Warm Springs Tribe of Indians v. United States

95 Ct. Cl. 23, 1941 U.S. Ct. Cl. LEXIS 22, 1941 WL 4537
CourtUnited States Court of Claims
DecidedNovember 3, 1941
DocketNo. M-112
StatusPublished
Cited by2 cases

This text of 95 Ct. Cl. 23 (Warm Springs Tribe of Indians v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warm Springs Tribe of Indians v. United States, 95 Ct. Cl. 23, 1941 U.S. Ct. Cl. LEXIS 22, 1941 WL 4537 (cc 1941).

Opinion

Whitaker, Judge,

delivered the opinion of the court:

By the treaty of June 25, 1855 (12 Stat. 963), the plaintiff Indians ceded to the United States all the lands to which they laid claim, except a certain tract which was set apart for their exclusive use. This tract is described as follows:

Commencing in the middle of the channel of the De Chutes Biver opposite the eastern termination of a range of high lands usually known as the Mutton Mountains; thence westerly to .the summit of said range, along the divide to its connection with the Cascade Mountains; thence to the summit of said mountains; thence southerly to Mount Jefferson; thence down the main branch of De Chutes Biver; heading in this peak, to its junction with De Chutes Biver; and thence down the middle of the channel of said river to the place of beginning.

The setting apart of the above-described lands as a reservation for them was, however, subject to the following proviso:

Provided, however, That prior to the removal of said Indians to said reservation, and before any improvements contemplated by this treaty shall have been com[29]*29menced, that if the three principal bands, to wit: the Wascopum, Taih or Upper De Chutes, and the Lower De Chutes bands of Walla-Wallas shall express in council a desire that some other reservation may be-selected for them, that the three bands named may select each three persons of their respective bands, who with the superintendent of Indian Affairs or agent as may by him be directed, shall proceed to examine, and if another location can be selected, better suited to the condition and wants of said Indians, that is unoccupied by the whites, and upon which the board of commissioners-thus selected may agree, the same shall be declared a reservation for said Indians, instead of the tract named in this treaty.

The plaintiff alleges that in pursuance of the agreement contained in this proviso another tract was selected. This tract embraces the reservation which the defendant claims is the one described above and, in addition, a very large territory, some three or four times larger.

1. The first question presented is whether or not the tribe-did in fact select a reservation other than the one above-described.

There is no proof whatever in the record that the bands named in the proviso met in council and expressed a desire that some other reservation should be selected for them, as the treaty required. The extent of plaintiff’s proof is that Indian Agent E. E. Thompson, together with the chiefs and a number of the principal men of the bands included' in the treaty, went upon the reservation and that there Thompson pointed out to them its boundaries. Plaintiff’s proof, therefore, is not that another reservation was selected, but only that the boundaries of the reservation described in the treaty,, as pointed out to them by the Indian Agent, were not the boundaries contended for by the defendant. There is no proof that the Indians selected any reservation other than that described in the treaty. Since no other reservation was-selected, the plaintiff is bound by the description of the reservation as contained in the treaty.

The trip of the Indian Agent and the chiefs and principal men of the tribes to the reservation was made some two years after the treaty was signed. Even if it be true that on this trip the Indian Agent pointed out to them boundaries other [30]*30than those described in the treaty, this cannot vary the terms of that written instrument accepted by them two years before. There is no proof nor allegation that these boundaries were pointed out to them before the treaty was signed.

Moreover, plaintiff’s evidence of what happened on this trip is unsatisfactory. A't the time testimony in this case was taken there was but one person living who had accompanied the Indian Agent on this trip, one Albert Kuckup, 100 years old. He testified that the Indian Agent pointed -out to them as their reservation the lands marked in green on the map filed as exhibit “B” to plaintiff’s petition, beginning at Little Dark Butte on the summit of the Cascade Bange; running thence southwardly through Olallie Butte, Mt. Jefferson, Three Fingered Jack, The Three Sisters, to Koo-See Wah Turn or Horse Lake; and thence south and east to the Paulina Mountains; thence northwardly through Powell Butte, Grizzly Butte, How-Sash, and Shnip-Shee or Bake Oven; thence westwardly to the point of beginning. Even though this would be material, if true, it is evident from his testimony and from the testimony of other witnesses for the plaintiff that this trip was not for the purpose of selecting some other reservation, but for the purpose of exploring the reservation described in the treaty.

This is also evident from Thompson’s report on the trip to Joel Palmer, Superintendent of Indian Affairs for the Oregon territory. In the beginning of his letter he stated that he had just returned from “an exploration of the Wasco or Warm Springs reservation.” Thompson says nothing in his report about exploring any part of the country other than the reservation which the defendant insists was set apart for them. From his letter it would appear that the purpose of the trip was primarily to select grounds for the Indian settlement. He says that for this purpose they selected two places south of Warm Springs, one on the She-tike Creek, and another in a valley about two miles west, where the She-tike empties into the De Chutes River. Both of these settlements .are within the reservation which the defendant contends was .set apart for them. (See exhibit “B” to plaintiff’s petition.)

The treaty of 1855 contained a proviso that the Indians [31]*31should have the exclusive right to fish in the streams running through or bordering the reservation; and also, “at all other usual and accustomed stations, in common with citizens of the United States,” they were to have “the privilege of hunting, gathering roots and berries, and pasturing their stock on unclaimed lands, in common with citizens.” It is not at all clear from Kuckup’s testimony whether the land pointed out to the exploring party was the land set apart to them as a reservation, as they claim, or were the lands in which they had a right to hunt and fish and gather roots and berries. According to the testimony, the Indians did hunt and fish and gather berries within the territory described by Kuckup during the summer, but in the winter they returned to the settlements selected for them within the boundaries of the reservation as claimed by the defendant.

Plaintiff introduced other witnesses who testified to the boundaries of the reservation as reported to them by this delegation, or to boundary marks which they had seen on the ground; but their testimony adds nothing to the testimony of Kuckup.

The plaintiff’s proof completely fails to establish the selection of any reservation other than that described in the treaty.

2. The next question presented is the boundaries of the reservation described in the treaty. The question of the southern and eastern boundaries is comparatively easy of determination. The defendant contends that the southern boundary begins at the headwaters of Jefferson Creek in Mt. Jefferson, and runs thence along this creek to the Metolius Kiver, and thence along this river to its junction with the De Chutes Kiver. The plaintiff contends that it begins at the headwaters of a stream rising in The Three Sisters, and running thence with that stream to its junction with the De Chutes Kiver.

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Bluebook (online)
95 Ct. Cl. 23, 1941 U.S. Ct. Cl. LEXIS 22, 1941 WL 4537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warm-springs-tribe-of-indians-v-united-states-cc-1941.