Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1941.
THE INDIANS OF THE FORT BERTHOLD INDIAN RESERVATION IN THE STATE OF NORTH DAKOTA, COMPRISING THE TRIBES KNOWN AS THE ARICKAREES, THE GROS VENTRES, AND THE MANDANS, AND THE INDIVIDUAL MEMBERS THEREOF, V. THE UNITED STATES. NO. B-449
Mr. Charles H. Merillat for the plaintiffs. Mr. Charles J. Kappler was on the briefs.
Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
This cause having been heard by the Court of Claims on the evidence adduced, the court makes the following
This suit is brought under a special jurisdictional act, approved February 11, 1920 (41 Stat. 404), which provides as follows:
Whereas the Indians of the Fort Berthold Indian Reservation in the State of North Dakota, including the tribes known as the Arickarees, the Gros Ventres, and the Mandans, and the individual members of such tribes, make claim against the United States on account of various treaty provisions, which, it is alleged, have not been compiled with, and on account of various encroachments upon the appropriation by said Government of territory of said tribes and Indians: Therefore
1See United States v. Northern Pacific Railway Co., decided by Supreme Court December 16, 1940, 311 U.S.
5Covering subjects of Value; Just Compensation including interest; Ownership of natural resources on treaty reservations; Interpretation of treaties; Validity of unproclaimed Fort Laramie Treaty of 1851; Creation of Indian reservations; Jurisdiction over New York Indians; Indian rights under foreign treaties; Powers of Indian Tribes; Nature of Set-offs and gratuities allowed against Indian claims, etc.
Be it enacted, [&c,] That all claims of whatsoever nature which any or all of the tribes of Indians of the Fort Berthold Reservation, North Dakota, may have against the United States, which have not heretofore been determined by the Court of Claims, may be submitted to the Court of Claims, with the right of appeal to the Supreme Court of the United States by either party, for determination of the amount, if any, due said tribes from the United States under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds of said tribes, or for the failure of the United States to pay said tribe any money or other property due; and jurisdiction is hereby conferred upon the Court of Claims, with the right of either party to appeal to the Supreme Court of the United States, to hear and determine all legal and equitable claims, if any, of said tribe against the United States, and to enter judgment thereon.
That if any claim or claims be submitted to said courts, they shall settle the rights therein, both legal and equitable, of each and all the parties thereto, notwithstanding lapse of time or statutes of limitation, and any payment which may have been made upon any claim so submitted shall not be pleaded as an estoppel, but may be pleaded as an offset in such suits or actions, and the United States shall be allowed credit for all sums heretofore paid or expended for the benefit of said tribe or any band thereof. The claim or claims of the said tribes or band or bands thereof may be presented separately or jointly by petition, subject, however, to amendment, suit to be filed within five years after the passage of this Act; and such action shall make the petitioner or petitioners party plaintiff of [sic] plaintiffs and the United States party defendant, and any band or bands of said tribe the court may deem necessary to a final determination of such suit or suits may be joined therein as the court may order. Such petition, which shall be verified by a petitioner or an attorney employed by said petitioner, tribes of any bands thereof, shall set forth all the facts on which the claims for recovery are based, and said petition shall be signed by the attorney or attorneys employed, and no other verifications shall be necessary. Official letters, papers, documents, and public records, or certified copies thereof, may be used in evidence, and the departments of the Government shall give access to the attorney or attorneys of said tribe or bands thereof to such treaties, papers, correspondence, or records as may be needed by the attorney or attorneys for said tribes or bands of Indians.
That upon the final determination of such suit, cause, or action the Court of Claims shall decree such fees as it shall find reasonable to be paid the attorney or attorneys employed therein by said tribe or bands of Indians, under contracts negotiated and approved as provided by existing law, and in no case shall the fee decreed by said Court of Claims be in excess of the amounts stipulated in the contracts approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and no attorney shall have a right to represent the said tribe or any band thereof in any suit, cause, or action under the provisions of this act until his contract shall have been approved as herein provided. The fees decreed by the court to the attorney or attorneys of record shall be paid out of any sum or sums recovered in such suits or actions, and no part of such fee shall be taken from any money in the Treasury of the United States belonging to such tribes or bands of Indians in whose behalf the suit is brought unless specifically authorized in the contract approved by the Commissioner of Indian Affairs and Secretary of the Interior as herein provided: Provided, That in no case shall the fees decreed by said court amount to more than 10 per centum of the amount of the judgment recovered in such case.
A petition under the provisions of the foregoing act was filed in this court July 31, 1924.
The plaintiff tribes during the period hereinafter referred to were blanket Indians, illiterate, unskilled, and not advanced in civilization; few, if any, could speak or understand the English language. They were uninformed and had no knowledge of the units of measure of land, or understanding of the technical description of a tract of land except in terms of natural boundaries.
Following the discovery of gold on the Pacific coast, travel across the plains and through the country exclusively occupied by the plaintiff tribes increased greatly and caused great destruction of the buffalo and game, the chief means of livelihood of the plains and mountain Indians, and the grass and timber in the region traversed, occasioned serious resentment among the Indians in occupancy of the land, who considered themselves entitled to compensation for the right of way, through the territory claimed by them, and also for the destruction of the buffalo, game, etc.
Prior to the year 1851 costly Indian wars had been experienced. The defendant was desirous of promoting peace among the various tribes and securing their friendship and the safe transit of emigrants over the plains.
To this end, an appropriation was made by Congress February 27, 1851 (9 Stat. 572), to defray "the expenses of holding treaties with the wild tribes of the prairie, and for bringing delegates on to the seat of Government." In compliance with the provisions of the said act the President appointed D.D. Mitchell, Superintendent of Indian
Affairs, and Thomas Fitzpatrick, Indian agent, as commissioners to conduct the authorized negotiations. The commissioners were instructed that the Indians with whom the negotiations were to be held were "entirely ignorant of their position and relation to the Government," and should be made to understand the policy to be pursued by the Government towards them; that—
A paramount objective will be...to define by treaty stipulations what is and will be the reciprocal obligations existing between them and the Government and our citizens.
It was further stated:
A portion of the tribes own or claim the country through which the inland routes pass to Oregon, California, Utah, and New Mexico. Our emigrants make free use of the grass and timber on the routes, and not only destroy much game but disturb and scatter it so as materially to interfere with the success of the Indians in their hunting expeditions, by which they procure their only means of subsistence. For the unrestricted right of way through the country and for the other advantages enjoyed and the injuries committed by the emigrants the Indians consider themselves entitled to a reasonable compensation, and have for some time been led to expect it by the promises which have been made on the authority of the Government. *** Justice and good policy, therefore, alike require that such compensation be made to the Indians as will satisfy their reasonable expectations and conciliate their good will.
It was added:
It is important, if practicable, to establish for each tribe some fixed boundaries within which they should stipulate generally to reside, and each should agree not to intrude within the limits assigned to another tribe without its consent. If in arranging such boundaries there should be a portion of country not included where it has been their habit to go periodically in pursuit of game, it should be recognized as a neutral ground, where all will enjoy equal privileges and have no right to molest or interfere with one another.
