Sioux Tribe v. United States

500 F.2d 458, 205 Ct. Cl. 148, 1974 U.S. Ct. Cl. LEXIS 7

• Court: United States Court of Claims
• Decided: July 19, 1974
• Docket: Appeal No. 13-72; Ind. Cl. Comm. Docket Nos. 74 and 332-C; Consolidated Docket Nos. 74 and 332-C; 22 Ind. Cl. Comm. 344 (1969); 23 Ind. Cl. Comm. 419 (1970); 24 Ind. Cl. Comm. 147 (1970); 24 Ind. Cl. Comm. 208 (1970); 24 Ind. Cl. Comm. 364 (1971); 27 Ind. Cl. Comm. 49 (1972); 27 Ind. Cl. Comm. 79 (1972); 28 Ind. Cl. Comm. 204 (1972)
• Status: Published

Opinions

CoweN, Ghief Judge,

delivered the opinion of the court:

The appeals and cross-appeals in this case require us to review eight interlocutory orders of the Indian Claims Commission. The appellants are eight groups of Sioux Indians. Their claims against the 'United States are filed under Docket No. 74 of the Indian Claims Commission and are based on certain wrongs alleged to have been committed by the United States against their ancestral tribes, i.e., the Teton Sioux Tribe, the Yanktonais Sioux Tribe, and the Sioux of the Santee Reservation in Nebraska. For convenience, the appellants will be referred to as the Docket 74 Sioux, since they are also appellees in certain of the cross-appeals. The Yank-ton Sioux Tribe, whose claims are filed under Docket No. 332-C of the Indian Claims Commission, is a present-day tribe. Its suits are based on wrongs allegedly committed by the United States against the ancestral Yankton Sioux Tribe. The tribe is a party to this appeal, both as an appellee and as a cross-appellant. The United States is a party to this appeal as an appellee and also as a cross-appellant.

Appeal From, 24 Ind. Cl. Comm. 147

In its decision in Sioux Tribe of Indians v. United States, 15 Ind. Cl. Comm. 577 (1965), the Indian Claims Commission ruled that the 1851 Treaty of Fort Laramie (11 Stat. 749, 2 Kapp. 594) recognized the title of the “Sioux or Dahcotah Nation” to approximately 60 million acres of land situated west of the Missouri River in what are now the States of North and South Dakota, Nebraska, Wyoming, and Montana. At that time, the Indian Claims Commission did not express an opinion as to what bands or groups constituted the “Sioux or Dahcotah Nation” in Article 5 of the treaty.¹ That question remained unresolved until 1970 when the Commission reached the following decision which is the subject of this appeal: (1) the phrase “Sioux or Dahcotah Nation” in the Fort 'Laramie Treaty included only the Teton and Yankton divisions of the Sioux (and not the Yanktonais); (2) the Teton and Yankton divisions of the Sioux held an undivided 83 and 17 percent interest respectively in the Sioux portion of the Fort Laramie land. 24 Ind. Cl. Comm. 147 (1970).

■The Commission based its decision upon an analysis of the history and purpose of the 1851 Treaty. It concluded that the United States intended the Fort Laramie Treaty to include only the Sioux located south or west of the Missouri Elver, which, as found by the Commission, were the Yankton and the Teton divisions of the Sioux. The Yanktonais Sioux, on the other hand, resided generally north or east of the Missouri Eiver, were far removed from either of the transportation routes the treaty was designed to protect, and did not have a chief or other representative who signed the 1851 Treaty or the 1853 Senate amendment thereto.² Having so found, the Commission then proceeded to apportion the Fort Laramie land 'between the Tetons and the Yanktons. The Commission rejected the tribal theory (tenancy in common) for determining the respective interests of the claimants and apportioned the land on the basis of the total population of the two tribal divisions near the effective date of the treaty.

The Docket 74 Sioux (consisting mainly of the descendants of the Tetons and the Yanktonais)³ first challenged the determination that the Yankton Sioux were entitled to an undivided 17 percent interest in the Sioux-Laramie land in a motion for rehearing. In this motion, the Docket 74 Sioux contended: (a) the 1851 Treaty only recognized title in those Indians permanently living on the land; (b) subsequent actions of the parties to the treaty showed the Yanktons had no interest, and (c) if population is the correct method for calculating the interests of the parties, only those Indians who actually lived on or used the land should be counted. Oil March 1, 1972, the Commission rejected the several contentions of the Docket 74 Sioux in an opinion denying the motion for rehearing, 27 Ind. Cl. Comm. 49 (1972).

While the Yankton Sioux support the Commission’s decision, the Docket 74 Sioux and the Government are dissatisfied with one or another aspect of the Commission’s ruling. The Docket 74 Sioux (appellants) claim that the term “Sioux or Dahcotah Nation” in the Fort Laramie Treaty includes three groups: Teton, Yankton, and Yanktonais, and that the Commission erroneously disregarded the language and history of the treaty as well as its contemporaneous administrative interpretation in excluding the Yanktonais from the 1851 Treaty. The Docket 74 Sioux further contend that the Commission erred in several respects in awarding the Yankton Sioux an undivided 17 percent interest in the Fort Laramie country; they argue (1) that Congress only intended to recognize title in the Indians actually occupying the land; (2) that in recognizing the 17 percent interest in the Yankton Sioux, the Commission adopted an interpretation contrary to the past construction given the 1851 Treaty by the parties; (3) that if population is the sole correct criterion for determining the relative interests of the Indian parties, then the Commission erred in failing to confine the population figures used to those Sioux who lived on the land in question; and (4) that the Commission’s award of 17 percent interest to the Yankton Sioux is unreasonable and not supported by substantial evidence.

As shown infra, the Government contends that any claim based on the Treaty of Fort Laramie is barred by the statute of limitations. The Government also seeks to protect the public treasury from the possibility of double liability resulting from the Commission’s rulings on the conflicting claims involved herein.⁴ The Government has filed a cross-appeal, arguing that the Fort Laramie Treaty was intended to recognize the ownership in the Indians who held aboriginal title in the land at the time and that the case should be remanded to the Commission for a new division (replacing the prior division made by total population figures) on the basis of the Teton-Yankton aboriginal title interest.

The question before us concerns the proper interpretation of the words “Sioux or Dahcotah Nation” in Article 5 of the Fort Laramie Treaty. Although the Commission’s findings of fact are conclusive if supported by substantial evidence, this court must determine whether the Indian Claims Commission’s conclusions of law are valid and supported by the Commission’s findings of fact. 25 U.S.C. § 70s(b) (1970). We have repeatedly held that the interpretation of an Indian treaty is a question of law, not a matter of fact. See Citizens Band of Potawatomi Indians v. United States, 179 Ct. Cl. 473, 482, 391 F. 2d 614, 618, cert. denied, 389 U.S. 1046 (1968) ; Minnesota Chippewa Tribe v. United States, 161 Ct. Cl. 258, 262, 315 F. 2d 906, 908 (1963). Therefore, in approaching this case, we are free to reach an independent conclusion on the proper legal interpretation of the Fort Laramie Treaty and on the sufficiency of the evidence before the Commission to support its decision.

A. The Indian Claims Commission did not err in excluding the Yanktonais Sioux from the 1851 Treaty. The Docket 74 Sioux level a broad attack on the Commission’s evaluation of the scope of the Fort Laramie Treaty. Basically, the Docket 74 Sioux argue that the 1851 Treaty recognized title in the “Sioux of the Missouri,” a term that includes the Teton, the Yankton, and the Yanktonais. This is a serious argument in light of certain aspects of the history and administration of the treaty. 'On balance, however, we find the Indian Claims Commission correctly resolved the conflicting claims on this issue.

We begin our examination of the 1851 Treaty by studying the language of the document itself and then turn to the background material to the extent necessary to ascertain the meaning of the treaty provision in question. The preamble of the Fort Laramie Treaty states that the treaty is between the United States “and the chiefs, headmen, and braves of the following Indian nations, residing south of the Missouri River, east of the Rocky Mountains * * 2 Kapp. 594 (emphasis added). The treaty further describes the territory of the “Sioux or Dahcotah Nation” (for treaty purposes) as partially circumscribed by the Missouri River on the north and east. Id.

