United States v. Alcea Band of Tillamooks

329 U.S. 40, 67 S. Ct. 167, 91 L. Ed. 29, 1946 U.S. LEXIS 1696

• Court: Supreme Court of the United States
• Decided: November 25, 1946
• Docket: 26
• Status: Published

Opinions

Mr. Chief Justice Vinson

announced the judgment of the Court and delivered an opinion, in which Mr. Justice Frankfurter, Mr. Justice Douglas, and Mr. Justice Murphy joined.

Eleven Indian tribes have sued the United States in the Court of Claims under the Act of August 26, 1935,¹ which gives that court jurisdiction to hear and adjudicate cases involving “any and all legal and equitable claims arising under or growing out of the original Indian title, claim, or rights in . . . the lands . . . occupied by the Indian tribes and bands described in” certain unratified treaties negotiated with Indian tribes in the Territory of Oregon.

Four of the tribes,² the Tillamooks, Coquilles, Too-too-to-neys and Chetcos, successfully identified themselves as entitled to sue under the Act, proved their original Indian title³ to designated lands, and demonstrated an involuntary and uncompensated taking of such lands. The Court of Claims thereupon held that original Indian title was an interest the taking of which without the consent of the Indian tribes entitled them to compensation. In answer to government contentions that original Indian title, in the absence of some form of official “recognition,” could be appropriated without liability upon the part of the sovereign, the Act of 1848,⁴ establishing the Territory of Oregon, was cited by the Court of Claims as affording any recognition required to support the claim for compensation. The issues decided, not previously passed upon by this Court and being of importance to the administration of Indian affairs, prompted this Court to grant certiorari. The case was argued during the 1945 term and on April 1, 1946, was restored to the docket for reargument before a full bench.

The events giving rise to the claims here occurred as part of the opening and development of the Territory of Oregon. After creating a government for that territory by the Act of 1848,⁵ Congress in 1850 authorized the negotiation of treaties with Indian tribes in the area. Under the latter Act,⁶ Anson Dart, later succeeded by General Joel Palmer, was appointed Superintendent of Indian Affairs for the Oregon region and was instructed to negotiate treaties for the extinguishment of Indian claims to lands in that district. On August 11,1855, Palmer and respondent tribes concluded a treaty providing for the cession of Indian lands in return for certain money payments and the creation of a reservation. The treaty was to be operative only upon ratification. It was not submitted to the Senate until February, 1857, and was never ratified.

Pending expected ratification, and following recommendations from Palmer, the President on November 9, 1855, created a reservation, subject to future diminution and almost identical with that provided for in the treaty. A large part of this reservation, called the Coast or Siletz Reservation, consisted of lands to which the Tillamook Tribe held original Indian title. Almost immediately the Tillamooks were confined to that portion of their land within the reservation, and the other three respondent tribes, as well as other tribes, were moved from their original possessions to the reservation. In 1865 an Executive Order reduced the size of the reservation; in 1875 Congress by statute approved the Executive Orders of 1855 and 1865, and in order to open more land for public settlement, removed additional land from the reservation. By an Act of 1894,⁷ Congress officially accepted and approved the reservation as it then existed, and thenceforward did not take reservation lands without compensation.

The claims of respondent tribes are for the wrongful taking which occurred when they were deprived of their original possessions by the Executive Order of November 9, 1855. Even as to the Tillamooks, the Court of Claims found the taking complete as of November 9, 1855, since this tribe was forced to share its former lands with other Indians, and since the reservation was, in any event, only a conditional one, subject to being opened for public settlement at the will of the President. Petitioner disputes neither this finding nor the proof of original Indian title as of 1855.

Other than the benefits flowing from the Act of 1894,⁸ none of the four respondent tribes has received any compensation for the loss of its lands. Until the present jurisdictional act of 1935, these tribes, lacking consent of the United States to be sued, were forbidden access to the courts. They alone of the tribes with whom Dart and Palmer negotiated some twenty-odd treaties between 1850 and 1855 have yet to receive recognition for the loss of lands held by original Indian title.⁹

Until now this Court has had no opportunity or occasion to pass upon the precise issue presented here. In only one Act prior to 1935 has Congress authorized judicial determination of the right to recover for a taking of nothing more than original Indian title; and no case under that Act,¹⁰ passed in 1929, reached this Court.¹¹ In 1930¹² Congress again authorized adjudication of Indian claims arising out of original Indian title, but expressly directed an award of damages if a taking of lands held by immemorial possession were shown. This Act thus eliminated any judicial determination of a right to recover, once original Indian title was established.

