for compensation for the loss of the fishing rights in question was made. The act provided that, except in the case of Indians not enrolled in tribes, the payments were to be made to the respective tribes, not to the individual fishermen.⁵ *7Pur-suant to this authority an agreement was reached between the United States and the Yakima Tribe on December 17, 1954. Paragraph 2 of the agreement provided for payment to the Tribe of some fifteen million dollars for all of its fishing privileges,

“ * * * as full consideration for the destruction or inundation of-these usual and accustomed fishing stations within the area shown by shading upon Exhibit ‘A’ hereof and for the release and subordination hereinafter set forth in paragraph 5.

* * * -x- * *

“(d) Payment shall be made by depositing the amounts, set forth in paragraphs 2(b) and 2(c) hereof, in the United States Treasury for the account of the Tribe, * * *.

“(e) No payments will be made under the agreement for the real or personal property of individual members of the Tribe or for removal of cemeteries or burial grounds. * * [or] to the individual members of the Tribe for the cost of constructing or removing temporary fishing platforms as distinct from any compensable interest which individual members of the Tribe may be able to establish in permanent fishing platforms, cableways and appurtenances.”

“5. Release and Subordination. The Tribe, for and in consideration of performance by the Government of the obligations and terms hereof to be kept, observed and performed by the Government, by these presents for themselves and their agents, assigns or successors and for their people and their descendants forever, do hereby subordinate the rights of the Tribe to take fish and to build and maintain drying sheds at those usual and accustomed stations within the areas as shown shaded on Exhibit ‘A’, hereof, as reserved in the Treaty of June 9, 1855, 12 Stat. 951, to the right of the Government to construct, maintain, and operate the project, and do hereby release and forever discharge the Government, its officers and agents, of and from all manner of action and causes of action, suits and causes of suit, debts, damages, charges, expenses, claims and demands whatsoever, which the said Tribe or their agents, assigns .or successors or their people or their descendants may now or hereafter have by reason of or resulting from the construction, operation, and maintenance of the Project, * *

This agreement was aproved by the Yakima General Council and Tribal Council on December 17,1954.

Minnie and Ambrose Whitefoot, members of the Yakima Tribe and residing on the Reservation, protested the per-capita distribution of the fifteen million dollar payment which gave $3,270 to each enrolled tribal member, including children of which the Whitefoots had five, on the ground of inadequacy, but accepted those portions of the money on the basis of economic necessity and without prejudice to this litigation. See Finding of Fact 22.

The respective exceptions to the Findings of Fact of the Commissioner have been examined. We are satisfied that the findings are adequately supported by the record and we approve and adopt them as our own.

The basis of plaintiff Minnie White-foot’s claim is that she was the owner of six “usual and accustomed fishing stations” descended to her as heir of her father, recognized as hers by tribal custom and used by her through the years.⁶ Defendant denies that the right to use these stations exclusively rested in Minnie Whitefoot. The issue is whether the right to use these six fishing stations, with easements on the public lands at Celilo Falls no different from those of other similar stations, were her individual private property or a part of the communal property of the tribe. If Minnie’s claim of private ownership is found correct, she would, she argues, be entitled to a payment for the value of the use of these stations.

We have heretofore called attention to the fact that the appropriation acts authorized payments to the tribes. Here ' it is the Yakima Tribe. The agreement of December 17, 1954, for payment of the fifteen million dollars, quoted above, was for the destruction of the usual and accustomed fishing stations preserved to the Yakimas by the treaty of June 9, 1855, Article III, quoted above. Paragraph 5 of that agreement of 1954, also quoted above, subordinated the rights of “the Tribe to take fish.” One cannot conclude from the Act authorizing payment and the contract otherwise than that the Congress, the Engineers and the Yakima Nation looked upon the fishing stations as the latter’s property to be used as it might determine for its own benefit.

