# United States v. Southern Ute Tribe or Band of Indians/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
United States Supreme Court
402 U.S. 159
United States v. Southern Ute Tribe or Band of Indians
Argued: March 1, 1971. --- Decided: April 26, 1971
In 1951 the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indians Claims Commission. The claim asserted that the United States had violated its fiduciary duty to respondent by (1) disposing of 220,000 acres of land as 'free homesteads' although obligated by 21 Stat. 203-204 (1880) and 28 Stat. 678 (1895) to seel the acreage for the respondent's benefit; and (2) by failing to account for the proceeds of 82,000 acres of land, which proceeds were, under the same Acts, to be held for the respondent's benefit. The Government's basic defense was res judicata by reason of Court of Claims consent judgments entered in 1950 between the United States and the Confederated Bands of Utes, including the respondent. Confederated Bands of Ute Indians v. United States, 117 Ct.Cl. 433 (1950). The Indian Claims Commission rejected the defense, 17 Ind.Cl.Comm. 28 (1966); but the Court of Claims, in an unpublished order, App. 57-58 remanded for the taking of additional evidence. On remand the Commission again rejected the defense, 21 Ind.Cl.Comm. 268 (1969), and the Court of Claims affirmed, two judges dissenting. 423 F.2d 346, 191 Ct.Cl. 1 (1970). We granted certiorari. 400 U.S. 915, 91 S.Ct. 173, 27 L.Ed.2d 154 (1970). We reverse.
The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that:
'(A) judgment * * * shall be entered in this cause as full settlement and payment for the complete extinguishment of plaintiffs' right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold for cash * * * (b) disposed of as free homesteads * * * and (c) set aside for public purposes (between 1910 and 1938) * * *. There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of (lands) * * * disposed of by defendant as free homesteads and the remanining * * * acres * * * set aside by the defendant for public purposes. * * * However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but * * * also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 * * *.' 117 Ct.Cl., at 436-437 (emphasis added).
The lands involved in the present suit were not included in Schedule 1; rather, the Government relies upon the clause that the consent judgment was 'res judicata * * * also as to any land * * * ceded to defendant by the Act of June 15, 1880 * * *.'
Both the Indian Claims Commission and the Court of Claims rejected the Government's res judicata defense on the ground that the claim concerning the lands involved in this action was not compromised by the 1950 settlement because those lands were not among the lands 'ceded to defendant by the Act of June 15, 1880.'
Decision of this case turns, then, upon the proper interpretation of the agreement, embodied in the Act of 1880, between the United States and the Ute Indians as it relates to the settlement agreement, reduced to judgment in 1950, between the same parties. The determination of that interpretation requires a somewhat lengthy factual recitation.
In the latter half of the 19th century, what is now the Confederated Bands of Utes, composed of the Uncompahgre Utes, the White River Utes, and the Southern Utes, exchanged their aboriginal lands in New Mexico, Utah, and Colorado for a reservation of approximately 15.7 million acres lying wholly within Colorado. 13 Stat. 673 (1864); 15 Stat. 619 (1868). Although the acreage was undivided, the White River Utes lived in the northern portion of the reservation, the Uncompahgre Utes inhabited the central part, and the Southern Utes occupied the southern region. The reservation, however, survived little longer than a decade in this form. In 1874 the Utes approved the Brunot Cession of 3.7 million acres of the east-central portion of the reservation after valuable mineral deposits had been discovered there. 18 Stat. 36 (1874). The result of the cession was almost to sever the reservation, leaving the Southern Utes wedged between the southern boundary line of the Brunot Cession and the New Mexico border, at the southernmost part of the reservation on a strip of land 15 miles wide and 110 miles long. This strip, which includes the lands at issue here, is referred to by the parties as Royce Area 617, and the remainder of the reservation after the Brunot Cession is referred to as Royce Area 616.
Within eight years, only the Southern Utes remained in Colorado: the White River Utes and the Uncompahgre Utes departed for Utah before 1882 as a consequence of the massacre in 1879 of Indian Agent Meeker and others at White River station. The public outcry over this incident led to negotiations with the Confederated Bands which produced the Act of 1880.
The central feature of the Act of 1880 was the termination of tribal ownership in the reservation lands, and the limitation of Indian ownership to such lands as might be allotted in severalty to individual Indians. The purposes of that provision were to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people. See 10 Cong.Rec. 2059, 2066 (1880). The Act recited that it was enacted to accept 'the agreement submitted by the confederated bands of Ute Indians in Colorado, for the sale of their reservation in said State * * *.' 21 Stat. 199 (1880). Thus, it was provided that the Confederated Bands 'cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.' 21 Stat. 200 (1880). The settlement provisions stipulated that the White River Utes would leave Colorado 'and settle upon agricultural lands on the Uintah Reservation in Utah,' ibid., and that '(t)he Uncompahgre Utes agree to remove to and settle upon agricultural lands on Grand River, near the mouth of the Gunnison River, in Colorado,' ibid., or if insufficient agricultural land was found there, go to Utah (which they soon did). The Southern Utes were to 'remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico.' Ibid. Finally, it was provided that 'all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject to disposal,' but only for the financial benefit of the Utes. 21 Stat. 203-204 (1880).