Prior to 1929, adjudications of Indian claims against the United States were limited to issues arising out of treaties, statutes, or other events and transactions carefully designated by Congress. This Court has always strictly construed such jurisdictional acts and has not offered judicial opinion on the justness of the handling of Indian lands, except in so far as Congress in specific language has permitted its justiciable recognition.

The language of the 1935 Act is specific, and its consequences are clear. By this Act Congress neither admitted nor denied liability. The Act removes the impediments of sovereign immunity and lapse of time and provides for judicial determination of the designated claims. No new right or cause of action is created. A merely moral claim is not made a legal one. The cases are to be heard on their merits and decided according to legal principles pertinent to the issues which might be presented under the Act.¹³ Accordingly the 1935 statute permits judicial determination of the legal and equitable claims growing out of original Indian title. That which was within the power of Congress to withhold from judicial scrutiny has now been submitted to the courts. If, as has many times been said,¹⁴ the manner of extinguishing Indian title is usually a political question and presents a non-justiciable issue, Congress has expressly and effectively directed otherwise by seeking in the 1935 Act judicial disposition of claims arising from original Indian title. “By consenting to be sued, and submitting the decision to judicial action, they have considered it as a purely judicial question, which we are now bound to decide, as between man and man . . United States v. Arredondo, 6 Pet. 691, 711 (1832).

It has long been held that by virtue of discovery the title to lands occupied by Indian tribes vested in the sovereign.¹⁵ This title was deemed subject to a right of occupancy in favor of Indian tribes, because of their original and previous possession. It is with the content of this right of occupancy, this original Indian title, that we are concerned here.

As against any but the sovereign, original Indian title was accorded the protection of complete ownership;¹⁶ but it was vulnerable to affirmative action by the sovereign, which possessed exclusive power to extinguish the right of occupancy at will. Termination of the right by sovereign action was complete and left the land free and clear of Indian claims. Third parties could not question the justness or fairness of the methods used to extinguish the right of occupancy.¹⁷ Nor could the Indians themselves prevent a taking of tribal lands or forestall a termination of their title. However, it is now for the first time asked whether the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title.

We cannot but affirm the decision of the Court of Claims. Admitting the undoubted power of Congress to extinguish original Indian title compels no conclusion that compensation need not be paid. In speaking of the original claims of the Indians to their lands, Marshall had this to say: “It is difficult to comprehend the proposition . . . that the discovery . . . should give the discoverer rights in the country discovered, which annulled the pre-existing right of its ancient possessors. ... It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. . . . The king purchased their lands, . . . but never coerced a surrender of them.” Worcester v. Georgia, 6 Pet. 515, 543, 544, 547 (1832). In our opinion, taking original Indian title without compensation and without consent does not satisfy the “high standards for fair dealing” required of the United States in controlling Indian affairs. United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 356 (1941). The Indians have more than a merely moral claim for compensation.¹⁸

A contrary decision would ignore the plain import of traditional methods of extinguishing original Indian title. The early acquisition of Indian lands, in the main, progressed by a process of negotiation and treaty. The first treaties reveal the striking deference paid to Indian claims, as the analysis in Worcester v. Georgia, supra, clearly details. It was usual policy not to coerce the surrender of lands without consent and without compensation.¹⁹ The great drive to open Western lands in the 19th Century, however productive of sharp dealing, did not wholly subvert the settled practice of negotiated extinguishment of original Indian title.²⁰ In 1896, this Court noted that, “. . . nearly every tribe and band of Indians within the territorial limits of the United States was under some treaty relations with the government.” Marks v. United States, 161 U. S. 297, 302 (1896). Something more than sovereign grace prompted the obvious regard given to original Indian title.