In due course the following tribes of Indians assembled at Fort Laramie, Wyoming, to negotiate with the commissioners of the United States, the Sioux of the Missour, River country, the Assinaboins, Gros Ventres, Mandans, Arickarees, Crows, Shoshonesi Cheyennes, and Arapahoes, comprising all the important tribes of the Great Plains and eastern Rocky Mountains. A peace treaty was signed September 17, 1851 (11 Stat. 749), to which the United States was party of the first part and the assembled Indian tribes parties of the second part, except the Shoshones, whom the commissioners did not consider were embraced within the terms of their authority. In the report by the defendant's commissioners dated November 11, 1851, it was stated that "the most important provisions" in the treaty were—
1. The right *** granted *** to the United States to establish roads, military and other posts through the Indian country, so far as they claim or exercise ownership over it.
2. The solemn obligation *** to maintain peaceful relations among themselves and to abstain from all depredations upon whites passing through the country, and to make restitution for any damage or loss that a white man shall sustain by the acts of their people.
3. The settling up of all former complaints *** for the destruction of their buffalo, timber, grass, caused in passing of the whites through their country;
4. The promise of annuity of $50,000 for 50 years ***.
And further, that—
The laying off of the country into geographical, or rather national domains, I regard as a very important measure, inasmuch as it will take away a great cause of quarrel among themselves, and at the same time enable the Government to ascertain who are the depredators, should depredations hereafter be committed. The accompanying map, from which these national boundaries are clearly marked and defined, was made in the presence of the Indians, fully approved and sanctioned by all *** having the treaty in all its provisions, I am clearly of the opinion that it is the best that could have been made for both parties. I am moreover of the opinion that it will be observed and carried out in as good faith on the part of the Indians as it will on the part of the United States and the white people thereof. There was an earnest solemnity and deep conviction of the necessity of adopting some such measures evident in the conduct and manners of the Indians throughout the whole council.
The treaty of Fort Laramie, dated September 17, 1851 (11 Stat. 749), is as follows:
Articles of a treaty made and concluded at Fort Laramie, in the Indian Territory, between D.D. Mitchell, Superintendent of Indian Affairs, and Thomas Fitzpatrick, Indian agent, commissioners specially appointed and authorized by the President of the United States, of the first part, and the chiefs, headmen, and braves of the following Indian nations, residing south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico, viz., the Sioux or Dahcotahs, Cheyennes, Arapahoes, Crows, Assinaboines, Gros Ventres, Mandans, and Arickarees,
parties of the second part, on the seventeenth day of September, A.D., one thousand eight hundred and fifty-one.
The aforesaid nations, parties to this treaty, having assembled for the purpose of establishing and confirming peaceful relations amongst themselves, do hereby covenant and agree to abstain in future from all hostilities whatever against each other, to maintain good faith and friendship in all their mutual intercourse, and to make an effective and lasting peace.
The aforesaid nations do hereby recognize the right of the United States Government to establish roads, military and other posts, within their respective territories.
In consideration of the rights and privileges acknowledged in the preceding article, the United States bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the people of the said United States, after the ratification of this treaty.
The aforesaid Indian nations do hereby agree and bind themselves to make restitution or satisfaction for any wrongs committed, after the ratification of this treaty, by any band or individual of their people, on the people of the United States, whilst lawfully residing in or passing through their respective territories.
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, ***
The territory of the Gros Ventre, Mandan, and Arickaree Nations, commencing at the mouth of the Heart River; thence up the Missouri River to the mouth of the Yellowstone River; thence up the Yellowstone River to the mouth of Powder River in a southeasterly direction to the headwaters of the Little Missouri River; thence along the Black Hills to the head of Heart River; and thence down Heart River to the place of beginning.
The territory of the Assinaboin Nation. ***
The territory of the Blackfoot Nation. ***
The territory of the Crow Nation. ***
The territory of the Cheyennes and Arapahoes. ***
It is, however, understood that, in making this recognition and acknowledgment, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.
The parties to the second part of this treaty having selected principals or head chiefs for their respective nations, through whom all national business will hereafter be conducted, do hereby bind themselves to sustain said chiefs and their successors during good behavior.
In consideration of the treaty stipulations, and for the damages which have or may occur by reason thereof to the Indian nations, parties hereto, and for their maintenance and the improvement of their moral and social customs, the United States bind themselves to deliver to the said Indian nations the sum of fifty thousand dollars per annum for the term of ten years, with the right to continue the same at the discretion of the President of the United States for a period not exceeding five years thereafter, in provisions, merchandise, domestic animals, and agricultural implements, in such proportions as may be deemed best adapted to their condition by the President of the United States, to be distributed in proportion to the population of the aforesaid Indian nations.
It is understood and agreed that should any of the Indian nations, parties to this treaty, violate any of the provisions thereof, the United States may withhold the whole or a portion of the annuities mentioned in the preceding article from the nation so offending, until, in the opinion of the President of the United States, proper satisfaction shall have been made.
The Blackfoot Nation did not reach Fort Laramie in time to take part in the treaty negotiations nor to execute the treaty. They subsequently made a separate treaty in harmony with the foregoing.
The treaty of Fort Laramie of September 17, 1851, was approved by the Senate May 24, 1852, after amending article 7, as provided above, by reducing the period of annual payments from 50 to 10 years with authority, in the discretion of the Executive, to extend its terms for an additional period of 5 years.
The treaty as modified was returned to the tribes concerned and the assent of all was in due course secured. Due to an administrative oversight the treaty was never formally proclaimed. However, Congress thereafter made annual appropriations to carry its terms into effect.
Owing to the failure of the formality of proclaiming and establishing the treat of Fort Laramie, the defendant's administrative officials erroneously assumed that it had not been ratified; that its provisions were not binding upon the defendant Government and that the plaintiffs were not possessed of any property or reservation rights. Instructions to this effect were given, by defendant's officials in answer to inquiries relative to the administration of plaintiff's affairs and in connection with the disposition of plaintiffs' appeals and complaints concerning encroachments and depredations on their land.
Following the outbreak of the War of Rebellion of 1862, many of the tribes west of the Mississippi, but not including the plaintiffs, resumed their hostilities. Frontier settlements were attacked, communications between the Mississippi Valley and the Pacific coast were interrupted and emigrant trains were attacked and destroyed. In 1865 military operations against the offending tribes were pushed with vigor, with the result that the warring tribes sued for peace. A commission was in due course appointed by the President and proceeded to the regions of the upper Arkansas and upper Missouri to negotiate treaties of peace.
Under date of July 12, 1866, a treaty was negotiated with the plaintiffs, but never ratified by Congress by the terms of which the plaintiffs stipulated to grant defendant the right to lay out and construct roads, highways and telegraphs through "their country" and to cede to the defendant certain lands situated on the northeast side of the Missouri River. In consideration of the foregoing, the provisions contemplated a payment by the defendant of $20,000 annually for twenty years to the plaintiff tribes.