The Docket 74 Sioux argue that the phrase “Sioux or Dahcotah Nation” clearly and unambiguously refers to the “Missouri Sioux” so that it is unnecessary to look to the background of the treaty. In this regard, the Yankton Sioux point out that the term “Sioux Nation” was traditionally used to describe Indians who spoke the Sioux or Dahcotah language, lived in contiguous areas, and whose relationships with one another were friendly, the Yankton, Teton, and Yanktonais were self-governing units; they were a part of seven major divisions (Medawakantons, Wahpakootas, Sissetons, Wahpetons, Yanktons, Yanktonais, and Tetons) which have traditionally been thought of as the Sioux Nation ; the term “Missouri Sioux” or “Sioux of the Missouri” was used principally to designate location; and the “Missouri Sioux” have never been recognized as a distinct land-owning entity.

The 1851 Treaty does not expressly refer to the “Missouri Sioux.” In fact, the geographical limitations on the scope of the treaty indicate that it was not intended to extend to those divisions of the Sioux located north and east of the Missouri River and lacking significant contact with the area dealt with by the treaty.

The United States has used the terms “Sioux” or “Sioux Nation” in four treaties referring, on occasion, to different entities.⁵ Subsequent attempts to identify the Sioux party to some of these treaties have focused on the purpose of the treaty, identification of the band of Sioux whose participation was necessary to that purpose, identification of the band which participated in the treaty, and, where available, the identity of the band or bands from whom cession was accepted of the land involved.⁶

Without reference to the Fort Laramie Treaty the phrase “Sioux or Dahcotah Nation” could encompass the Teton, Yankton, Yanktonais, and the four Mississippi divisions of the Sioux. Even the Docket 74 Sioux do not contend that the Mississippi Sioux divisions are included in the treaty. It is unimportant that the United States concluded several treaties with one or another of the bands of the Sioux in which the treaty language referred specifically to the band and did not use “Sioux” or “Sioux Nation” to identify the Indians. The fact that the persons negotiating the Fort Laramie Treaty for the United States may have known which Sioux divisions were parties to the 1851 Treaty does not render the language clear on the face of the treaty. We are charged with discovering the intent of the parties, and in this instance, an analysis of the history and purposes of this particular treaty is particularly helpful.⁷

The background of the Fort Laramie Treaty has been thoroughly studied by this court and the Indian Claims Commission, and it need not be exhaustively recounted here.⁸ Starting on October 20,1947, official reports and correspondence of the various Superintendents and Commissioners of Indian Affairs began to focus on the need for treaties of peace and friendship. These records indicate that the Government sought to initiate treaty negotiations primarily to promote peace among these tribes, to protect settlers and other travelers along the Platte and Arkansas Eivers, and to help establish responsibility for any depredations that might be committed in a particular area. See 24 Ind. Cl. Comm. at 163-71. See also Crow Tribe of Indians v. United States, 151 Ct. Cl. 281, 286, 284 F. 2d 361, 365 (1960), cert. denied, 366 U.S. 924 (1961) ; Indians of the Fort Berthold Reservation v. United States, 71 Ct. Cl. 308, 330-31 (1930) ; Sioux Tribe v. United States, 21 Ind. Cl. Comm. 371, 376 (1969).

As the concept of the treaty began to take shape, the Government looked to the particular tribes that had been troublesome and their geographic location For example, on October 13, 1849, Superintendent of Indian Affairs Mitchell wrote in his annual report:

I have already had the honor to urge upon the Department the necessity of holding a general council to assume the character of a treaty, with the Wandering tribes inhabiting the plains, extending from the Missouri to the borders of Texas * * *. Justice as well as policy requires that we should make some remuneration for the damages these Indians sustain in consequence of the destruction of their game, timber &c., by the whites passing through their country. A small annual present of Indian goods distributed among the tribes, with reference to their numbers, localities, &c., would be deemed satisfactory, by them, and at the same time serve as a guarantee for their good behavior * * *. The propriety of including the Sioux south of the Missouri river, will be obvious when it is taken into consideration that they are frequently fou/nd in large bodies along the Santa Fe road/ and to my knowledge many of the depredations that home been charged against the Gommanches and other southern tribes, have been committed by the Sioux residing south of the Missouri river. 24 Ind. Cl. Comm. at 166-67 (emphasis added).

On March 18, 1850, the Senate Committee on Indian Affairs reported a bill “to enable the President to negotiate with the Indians of the prairies, south and west of the Missouri river to the northern line of the State of Texas, embracing the Indians of the Mountains, and including those of New Mexico.” S. 157, 31st Cong., 1st Sess. (1850) (emphasis added). This bill would have authorized the President to negotiate treaties “between the United States and the several tribes of Indians living and hunting south and west of the Missouri river, and north of the northern line of the State of Texas, commonly known and designated as the Indians of the Prairies and Mountains.” Id. The bill was accompanied by a report from Superintendent Mitchell in which he said: “The tribes proposed to treat with occupy the range of prairie and mountain country lying south of the Missouri river, and north of Texas.” S. Misc. Doc. No. 70, 31st Cong., 1st Sess. 4 (1850). Superintendent Mitchell also submitted a list of the tribes to be included in the treaty with an estimate of their respective populations. One of the tribes noted on this list was “Sioux, (South Missouri).” Id. at 3. This bill passed the Senate by a unanimous vote but was not acted upon by the House. In his annual report, dated September 14, 1850, Superintendent Mitchell reported continued unrest among the “prairie, or wandering tribes, inhabiting the vast region of country lying between the Missouri and the State of Texas.” 24 Ind. Cl. Comm. at 168.

On February 27, 1851, Congress appropriated $100,000 “for expenses of holding treaties with the wild tribes of the prairies and for bringing delegates to the seat of government.” Act of Feb. 27, 1851, ch. 12, 9 Stat. 572. The assertion by the Docket 74 Sioux that the broad phrase “Indian tribes of the prairies” evolved after 1850 to include all tribes of the upper Missouri Biver, regardless of their connection with the treaty area, is weakly supported and unpersuasive in view of the other evidence on this point. We find that Congress did not intend to expand the treaty beyond the scope of the prior Senate bill or the recommendations of Superintendent Mitchell. Mitchell’s appointment as one of the negotiators of the treaty underlines the acceptance by the United States of his theory of the scope of the proposed treaty.

The language of the 1851 Treaty and the background materials already discussed clearly show that the treaty included only the Sioux occupying the area south and west of the Missouri Biver. Because the Yanktonais lived east of the Missouri Biver and there is no showing that they used the Fort Laramie land to a significant extent, we conclude that the Yanktonais were not a party to the 1851 Treaty. Other aspects of the treaty’s background lend less support to this conclusion or are somewhat contradictory, but we are not persuaded to the contrary.

The Commission relied heavily upon the fact that a representative of the Yanktonais did not sign the 1851 Treaty or its 1853 amendment. We agree this is a telling point, although not conclusive in view of the augeries of the negotiations in this particular treaty. The Commission found that five of seven Teton bands did not sign the 1851 Treaty and two Teton bands (the 'Hunkpapa and the Blackfeet) did not sign the treaty or the amendment. Moreover, none of the signers executed the treaty on behalf of the Teton or Yankton divisions of the Sioux specifically — all signed as members of the “Sioux or Dahcotah Nation.” Also, the 15 signers of the 1853 amendment were identified as “Sioux of the Platte” or “Sioux of the Missouri.” There is, however, no indication that the signers acted on behalf of the Tetons, Yanktons, and Yanktonais. The Sioux chiefs were apparently assembled, as much as possible, from the territory to be covered by the treaty and the absence of the Yanktonais is significant.

The Docket 74 Sioux further assert that the purpose of achieving peaceful relations among the various tribes could not be achieved without the inclusion of the Yanktonais and that the United States included the Yanktonais among the Sioux receiving funds appropriated to fulfill the 1851 Treaty. As for the purpose argument, one of the primary purposes of the treaty was to secure safe passage for travelers along the Oregon and Santa Fe Trails. To fulfill this goal, among others, peaceful relations among the tribes was encouraged, and the divisions of the Sioux within the geographical bounds of the treaty were sought out. Article 6 of the treaty (2 Kapp. 595) and a statement by Superintendent Mitchell on the first day of the Treaty Council indicate that the chiefs were to speak for their respective nations. But the signers clearly did not purport to speak for the Sioux located along the Mississippi River. Similarly, the Yanktonais did not make significant use of the Fort Laramie land, and they were too far removed from either of the routes of travel to have been essential to the design of the treaty.⁹

While the Docket 74 Sioux state that General Accounting Office Reports show that the Yanktonais received funds appropriated to fulfill the 1851 Treaty, these reports show that the Poncas, Comanches, Kiowas and Apaches also received funds under the treaty. The Commission notes that these tribes were not parties to the Treaty of Fort Laramie and that reports of payment to the Yanktonais contained errors which “cast doubt on their reliability as evidence.” 24 Ind. Cl. Comm. at 157. We do not find that the Government recognized any part of the ownership of the land by the Yanktonais by the payment of funds under these circumstances.