Such communal holding of property is in accord with normal Indian custom. Land is so held whether by Indian title or after creation of a reservation.⁷ The general rights of the individual in tribal property are discussed in Federal Indian Law (1958), U. S. Government Printing Office, a revision and updating through the year 1956 of Felix S. Cohen’s Handbook of Federal Indian Law. A few excerpts will show the theory.⁸

In Powers of Indian Tribes, 55 Interior Dec. 14, 50, tribal powers over property are considered at length.

“The powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members. The proposition that occupancy of tribal land does not create any vested rights in the occupant as against the tribe is supported by a long line of court decisions: * * Page 51.

9

While property is vested in a tribe, it is the individual member who enjoys the use of the property. Federal Indian Law, supra, 757. As to fishing, this is true.¹⁰ But, like the lands, the interests in the fisheries are communal, subject to tribal regulation.¹¹

We hold that the use of accustomed fishing places, whether on or off the reservation, is a tribal right for adjustment by the tribe and that the fact that certain Indians have been allowed to have sole use of a particular spot by the Tribe gives that individual no property right against the Tribe and does not limit the Tribe’s right to collect the damages for obliteration of fishing spots by the dam. We hold further that Minnie Whitefoot has no claim against the United States.

The claim of plaintiff Ambrose Whitefoot does not involve fishing rights. His claim is for the alleged taking of two cableways leading from islands in the Columbia to the shore. Ambrose erected these cables in 1947 with the written permission of the Corps of Engineers and used them to carry fishermen and their catches across the river. Ambrose did not own the land where the cables were located, and, so far as the record shows, ownership of the land rests in the United States free of Indian title since 1855 when that was extinguished by treaty. Ambrose himself did not fish near the cables. According to Finding 24, the fishermen “in return for use of the cable * * * would sell their catch to the plaintiff [Ambrose] who then resold in the commercial market.” Plaintiff removed the cables in 1956 when the flooding of the area was imminent. His claim for the alleged “value of the installation and loss of prospective profits over a ten year period” was rejected by the United States.

We may assume, without deciding the question, that compensation is recoverable in proper cases for destruction of cable-ways under the provision in paragraph 2(e) of the 1954 agreement for “fishing platforms, cableways and appurtenances.” This, however, is clearly not such a case, for Ambrose has failed to establish that he has been deprived of “any compensable interest” in his cableways, as he must do to recover under paragraph 2(e). He has removed and salvaged his cables and machinery. The going concern value of the apparatus and the expectation of future profits have, of course, been lost but the evidence is all to the effect that such value existed only at the sufferance of the United States. Ambrose had no claim to the land to which the cables were affixed, and there is no indication that he had or claimed any right, under contract, custom, or adverse possession,¹² to remain on the land for any purpose. When the Government, for good reason, withdrew its permission to remain, he did not become entitled to compensation.

The petition must be dismissed.

It is so ordered.

1 . Shoshone Tribe of Indians v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360; United States v. Shoshone Tribe of Indians, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. See Crow Tribe of Indians v. United States, Ct.Cl., 284 F.2d 361. Cf. for taking by the United States of land held under Indian title, Tee-Hit-Ton Indians v. United States, 128 Ct.Cl. 82, 120 F.Supp. 202, affirmed 348 U.S. 272, 282, 75 S.Ct. 313, 99 L.Ed. 314, et seq. See editor’s comment on this case in Cohon, The Legal Conscience 239, and see idem 273 et seq., expressing a different view as to Indian title from the Tee-Hit-Ton case. See also comment on United States v. Alcea Band of Tillamooks, 341 U.S. 48, at page 273, 71 S.Ct. 552, at page 95 L.Ed. 738 of Legal Conscience.

2 . Finding of Fact 6 at end of this opinion.

3 . Findings of Fact 15-16.

4 . Report of Chief of Engineers, United States Army, submitted June 28, 1949, H.Doc. No. 531, 81st Cong., 2d Sess., vol. 7, 2868, 2881, 2951. Celilo Falls was named as a “usual and accustomed” fishing place.