Under the provisions of an Executive order dated August 18, 1868, there was established, within the boundaries of the plaintiffs' territory as described in the treaty of Fort Laramie, the Fort Buford Reservation, comprising 98,645.67 acres.
Owing to the uncertainty in the minds of the defendant's officers of the validity and effect of the Treaty of Fort Laramie and of the existence of reservation rights in the plaintiff tribes, the major general commanding the military department of Dakota, under date of July 21, 1869, reported to his superior that he had visited the Indians at Fort Berthold; had had a council with them and had received complaints from them that white men were coming on their land at Berthold and cutting the wood for sale to the steamboats; that he had told the Indians that he did not know whether they had a reservation or not; that if they had, they should be protected in their rights; that he had promised to report the matter; and that he had instructed the commanding officer at Fort Stevenson to examine the country around Berthold and to recommend what portion should be set off for them. This report was forwarded through official channels to the Commissioner of Indian Affairs. The commissioner in reply, under date of August 16, 1869, advised the military commander of the department of Dakota of the "boundaries of the reservation for the Gros Ventres, Arickarees, and Mandans," as set out in the treaty of Fort Laramie of September 17, 1851; and of the provisions of the unratified treaty of July 27, 1866, and added that "there are no treaty stipulations with these Indians relative to a reservation for them, which have been ratified."
On September 25, 1869, the commanding officer at Fort Stevenson, in compliance with orders duly given, reported that he had consulted the best guides and had obtained all available information, in addition to his own examination as far as it was practicable in regard to a reservation for the Arickaree, Gros Ventre, and Mandan Indians; that he had had an interview with the chiefs of the three tribes; had read to them the communication from the Commissioner of Indian Affairs, forwarded by the commanding general of the department, and had "proposed to them the following reservation, ***."
From a point on the Missouri River four miles above [below] the Indian village of Berthold in a NE. direction three miles (so as to include the wood and grazing around the village), from this point a line to run so as to strike the Missouri River at the junction of Little Knife River with it, thence along the left bank of the Missouri River, to the mouth of the Yellowstone River along the south bank of the Yellowstone River to the Powder River, up the Powder River to where the Little Powder River unites with it, thence in a direct line across to the starting point four miles above [below] Berthold.
He further reported that the Indians desired that the reservation should extend to Mouse River, 75 or 100 miles north of the Missouri River, but that he explained to the Indians why this could not be done, which explanation satisfied them; and that in
the proposed reservation he had endeavored to give them land enough to cultivate and for hunting and grazing purposes.
This report was forwarded to the Commissioner of Indian Affairs and by him to the Secretary of the Interior, with a recommendation that the reservation as proposed be set apart by Executive order. The recommendation was laid before the President on April 12, 1870, with a recommendation of adoption, and on the same date the President issued the following order:
WASHINGTON, D.C., April 12, 1870.
Let the lands indicated in the accompanying diagram be set apart as a reservation for the Arickaree, Gros Ventre, and Mandan Indians, as recommended in the letter of Secretary of the Interior of the 12th instant.
The reservation thus established formed part of the territory claimed by the plaintiff Indians in the Fort Laramie treaty, with the addition of a strip of land on the east (or north) bank of the Missouri River from the Indian village to the mouth of Little Knife River.
Under the provisions of an act of July 2, 1864 (13 Stat. 365), amended by joint resolution of May 31, 1870 (16 Stat. 378), the Northern Pacific Railroad Co. was incorporated and authorized to build a railroad from St. Paul, Minnesota, to the Pacific coast, and in aid of construction the defendant granted to the railroad company every alternate section of public land along the line of its road. Section 2 of the same act made provision for the extinguishment of Indian title to whatever lands were held by Indians in the said grant. The line of the Northern Pacific Railroad ran through the lands of the plaintiff as described by the treaty of Fort Laramie
On June 23, 1878, the officials of the Northern Pacific Railroad Company formally advised the Commission of Indian Affairs that the Missouri division of the railroad, then under construction, ran through the reservation of the Arickaree, Gros Ventre, and Mandan Indians, as established by the Executive order of April 12, 1870; that the lands granted by Congress in aid of construction of the railroad, to a considerable extent, embraced the reservation of the said tribes and requested that the plaintiff's reservation be so altered by Executive order and the Indian title extinguished as soon as possible so as to free the grant to the railroad company from any claim of title.
On July 9, 1879, the Commissioner of Indian Affairs reported to the Secretary of the Interior, with reference to the request of the officials of the Northern Pacific Railroad Co.:
In view of the fact that the existence, in their present form, of these reservations is a bar to the settlement and development of a large portion of two of our most important territories and it appearing upon investigation that outside of hunting purposes the Indians have no particular use for the same, and considering also the opinions advanced by military officers upon the subject, I am of the opinion that a reduction of both reservations, to the extent hereinafter suggested, may be made without detriment to the service and with material advantage to the country locally and at large.
It was recommended that the reservation be reduced by the boundaries therein suggested and as described in the next finding, and that in lieu of the Indian lands thus restored to the public domain there be added to the Fort Berthold Reservation by Executive order certain described lands bordering on the north bank of the Missouri River.
In compliance with the foregoing recommendations, under date of July 13, 1880, the President by Executive order directed that a portion of the reservation set up in the Executive order of April 12, 1870, "be restored to the public domain", to wit:
Beginning at a point where the northern forty-mile limit of the grant to the Northern Pacific Railroad intersects the present southeast boundary of the Fort Berthold Indian Reservation; thence
westerly with range line of said forty-mile limit to its intersection with range line, between ranges 92 and 93, west of the fifth principal meridian; thence north along said range line to its intersection with the south bank of the Little Missouri River; thence northwesterly along and up the south bank of the said Little Missouri River, with the meanders thereof to its intersection with the range line between ranges 96 and 97 west of the fifth principal meridian; thence westerly in a straight line to the southeast corner of the Fort Buford military reservation; thence west along the south boundary of said military reservation to the south bank of the Yellowstone River, the present northwest boundary of the Fort Berthold Indian Reservation; thence along the present boundary of said reservation to the south bank of the Yellowstone River to the Powder River; thence up the Powder River to where the Little Powder River unites with it; thence northeasterly in a direct line to the point of beginning.
It was also ordered that further described territory "should be withdrawn from sale and set apart for the use of the Arickaree, Gros Ventre, and Mandan Indians as an addition to their present reservation," to wit:
Beginning on the most northeasterly point of the present Fort Berthold Indian Reservation (on the Missouri River); thence North to the township line between townships 58 and 59 N.; thence West along said township lines to its intersection with the white Earth River; thence down the said White Earth River to its junction with the Missouri River; thence along the present boundary of the Fort Berthold Indian Reservation and the left bank of the Missouri River to the mouth of the Little Knife River; thence southeasterly in a direct line to the point of beginning.