The Commission found as a factual matter that the Yank-tonais generally resided north or east of the Missouri River. 24 Ind. Cl. Comm. at 155, 171-72. This finding is supported by substantial evidence and entitled to finality under our standard of review, 25 U.S.C. § 70s(b) (1970). We also note that the Docket 74 Sioux had ample opportunity to present evidence before the Commission concerning the extent to which the Yanktonais used the Fort Laramie land and that the Docket 74 Sioux have not shown that the Yanktonais were involved to a significant degree in the Fort Laramie land. Consequently, we do not believe the case should be remanded for further hearings to determine the involvement of the Yanktonais in lands west of the Missouri.

As a final point on the exclusion of the Yanktonais from the 1851 Treaty, we note that all the experts testifying before the Commission — those testifying for the Yankton and the Docket 74 Sioux — concluded that the Yanktonais were not a party to the Fort Laramie Treaty.

B. Apportionment of the Respective Interests of the Yankton and Teton Divisions of the Sioux in the Fort Laramie Land. In considering the proportionate share of the Fort Laramie land to be divided between the Yankton and Teton Sioux, it is necessary to evaluate the basis by which the Yanktons and the Tetons derive their interest in this territory. The question here is whether the 1851 Treaty recognized title in both the Yankton and Teton Sioux, and if so, what is the proper basis for allocating the interests between the two parties. The Docket 74 Sioux maintain that the 1851 Treaty merely confirmed ownership of the land only in the Indians actually using the land and that the actual use and occupancy test is the correct basis for determining Teton-Yankton recognized title in the Fort Laramie land. Secondly, the Docket 74 Sioux argue that, if population is the proper method for determining the relative interests of the Siou: parties, the Commission should have considered only the members of the Teton and Yankton Sioux actually using the Fort Laramie land. The Government, as cross-appellant, contends that the proper way of dividing up the Sioux recognized title is by a determination of which portion of the land each Sioux party held under aboriginal title, because this method would avoid the possibility of double liability by the Government (previously discussed).

As we discussed in part A above, the term “Sioux or Dahcotah Nation” in the 1851 Treaty included only those divisions of the Sioux located south and west of the Missouri Biver. Both Teton and Yankton Sioux chiefs took part in negotiating and executing the 1851 Treaty. The homelands of the Teton Sioux are in this area west of the Missouri Biver. Moreover, the Commission found that the Yanktons “occupied, to some extent, lands south or west of the Missouri River” (24 Ind. Cl. Comm. at 164), and there is substantial evidence in the record to support this finding.¹⁰

In drafting the 1851 Treaty, the United States sought to deal with the Indians in each area who were in sufficient strength to pose a problem to intertribal peace and the safety of travelers crossing the land. It is not necessary to examine that presence to determine whether each of the parties held exclusive use and occupancy for a long period of time, as the Government contends. Article 5 of the Treaty was intended to recognize title to the land in the tribes actually using it without regard to whether or not they then had aboriginal title thereto. Recognized title is based on a grant from Congress, and, as a rule, is not dependent upon the existence of aboriginal title in the recipients.

However, our rejection of the need to establish aboriginal title does not preclude any inquiry into the extent to which the Tetons and the Yanktons used the land. Since Congress intended to recognize title in those Indians actually occupying or using the land, it is desirable, if possible, to determine the percentage of the total population of each of the claimants who used and occupied it.

In refusing to determine the treaty rights between the Yankton and the Teton Sioux on the basis of which party may have held aboriginal Indian title, we are in accord with our prior decisions involving the Fort Laramie Treaty. While the court spoke of “title by right of occupancy” in Indians of the Fort Berthold Reservation v. United States, 71 Ct. Cl. 308, 332 (1930), and this opinion was quoted in Crow Tribe of Indians v. United States, 151 Ct. Cl. 281, 292-93, 284 F. 2d 361, 368 (1960), cert. denied, 366 U.S. 924 (1961), the court was not establishing aboriginal Indian title, as that term is now defined, as the basis for evaluating which interests were recognized by the 1851 Treaty. Moreover, in dealing with the Assiniboine portion of the Fort Laramie land, the court found it unnecessary to determine the aboriginal Indian title to the land because “the lands were expressly granted to plaintiff tribe by the treaty * * Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347, 370-71 (1933), cert. denied, 292 U.S. 606 (1934) (emphasis added). The Fort Laramie Treaty was clearly a treaty of recognition, Crow Tribe of Indians v. United States, 151 Ct. Cl. at 285-97, 284 F. 2d at 363-71. We think that the best method for determining the respective interests of the Tetons and the Yanktons in the Fort Laramie land is by assigning the interests on the basis of the number of Tetons and Yanktons who actually used and occupied the land.

The formula for assigning the interests on a total population basis used in Blackfeet & Gros Venetres Tribe of Indians v. United States, 18 Ind. Cl. Comm. 289, 321 (1967), may not be appropriate in this instance. The Blaclcfeet formula is based on the principle that, where title to a particular area is recognized in more than one tribe, each member of the tribe receives an equal right to use the land; consequently, each tribe takes an interest in the land proportionate to its total population. See 27 Ind. Cl. Comm. at 54. This method results in an approximation of the relative use and occupancy of the territory in question. It is especially convenient where there is difficulty in proving actual use of the land. In this instance, however, comparing the total population of the two divisions of the Sioux treats the Yanktons as if they all were using the Fort Laramie land, when, in fact, only a portion of the Yankton Sioux may have actually used this territory.

In a concurring opinion in a motion for rehearing before the Commission, Commissioner Yarborough stated that;

This Treaty was not a grant of new lands, but a recognition by the United States of a pre-existing use and occupancy by the tribes. Whatever the element of granting in it (as opposed to acknowledgment), it was to tribes as their occupancy interests would appear, not per capita or by a named fraction to each tribe. The relative use and occupancy of the area by each tribe depends on their subsistence patterns, [footnote omitted] which here depends on their numbers using the land in question. For this equation to 'be accurate, all the land used by all the Indians in question must be used in the calculation, as the Docket 74 plaintiffs suggest. The language of the Blackfeet case, supra, is correct in showing the dependence of population figure calculations on the underlying facts of use and occupancy * * *. 27 Ind. Cl. Comm. at 56-57.¹¹

We agree that the Sioux parties should take a proportionate interest in the Fort Laramie land according to their respective occupancy interests. The comparison of the total population of the two parties (wherever situated) at the time of the 1851 Treaty does not take into account the members of each division actually using the land. In a case decided subsequent to the decisions under review, the Commission found that evidence of actual use and occupancy could be considered in dividing recognized title areas, James Strong v. United States, 30 Ind. Cl. Comm. 337, 345 et seq. (1973), and in another case, the Commission stated that evidence as to the use of the recognized title area by the respective tribes may be weighed as an alternative to comparing the total population figures. Kiowa, Comanche & Apache Tribes of Indians v. United States, 26 Ind. Cl. Comm. 101, 120 (1971), rev'd on other grounds, 202 Ct. Cl. 29, 479 F. 2d 1369 (1973), cert. denied, 416 U.S. 936 (1974). Because the ultimate question in this case on apportionment of the interests is the degree to which the two divisions of the Sioux used and occupied the Fort Laramie land, all relevant material should be taken into consideration. Only if there is insufficient evidence to determine the population of the two divisions actually using the Fort Laramie land, should the Commission resort to a comparison of the total population of the two parties.

