# United States v. Southern Ute Tribe or Band of Indians/Dissent Douglas

* 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
Mr. Justice DOUGLAS, dissenting.
Though the facts of this case are complex, they present but one major question, whether the lands in question were 'ceded to defendant by the Act of June 15, 1880,' and included in a consent judgment entered by the Court of Claims in 1950.
More precisely, what was the status of these lands (Royce Area 617) between 1880 and 1895? Were they ceded in 1880, yet not released by the Indians until 1895? How can it be paid that Royce Area 617 was ceded in 1880 yet retained until 1895, since, as the Court of Claims stated, 'the Southern Utes were allowed to remain on their surveyed reservation for 15 years after the purported cession, and the right to remove them without their further consent was not asserted or exercised.' 423 F.2d 346, 356, 191 Ct.Cl. 1, 19.
Twice the facts have been considered, once by the Indian Claims Commission and once by the Court of Claims. And both have resolved the question presented in favor of the respondent, Southern Utes. That result below is amply supported by the record.
As of 1880, the Confederated Bands of Ute Indians occupied a reservation of 12,000,000 acres in western Colorado. The White River Utes and the Uncompahgre Utes occupied the northern portion (Royce Area 616), and the Southern Utes occupied an almost separated southern section (Royce Area 617). In 1880, the Utes entered into a treaty with the United States. It provided that the chiefs would persuade their people
'to cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.
'The Southern Utes agree 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.' Act of June 15, 1880, 21 Stat. 200.
The cession of the territory was on the express condition:
'That the Government of the United States cause the lands so set apart to be properly surveyed and to be divided among the said Indians in severalty * * *.' Id., at 200-201.
The Secretary of the Interior was authorized to have the land surveyed for allotment. Commissioners were to make the allotments,
'and 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 * * *.' Id., at 203.
The Ute Commission was formed. In 1881 it reported to Congress. The Uncompahgre and White River Utes had been moved, but the Southern Utes were still on their reservation. The Chairman of the Commission had decided that it would be unwise to move them. The allotments, a condition of the cession, were not made. In 1882, Congress declared Royce Area 616 to be public land (22 Stat. 178). It provided that a line be established between Royce Area 616 and Royce Area 617. § 2. The Secretary of the Interior ordered the line to be drawn '(c)ommencing at the southwest corner of the Ute ceded lands; thence extending the south boundary of the Ute ceded lands to the western boundary of the State of Colorado.' (Emphasis supplied.)
As of this time it appears that neither the Southern Utes nor officials of the United States thought that Royce Area 617 had been ceded by the Act of 1880. The Southern Utes still considered it their reservation and the Commissioner of Indian Affairs apparently felt likewise-all of which is inconsistent with the theory that there had been a cession of it in 1880.
In 1888, Congress authorized the Secretary of the Interior to appoint a commission to negotiate with the Southern Utes. They agreed to settle in Utah, but Congress would not approve the agreement. Congress then passed the Act of 1895, 28 Stat. 677:
'That within six months after the passage of this Act the Secretary of the Interior shall cause allotment of land, in severalty, to be made to such of the Southern Ute Indians in Colorado as may elect and be considered by him qualified to take the same out of the agricultural lands embraced in their present reservation in Colorado, such allotments to be made in accordance with the provisions of the Act of (1880) * * * and the amendments thereto * * *.' § 2.
'That at the expiration of six months from the passage of this Act the President * * * shall issue his proclamation declaring the lands embraced within the present reservation of said Indians except such portions as may have been allotted or reserved under the provisions of the preceding sections of this Act, open to occupancy and settlement.' § 4, 28 Stat. 678. (Emphasis supplied.)
The money realized from the sale of the lands set aside was to be held for the sole benefit of the Southern Ute Indians. Section 6 declared that the provisions of the Act were not to take effect until accepted by a majority of the male adult Indians. A majority did accept.
Some of the Southern Utes took allotments in severalty. The Weeminuche Utes, now the Ute Mountain Utes, elected, however, to settle on a tract at the west end of their 'present reservation.' § 3.
A substantial amount of land in Royce Area 617 was settled by whites, and disposed of by the United States Government. The subject of the present suit before the Indian Claims Commission includes, inter alia, the proceeds from land sold and damages for land given away in violation of the Act of 1895.
In 1934, Congress allowed restoration of all land in Royce Area 617 not disposed of under the Act of 1895. (48 Stat. 984.) The Secretary of the Interior restored all such land to the tribal sovereignty of the Southern Utes. That order began:
'(P)ursuant to the provisions of the Act of February 20, 1895 * * * the Southern Ute Band of Indians in Colorado ceded to the United States a large area of their reservation in the State of Colorado establish expressly for their benefit under the treaty of June 15, 1880 * * *.' (Order of Restoration, September 14, 1938, S.Doc.No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler).) (Emphasis supplied.)
The Confederated Bands have sued the United States in the past for damages arising out of breaches of the 1880 treaty. One such suit was settled in 1950, and judgment was entered pursuant to a stipulation of the parties. A schedule of all land covered by the judgment was included, but omissions were provided for:
'So far as the parties with diligence have been able to determine these descriptions represent all the land so disposed of and set aside. However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but, whether included therein or not, 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. 433, 437.
None of the land in Royce Area 617 (360 sections or 21.8% of the total area which had been wrongly disposed of) was therefore included.
The Indian Claims Commission found that the United States had acknowledged by its actions that the Southern Ute Reservation was not ceded by the 1880 Agreement. Therefore, any accounting which included Southern Ute lands in Case No. 30360, 45 Ct.Cl. 440 (1910), was erroneous and beyond the jurisdiction of the Court of Claims to enter. The Court of Claims remanded this case to the Commission for a determination of the intention of the parties in entering into the 1950 stipulation. Plaintiffs produced evidence that they never intended Royce Area 617 to be covered. The broad language of the stipulation was to insure that minor omissions were covered. 'Diligence' would not have permitted the exclusion of 360 sections of land. The Government refused to produce any documents which might have disclosed the intent of its signatories, claiming this was the 'work product.' The Commission found no intent to include land in Royce Area 617 in the stipulation.
The Court of Claims found that the language of the Act of 1880 appeared to be inconsistent with the findings of the Commission, but that the events from 1880 to 1895 supported its conclusion, i.e., the decision to postpone issuing allotments and to preserve the reservation, the separation of Royce Area 617 by the Act of 1882, the description of the dividing line by the Secretary of the Interior, the negotiations with the Southern Utes to move, the belief by the Commissioner of Indian Affairs of a duty to keep white people off the 'reservation,' the Act of 1888, and the Act of 1895 providing additional compensation for the Southern Utes and requiring their approval. The evidence weighed 'substantially in favor of the Commission's interpretation.' The Government's conduct, the Court of Claims said, evidenced a recognition 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 rescined and dead.' 423 F.2d, at 356, 191 Ct.Cl., at 19.
'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.' 423 F.2d, at 356, 191 Ct.Cl., at 19-20.
This holding was supported also by the language employed by the Secretary of the Interior in the Restoration of 1938.
Since the Southern Ute land was not ceded in 1880, any claims involving that land were beyond the mandate of the Jurisdictional Act of 1909, 35 Stat. 781, and improvidently heard in 1910. Likewise the 1950 judgment was no bar. Neither party had intended it to apply to Royce Area 617. If the intention of the parties was irrelevant, the stipulation on its face would not apply to 'areas not effectively ceded.' 423 F.2d, at 358, 191 Ct.Cl., at 22.
This Court now reviews those findings and reverses. In doing so it simply remarshals the evidence for the new result, ignoring the limits of this Court's appellate jurisdiction over the Court of Claims. The question present is either a question of fact or, at best, a mixed question of law and fact and the determination of the Court of Claims is binding on this Court if it is supported by substantial evidence. United States v. Swift & Co., 270 U.S. 124, 138, 46 S.Ct. 308, 313, 70 L.Ed. 497; United States v. Omaha Tribe of Indians, 253 U.S. 275, 281, 40 S.Ct. 522, 524, 64 L.Ed. 901. The result below is clearly supported. It is not the function of this Court to conduct a trial de novo on the issues. United States v. John J. Felin & Co., 334 U.S. 624, 650, 68 S.Ct. 1238, 1251, 92 L.Ed. 1614 (Jackson, J., dissenting); United States v. Penn Foundry & Mfg. Co., 337 U.S. 198, 207 n. 4, 69 S.Ct. 1009, 1013, 93 L.Ed. 1308.
I would affirm the judgment of the Court of Claims.