Under date of December 14, 1886, a treaty was entered into on the part of the plaintiff tribes and the defendant, under the provisions of which the plaintiffs ceded to the defendant
All their right, title, and interest in and to the land north of the 48 parallel N. latitude and west of a north and south line six miles W. of the most westerly point of the big bend in the Missouri River, south of the 48 north latitude, in consideration of the payment of $80,000 for ten years and the allotment to the members of the plaintiff tribes from the diminished reservation of the following parcels of land, to wit:
160 acres to each head of family.
80 acres to each single person over 18.
80 acres to each orphan under 18.
40 acres to each person under 18.
Other provisions were incorporated relative to the creation of a trust for a period of 25 years and otherwise safeguarding the property rights of the members of the plaintiff tribes.
The foregoing treaty was duly ratified March 3, 1891 (26 Stat. 1032), and its provisions were in due course carried into effect.
Under date of June 17, 1892, the President, by Executive order withdrew from sale and settlement and set apart as an addition to the reservation all that portion of township 147 N., range 87 west, lying north of the Missouri River in the State of North Dakota, not included in the Fort Stevenson Military Reservation.
Following the execution of the Treaty of Fort Laramie the plaintiff tribes faithfully observed its provisions, committed no depredations and took no part in tribal wars; they permitted the whites to travel through their country without molestation, and submitted all complaints of violation by others of their treaty rights to the Indian agents and other officials of the defendant.
On numerous occasions, prior to the execution of the treaty of September 14, 1886, authorized spokesmen of the plaintiff tribes reiterated the complaint that since the making of the Treaty of Fort Laramie they had done nothing wrong; that their enemies, disregarding the provisions of the treaty, had made war upon them, in some instances killing their young men and stealing their horses, and that, in accord with the provisions of the treaty, appeals had been made to the defendant's representatives to effect redress, but that nothing had ever been done.
In numerous instances, in the annual reports of Indian agents in charge of the plaintiff tribes, and of the Commissioner of Indian Affairs it was stated, in substance,
that the plaintiff tribes were peaceable, reliable, and honest; that they had many complaints of depredations suffered by them at the hands of other tribes, parties to the treaty of Fort Laramie; that these marauding parties had invaded plaintiffs' territory, destroyed their crops, had stolen their horses and that they demanded that they be accorded their treaty rights at the hands of the defendant Government, or that they be supplied with more ammunition, rather than so many blankets, etc.; rifles rather than shot guns, so that they would be able to repel the invading marauders and could hunt the buffalo, the elk and deer; that they had complained that the annuities provided for under the treaty of Fort Laramie were irregularly sent to them, were uncertain in quantity, varying in amount from year to year; that they had not rec ived all that was sent to them; that greater quantities of food and ammunition were supplied to the Sioux and other marauding tribes who had thereafter been allowed to invade the plaintiffs' territory to rob and kill; and that such treatment was unjust and not in accord with the provisions of the treaty of Fort Laramie.
On many occasions the defendant's officials, in charge of the administration of the plaintiffs' affairs, expressed their doubt as to the validity and effect of the provisions of the treaty of 1851, and their doubt of any recognition by the defendant of the existence of a reservation or property right in the plaintiff tribes, to the territory described in the treaty of 1851, and on occasions advised the members of the plaintiff tribes of such opinion. In this circumstance "White Shield," chief of the Arickarees, stated to the defendant's agents in a council held on July 2, 1864
We own the country from the Heart River to the Black Hills, from there to the Yellowstone River, north to the Mouse River ***. Our Great Father has promised us soldiers to help us keep the Dakotas out of our country. No help has come yet ***. We want to live in our country or have pay for it, as our Great Father used to do with his other red children ***.
Under date of November 15, 1864, the Commissioner of Indian Affairs reported the foregoing to the Department of the Interior and added that the plaintiffs were anxious that new treaties should be made with them; that they "own large tracts of land South of the Missouri River which they would cede to the United States and go upon a reservation."
Under date of October 29, 1870, the Governor of the Dakota Territory, ex officio Supt. Ind. Affrs., in a report to the commissioner of Indian Affairs at Washington, referred to the efforts then being made by the chief engineer of the Dakota division of the Northern Pacific Railroad to effect "the location of that road through the lands which have been regarded by the Indians" of the Fort Berthold Reservation Agency "as belonging to them," and added that under date of September 29, 1869, the chiefs of the three tribes had addressed a letter to General Hancock, in which they stated "that this reservation was agreed upon 'many years ago' between them and 'commissioners * * *'" and that
Since the signing of the treaty we have faithfully performed our part of the stipulation, and our Great Father at Washington must have been satisfied with our reservation within the limits mentioned, when in 1865 commissioners were sent to treat with us for a portion of the said reservation on which to erect military posts,...at the same time commissioners asked us for the right of way for soldiers as well as citizens to travel through our country to the Yellowstone and in the opposite direction, all of which we carefully granted. Had the country not been ours our Great Father, through his commissioners, would not, we think, have treated with us for the occupation or use of any portion of it, nor would we have the right to grant any such privilege.
Continuing, the same official states:
Whatever may have been the extent of the authority vested in the first commissioners referred to by these chiefs, and whatever may have been the purpose of the Government at that time it is very evident that this arrangement, as understood by the Indians, has not been carried out to such an extent as to give them any vested right in the lands claimed by them. It is equally clear that no special pains has been taken to acquaint them with the true situation of affairs, and that they have been allowed to infer from the subsequent action of the representatives of the Government when treating with them, that their claim was a valid one. For this it is probable that no one has been especially to blame. Up to this time, the land has not been wanted for any other purpose, and it has been easier to give a tacit recognition of their claim than to incur their displeasure in denying it.
In 1874, when an effort was made to transfer them to a reservation in the Indian Territory, now Oklahoma, it was reported that the plaintiffs had refused and had stated
"they love their own country; their dead are buried there; the Government probably would not redeem its promises better there than here"; and that they did not care "to incur the risk of moving from the country they had so long called their home."
Following the execution of the Executive order of July 13, 1880, to free the "forty-mile limit" grant to the railroad of Indian titles, it was reported by the defendant's officials that the Indians complained that such action was arbitrarily done without their knowledge and consent and that such action had been the subject of severe complaint; that the property taken consisted of more than half their entire reservation; that their injured feelings were not satisfied by the addition which had been made to the north, which was rough land and undesirable, and that had they been consulted they never would have consented to the transfer. It was also reported that the plaintiff tribes were aware that the right of way for railroads through other Indian reservations had been secured by treaty for which those tribes now receive greater annuities and larger quantities of supplies than were received by the Fort Berthold Indians; that they often assert that the defendant Government did not treat the more powerful and war-like tribes in such manner and that they are now informed that because there was no treaty stipulation to fulfill with them, they can no longer be provided with certain supplies which they formerly enjoyed.
Prior to the issuance of the Executive orders of 1870 and 1880 the plaintiff Indians utilized practically the entire reservation for hunting. The trips were made annually and extended to the headwaters of the Knife River, near the southern boundary of the territory described in the Fort Laramie treaty, in the country surrounding the Little Missouri River, the center of the same territory, their chief hunting grounds, and extended northward to the Yellowstone River, the northwestern boundary of the reservation.