The Docket 74 Sioux argue, however, that, in no case, should the Commission’s previous determination on the basis of total population be allowed to stand because it is based on unreliable evidence. The Docket 74 Sioux primarily contend here that the Commission erroneously based the calculation on the number of lodges without sufficient evidence of the number of Indians per lodge and that the Commission should have based its allocation on the so-called “headcount” in 1862 of the Sioux in the Missouri area. In making its decision, the Commission evaluated several population estimates, rejecting some and relying on others. The 'Commission explained that it based its determination of the respective populations on three estimates “chosen because they were all made by government officials as part of their official duties, included all the known Sioux rather than merely those present for a head count, and were made close enough in time to the effective date of the treaty to make them reliable.” 24 Ind. Cl. Comm. at 159. In determining the relative populations of the two divisions, it is reasonable to rely on the respective number of lodges. Although Harney estimated all lodges to contain three Indians while Warren and Vaughn estimated all lodges to contain eight Indians, this fact will not disturb the percentage figures for evaluating the comparative population for each evaluator.¹² As long as the Yankton lodges and the Teton lodges, on the average, are estimated to contain the same number of Indians the relative population of the two parties will not be disturbed. We recognize that the discrepancy in the estimates of the number of Indians per lodge indicates that these reports may be in error in the number of lodges, but the Docket 74 Sioux do not have a more reliable means for determining comparative population.

The Docket 74 Sioux have not shown that the 1862 population figures provide a more accurate estimate of the comparative populations at the time of the treaty. The Commission rejected the population estimates published in the 1862 Annual Report of the Commissioner on Indian Affairs because they give a “distorted picture of the total Sioux population.” 24 Ind. Cl. Comm. at 159.¹³ The Commission also noted that the 1862 estimates were made a full 9 years after the effective date of the treaty. We recognize the difficulty in estimating the populations of the various Sioux divisions. Cf. Sioux Tribe of Indians v. United States, 84 Ct. Cl. 16, 29-30 (1936), cert. denied, 302 U.S. 740 (1937). While the Docket 74 Sioux have discovered a discrepancy in the estimates used by the Commission, the Docket 74 Sioux have not shown the Commission’s figures are unsupported by substantial evidence or that the method for determining the comparative population is more unreliable than the method they have suggested.¹⁴

We remand this portion of the case to the Indian Claims Commission to determine whether there is sufficient evidence of actual use to apportion the land on the basis of the comparative population of the Teton and Yankton divisions of the Sioux actually using the Fort Laramie land. If there is sufficient evidence, the apportionment should be made on that basis. On the other hand, if the parties are unable, after being given a reasonable opportunity to do so, to produce sufficient evidence to enable the Commission to apportion the interests in the land on that basis, the apportionment previously made by the Commission in its order of December 2, 1970, will be acceptable.

Appeal From 22 Ind. Cl. Comm. 344

In its cross-appeal, the Yankton Sioux Tribe seeks reversal of this order of the Commission which held that the United States did not recognize title in the Yankton Sioux Tribe to Noyce Area 410 by ratifying the Treaty of April 19,1858, 11 Stat. 743, which ceded Noyce Area 410 to the United States.

The principal argument advanced by the Yankton Sioux is that Congress, by ratifying the Treaty of 1858, intended to ratify the warranty of title contained in the treaty and thereby recognized title in the Yankton Tribe. Article II of the treaty, which contained the warranty relied upon, is as follows:

AimcLE rt. The land so ceded and relinquished by the said chiefs and delegates of the said tribe of Yanctons is and shall be known and described as follows * * *. [Noyce Area 410]

And the said chiefs and delegates hereby stipulate and agree that all the lands embraced in said limite are their own, and that they have full and exclusive right to cede and relinquish the same to the United States. (11 Stat. 744)

We reject this argument, as did the Indian Claims Commission. In its decision, the Commission summarized evidence which shows that at the time of the ratification, Congress knew that the title of the Yankton to the ceded land was disputed by other tribes. In those circumstances, the Commission held that it was unlikely that the Senate would recognize title through the device of ratifying a warranty of title. We agree.

Our interpretation of the language of the treaty without resort to extraneous evidence leads to the same conclusion. The Treaty of 1858 was, as we have said, a cession treaty which conveyed Noyce Area 410 to the Government but retained an area containing 400,000 acres (Noyce 411) as a reservation for the Yanktons. Broad assertions of title or other claims made by the Indians in treaties of cession do not establish recognized title to the ceded lands. Sac and Fox Tribe of Indians v. United States, 161 Ct. Cl. 189, 197, 315 F. 2d 896, 900, cert. denied, 375 U.S. 921 (1963).

The Yankton Sioux also contend that our decision in Yankton Sioux v. United States, 97 Ct. Cl. 56 (1942) held that the warranty quoted above recognized the title of the tribe to the ceded land. We have examined that decision carefully, and we find nothing which can be characterized as a holding that the treaty recognized Yankton title to the land. The issue before the court in that case was whether the Yankton Tribe had ceded all of its lands under the Treaty of 1858, except for the Noyce 411 Neservation. Although the court emphasized the extent to which the Yankton Tribe had given assurance of title, there was no occasion for the court to consider the question of recognized title and it made no decision on that question.

In order to establish recognized title to lands in an Indian tribe, it is essential to show that there was a congressional intent in the treaty of recognition to accord the Indians permanent occupancy in the subject lands. The Yankton Tribe has failed to show such an intent in this instance. It is true that Article III guaranteed the Yankton quiet and undisturbed possession of their settlement until they removed to their reservation, but the treaty expressly provided that the removal was to take place within one year. As the Commission correctly pointed out, this provision emphasized the temporary nature of the Yanktons’ rights in the land. A definite congressional intention to accord legal rights and “not merely permissive occupation” is the requisite legal standard for recognized title. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278-279 (1955) ; Sac and Fox Tribe of Indians v. United States, supra; Miami Tribe v. United States, 146 Ct. Cl. 421, 439-445, 175 F. Supp. 926, 936-40 (1959).

In summary, we conclude that the argument of the Yankton Sioux fails to recognize the distinction that has been developed over the years between treaties of cession and treaties of recognition. The cross-appeal of the Yankton Sioux is therefore denied, and the Commission’s decision on this issue is affirmed.

Appeal From 23 Ind. Cl. Comm. 419

In this decision the Commission determined that the Teton and Yanktonais¹⁵ had aboriginal title to approximately 14 million acres of land east of the Missouri Eiver. The land was ceded to the United States by the Treaty of April 29, 1868, 15 Stat. 635. The Docket 74 Sioux have appealed on the ground that the Commission erroneously excluded 281,000 acres of land from their title claim. The acreage lies between the north or main branch of East Medicine Knoll Creek and its south branch. The land is part of a triangular tract of 900,000 acres of land located on the edge of territory traditionally used by the Yankton Sioux Tribe to the south and east, the Yanktonais Sioux to the north and east and the Teton Sioux to the west. The Commission fixed the southwestern boundary of the lands claimed by the Teton and Yanktonais on a line congruent to the north branch of East Medicine Knoll Creek.

It would be helpful to an understanding of this portion of the appeal to review the history of the claim to this area. In 22 Ind. Cl. Comm. 344, the Commission determined that the boundary of Royce Area 410 followed the northern branch of East Medicine Knoll Creek. That order of the Commission allowed the Docket 74 Sioux to intervene in the Yankton Sioux’s claim (Docket 332-C) of aboriginal title to Royce Area 410 and to claim aboriginal title to the same land. The two dockets were then consolidated for the limited purpose of determining which of the competing parties had aboriginal title to Royce 410.

In its decision of December 14, 1970, 24 Ind. Cl. Comm. 208, the Commission held that, while the Yankton Sioux had aboriginal title to most of Royce 410, about 800,000 acres of land in the northwestern portion (including the Medicine Knoll area) and other acreage in the northeastern portion of Royce Area 410 should be excluded due to the failure of the Yankton Sioux to prove exclusive use and occupancy. We deal with that decision in the next section of this opinion. Motions for rehearing in which the Docket 74 Sioux requested the Commission to restore the 281,000 acres of land to the description of the aboriginal land ceded in 1868 were denied by the Commission on January 6, 1971 (24 Ind. Cl. Comm. 364) and March 8, 1972 (27 Ind. Cl. Comm. 79).

In the motion for rehearing (denied in 24 Ind. Cl. Comm. 364), the Docket 74 Sioux offered evidence which they hoped would convince the Commission to change the boundary line of Royce Area 410 and thereby automatically restore the 281,000 acres to their claim of aboriginal title to the land ceded by the Treaty of 1868. This evidence was in the form of an alleged “true 1858 Mix Map.” The Docket 74 Sioux presented no new evidence as to use and occupancy of the Medicine Knoll area nor did they point to any evidence previously submitted on the issue. The Yankton Sioux, on the other hand, claimed that the Commission had correctly fixed the boundary line and that the Mix Map supported this view. The Commission found it unnecessary to resolve this dispute, and denied the motion on the ground that the Docket 74 Sioux had simply failed to prove that their ancestors had exclusive use and occupancy of the disputed territory.