The plain wording of the Act cedes to the United States all of the nonallotted acreage of the reservation, including that in the 15-mile strip (Royce Area 617) occupied by the Southern Utes. The Court of Claims' opinion acknowledges this, stating that:
'The most significant aspects to be gleaned from this (1880) Act * * * is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation Royce Area 616 and 617-and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share and like their confederates understood that such monies would be held by defendant in trust for their benefit.' 423 F.2d, at 350, 191 Ct.Cl., at 10 (1970) (emphasis in original).
Thus, if inquiry were to end with the wording of the 1880 Act, the consent judgment barred respondent's claim.
The Commission and the Court of Claims did not, however, end their inquiry with the wording of the Act of 1880. Both of those tribunals considered the conduct of the United States in relation to respondent tribe in the years subsequent to passage of the Act of 1880. Even so, the basis of their rejection of the res judicata defense does not emerge from their opinions with complete clarity. The Court of Claims read the Commission's first opinion, 17 Ind.Cl.Comm. 28 (1966), as holding that the Southern Utes expressly withheld the southern strip from the land ceded by the 1880 Act: 'The Commission found that the Act of 1880 'reserved' Royce Area 617 for the Southern Utes.' 423 F.2d, at 350, 191 Ct.Cl., at 10. Some language at that point of the opinion suggested that the Court of Claims was in agreement with that view-'the following sequence of events * * * support the conclusion that plaintiffs at any rate did not cede their reservation (Royce Area 617) under the agreement of 1880.' Ibid. However, the opinion later turns the decision on a different theory:
'The more tenable theory, in our estimation, is that Congress recognized that by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and honorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that if the land was going to be acquired free and clear new consideration was necessary. Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government's rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.' Id., at 356, 191 Ct.Cl., at 19-20.
This reasoning implies that the holding that the lands in suit were not ceded in 1880 rests upon application of the doctrines of estoppel, or waiver, or a compound of those doctrines. We disagree that the history relied on supports any of those bases for decision, even assuming (and we have serious doubts) that the plain words of the Act of 1880 can thus be varied to except the lands in suit from the phrase 'any land * * * ceded' in the consent judgment. We turn, then, seriatim to the events relied upon below.
Even before 1880 the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing and the resulting lines of commerce cut across the strip.
'The Indian Bureau, realizing that this strip, by reason of its narrowness and of its remoteness from the other portion of the reservation, was entirely unsuited to the use of the Indians, suggested that negotiations be entered into with them for the cession of that strip. In accordance with this, in 1878, Congress passed an act authrizing such negotiations (U.S.Stat.L., vol. 20, p. 48), and under this authority a commission * * * was appointed, and during the same year they negotiated an agreement with the Indians whereby they agreed to exchange this strip for another reservation.' S.Rep.No. 279, 53d Cong., 2d Sess., 1 (1894).
But before the bill was acted upon by Congress, the Meeker Massacre occurred. The outcry following that incident caused Congress to adopt the solution in the Act of 1880 affecting all of the Ute tribes. Contrary to the apparent view of the Commission and Court of Claims, this segment of history does not show an intention to treat the Southern Utes differently from the other Utes; rather, it demonstrates a congressional decision to treat the Southern Utes as the White River and Uncompahgre Utes were being treated, save that the White River Utes were being completely banished from Colorado.
The Act of 1880 provided that 'a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support * * *.' 21 Stat. 201 (1880). The Commission visited the Southern Utes to carry out that mandate and in 1881 its chairman reported to Congress:
'During may stay on the reservation I took occasion * * * to talk to the leading men * * * on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location (in severalty) * * *. I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. It will take time and careful management to induce these Indians to abandon their present (way of living) and adopt the new mode of life contemplated by the agreement.
'In the mean time, and while the change is going on, they must be protected from annoyance. * * * To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the (1880) agreement * * * as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation * * *. Then the land selected, and upon which the Indians are to be located, can be kept free from intruders.' H.R.Exec.Doc.No.1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 393 (1882).