Under date of February 2, 1880, the commanding officer of Fort Stevenson, in answer to a direct inquiry from the headquarters of the Department of the Dakota, stated that practically the whole of the plaintiffs' reservation lying west of the Missouri River, so far as he could ascertain "is frequently visited by these Indians in pursuit of game, and I am informed by the agent of these Indians that the reservation is habitually used by them as contemplated by the Executive order of April 12, 1870 ***."
Under date of January 26, 1880, the Indian agent at Fort Berthold reported to the commanding officer at Fort Stevenson, in answer to a direct inquiry, "you are respectfully informed that practically the entire reservation lies west of the Missouri River, and the greater portion of the same, if not the whole, is frequently visited by agency Indians in pursuing the chase; and I might say the same is habitually used by them as contemplated in Executive order of April 12, 1870."
Under date of April 13, 1880, Indian agent at Fort Berthold reported to the Commissioner of Indian Affairs that the "Indians of this agency habitually make use of the entire reservation for hunting, trapping and other purposes and unquestionably habitually use the portion of the reservation which is embraced in the land grant to the Northern Pacific Railroad ***," and that "the character of the reservation outside the grant to the railroad company is not so well adapted to farming, raising, fishing, and hunting and the other necessities of the Indians ***. In my judgment, any alteration or change in the present reservation would greatly militate against the interest of the Indians.
"To diminish the reservation of these Indians west of the Missouri River would deprive them of nearly all their good farming lands and timber.
"No compensation for this loss could be given them by increasing the reservation east of the Missouri River, for the land is poor and barren and without water or timber, especially the latter."
It is clearly shown that the members of the plaintiff tribes were at all times entirely familiar with the history of the treaty of Fort Laramie and the later occurrences; that the treaty was made "to form peace between themselves and other tribes" in 'consideration for which the Government had agreed to give them rations for fifty years; that the Government began to issue rations and that they were making use of the land, but in the course of time they found out that the Government "that swore the oath that we should use these lands just simply took part of the lands without our consent and knowledge."
It is equally apparent that when the railroad reached Bismarck the members of the plaintiff tribes thought that it was not going any further; that when it was built through their territory and they saw the white settlers coming in they realized that the Government had taken their land away from them without their consent and they thought that some day the Government might recompense them for the same, but nothing was ever done and they said "we are like prisoners," and could do nothing. This land was valuable to them because it contained their livelihood; their wants were supplied from their gardens which they planted and the hunting of buffalo and deer supplied them with meat and clothing. They had never given their consent to the action taken under the authority of the Executive orders of 1870 and 1880 and noted their objection when the facts became known to them, for "the Indian knows the difference between an open deal and no deal at all." When the military reservations were established the plaintiffs were told that it was done to enable the Government's troops to protect them from their enemies; that the reservations belonged to the plaintiffs and that the Government desired only to occupy them; subsequently, after the defendant's troops had left, when the plaintiffs learned that the reservations had been sold, they protested, stating that the land belonged to them and that they were entitled to the proceeds.
The members of the plaintiff tribes at no time had any appreciation of the value of their property and even in the negotiations of the treaty of 1886 were entirely dependent upon and required the protection of the Government. They had, however, heard of the negotiations and cession treaties made with other tribes of Indians and had been informed of the rate of payment agreed upon as compensation for the land relinquished to the Government.
Before the entry of the railroad the country west of Bismarck was unsettled and used only by the Indians. It was always good grazing land, and in the '70s it was free range. Stock was introduced into the country in the middle '70s. In the '80s hundreds of thousands of head of cattle and sheep were on the range.
In 1874 there were approximately 15,000 whites living within the old Fort Berthold Reservation, engaged in transportation, Government work, steamboat work, railroad construction and the ordinary business of a typical frontier country. After the railroad was completed a large number remained and settled down to farming.
Coal was first discovered and mined in the Fort Stevenson Reservation in 1874. Wheat was introduced in 1879. The deposits of lignite and coal were extensive and extremely valuable. The land as a whole "had a very good value, growing every day." Full returns to an owner were "a mere question of wait. ***." In the '70s, with the stockmen enjoying free range in the territory subsequently comprising the railroad right of way, not even the oldest inhabitant, a member of the territorial legislature, and the surveyor general, and who was familiar with the land west of Bismarck and in a general way with the plaintiffs' territory, as described in the Laramie treaty, could estimate the value of the property as a whole.
Its value was entirely dependent upon the period of valuation, the quantity of acreage to be valued, and its locality.
No individual could secure a title until approximately 1877 when they had proved up. In the late '70s there were quite a number of mortgage loans on homestead titles and a settler could secure on mortgage approximately $2.60 per acre.
In the late '80s there were a number of sales of land between individuals. In some instances parcels were sold at $5.00 per acre. Land inside of the forty-mile grant to the railroad was sold at $2.50 per acre. In the '90s and early 1900 large tracts ranging from 60,000 acres to 300,000 acres were sold at prices ranging from $1.70 to $1.35 per acre. The purchase of a tract of 1,000,000 acres was negotiated on a basis of $1.05 per acre.
The territory deducted from the plaintiffs' reservation, as described in the treaty of Fort Laramie, for the establishment of the military reservation at Fort Buford under the provisions of the Executive order of August 18, 1868, was 98,645.67 acres; under the
Executive order of April 12, 1870, was 4,686,612.43 acres; and under the Executive order of July 17, 1880, was 6,639,254.66 acres.
There was added to the plaintiffs' reservation under the provisions of the Executive orders of April 12, 1870, July 13, 1880, and July 17, 1892, 1,578,325.83 acres which, in major part, were thereafter duly ceded to the defendant and for which the plaintiffs received payment.
The total net deduction from the plaintiffs' original reservation, as described in the treaty of Fort Laramie of 1851, and for which no compensation was received, was 9,846,186.93 acres.
The value of the territory deducted from the plaintiffs' reservation, and for which no compensation was paid, was $4,923,093.47.
Subsequent to the execution of the treaty of Fort Laramie of September 17, 1851, to and including the 24th day of January, 1923, but excepting the period from March 3, 1891, to May 31, 1900, during which time the plaintiffs were receiving payment under the provisions of the treaty of 1886, the defendant expended on behalf of and for the benefit of the plaintiff tribes the sum of $2,753,924.89.
Upon the foregoing special findings of fact, which are made part of the judgment herein, the court decides as a conclusion of law that the plaintiffs are entitled to recover $2,169,168.58.
It is therefore adjudged and ordered that the plaintiffs recover of and from the United States the sum of $2,169,168.58.
BOOTH, Chief Justice, delivered the opinion of the court:
The Congress enacted the special jurisdictional act set forth in full in Finding I. The obvious purpose of the act is the adjudication of plaintiffs' rights accruing legally or equitably in virtue of any treaties, agreements, laws of Congress, or misappropriation of funds. The controversy is by the record narrowed to three claims, viz, the alleged taking by the Government of lands embraced within the Indians' reservation without their consent and without compensation; second, a claim for $50,000 for the value of timber alleged to have been cut and taken from their reservation by white trespassers; and, third, the cost of surveying the inner lines of their reservation in December, 1886, it being charged that the expense incident thereto was by express agreement chargeable to the United States and not the Indians.