The second motion for rehearing was denied as being contrary to the rules of the Commission which require leave of the Commission to move again after a previous rehearing has been denied. The Commission found the motion to be the same as the motion denied on January 6,1971.

In their efforts to avoid their failure of proof, the Docket 74 Sioux rest on the broad assertion that the excluded land was surrounded on all sides by territory which the Commission found belonged to the Teton and Yanktonais Sioux or to the Yankton Tribe. Thus, they contend that the Commission provided no findings or other reason for leaving a “no man’s land” or “hole” in the center of Sioux country. They rely on Lower Sioux Indian Community v. United States, 163 Ct. Cl. 329, 336, 338 (1963) for the proposition that it would be arbitrary for the Commission to exclude a buffer zone from the award. However, our holding in the Lower Sioux case concerned recognized title, not aboriginal title which is established only by proof of exclusive use and occupancy for a long period of time. 'It is not unusual in Indian litigation to find that there are lands lying between the territory of two competing tribes, because the proof shows that such land was not exclusively used or occupied by either. In its brief, the Government has called our attention to several cases where that occurred, Sac and Fox Tribe of Indians v. United States, 179 Ct. Cl. 8, 383 F. 2d 991, cert. denied, 389 U.S. 900 (1967) ; Iowa Tribe of the Iowa Reservation v. United States, 22 Ind. Cl. Comm. 232 (1969), aff’d, 195 Ct. Cl. 365 (1971), cert. denied, 404 U.S. 1017 (1972), and Muckleshoot Tribe of Indians v. United States, 3 Ind. Cl. Comm. 658, 677 (1955), aff’d, 174 Ct. Cl. 1283, cert. denied, 385 U.S. 847 (1966).

The Docket 74 Sioux maintain that the Commission’s decision should bo reversed, because the Commission failed to make any findings supporting the omission of the 281,000 acres. In this respect, the Docket 74 Sioux endeavor to shift the burden of proof from themselves to the Commission. The Commission did find, upon the basis of all the evidence offered, that the Docket 74 Sioux had failed to establish exclusive use and occupancy of the land, and we hold that this finding of failure of proof is sustained by substantial evidence. Cf. Six Nations v. United States, 173 Ct. Cl. 899, 911 (1965).

In its cross-appeal, the United States contends that the Commission erred, because it found that the Teton and Yanktonais Sioux had aboriginal title to the land east of the Missouri without making any showing as to what part of the land was exclusively used by each. However, the cases cited by the Government involve competing groups which claimed the same territory. For example, in Iowa Tribe of the Iowa Reservation v. United States, 195 Ct. Cl. 365 (1971), cert. denied, 404 U.S. 1017 (1972), the Iowa plaintiffs and the Sac and Fox plaintiffs asserted competing separate interests in the same land. Neither showed exclusive use and occupancy. However, the Teton and Yanktonais are not antagonists competing for the same territory. The award here is to the Docket 74 Sioux who are the legitimate representatives of the Teton and Yanktonais on whose behalf this action is asserted. All the Docket 74 Sioux, except the Sioux of the Santee Reservation, are comprised at least in part of Yank-tonais and Teton decendants or both. The Government has no right to complain because the descendants chose to assert the joint interest of their ancestors rather than compete for separate interests.

The Government’s attempt to bifurcate the action is in effect an attempt to relitigate the question of the Indian Claims Commission’s jurisdiction to hear and determine claims. This court stated in Clyde F. Thompson (Indians of California) v. United States, 122 Ct. Cl. 348, 357, cert. denied, 344 U.S. 856 (1952):

Congress clearly intended in circumstances such as we have here, to confer upon the Indian Claims Commission jurisdiction to hear and determine claims that might be presented to it by groups of Indians, * * * even though the ancestors of such group existed as separate bands or villages at the time the claim arose.¹⁶

For the reasons stated, the orders of the Commission involved in this portion of the appeal are hereby affirmed.

Appeal From 24. Ind. Cl. Comm. 208

In this order, the Indian Claims Commission determined that the Yankton Sioux Tribe had aboriginal title to the major portion of Noyce Area 410 when the tribe ceded that land to the United States by the Treaty of April 19, 1858 (11 Stat. 743). The Yankton Sioux Tribe, the Docket 74 Sioux, and the United States each seek review of the order but on different grounds.

The Commission excluded land in the northwestern corner of Noyce Area 410 on the ground that the evidence did not show any Yankton occupancy of the land above the big bend of the Missouri Niver prior to 1853, a date too late for Yank-ton title to ripen before the cession of 1858'. The Commission relied on documentary evidence in support of its finding, whereas the evidence to the contrary consisted primarily of information gathered by expert witnesses for the Yankton Sioux Tribe. The testimony of these experts was based on tribal traditions. The Commission correctly found that, at the most, this evidence showed that at some unascertained time, the Yankton Sioux Tribe may have used the excluded area.

The Commission also excluded a tract of land lying in the northeastern corner of Noyce Area 410. The Commission found that this area ivas used and occupied by the Five Lodge Band of the Sisseton Sioux, who derived their sustenance mainly by hunting between Two Woods Lake and the James Niver.¹⁷ In addition to contemporary documentary evidence referred to in the Commission’s findings, the occupancy of the Five Lodge Band was supported by the testimony of defendant’s expert witness, Mr. Alan N. Woolworth, an archeologist and the Museum Curator for the Minnesota Historical Society. The Commission therefore determined that the Yankton Sioux had failed to establish exclusive use and occupancy of this disputed area.

■ Tlio Government claims that a large portion of the western side of Eoyce Area 410 was used by other tribes for a long period of time before the 1858 cession and that a large tract of about 2 million acres in the northern part of Eoyce Area 410 was not used or occupied exclusively by the Yanktons. The Government also contends that there was a nonexclusive area of about iy2 million acres lying between the lands of the Yankton Sioux Tribe and the Minnesota Sioux Tribe dwelling along the eastern part of Eoyce Area 410 and that an area of about 1 million acres in the southern part of Eoyce Area 410 should be eliminated since it was used and occupied solely by the Santee Indians. The United States relies, to a large extent, on the testimony of its expert witness, Mr. Wool worth. It was his opinion that the Yankton Sioux Tribe exclusively used and occupied only the south and central portions of Eoyce Area 410. However, the Commission found that there was documentary evidence which conflicts with his opinion. In its findings, the Commission summarized this documentary evidence, which showed that the Tetons had abandoned all use of Eoyce Area 410 by 1825; that the Yanktonais never made any permanent use of any part of Eoyce Area 410 and that, except for a permanent village occupied by the Sisseton Sioux in the excluded northeastern corner of Eoyce Area 410, the evidence did not sustain the defendant’s contentions. With respect to the Government’s claim that the southeast corner of Eoyce Area 410 was used by the Santee Sioux, the Commission found that this band was an integral part of the Yankton Sioux Tribe.

The determination as to what portions of Eoyce Area 410 was owned aboriginally by the Yanktons involved questions of fact. In addition to the testimony of expert witnesses, there was offered in evidence a substantial quantity of documentary evidence consisting of reports, journals, and letters written by explorers, traders, travelers, Indian agents, and military officers. In some instances the documentary evidence was in conflict with the testimony of the expert witnesses. Thus, it was a typical situation in which the Commission, as the trier of the facts, was the judge of the credibility of the witnesses and of the weight to be accorded the conflicting evidence. After a review of the record in the light of the contentions of the Yankton Sionx Tribe and the Government, we cannot say that the findings and conclusions of the Commission are without substantial support in the evidence.

In order to understand the basis for the appeal of the Docket 74 Sioux from the order (24 Ind. Cl. Comm. 208), it is necessary to review events which preceded this order. As previously stated in this opinion, the Commission on August 27,1965, decided that the Treaty of Fort Laramie recognized title in the land covered by Article 5 thereof in the “Sioux or Dahcotah Nation.” On January 17,1967, the Commission ordered Dockets 74 and 332-C consolidated for the sole purpose of determining the respective interests of the three tribes in the Fort Laramie land. The Yanktons then argued that they had a, compensable interest in the land, whereas the Docket 74 Sioux contended that the Fort Laramie land would have to be considered in context with all land held by the Missouri Sioux Tribe in 1851 and that, since Boyce Area 410 amounted to no more than the Yank-tons’ proportionate part of the Sioux land, the Yanktons should not share in the Fort Laramie land. On December 2, 1970, the Commission determined that the Yanktons had a 17 percent interest and the Tetons an 83 percent interest in the Fort Laramie lands — all as described in this opinion, supra. However, by order of December 17,1969, the Commission permitted the Docket 74 Sioux to intervene in Docket 332-C for the purpose of claiming aboriginal title to Boyce Area 410. The Commission then decided in 24 Ind. Cl. Comm. 208 that the Docket 74 Sioux had no interest in Boyce Area 410.