Long before the end of the treaty system of Indian government and the advent of legislative control in 1871,²¹ Congress had evinced its own attitude toward Indian relations. The Ordinance of 1787 declared, “the utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent ...” 1 Stat. 50, 52. When in 1848 the territorial government of Oregon was created, § 14 of that Act²² secured to the inhabitants of the new territory all the rights and privileges guaranteed by the Ordinance of 1787. Nor did congressional regard for Indian lands change in 1871. In providing for the settlement of Dakota Territory, Congress in 1872 directed the extinguishment of the interests of Indians in certain lands and the determination of what “compensation ought, in justice and equity, to be made to said bands ... for the extinguishment of whatever title they may have to said lands.” 17 Stat. 281; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 59 (1886). The latest indicia of congressional regard for Indian claims is the Indian Claims Commission Act, 60 Stat. 1049, 1050, § 2 (5), in which not only are claims similar to those of the case at bar to be heard, but “claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity” may be submitted to the Commission with right of judicial review.

Congressional and executive action consistent with the prevailing idea of non-coercive, compensated extinguishment of Indian title is clear in the facts of the present case. The Act of 1848 declared a policy of extinguishing Indian claims in Oregon only by treaty. The statute of 1850 put in motion the treaty-making machinery. Respondent tribes were among those with whom treaties were negotiated. In many cases, expected ratification did not follow. In the case of respondent tribes alone have no steps been taken to make amends for the taking of Indian lands pending treaty ratification. To determine now that compensation must be paid is only a fair result.

Petitioner would admit liability only if, in addition to clear proof of original Indian title, some act of official “recognition” were shown. Original Indian title would not attain the status of a compensable interest until some definite act of sovereign acknowledgment followed. Apparently petitioner has seized upon language of the Court of Claims in Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934), and from it has fashioned a full-blown concept of “recognized Indian title.” The jurisdictional act in that case authorized suits on “all claims of whatsoever nature, both legal and equitable.”²³ Claims based solely on original Indian title were held to be outside the limits of the act; and unless a treaty or act of Congress recognizing the Indians’ title by right of occupancy were shown, recovery could not be had.²⁴ A more specific jurisdictional act was deemed necessary to authorize a suit based upon original Indian title alone.

Petitioner reads into the Duwamish case far too much. When the first jurisdictional act specifically allowing suit on original Indian title in language identical with that of the 1935 Act later came before the Court of Claims in Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 (1938), the court clearly recognized the specific directives of the act and denied recovery solely because original Indian title had not been proved. “Recognition” appeared to count only as a possible method of proving Indian title itself, not as a requisite in addition to proof of that title. Furthermore, in the case at bar, the unmistakable language of the Court of Claims stands squarely against the significance petitioner would attach to the Duwamish decision: “The Duwamish case did not hold or intend to hold that an Indian tribe could not recover compensation on the basis of original Indian use and occupancy title as for a taking if the jurisdictional act authorized the bringing of a suit and rendition of judgment for compensation on the basis of such original title.” Alcea Band of Tillamooks v. United States, 103 Ct. Cl. 494, 556, 59 F. Supp. 934 (1945).

Authority for petitioner’s position is not found in Shoshone Indians v. United States, 324 U. S. 335 (1945). The jurisdictional act there limited suits to those claims “arising under or growing out of the treaty of July 2, 1863 . . .” ²⁵ Suits based upon original Indian title were not authorized, but we thought a claim would properly arise under the treaty if it were based upon a taking of land which the treaty had in any way “recognized” or acknowledged as belonging to the Indians. The Court thrice noted that claims based upon original Indian title were not involved, and made no attempt to settle controversies brought under other jurisdictional acts authorizing the litigation of claims arising from the taking of original Indian title.²⁶

Nor do other cases in this Court lend substance to the dichotomy of “recognized” and “unrecognized” Indian title which petitioner urges. Many cases recite the paramount power of Congress to extinguish the Indian right of occupancy by methods the justice of which “is not open to inquiry in the courts.” United States v. Santa Fe Pacific R. Co., supra, at 347.²⁷ Lacking a jurisdictional act permitting judicial inquiry, such language cannot be questioned where Indians are seeking payment for appropriated lands; but here in the 1935 statute Congress has authorized decision by the courts upon claims arising out of original Indian title. Furthermore, some cases speak of the unlimited power of Congress to deal with those Indian lands which are held by what petitioner would call “recog-nizecT title;²⁸ yet it cannot be doubted that, given the consent of the United States to be sued, recovery may be had for an involuntary, uncompensated taking of “recognized” title.²⁹ We think the same rule applicable to a taking of original Indian title. “Whether this tract . . . was properly called a reservation ... or unceded Indian country, ... is a matter of little moment . . . the Indians’ right of occupancy has always been held to be sacred; something not to be taken from him except by his consent, and then upon such consideration as should be agreed upon.” Minnesota v. Hitchcock, 185 U. S. 373, 388-89 (1902).³⁰