The first issue raises the important question as to when the reservation claimed in the petition was fixed and set aside by treaty stipulations between the Indians and the United States, and whether the treaty relied upon did in fact create the reservation claimed. The plaintiffs, composing a confederated tribe of Indians made up of three bands—the Arickarees, Gros Ventres, and Mandans—constituted a portion of the vast Indian population which inhabited the great western plains east of the Rocky Mountains and west and south of the Missouri River and its tributaries. Prior to 1851 the Indian tribes had repeatedly engaged in costly internecine warfare, and the plaintiff Indians had suffered from such strifes, not alone from a natural indisposition towards such hostilities but from apparent inability, because of lack of numbers, to cope with their more numerous and more savage neighbors. As a matter of fact, plaintiff Indians had been driven by repeated assaults upon them by the Teton Sioux, a warlike and seemingly irrepressible tribe who had consolidated its large numbers to the south and west of the Missouri River, in territory not only adjacent to the plaintiffs' ancient habitat, but in proximity to the various other Indian tribes living within the Indian area involved in this case, to Fort Berthold, North Dakota. The one event which evoked
immediate governmental action and negotiations with all the "wild Indian tribes of the prairies" was the discovery of gold in California. The abnormal increase in travel across the plains, following the discovery of gold in California, provoked the Indian tribes into the commission of violent depredations against the travellers, alleged to be due to the destruction of timber upon Indian lands and the tribal fear of ultimate extinction of the buffalo and other game upon which they relied for food. In fact, the Indians resented the invasion of their domains. To pacify the Indians and to secure the right of free passage through the territory, as well as protect them in the future and reimburse them for losses sustained or to be sustained, the Congress on February 27, 1851 (9 Stat. 572), appropriated $100,000.00 to defray the expenses incident to "holding treaties with the wild tribes of the prairie, and for bringing delegates on to the seat of government." The President appointed the Superintendent of Indian Affairs, D.D. Mitchell, and Indian Agent Thomas Fitzpatrick, as commissioners to conduct the negotiations. The commissioners were instructed as to their duties, and in addition to express instructions as to the procurement of free and unhampered passage through their territory, it was stated to them that "It is important, if practicable, to establish for each tribe some fixed boundaries, within which they should stipulate generally to reside, and each should agree, not to intrude within the limits assigned to another tribe without its consent."
On September 1, 1851, the commissioners met eight Indian tribes at Fort Laramie, viz, the Sioux or Dah-co-tahs of the Missouri, Assinaboins, Gros Ventres, Arickarees, Crows, Shoshones or Snakes, Cheyennes and Arapahoes. Following sixteen days of negotiations a treaty was finally consummated with the tribes on September 17, 1851, known as the Fort Laramie treaty. It was signed by the chiefs, headmen, and braves of all of the foregoing Indian tribes except the Shoshones, the commissioners believing that this tribe did not fall within their instructions, and in addition bore the signature of the Mandans. The treaty in haec verba appears in Finding V. The commissioners unquestionably followed their instructions; the stipulations of the treaty so attest. The important provision herein involved pertains to the description of the tract of land set forth in article 5, and the one issue vital to the plaintiff Indians' right of recovery is whether this article did or did not create an Indian reservation.
We have adverted to some extent upon contemporaneous conditions. The Government was chiefly concerned with the procurement of a peaceable right of passage through the Indian country for its citizens, and the prevention of Indian warfare. Manifestly, those in charge of Indian affairs, as well as Congress, were looking towards the establishment of an agricultural policy for the Indians, a policy which must eventually curtail their nomadic habits, due, as was then seen, to the encroachments of the whites upon lands the Indians had long claimed, and from which they derived their living. We need do more than assert that invasion of lands claimed by Indian tribes by either other Indian tribes or white men at once provoked hostilities. In what other way and for what other consideration could the commissioners have successfully accomplished their designed purpose than a governmental recognization of certain well-described lands as territory belonging to the Indians by right of occupancy? It is true the treaty abounds in other considerations for its execution, but the one involved here, i.e., distinct reservations, is not only specific in its terms, obligating the parties to irrevocable observance of the limits of lands set forth, but reserves in express words the claims of the Indians to other lands. The defendant says the territorial provisions were simply mutual recognition by the Indians of their claims to territory and its segregation by them, without positive governmental recognition or verification of the same. This contention, as we view it, concedes that when the commissioners approached the Indians their title by right of occupancy to all the territory embraced within the treaty was recognized by the commissioners representing the Government, and that what the treaty did was to segregate the same into individual tribal allotments. In other words, the Government not only recognized the Indian title, never at any time disputing it, but by solemn treaty, following negotiations, expressly agreed that each tribe was to be assured title to the territory set aside for it. Surely it was not essential to procure by treaty the grant of a perpetual right of way through Indian lands if the Indians did not own the same by right of occupancy. It is true the lands set aside to each tribe embraced a vast domain. To the plaintiff Indians the treaty segregated a territory of about 21,000
square miles and embracing close to 13,000,000 acres of land. With this vast estate, however, the treaty deals, and whether the Government in ratifying the treaty was moved by the then nominal value of somewhat of a wilderness, or concerned in Indian peace at present costs, the fact is the treaty was ratified in the manner provided by law and no unusual circumstance attended its negotiations, and no challenge is now made to its validity, despite the existence of an unusual situation as to its proclamation. Commissioner Mitchell in reporting upon the treaty used this language:
The laying off of the country into geographical or rather national domains I regard as a very important measure, inasmuch as it will take away a great cause of quarrel among themselves, and at the same time enable the Government to ascertain who are the depredators, should depredations hereafter be committed. The accompanying map, upon which these national boundaries are clearly marked and defined, was made in the presence of the Indians, and fully approved and sanctioned by all.
The language of the treaty, while not in all respects the technical wording used in other Indian treaties is, we think, sufficient when considered in connection with the instrument as a whole and the purpose and intent of the parties thereto, to clearly indicate that the territory of the Indians was to be delimited in accord with their claims and protection assured them within its bounds, in consideration of the rights and privileges secured to the United States and its citizens.