■In the proceedings before the Commission, the Docket 74 Sioux presented no evidence showing that they had exclusive use and occupancy of any part of Boyce Area 410. Instead, their contention made to the Commission and now to the court, is that the Yanktons, the Yanktonais, and the Teton Sioux were all part of a larger land-owning entity designated as the “Missouri Sioux” or the “Sioux Nation” and, therefore, that the Yanktonais and the Teton Tribes held an undivided interest in the land of the Yankton Sioux Tribe. In other words, the Docket 74 Sioux argue that the land-owning patterns of the “Sioux Nation” must be identical on both sides of the Missouri Eiver, and that if the land-owning entity in the Fort Laramie lands is the Sioux Nation, it necessarily follows that the land-owning entity in Eoyce Area 410 is also the Sioux Nation, i.e., the Teton, Yanktonais, and Yankton Sioux.¹⁸

We agree with the Commission that this contention of the Docket 74 Sioux is fallacious, because it fails to recognize the legal distinctions between aboriginal title and recognized title. In reaching its decision as to which of the three tribes had recognized title to the Fort Laramie land, the task of the Commission was to determine the intent of Congress without regard to a showing of exclusive use and occupancy by any tribe for a long period of time. In contrast, the Commission decided that the Treaty of April 19,1858 was not a treaty of recognition and that the claims of the Yankton Sioux Tribe and the Docket 74 Sioux to this area would have to be established by proof of aboriginal Indian title. 22 Ind. Cl. Comm. 344. Since the Docket 74 'Sioux have introduced no evidence showing that their ancestors had aboriginal title to Eoyce Area 410, it follows that their appeal must be denied.

In view of the foregoing discussion, we hold that the cross-appeal of the Yankton Tribe of Sioux, the cross-appeal of the United States, and the appeal of the Docket 74 Sioux from the order entered in 24 Ind. Cl. Comm. 208 are denied and that the Commission’s order is in all respects affirmed.

The Government's Statute of Limitations Defense to 23 Ind. Cl. Comm. 419 and 24 Ind. Cl. Comm. 147

As previously stated in this opinion, the Commission in the first of the two orders cited above (decided August 26,1970) held that the Teton and the Yanktonais Sioux, by reason of exclusive use and occupancy for a long time prior to 1869, had aboriginal title to a tract of land lying east of the Missouri Eiver and between the James and Missouri Eivers. The decision resulted from a trial upon the Indians’ amended petition in Docket 74-A which asserted claims for land ceded to the United States in the Treaty of April 29, 1868, ratified February 16, 1869 (15 Stat. 635). The claims were made on the grounds provided for in Clauses 3,4 and 5 of Section 2 of the Indian Claims Commission Act. The Commission denied the Government’s plea that the claims in the amended petition were barred by the statute of limitations (25 U.S.C. § 70k (1970)).

On August 12, 1965, the Commission decided that the Treaty of Fort Laramie of September 17,1851 (11 Stat. 749, 2 Kapp. 594) recognized the title of the “Sioux or Dahcotah Nation” to a described territory of land lying west of the Missouri River (15 Ind. Cl. Comm. 577). The Commission’s subsequent decision of December 2,1970 (24 Ind. Cl. Comm. 147), held that the Teton and Yankton divisions of the Sioux owned an undivided 83 and 17 percent interest respectively in the Sioux portion of the Fort Laramie land. The Government has attacked these decisions on the ground that any claim of the Sioux based on the Fort Laramie Treaty was also barred by the statute of limitations.

The Government’s statute of limitations defense to all of these orders of the Commission was finally denied in the Commission’s Order of June 23, 1972 (28 Ind. Cl. Comm. 204).

In its cross-appeal here, the Government again urges that the claims of the Docket 74 Sioux, based on the Treaty of 1868, to any land east of the Missouri River and any claim for the value of land included in the 1851 Treaty of Fort Laramie are barred by the statute of limitations, as well as by the failure of the Docket 74 Sioux to include such claims in their appeal to this court in 1954.

A decision on the questions raised by the Government’s cross-appeal requires a somewhat detailed discussion of proceedings in the Commission and in this court beginning with the original petition filed in the Commission in Docket 74 on August 15,1950. In that petition, the Docket 74 Sioux pleaded that:

(a) the Sioux Indians aboriginally occupied a large area of land in the States of Minnesota, Iowa, South Dakota, North Dakota, Nebraska, Wyoming, and Montana;

(b) the United States recognized the title of the Teton Sioux to the territory defined in the Treaty of Fort Laramie;

(c) the United States and the Sioux agreed to the Treaty of April 29,1868, 15 Stat. 685. The provisions of that treaty were set forth in haee verba, including the allegation that the Sioux had therein relinquished their claims to all land in the United States except for certain reserved areas;

(d) the United States acquired a portion of the Sioux lands by the Act of February 28,1871,19 Stat. 254. The provisions of that Act were pleaded in haec verba in the original petition;

(e) during the years 1873 to 1876, the defendant misappropriated more than seven million acres of land belonging to plaintiffs; the Government violated many provisions of the Treaty of April 29,1868, and some of the chiefs and less than ten of the adult male Sioux were coerced into ratifying the agreement of September 20,1876, in violation of the provisions of the Treaty of 1868; and

(f) in spite of the fact that the Sioux agreement of September 20,1876, was not signed by three-fourths of the adult male Indians as required by the Treaty of 1868, Congress made the agreement a part of the Act of February 28,1877, 19 Stat. 254. That Act reduced the boundaries of the Sioux reservation as established by the Treaty of 1868 and provided that the Indians thereby ceded and relinquished to the United States all other territory lying outside the reduced reservation, including the hunting rights reserved in the Treaty of 1868.

In their prayer for relief, the plaintiffs sought recovery for the value of three tracts of land, including: (1) 7,345,157 acres of land, referred to as the Black Hills land and being part of the Sioux permanent reservation; (2) more than 25 million acres of land lying west of the Missouri Biver and included in the outer boundaries of the area covered by the Treaty of Fort Laramie of September 17,1851; and (3) some 40 million acres of land lying west and north of the boundary lines of the Fort Laramie Treaty of September 17,1851.

After a trial, which the Docket 74 Sioux say was completed in 2 hours and 20 minutes, the Commission dismissed the petition on April 5, 1954 (2 Ind. Cl. Comm. 646).¹⁰

An appeal was taken to the Court of Claims, and in its decision of November 7,1956, which was limited to the Black TTills claim, the court unanimously affirmed the decision of the Commission. The decision was never reported in the official reports of the court but was reported in 146 F. Supp. 229.

On July 12, 1957, the attorney who had represented the Sioux died, and on October 4,1957, the substituted attorney of record for the Indians filed with the court a motion to vacate the judgment of affirmance and to remand the case to the Commission “for a full and complete hearing and disposition on the merits of the claims set forth in the petition.” In the motion, it was alleged that because of grossly incompetent legal representation, the tribal claims of the Sioux had been determined on the basis of a distorted and empty record; that the former attorney had agreed with the Government not to press two of the claims; that he made concessions which were contrary to fact; that he failed to conduct significant research; and that the Commission itself erred, as a matter of law, in failing to conduct an independent investigation into the facts of the case. In the supporting statement attached to the motion, the following was stated:

Critical to this case are two major questions: first, what was the value of the property surrendered to the United States under the 1868 treaty and the Sioux agreement; and, second, what was the value of the consideration received by the Indians for their property? We agree the property should be valued as of the dates of acquisition.