“Property right in the fish. — The Indians contend that they have a property right in the fish which migrate up the river, a right which may not be infringed upon without the payment of just compensation. The best that can be said for this question at the present time is that it is moot since the decision of the courts to date have pertained to easements in real property upon which the usual and accustomed fishing sites were located. * * * The Indian Service believe that the courts will hold that the treaties vested a property right in the annual fish migrations similar to that in the real estate upon which the fishing sites are located. The import and ramifications of such a holding are manifest. It is not believed that the treaties guarantee, or were intended to guarantee, annual fish migrations in the river, in perpetuity, or that damages will be paid by the Federal Government for any diminution of those runs from whatever cause ensuing. * * * ” Id., at 2951-2952.

5 . 67 Stat. 198: “Provided further, That funds appropriated herein may at the discretion and under the direction of the Chief of Engineers be used in payment to the accounts of the Confederated Tribes of the Yakima Reservation; the Confederated Tribes of the Warm Springs Reservation; the Confederated Tribes of the Umatilla Reservation; or other recognized Indian tribes, and those individual Indians not enrolled in any recognized tribe, but who through domicile at or in the immediate vicinity of the reservoir and through custom and usage are found to have an equitable interest in the fishery, all of whose fishing rights and interests will be impaired by the Government incident to the construction, operation, or maintenance of the Dalles Dam, Columbia River, Washington and Oregon, and must be subordinated thereto by agreement or litigation.”

Substantially the same provision appears at 68 Stat. 331 in the similar 1954 Act.

6 . See Finding of Fact 23.

7 . Prairie Band of Potawatomi Indians v. United States, 143 Ct.Cl. 131, 165 F.Supp. 139, 147, certiorari denied, 359 U.S. 908, 79 S.Ct. 587, 3 L.Ed.2d 574: “The unbroken rule of law from Johnson v. M'Intosh, 8 Wheat. 543, 5 L.Ed. 681, to date is that Indian title, unrecognized by the United States by treaty or patent, covers the right to use only, a right that may be withdrawn by the Government at any time without liability for compensation.* This right to use the land is, however, the property of the band, tribe, or nation of Indians that occupies the land, either by Indian title or a right of occupancy that is recognized by the United States by treaty. The individual’s right to use depends upon tribal law or custom. The tribal right to use is communal. No instance is known of individual ownership of tribal lands.**

Tee-Hit-Ton Indians v. United States, [128 Ct.Cl. 82, [120 F.Supp. 202]], 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314; United States v. Band of Alcea Tillamooks, [329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29, 103 Ct.Cl. 494, 59 F.Supp. 934], 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738. Cf. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 65 S.Ct. 690, 89 L.Ed. 985.

Delaware Indians v. Cherokee Nation, 193 U.S. 127, 137, 24 S.Ct. 342, 48 L.Ed. 646; Sizemore v. Brady, 235 U.S. 441, 442, 35 S.Ct. 135, 59 L.Ed. 308; Cohen, Handbook of Federal Indian Law 185, § 3, Eligibility to Share in Tribal Property. The Cherokee Trust Funds, 117 U.S. 288, 308, 6 S.Ct. 718, 727, 29 L. Ed. 880: ‘The lands from the sales of which the proceeds were derived belonged to the Oherokee Nation as a political body, and not to its individual members. They were held, it is true, for the common benefit of all the Cherokees, but that does not mean that each member had such an interest, as a tenant in common, that he could claim a pro rata proportion of the proceeds of sales made of any part of them. He had a right to use parcels of the lands thus held by the nation, subject to such rules as its governing authority might prescribe; but that right neither prevented nor qualified the legal power of that authority to cede the lands and the title of the nation to the United States. * * * Their treaties of cession must therefore, be held not only to convey the common property of the nation, but to divest the interest therein of each of its members.’ 26 Op. Atty.Gen. 340, 348; Seminole Nation v. U. S., 90 Ct.Cl. 151; 78 Ct.Cl. 455.”