The long-existing cause of Indian wars which had excluded the whites from this section of the country arose in large part over intertribal disputations as to tribal territory, and it is difficult to perceive in what way and under what circumstances it may be held that the provisions of the treaty did not assure to the plaintiff Indians a governmental concession that the territory mentioned in the treaty was to be held by them as Indian country was held by Indians. Beyond doubt, the Indians so understood the treaty, and the Congress legislated in accord with its amended terms, to which the Indians agreed. The law, for which we need not cite familiar precedents, is that in controversies between the Indians and the Government arising out of doubtful and ambiguous provisions of treaties or contracts they are to be taken most strongly against the Government. The Indians' rights are not to be prejudiced by technical construction or words of doubtful import. The Government's policy of recognizing Indian title to lands over which the tribes ranged in hunting for game necessarily involved large areas, and the early Indian treaties exemplify this fact. Lands were not then cultivated to any extent and acreage value was exceedingly nominal, so that it is impossible for the court to construe treaty stipulations as intending a mutual arrangement between the Indian parties, rather than the delimiting of claimed Indian reservations upon the single fact of large areas and extensive habitats. We are considering a transaction completed almost eighty years ago, a period of time when the wild Indians of the prairies were occupying and in possession of the lands involved in the treaty of Fort Laramie, and the problem to be solved related exclusively to the adoption of policies and measures calculated to insure the safety of the white emigrant in Indian country and tribal peace between the tribes themselves. The quantity of land involved was not a serious factor; the perplexing question was the division of the domain among the tribes in such a way as to assure tribal peace. This, we think, the treaty accomplished to a large extent, and from that day to this the tribes have continuously insisted upon their title to the lands described in the treaty.
The Supreme Court has repeatedly held that the Indians' claim of right of occupancy of lands is dependent upon actual and not constructive possession. Mitchel v. United States, 9 Pet. 711; Williams v. Chicago, 242 U.S. 434; Choctaw Nation v. United States, 34 C. Cls. 17. Beyond doubt, abandonment of claimed Indian territory by the Indians will extinguish Indian title. In this case the Government interposes the defense of abandonment, asserting that the facts sustain the contention. It is of course conceded that the issue of abandonment is one of intention to relinquish, surrender, and unreservedly give up all claims to title to the lands described in the treaty, and the source from which to arrive at such an intention is the facts and circumstances of the transaction involved. Forcible ejection from the premises, or non-user under certain circumstances, as well as lapse of time, are not standing alone sufficient to warrant an abandonment. Welsh v. Taylor, 18 L.R.A. 535; Gassert v. Noyes, 44 Pacific 959; Mitchell v. Corder, 21 W. Va. 277.
The Government cites the history of the plaintiff Indians and their successive migrations until their final habitat at Fort Berthold. Much reliance is placed upon their comparatively small population and the fact that Sioux wars repeatedly forced them into small villages from which they dared not venture for fear of extinction by that savage tribe. It is argued that the very vastness of the area involved, in comparison with the Indian population, precluded the possibility of occupancy of the same. It is impossible from the record to fix with accuracy the population of the plaintiff Indian tribes during the period of this controversy; that they were not an unusually large tribe seems evident. Unquestionably their numbers were reduced at times by disease and warfare. However, it is established that a sufficient population continuously prevailed to establish their autonomy and maintain their tribal existence. In 1804, according to the Government's citation, their population was sufficiently large to occupy the lands and we find no evidence in the record of sufficient probative value to sustain us in deciding that their number so materially decreased as to render it impossible to range over the territory claimed. In 1869 their population was near to 2,800. It is admitted without any reservations that the plaintiff Indians not only observed the treaty stipulations as they appear in the treaty of 1851, but were by nature and disposition a peaceable, quiet tribe engaging in agricultural pursuits in the summer season and hunting game in the winter. That they ranged over the entire country involved is established by numerous reports, and that they claimed it as their own is firmly proven. The neighboring Sioux were the plaintiffs' inveterate enemies. This hostile tribe forced the plaintiff Indians to relocate their villages more than once along the Missouri River, and unquestionably the continuing menace of Sioux hostilities precluded at times extensive hunting excursions into the claimed territory; but assuredly armed intervention, forcible ejection from lands, and fear of death and tribal destruction do not indicate abandonment. For some few years following the treaty of 1851 the Sioux observed its stipulations, and the record seems to establish that the later outbreaks of the Sioux were not occasioned so much over territorial disputes as over the alleged invasion and depredations of white emigrants in or passing through the territory.
In July, 1866, a treaty was negotiated with the plaintiffs. This treaty ceded certain described lands to the plaintiffs. The plaintiffs signed it, but it failed of ratification by Congress. In August, 1868, by Executive order the Government established Fort Buford Reservation, a reservation comprising 98,645.67 acres of land, all within the boundaries of the lands described in the treaty of 1851.
In July, 1869, in response to complaints from the plaintiffs of serious depredations upon their timber lands, the major general in command of the Military Department of Dakota reported to his superior officer that he had visited the plaintiff Indians and had a council with them. One question which disturbed the council was whether the plaintiffs legally possessed a reservation or whether one had ever been allotted to them. The major instructed the commanding officer at Fort Stevenson to survey the country and recommend the setting aside of a reservation for the Indians. This was done and a report thereof forwarded to Washington. The Commissioner of Indian Affairs in August, 1869, advised the commanding officer of the existence of the treaty of 1851 providing a reservation, and of the unratified treaty of 1866, concluding with the statement that "there are no treaty stipulations with these Indians relative to a reservation for them, which have been ratified." Acting upon this erroneous information--a fact which the Government now concedes—a delimited reservation described in Finding X was by the Executive order of April 12, 1870, set aside to the plaintiff Indians. The lands embraced within the 1870 reservation were part of the precise lands, with an unimportant exception, described in the treaty of 1851. The establishment of this reservation reduced the territory described in the treaty of 1851 to the extent of 4,686,612.43 acres of land, and the Indians occupied the reduced reservation. The treaty of Fort Laramie of 1851 was ratified by the Senate on May 24, 1852, after amending article 7 of the same. The amended treaty was returned to the tribes for their assent to the modification of the same. All tribes assented thereto, and dug to an administrative error and oversight the treaty was never proclaimed; hence, the Indian Office and other delegated officials concerned in negotiations with the Indians proceeded upon the erroneous conviction that the Fort Laramie treaty was never
ratified. Congress, however, recognized its terms and appropriated the sums mentioned in the treaty to meet the Government's annual obligations under it to the Indians. There can be no doubt that the failure of governmental officials and others dealing with the Indians at this time to recognize the treaty of 1851 was due exclusively to a belief that the treaty of 1851 was never ratified by the Senate. The plaintiff Indians were at the time an ignorant and unlettered people, forced by their status and situation to rely implicitly upon the representatives of the Government, and while they laid claim to a much larger territory than the 1870 reservation, they were in no position to controvert an alleged existing condition, which was represented to them by those in authority as leaving them without any landed reservation whatever. As w e look at it, it was the Government's error and unintended misrepresentation which resulted in procuring a. settlement with the Indians in 1870 which did not equitably compensate them for rights granted under the Fort Laramie treaty of 1851. The various special jurisdictional acts conferring jurisdiction upon this court to adjudicate Indian controversies, the decisions of the Supreme and this court, the policy of the Government from time immemorial, attest the indisputable rule that tribal Indians were not to be divested of ceded reservations, ceded under treaties and acts of Congress, without compensating them for the lands taken from them in diminishing their holdings. We think it nonessential to encumber this opinion with the innumerable cases demonstrating the rule. If we are correct in our analysis of the record, the plaintiffs are entitled to recover, under the treaty of 1851, the difference in value between the reservation allotted under that treaty and the reservation established by the Executive order of 1870.