The motion was opposed by the Government, but on November 5, 1958, the court entered an order reading in pertinent part as follows:

IT IS ORDERED this fifth day of November 1958, that said motions for new trial and to vacate the judgment are granted to the extent that this case is remanded to the Indian Claims Commission pursuant to section 20(b) of the Indian Claims Commission Act, 60 Stat. 1054, for a determination by said Commission as to (1) whether the claimant Indian tribes are entitled on the basis of the statements made in support of the above motions to have the proof in this case reopened, and (2) if so, to receive the additional proof sought to be offered and on the basis thereof, together with the record already made, reconsider its prior decision in this matter.²⁰

Prom the foregoing two things are clear: first, the appellant Sioux gave notice that they intended, if the case should be remanded, to pursue their claims for the value of lands ceded or relinquished to the United States by the Treaty of 1868, and, second, that in its order of remand, the court authorized the Indian Claims Commission to reopen the entire case and receive the additional proof which the Sioux indicated would be offered on remand.

On November 19, 1958, the Commission ordered that the proof in the case be reopened for the purpose of receiving additional evidence, and on November 4, 1960, the Commission granted the motion of the Sioux to amend the original petition in Docket No. T4 by substituting two separate petitions to be designated as Dockets 74-A and 74-B. The amended petition in Docket 74-A was based upon the 1868 Treaty and, among other things, alleged that (a) in the Treaty of Fort Laramie, the United States recognized Sioux ownership to the territory described in Article 5 of that treaty; (b) notwithstanding the Fort Laramie Treaty, the United States permitted miners and other non-Indians to trespass upon the Sioux lands, thereby causing disputes which resulted in the Powder Biver War; (c) in the Treaty of April 29, 1868, 15 Stat. 635, the Sioux agreed in Article XI thereof to relinquish all their rights to occupy permanently the territory outside the reservation defined in that treaty but reserved the right to hunt on other lands; (d) the total value of the expenditures which the Government agreed to make under the Treaty of 1868 was less than the value to the Government of the obligations assumed by the Indians, without regard to the value of the land ceded. The prayer for relief was for the value of the territory and rights ceded to the United States under Article XI of the Treaty of April 29,1868.²¹

The amended petition in Docket 74-B covered the Black Hills claim, encompassing approximately seven million acres allegedly taken by the Act of February 28,1877,19 Stat. 254.

On January 19, 1961, the United States filed a petition for mandamus in Appeals Docket No. 4-55, claiming that the Commission’s Order of November 4, 1960, which permitted the Docket 74 Sioux to file the amended petitions, violated the court’s order of remand of November 5,1958. At the time it acted upon the Government’s petition for a writ of mandamus, the court had before it the Commission’s order reopening proof and the order authorizing the filing of the amended petitions, together with copies of the amended petitions. Among other things, the Government’s petition for the writ of mandamus stated that the amended petition in Docket 74-A alleged a claim for aboriginal occupancy of land relinquished under Article XI of the 1868 Treaty and that this claim was barred by the statute of limitations, 25 U.S.C. § 70k. The court denied the Government’s petition for writ of mandamus by order dated February 6, 1961.

In Snoqualmie Tribe of Indians v. United States, 178 Ct. Cl. 570, 372 F. 2d 951 (1967), this coui’t considered the question óf when a claim is presented within the 5-year period specified in 25 U.S.C. §70k in connection with Rule 13(c) of the Indian Claims Commission. In that case the court stated:

Thus notice is the test, and it is built-into the rule’s requirement that the amended pleading arise out of the same “conduct, transaction, or ■ occurrence.” * * * In other words, the inquiry in a determination of whether a claim should relate back will focus on the notice given by the general fact situation set forth in the original pleading. 178 Ct. Cl. at 587, 372 F. 2d at 960.

The decision in that case was handed down some 6 years after the court’s denial of the Government’s petition for a writ of mandamus. Although the facts in the Snoqualmie case are admittedly different from those before us, it is clear that the original petition which the Docket 74 Sioux filed alleged that Article 5 of the Fort Laramie Treaty of September 17, 1851, recognized the right and title of the Teton or Western Sioux to a large area of land, including the Black Hills. The original petition also shows that the Indians sought recovery for lands designated as Class B lands, which were included in the outer boundaries of the Treaty of Fort Laramie. The original petition in Docket 74 also set out in haec verba the essential provisions of the Treaty of 1868, including Article XI thereof, which pi’ovided for relinquishment by the Indians of all rights to occupy previously unceded territory outside of their reservation except for certain reserved hunting rights. The territory relinquished by the Treaty of 1868 included land both east and west of the Missouri River and specifically the land that was covered by the Commission’s decision of August 26, 1970, 23 Ind. Cl. Comm. 419. The original petition also alleged how the Treaty of 1868 was violated by the United States- in many ways.

We acknowledge that the question as to whether the claims included in the amended petition in Docket 74 — A relate back to the claims covered by the original petition,, within the rationale of the Snoqualmie case, is a difficult one. If we had been members of the court which issued the order of November 5, 1958, and denied the petition for mandamus in 1961, it is possible that we might have reached a different result. However, we resolve the doubt in favor of the Docket 74 Sioux on the ground that in the more than 10 years that have since elapsed, both the Docket 74 Sioux and the Commission have relied on these orders of the court, and a great deal of time, work, and money have been expended on that reliance. Under the circumstances, we think it would be unconscionable for us to set aside the 1958 and 1961 orders of the court in a situation where there is a doubt as to how the question of law should be decided. The adoption of the Government’s position would, of course, require us to repudiate those orders. For these reasons, the Government’s cross-appeal on this issue is hereby denied.

The Government's Cross-Appeal From 27 Ind. Cl. Comm. 79

This cross-appeal involves an order which allowed the Docket 74 Sioux to file an amended petition on March 6,1972. The amended petition is a result of the appellant’s dissatisfaction with the Commission’s holding (24 Ind. Cl. Comm. 147) that the Teton Sioux had an 83 percent recognized title interest in the Fort Laramie Treaty lands and that the Yankton Sioux held the remaining 17 percent title interest in the lands. The amended petition is based on the claim that the Docket 74 Sioux had aboriginal title to all of the land covered by the Treaty of Fort Laramie and that when the United States recognized title in that treaty in the "Sioux or Dahcotah Nation,” as interpreted by the 'Commission, the United States thereby took 17 percent of the land to which plaintiffs’ ancestors had aboriginal title. In the challenged Order of March 8, 1972, the Commission permitted the Docket 74 Sioux to file the amended petition over the objections of the United States that the claim was barred by the statute of limitations and that if the Indians were allowed to recover thereon, it would subject the Government to double liability. We agree that the amended petition is clearly barred by the statute of limitations, 25 U.S.C. § 70k (1970).

In many decisions dealing with the Treaty of Fort Laramie, it has been held that the Treaty of Fort Laramie was not a treaty which took any land from the Indians but instead was a treaty which recognized the title of certain signatory tribes on the basis of the territory which they used and occupied. Crow Tribe of Indians v. United States, 151 Ct. Cl. 281, 285-97, 284 F. 2d 361, 364-71 (1960), cert. denied, 366 U.S. 924 (1961) ; Indians of the Fort Berthold Indian Reservation v. United States, 71 Ct. Cl. 308 (1930).

More to the point, the Treaty of Fort Laramie has since the very beginning of this litigation in 1950 and continuing down to 1972 been acknowledged by the Commission and by all the parties to the litigation as a treaty of recognition. It was so alleged in the petition filed in Docket 74 on August 15, 1950, and in each of the amended petitions filed November 4, I960. Prior to 1972, the Docket 74 Sioux had never given any notice nor had they even intimated that they were asserting a claim on any ground other than that the 1851 Treaty was a treaty of recognition. This complete reversal of position by the Docket 74 Sioux and their attempt to recover on a theory which is wholly inconsistent with that upon which they have proceeded throughout the litigation is more than 20 years too late. Under the most liberal application of our decision in the Snogualmie case, the claim is barred by the statute of limitations. The fact that the Yankton Sioux may recover the value of a part of the land covered by Article 5 of the Treaty of Fort Laramie is not the fault of the Government ; it is the result of the Commission’s interpretation of the treaty. The Commission’s interpretation is not the kind of transaction or occurrence that generates a cause of action that can be said to relate back to the claims alleged in the original petition. Reynolds Metals Co. v. United States, 194 Ct. Cl. 309, 316, 438 F. 2d 983, 987, cert. denied, 404 U.S. 825 (1971). Accordingly, the orders of the Commission to the contrary are hereby reversed and, on remand, the Commission is directed to dismiss the amended petition.