Requiring formal acknowledgment of original Indian title as well as proof of that title would nullify the intended consequences of the 1935 Act. The rigors of “recognition,” according to petitioner’s view, would appear to require in every case some definite act of the United States guaranteeing undisturbed, exclusive and perpetual occupancy, which, for example, a treaty or statute could provide. Yet it was the very absence of such acknowledgment which gave rise to the present statute.

Congress was quite familiar with the precision advisable when drafting statutes giving jurisdiction to the Court of Claims in Indian cases. In 1925 an act authorizing the litigation of any and all claims of certain Indian tribes was passed. In June, 1934, that act was held, for lack of specificity, not to extend to claims based on original title.³¹ The following year Congress passed the present Act, employing the specific language used once before in the Act of 1929,³² under which Coos Bay Indian Tribe v. United States, supra, arose. The considered attention given to the many ramifications of Indian affairs in the 1930’s³³ suggests that Congress well realized the import of the words used in the jurisdictional act of 1935, and that Congress did not expect respondent tribes to be turned out of court either because congressional power over Indian title was deemed to have no limits or because there was, as was obvious to all, no formal guarantee of perpetual and exclusive possession prior to the taking of respondents’ lands in 1855.

Respondents have satisfactorily proved their claim of original Indian title and an involuntary taking thereof. They are entitled to compensation under the jurisdictional act of 1935. The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute.³⁴ It does not “enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them.” United States v. Creek Nation, 295 U.S. 103, 110 (1935).

In view of the grounds upon which decision rests, it is not necessary to consider the alternate holding of the court below relative to the 1848 act affording sufficient “recognition” of respondents’ Indian title.

Affirmed.

Mr. Justice Jackson took no part in the consideration or decision of this case.

1 49 Stat. 801. The pertinent section in full provides: “That jurisdiction is hereby conferred on the Court of Claims with the right of appeal to the Supreme Court of the United States by either party, as in other cases, to hear, examine, adjudicate, and render final judgment . . . (b) any and all legal and equitable claims arising under or growing out of the original Indian title, claim, or rights in, to, or upon the whole or any part of the lands and their appurtenances occupied by the Indian tribes and bands described in the unratified treaties published in Senate Executive Document Numbered 25, Fifty-third Congress, first session (pp. 8 to 15), at and long prior to the dates thereof, except the Coos Bay, Lower Umpqua, and Siuslaw Tribes, it being the intention of this Act to include all the Indian tribes or bands and their descendants, with the exceptions named, residing in the then Territory of Oregon west of the Cascade Range at and long prior to the dates of the said unratified treaties, some of whom, in 1855, or later, were removed by the military authorities of the United States to the Coast Range, the Grande Ronde, and the Siletz Reservations in said Territory.”

2 The remaining seven plaintiff tribes failed to state a cause of action under the jurisdictional act and the rules of the Court of Claims.

3 “Original Indian title” is used to designate the Indian right of occupancy based upon aboriginal possession.

4 9 Stat. 323. The Act created a territorial government and declared: “That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed . . .”

5 9 Stat. 323.

6 9 Stat. 437.

7 28 Stat. 286,323.

8 28 Stat. 286, 323.

9 In 1851 Dart and Palmer negotiated treaties with nineteen tribes other than respondents. None of these treaties was ratified; but twelve of the nineteen tribes were included in further treaties made in 1853, 1854, and 1855, and Congress in 1897 and 1912 provided for paying the remaining seven tribes for their lands taken under the unratified treaties.

10 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307.

11 Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 (1938), discussed infra p. 50, arose under the 1929 Act.

12 46 Stat. 531, amending 44 Stat. 1263. Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347 (1933) was litigated under this jurisdictional act.

13 United States v. Mille Lac Chippewas, 229 U. S. 498, 500 (1913); The Sac and Fox Indians, 220 U. S. 481, 489 (1911).

14 United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 347 (1941), and cases note 27 infra.

15 Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823).