The construction of the Northern Pacific Railroad, with the aid of grants of land through which the line passed, again diminished the plaintiffs' reservation. This railroad ran through the Indians' reservation as fixed by the Fort Laramie treaty of 1851. Section 2 of the land grant provided for the extinguishment of Indian titles. On June 23, 1878, the officials of the railroad notified the Commissioner of Indian Affairs that the line of the road ran through the lands ceded to the Indians as a reservation in 1870, and inasmuch as the grant to the railroad covered every alternate section of land along its right of way, it was essential in order to expedite building that the Indians' reservation be altered and Indian title extinguished so that progress might attain, and railroad lands be freed from Indian claims of title. In July, 1879, the commissioner of Indian Affairs recommended the withdrawal from the reservation of a large acreage of lands, ceding the Indian lieu lands on the north bank of the Missouri River. On July 13, 1880, by Executive order the recommendations of the commissioner were made effective. (Finding XIV.) As a result of the foregoing order, in connection with additional landed transactions described in Findings XV and XVI, the plaintiffs' reservation as set out in the Fort Laramie treaty was again diminished to the extent of 6,639,254.66 acres, leaving the remaining area of the territory described in the treaty of 1851, with the additions made thereto in 1870 and 1880 as the plaintiffs' reservation, the major portion of which- was duly ceded by them subsequent to the treaty of 1886. Thus it is shown that through governmental action the plaintiffs' reservation as described in the treaty of 1851 was diminished by successive takings to the following extent, viz, 11,424,512.76 acres, itemized as follows: 98,645.67 set aside for Fort Buford Military reservation, 4,686,612.43 acres taken under the Executive order of 1870, and 6,639,254.66 taken under the Executive order of 1880. However, the Executive orders of 1870, 1880, and 1892 added to the plaintiffs' landed estate 1,578,325.83 acres, no portion of which was included in the lands described in the treaty of 1851 and the major portion of which was thereafter ceded to the Government and for which the plaintiffs received payment, thereby reducing the number of acres finally taken by the Government, for which no compensation has been paid, to 9,846,186.93 acres. (Finding XXI.)
It is an essential function of the court to reconcile the record as to the amount of compensation to which the Indians are entitled, predicated upon the value of the lands. The plaintiffs seek to fix an acreage market value of $1.25 per acre, the price for which much of the territory was offered by the Government to settlers. The contention we believe is untenable. The acreage price offered to settlers was adjusted on a basis of limited allotments, the entire consideration to be paid in stated installments. The judgment we are to render is to be based on takings embracing large areas of land,
totaling in two instances millions of acres and in the other close to a hundred thousand acres. When these large tracts were acquired it is apparent that enormous expense is involved in the future segregation of the tracts into marketable units and their sale upon installment payments. The Government's overhead in the maintenance of a department to accomplish their disposition and the incidental expense accompanying the transaction indisputably establishes that the $1.25 per acre was not all profit, if, iii fact, profit accrued at all. The Indians could not have disposed of the lands in the way and manner the Government did, 'and while the homestead laws valued the lands at $1.25 per acre, the return to the Government was not a net but a gross price. We give the Indians a judgment in this case for the value of the lands free from all the expense of sale or segregation for sale. To claim a uniform price of $1.25 per acre, free from the character of expense enumerated would, in our judgment, award the plaintiffs a sum much beyond any price they could have obtained had they offered the tracts for sale.
The plaintiffs are entitled to just compensation to be fixed upon the basis of the amount they might have obtained for the large areas taken at the time they were taken. It is conceded in the briefs of both parties that in 1851 the Indian country involved possessed little, if any, market value. It is, of course, obvious that the Indians could not have sold it or transferred a title in fee. The discovery of gold in California did not appreciably affect the value of the domain. It was not until 1870 that activities concentrated upon the domain and civilization began to push itself into that section of the country. The Civil War had intervened in this period and during the war several Indian hostilities prevailed. The building of the railroad was among, if not, the first event which tended to give a market value of any consequence to the land, and it is inconceivable that 4,686,612.43 acres of land of varying quality and location could possibly have been disposed of in excess of fifty cents per acre. This, we think, represents the maximum of value, a sum deduced from a conflicting record and in harmony with the price fixed by the Government for lands acquired about the same period of time from other Indian tribes in the same locality in cessions to the Government of their reservations in many treaties. The record discloses but a single instance wherein the various tribes of Indians occupying adjacent territory ever asserted a claim for as much as $1.25 per acre for lands in this section ceded to the Government by treaty stipulations, and in addition to this fact the plaintiffs in December, 1886, sold to the Government 1,782,831.64 acres of their then reservation for a little less than 45 cents per acre. Almost 779,000 acres of the total amount sold in 1886 were within the boundaries of the lands described in the treaty of 1851. The record convinces us that the Indians themselves did not and would not have valued their lands at the time they were taken at a greater average value than fifty cents per acre. This acreage value is not, of course, the highest claimed, nor does it represent the price, much lower, contended for by the Government. It is the acreage value which we believe the lands might have brought if offered for sale, considering the title of the Indians and the circumstances surrounding a transfer of the magnitude and importance involved. On this basis we award total value of $4,923,093.47.
The jurisdictional act charges the Indians with "all sums heretofore paid or expended for the benefit of said tribe or any band thereof." The Government under the foregoing provision of the jurisdictional act charges the Indians with $290,827.25, alleged to be pro rata cost of educating individual children of the bands at various nonagency Indian schools. The amount charged is arrived at by ascertaining the per capita cost of maintaining the schools and charging the same to the Indian tribe as the number of children attending appears. The Government during the period maintained at its expense Indian schools at Carlisle, Pa., Chilocco, Okla., Lawrence, Kans., Pipestone, Minn., and Pierre, S.D. Congress appropriated from the Treasury in accord with a governmental policy to extend the privileges of education to Indian children for the express intent of eventually changing the hereditary habits and customs of the tribes. The motive involved was more directly beneficial, from a governmental standpoint, to the Government than to the tribe. Of course, educational facilities were of prime necessity and imperative, and eventually resulted in benefit to the tribe, but the immediate beneficial results were individual and not tribal.
We do not believe that the jurisdictional act comprehends a set-off against the claim of the Indians for this item of expenditure in behalf of children of Indian tribes indiscriminately. To so hold might result in sustaining an obvious injustice, for the bands involved in this litigation would be held to contributing a sum towards the maintenance of the schools, while other tribes with much larger attendance would escape payment for benefits of equal value. The sums chargeable, we think, must be restricted to the usually recognized and customary distributions made to the Indians as tribes and bands, unless a contrary purpose is expressed in the act. Public institutions established for the Indian race were maintained from public funds as an adopted public policy, in the nature of gratuity. The Government, we think, did not expend and is not entitled to a counterclaim of more than $2,753,924.89, leaving a judgment in favor of the Indians in the amount of $2,169,168.58. Judgment for this amount is awarded the plaintiffs. It is so ordered.
WILLIAMS, Judge; LITTLETON, Judge; and GREEN, Judge, concur.
WHALEY, Judge, did not hear this case and took no part in its decision.