Affirmed in fart, reversed in fart, and remanded

1 Article 5 of tie Fort Laramie Treaty reads in pertinent part:

“The aforesaid Indian nations do hereby recognize and acknowledge the following tracts of country, included within the metes and boundaries hereinafter designated, as their respective territories, viz :

“The territory of the Sioux or Dahcotah Nation, commencing the mouth of the White Barth River, on the Missouri River; thence in a southwesterly direction to the forks of the Platte River; thence up the north fork of the Platte River to a point known as the Red Bute, or where the road leaves the river; thence along the range of mountains known as the Black Hills, to the head-waters of Heart River; thence down Heart River to its mouth; and thence down the Missouri River to the place of beginning. * » *” 2 Kapp. 594.

2 For a complete account of the Senate proceedings and the tribal consent to the amendment, see i Kapp. 1065-81.

3 When the Indian Claims Commission decided 15 Ind. Cl. Comm. 577 (on August 27, 1965), the plaintiffs in Docket No. 74 and the plaintiffs in Docket No. 332-C (then designated as Docket No. 332-A) both claimed an interest in the land covered by the Fort Laramie Treaty. On January 17, 1967, the Commission ordered that the two dockets be consolidated to determine the Sioux parties to the Fort Laramie Treaty and their respective Interests In the land.

4 After the Commission’s decision In 24 Ind. Cl. Comm. 147 (1970), the Sioux 74 plaintiffs filed a motion rogues ting leave of the Commission to file amendments to their petition in Docket No. 74. The amendment in question claimed that the Commission's ruling in 24 Ind. Cl. Comm. 147 deprived plaintiffs’ ancestors of 17 percent of their aboriginal title and that plaintiffs should be compensated for that loss. The Commission allowed the petition to be amended stating:

“It Is the position of the united States that It cannot possibly be held liable twice for any portion of the Sioux Laramie land. We disagree. If the plaintiffs are able to prove that they owned 100% of this land prior to the Fort Laramie Treaty, and that after that treaty they retained less than that 100% Interest, then the United States can be held liable for whatever interest the plaintiffs lost under the treaty." Sioux Nation v. United States, 27 Ind. Cl. Comm. 79, 85 (1972).

5 Treaty of September 23, 1805, 2 Kapp. 1031; Treaty of Prairie des Chiens of August 19, 1825, 7 Stat. 272, 2 Kapp. 250; Treaty of September 29, 1837, 7 Stat. 538, 2 Kapp. 493; Treaty of April 29, 1868, 15 Stat. 635.

6 Tlie Treaty of September 23, 1805, 2 Kapp. 1081, was made with the “Sioux Nation.” It provided for payment to “the Sioux,” and, as In the present case, the Indian parties were Identified only by their names (without band designation). The Indian Claims Commission Identified the Indian parties to the 1S05 Treaty as the Medawakanton Band of the Sioux, noting that the Government dealt solely with the Medawakanton chief and that Medawakanton aboriginal occupancy had been proved. 10 Ind. Cl. Comm. 137, 141-49, 181-82 (1962).

The Treaty of Prairie des Chlens of August 19, 1825, 7 Stat. 272, 2 Kapp. 250, was a treaty similar to the 1851 Treaty of Port Laramie In that it defined boundaries between various tribes of Indians. The Sioux parties to that treaty were designated simply as the “Sioux,” except for the absent Yankton band, which was designated as the “Yankton band." This treaty was signed by a number of Indians for the “Sioux.” A number of the signatories included a band designation, but many merely signed as Sioux. With references to the 1825 Treaty, the Indian Claims Commission concluded that the “Sioux” In whom title was recognized were the four Mississippi bands. The interpretation was prompted by the fact that “It was the Mississippi Sioux who found themselves embroiled with their traditional enemies” In the area involved in the treaty (10 Ind. Cl. Comm, at 182). The Commission further found that within the area set aside for the Sioux In the Treaty of Prairie des Chiens, each of the four Mississippi bands can be Identified with a certain section (10 Ind. Cl. Comm, at 184-85), and that In subsequent treaties cession was taken of the Prairie des Chlens lands not from the “Sioux” but from the Individual bands of the Mississippi Sioux who claimed ownership (10 Ind. Cl. Comm. at 186-87).

7 Where treaty language is not clear and unambiguous, we have often looked to the history and purpose of the treaty involved to ascertain more clearly the intended meaning. See Citizens Band of Potawatomi Indiana v. United States, 179 Ct. Cl. 473, 482, 391 F. 2d 614, 619 (1967), cert. denied, 389 U.S. 1046 (1968); Lower Sioux Indian Community v. United States, 163 Ct. Cl. 329, 332-33 (1963).

8 See Crow Trite of Indians v. United States, 151 Ct. Cl. 281, 285-91, 284 F. 2d 361, 364-67 (1960), cert. denied, 366 U.S. 924 (1961); Crow Nation v. United States, 81 Ct. Cl. 238, 242-48 (1935); Indians of the Tort Berthold Reservation v. United States, 71 Ct. Cl. 308, 311-16, 330-33 (1930); Sioux Nation v. United States, 24 Ind. Cl. Comm. 147, 163-71 (1970); Sioux Tribe v. United States, 21 Ind. Cl. Comm. 371, 375-77 (1969); Cheyenne & Arapahoe Tribes v. United States, 10 Ind. Cl. Comm. 1, 1-7 (1961).

9 Tlie letter from Alfred Vaughn, upper Missouri Agency, Fort Pierre, Dakota Territory, dated September 20, 1853, Indicates his belief that the Yanktonais were bound by the 1851 Treaty and its amendment. This lone piece of evidence Is not persuasive In view of the other evidence limiting the scope of the treaty to exclude the Yanktonais.

10 In Yankton Sioux v. United States, 97 Ct. Cl. 56, 61 (1942), the court noted:

“Both before and after the Treaty of 1858 members of plaintiff [Yankton] band hunted and roamed in the Siout» lands, as recognized Try the treaty oj 1851," (Emphasis added.)

11 Commissioner Yarborough states that he did not dissent from the denial of rehearing because “It has not been shown that evidence exists that would allow the Commission to make any reasonably accurate determination of actual use and occupancy . . . .” 27 Ind. Cl. Comm. at 57.

12 On September 20, 1853, Agent Alfred D. Vauglin of the Upper Missouri Agency reported his estimates of the Sioux population. 24 Ind. Cl. Comm. at 173. Brigadier General W. S. Harney led a military expedition against the Sioux In 1855. Id. at 172-74. Lieutenant G. K. Warren gaye his population estimates in an 1856 report of his exploration. Id.

13 The Commission stated:

“We rejected the population estimates published in the 1862 Annual Report of the Commissioner of Indian Affairs because It is apparent that the Yankton population was the result of an exact head count, while the figures from the Upper Platte and Upper Missouri agencies were estimates. It is likely that the agents for the Upper Platte and upper Missouri included all of the Sioux known by them to be in their agencies. On the other hand, it is doubtful that the Yankton agent included those Yankton who were off the reservation hunting at the time of the census. These population figures, therefore, give a distorted picture of the total Sioux population * * 24 Ind. Cl. Comm. at 158-59.

14 We need not reach the questions raised In the alternative concerning the tenancy In common theory.

15 The Docket 74 Sioux are the descendants of the Teton and .Yanktonais Sioux.

16 See also United States v. Northern Paiute Nation, 183 Ct. Cl. 321, 332, 393 F. 2d 786, 792 (1968).

17 The Sisseton and Wahpeton Bands of Sioux Indians have filed an amicus curiae brief supporting this holding and stated that their petition In Docket 383 In the Commission asserts their claim to the same land In the northeastern corner of Royce Area 410.

18 Before the Commission, the Docket 74 Sioux made the same contention with respect to Royce Area 411, a tract of 400,000 acres of land which was not ceded by the Treaty of April 19, 1858, but was expressly retained as a reservation for the Yankton Sioux. Royce Area 411 is not otherwise Involved In this appeal.

10 Apparently the trial which was followed by this order of the Commission was limited to the claim for the value of approximately seven million acres in the Black Hils area, Def. Br. fled Nov. 15, 1957, in Appeal Docket No. 4-55 at pp. 4, 8.

20 For a summary of proceedings, see Sioux Tribe of Indians, 182 Ct. Cl. 912 (1968).

21 In a series of. procedural orders issued after the amended petition in Docket 74-A was filed, the Commission struck the amended petition but directed that the issues to be tried under the original petition would include the land and Interests ceded by the Treaty of April 29, 1868. The Docket 74 Sioux state that these procedural orders effected the same result as if the amended petition In Docket 74-A had been allowed to stand, and' the Government apparently agrees with this view.