16 United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941).

17 Beecher v. Wetherby, 95 U. S. 517 (1877).

18 The “moral” obligation upon Congress, of which the cases speak, refers more to the obligation to open the courts to suit by the Indians. It does not mean that there is no substantive right in the Indians. So in United States v. Blackfeather, 155 U. S. 180, 194 (1894) it was held that, “While there may be a moral obligation on the part of the government to reimburse the money embezzled by the Indian superintendent . . the jurisdictional act in point did not extend to such a claim. Yet, given consent to suit, it would hardly be said that there was no substantive right against the United States for embezzlement of Indian funds.

19 “The practical admission of the European conquerors of this country renders it unnecessary for us to speculate on the extent of that right which they might have asserted from conquest . . . The conquerors have never claimed more than the exclusive right of purchase from the Indians ...” 1 Op. A. G. 465, 466 (1821) (William Wirt).

20 See the analysis in Cohen, Handbook of Federal Indian Law (1945) 51-66.

21 16 Stat. 544.

22 9 Stat. 323, 329, § 14.

23 43 Stat. 886.

24 Duwamish Indians v. United States, 79 Ct. Cl. 530, 600 (1934).

25 45 Stat. 1407.

26 Shoshone Indians v. United States, 324 U. S. 335, 337, 339, 354 (1945).

27 The statements in many cases are directed to disputes between third parties, one of whom attempts to raise a defect in the other’s title by tracing it to a government grant out of Indian territory and attacking the power or the method used by the sovereign to convey Indian lands. Beecher v. Wetherby, 95 U. S. 517, 525 (1877); Buttz v. Northern Pacific Railroad, 119 U. S. 55, 66 (1886); Martin v. Waddell, 16 Pet. 367, 409 (1842); Clark v. Smith, 13 Pet. 195, 201 (1839). And in other cases, the issue was not the right of Indian tribes to be compensated for an extinguishment of original Indian title by the United States. Shoshone Indians v. United States, 324 U. S. 335 (1945); United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941); Conley v. Ballinger, 216 U. S. 84 (1910); Lone Wolf v. Hitchcock, 187 U. S. 553 (1903); Cherokee Nation v. Hitchcock, 187 U. S. 294 (1902).

28 Lone Wolf v. Hitchcock, 187 U. S. 553, 566 (1903); Beecher v. Wetherby, 95 U. S. 517, 525 (1877). The Lone Wolf case was properly assessed in Shoshone Tribe v. United States, 299 U. S. 476, 497 (1937): “Power to control and manage the property and affairs of Indians in good faith for their betterment and welfare may be exerted in many ways and at times even in derogation of the provisions of a treaty.” See also Oklahoma v. Texas, 258 U. S. 574, 592 (1922).

In Barker v. Harvey, 181 .U. S. 481 (1901), the Indian claims were deemed extinguished by non-presentment to the land commission, and this was true even if the claims had been “recognized” by the Mexican government priol- to the cession of lands to the United States.

29 United States v. Klamath Indians, 304 U. S. 119 (1938); Chippewa Indians v. United States, 301 U. S. 358 (1937); Shoshone Tribe v. United States, 299 U. S. 476 (1937); United States v. Creek Nation, 295 U.S. 103 (1935).

30 Other cases also draw no distinction between original Indian title and “recognized” Indian title. “The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government. When Indian reservations were created, either by treaty or executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.” Spalding v. Chandler, 160 U. S. 394, 403 (1896). Of similar tenor is Conley v. Ballinger, 216 U. S. 84, 90-91 (1910).

The older cases explaining and giving substance to the Indian right of occupancy contain no suggestion that only “recognized” Indian title was being considered. Indeed, the inference is quite otherwise. Mitchel v. United States, 9 Pet. 711,746 (1835); Worcester v. Georgia, 6 Pet. 515, 543-48 (1832); Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823).

31 Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934).

32 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307.

33 “The decade from 1930 to 1939 is as notable in the history of Indian legislation as that of the 1830’s or the 1880's.” Cohen, Handbook of Federal Indian Law (1945) 83.

34 Stephens v. Cherokee Nation, 174 U. S. 445, 478 (1899).