Choate v. Trapp, 224 U.S. 665, 671, 32 S.Ct. 565, 568, 56 L.Ed. 941: “The individual Indian had no title or enforcible right in the tribal property.”

9 Op.Atty.Gen. 24, 28(5).

8 . Federal Indian Law, 440-444:

“The powers of an Indian tribe with respect to property, except as they may thus be limited by Congress, derive from two sources. In the first place, the tribe has, with respect to tribal property, certain rights and powers commonly incident to property ownership. In the second place, the Indian tribe has, among its powers of sovereignty, the power to regulate the use and disposition of individual property among its members.

* * * * #

“ * * * Except for these general limitations and other specific statutory limitations found in enrollment acts and other special acts of Congress, the proper authorities of an Indian tribe have full power to regulate the use and disposition of tribal property by the members of the tribe.

* *• * * *

“Repeatedly, in the situations above discussed, Federal and State courts have declined to interfere with the decisions of tribal authorities on property disputes internal to the tribe.

“It clearly appears, from the foregoing cases, that the powers of an Indian tribe are not limited to such powers as it may exercise in its capacity as a land owner. In its quasi-sovereign capacity and in the exercise of local self-government, it may exercise powers similar to those exercised by any State or municipal corporation in regulating the use and disposition of private property, save insofar as it is restricted by specific statutes of Congress.”

9 . See Sizemore v. Brady, 235 U.S. 441, 35 S.Ct. 135, 59 L.Ed. 308; Halbert v. United States, 283 U.S. 753, 762-63, 51 S.Ct. 615, 75 L.Ed. 1389; Journeycake, v. Cherokee Nation, 28 Ct.Cl. 281, affirmed Cherokee Nation v. Journeycake, 155 U.S. 196, 15 S.Ct. 55, 39 L.Ed. 120.

“Under these treaties, and in December, 1838, a patent was issued to the Oherokees for these lands. By that patent, whatever of title was conveyed was conveyed to the Cherokees as a nation, and no title was vested in severalty in the Cherokees, or any of them.” 155 U.S. at page 207, 15 S.Ct. at page 60.

Memorandum for the Commissioner of Indian Affairs, Law Governing Leases on the Palm Springs Reservation, Oct. 21, 1938, and the Solicitor's memorandum of Aug. 11, 1937, take the same view. The latter ruling says: “All the decided cases take the view that the occupant of tribal land has no vendible interest therein but merely a usufructuary right, and that control over the land remains in the tribe save as such- control has been limited by certain statutes affecting the sale and leasing of tribal land.” See The Prairie Band of Potawatomi Indians v. v. United States, supra note 7.

10 . “It is plain that there are only a comparatively small number of fishing locations upon the river within the reservation, and that, broadly speaking, the fishing rights upon the river belong to the tribe; but there can be fishing in the river without granting exclusive rights to defined locations.

“It does not follow, from the described conditions, that the individual Indian who wants to fish in that stream can be denied in order that, to his exclusion, fishing may be carried on for commercial purposes, in part, for the benefit of Indians of the tribe who do not care or who are not able to fish. The treaty was with the tribe; but the right of taking fish at all places within the reservation, and usual and accustomed grounds and stations outside the reservation, was plainly a right common to the members of the tribe — -a right to a common is the right' of an individual of the community.” Mason v. Sams, 9 Cir., 5 F.2d 255, 258. See United States v. Brookfield Fisheries, D.C., 24 F.Supp. 712, 716 (6); Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555; Klamath Terminal Legislation, 62 Interior Dec. 186, 203; Dukes v. Goodall, 5 Indian Territory Rep. 145.

11 . Cf. Tulee v. State of Washington, 315 U.S. 681, 62 S.Ct. 862, 86 S.Ct. 1115.

12 . See, e. g., United States v. 7,403.5 Acres of Land, 4 Cir., 97 F.2d 417.