## Notes

* ↑ It has been suggested that the Indians refused to take the allotments or were stalling. This appears inconsistent with the report of Mr. Manypenny, the Chairman of the Ute Commission. The white settlers were dissatisfied on learning that the Indians might be allowed to settle in certain valleys which the settlers desired. The allotment, and sale of the residue to whites, would leave the Indians in 'close proximity to the white settlements (and) will subject the Utes * * * to constant annoyance by evil-disposed persons.' The Indians had to be protected from this.
* ↑ 'From this description it would seem 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. Specifically, the letter states that the survey line commence at, not in, the southwest corner of the ceded Ute land. Adhering to defendant's contention that all lands were ceded in 1880, a literal interpretation of this letter would lead to an anomalous result. If the starting point was placed at the southwestern corner of Ute ceded land, the point would coincide with the converging point of the New Mexico, Colorado and Utah borders. The line could not extend to the western boundary of Colorado because it would start there.' 423 F.2d, at 352, 191 Ct.Cl., at 13 (1970).
* ↑ The Southern Utes came to Washington in 1886 to negotiate for an exchange of their reservation for one to the west. See S.Rep.No.836, 49th Cong., 1st Sess., 1-2 (1886).
* ↑ On April 5, 1886, he reported to the Secretary of the Interior, '(W)e are bound by solemn treaty stipulations with these Indians to prevent white people from entering upon or crossing said reservation.' Id., at 3.
* ↑ N. 4, supra.
* ↑ The treaty of 1880 required that the proceeds from sales of all land ceded under that agreement had to be credited to the benefit of all Utes. To credit the money received only to the account of Southern Utes would have been a violation of the treaty if the land had been ceded in 1880.
* ↑ If the land had been ceded under the 1880 agreement, acceptance of the Act of 1895 was completely unnecessary.
* ↑ 'Thus, defendant's officials do not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement. Such a statement by an executive agency bearing on the meaning of a treaty must be accorded great weight.' 423 F.2d, at 356, 191 Ct.Cl., at 20.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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