But Congress did not create the recommended reservation. Instead, Congress took action consistent with adherence to the plan of the Act of 1880. There had been great pressure to open Royce Areas 616 and 617 to homesteading after the Act of 1880 had resulted in the removal of the Uncompahgre and White River Utes. The Southern Utes were, however, still occupying the southern strip, Royce Area 617. The apparent result was the Act of July 28, 1882, 22 Stat. 178, which declared that all of the northern portions of the reservation formerly occupied by the Uncompahgre and White River Utes, Royce Area 616, were now public lands to be disposed of for the benefit of the Utes in accordance with the Act of 1880. Section 2 of that statute provided that the Secretary of the Interior 'shall, at the earliest practicable day, ascertain and establish the line between' the two Royce Areas. 22 Stat. 178 (1882). We find nothing in the legislative history of that statute to support a finding that it evidenced a congressional conclusion that the southern strip had not been ceded by the Act of 1880. On the contrary, the thrust of the legislative history is that the line was drawn to assure that there would be no interference with the land in Royce Area 617 available for allotment to the Southern Utes under the Act of 1880. H.R.Rep. No.799, 53d Cong., 2d Sess., 2 (1894); S.Rep.No. 279, 53d Cong., 2d Sess., 2, 3-4 (1894).
The Court of Claims also found support for its conclusion in what was said to a congressional committee by a Ute spokesman for the Southern Utes at a meeting in the District of Columbia in 1886. The spokesman stated that the delegation had come 'to see if we cannot exchange our reservation for another. * * * The present reservation is narrow and long, and we want to go west and see if we can't sell it.' S.Rep.No. 836, 49th Cong., 1st Sess., 1 (1886). The Court of Claims viewed this as demonstrating that 'the Southern Utes were still in possession of their part of their old reservation under claim of right.' 423 F.2d, at 353, 191 Ct.Cl., at 14. We do not doubt that the Southern Utes regarded the lands they occupied as 'our reservation,' but we fail to see how this nullifies the conveyance of the strip made by the Act of 1880. On the contrary, there is cogent evidence that the United States totally rejected the Indians' claim that the strip was 'our reservation.' After two bills to effectuate the removal of the Southern Utes failed to pass, Congress enacted 25 Stat. 133 (1888) empowering '(t)he Secretary of the Interior * * * to appoint a commission * * * with authority to negotiate with the band of Ute Indians of southern Colorado for such modification of their treaty and other rights, and such exchange of their reservation, as may be deemed desirable by said Indians and the Secretary of the Interior * * *.' Ibid. Despite the reference to 'their reservation,' the premise of this statute was obviously that amelioration of the plight of the Southern Utes would require 'modification of their treaty and other rights' as they had been fixed in the Act of 1880. Even the Court of Claims thought the Act of 1888 little support for the respondents' contention:
'Although the language of this act tends to favor plaintiffs' position it is by no means conclusive. It merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act's exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory.' 423 F.2d, at 353-354, 191 Ct.Cl., at 15.
The Commission formed pursuant to the Act of 1888 did succeed in negotiating an agreement with the Southern Utes, under which the Southern Utes would have been moved to a reservation in San Juan County, Utah. The Court of Claims observed that in such case '(p)resumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880 and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreement as accuring to the Southern Utes would still accrue.' 423 F.2d, at 354, 191 Ct.Cl., at 16. In other words, the treatment of the Southern Utes would be precisely that accorded the Uncompahgre and White River Utes when they left Colorado. But this event only serves to furnish still more proof that the Government remained firm in its position that the strip was ceded by the Act of 1880.
This is confirmed by the congressional reaction when the agreement was submitted for approval-nothing happened for six years and the agreement was again introduced in 1894. The opinion of the Court of Claims depicts the situation:
'Conceding the 'anomalous position (of the Southern Utes) of having ceded their reservation and yet remaining on it', the Senate Committee on Indian Affairs favored ratification (Sen.Rep.No. 279, 53d Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H.R.Rep.No. 799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20, 1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty.' 423 F.2d at 354, 191 Ct.Cl., at 16.
This recital refutes, rather than supports, the notion that the United States followed a pattern or course of conduct after 1880 that regarded the Southern Utes rather than the United States as the owners of Royce Area 617.
Finally, we cannot agree with the Court of Claims that § 5 of the Act of 1895 is 'an explicit waiver of the Government's rights created in the 1880 agreement, whatever they were.' 423 F.2d, at 356, 191 Ct.Cl., at 19-20. The Act of 1895, in addition to annulling the 1888 agreement, expressly confirmed the Act of 1880 and directed the Secretary of the Interior to proceed with allotments in severalty to the Southern Utes 'in accordance with the provisions of the Act of (1880).' 28 Stat. 677 (1895). It went on to settle the grievances of those Southern Utes who wanted their own reservation rather than allotments in severalty by providing that 'there shall be * * * set apart and reserved all that portion of their present reservation lying west of' a defined line in the strip. Id., at 678. We do not see how the United States could have 'set apart and reserved' a portion of the strip for a reservation unless the strip belonged to it. The remainder of the strip to the east of the new reservation was to be available for allotments in severalty to individual Southern Utes and the land not allotted was to 'be and become a part of the public domain' to be sold for the benefit of said Utes. Ibid. Section 5 allocated the proceeds from sales of the land opened to public settlement. We look in vain for anything in that section to support the conclusion of the Court of Claims that it contains an 'explicit waiver' by the United States of its rights under the Act of 1880 and that '(i)t follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.' 423 F.2d, at 356, 191 Ct.Cl., at 20. passage of the Act of 1895 belies that conclusion. The report repeats, once again, the previously stated position of the Congress that '(o)n March 6, 1880, (the Utes) * * * ceded the whole of their reservation in Colorado to the United States, except such lands, if any, as might be allotted to them in severalty.' S.Rep.No. 279, supra, at 2. We discern nothing in § 5 save some revision of the formula for allocation of the proceeds of the sales of the unallotted lands in the portion of the strip east of the reservation. We find absolutely no language that the Southern Utes made any cession thereby, and, indeed, we are convinced that the wording is consistent only with the fact that they had no land to cede. The Act of 1895 simply resolved the impasse over the allotments in severalty which had existed for 15 years because of the Southern Utes' reluctance to accept them. The United States created a new reservation for them, while still permitting allotments to those Southern Utes willing and qualified to engage in farming. This plan was clearly constructed in reliance upon, not in derogation of, the cession made under the Act of 1880.
We therefore hold that the claim in this case is res judicata under the 1950 consent judgment enforcing the settlement agreement 'as to any land * * * ceded to defendant by the Act of June 15, 1880.'
Reversed.
Mr. Justice DOUGLAS, dissenting.

## Notes

* ↑ The claim was filed pursuant to the Indian Claims Commission Act, 25 U.S.C. § 70a. See also 25 U.S.C. § 70k.
* ↑ The 1950 cases were brought under the Jurisdictional Act of 1938, 52 Stat. 1209. The settlement reduced to consent judgment principally relied upon by the Government is that in Case No. 46640, 117 Ct.Cl. 433, 436 (1950). Related stipulations are reported at 117 Ct.Cl., at 434, 438, 440. The aggregate amount of the settlements exceeded $31 million. The United States also unsuccessfully asserted below defenses of failure to state a claim and failure to join all necessary parties. Those questions are not before us.
* ↑ The United States admits that the stated consideration was not promptly paid. Brief for Petitioner 5. See also J. Dunn, Massacres of the Mountains 583-587 (1958).
* ↑ These derive from a map of Indian land cessions, Pl. CXVI, drawn by Charles Royce in connection with a published study, Indian Land Cessions, 18th Ann.Rep., Bur. of Amer. Ethnology, pt. 2 (1896-1897).
* ↑ While apparently the 'massacre' involved only the White River Utes, all Utes were blamed. See exchange of correspondence during the uprising among the Indian agents, Secretary of the Interior, Governor of Colorado, and others printed in S.Exec.Doc.No.31, 46th Cong., 2d Sess. (1880). See also J. Dunn, Massacres of the Mountains (1958), and U.S. Army, Military Division of the Missouri (Gen. P. Sheridan, Commanding), Record of Engagements with Hostile Indians 88-91 (1882).
* ↑ The Court of Claims found proof that 'the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession,' 423 F.2d, at 352, 191 Ct.Cl., at 13, in a description of the line in an 1882 letter to the district land offices. We find nothing in the letter to that effect, and in any event, it could hardly be the basis for disregarding the congressionally expressed design.
* ↑ Section 5 of the Act of 1895 provides in pertinent part:
* ↑ The Court of Claims also seems to have placed some reliance upon the following words in an order of the Acting Secretary of the Interior in 1938 which restored to the Southern Utes that portion of Royce Area 617 yet undisposed of:
* ↑ The Court of Claims' unreported order remanded the case to the Commission 'for the hearing of additional evidence and the making of findings of fact with respect to the intention of the parties to the stipulation upon which a final judgment was entered in Court of Claims Case No. 46640 (117 Ct.Cl. 436) on July 13, 1950.' App. 57. The Commission's supplemental findings after the hearing on remand are reported in 21 Ind.Cl.Comm. 268. We question the propriety of the remand, see Delaware Indians v. Cherokee Nation, 193 U.S. 127, 140-141, 24 S.Ct. 342, 347-348, 48 L.Ed. 646 (1904); United States v. William Cramp & Sons Ship & Engine Building Co., 206 U.S. 118, 128, 27 S.Ct. 676, 51 L.Ed. 983 (1907), but do not decide the question since it does not appear that the decision of the Court of Claims turned on any evidence of the intention of the parties to the stipulation.
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