#### THE OMAHA TRIBE OF INDIANS v. THE UNITED STATES.

[No. 31002.

Decided June 10, 1918.]

*On the Proofs.*

*Estoppel, doctrine of, when applied against Government; Indian lands.*— Where the treaty makers on behalf of the Government were well acquainted with the country, the claim of the Indians, the other party to the treaty, the nature of the latter’s possession and occupation of the land, and their right to exclusive enjoyment, they can not subsequent to the making of the treaty be heard to say the Indians did not own the land and had no right to make a cession of it.

*The Reporter’s*statement of the case:

*Mr. Charles H. Merrillat*for the plaintiffs. *Messrs. Charles J. Kappler*and *Hiram Chase*were on the briefs.

*Mr. George M.*Anderson, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

The jurisdictional act creates no liability, but simply affords a forum for the adjudication of the claim on its merits.

*550The plaintiff takes the position that the treaty of March 16, 1854, 10 Stat., 1043, is an executed contract binding on the Government. That it is immaterial whether the Omahas really owned the country north of the Aoway Creek line or not, the Government having recognized the Indian title in them by the treaty is now liable to them for the consideration named therein. That the jurisdictional act recognizes this liability, and that the only thing the court is required to do as to this item is to render judgment in favor of the plaintiff. In other words, if A conveys land to B and B before payment discovers that the title is in C, and secures from C a conveyance and pays him the purchase price, he must also pay A, because he has agreed to do so in the conveyance from him. This proposition would appear to carry its own answer.

If Congress recognized the liability of the Government before it referred the claim it would seem to have done a useless and unnecessary act in transmitting it to the court; for Congress knew the extent of this claim, as shown by the report of the committee on the jurisdiction of the bill.

The reason for the reference is shown in a communication from the Acting Secretary of the Interior Department embodied in said report:

“The claims which the Omahas wish adjudicated have been settled by the department during the terms of former Secretaries and Commissioners of Indian Affairs, and no doubt the settlements were made in accordance with what seemed to be right at the time matters were pending; but these Indians have for many years expressed their dissatisfaction without expressing particularly the matters out of which the dissatisfaction arose.”

This claim as set out in the above report was adopted in plaintiff’s petition as claiming compensation for the difference between about 800,000 acres north of the line due west of the mouth of Aoway Creek and the 300,000 acres in their reservation — about 500,000 acres — but they claim, instead of the 14 cents per acre stated in the committee’s report, $1.25 per acre, the price received for the same as public lands.

The position was taken by the plaintiffs in *United States*v. *Mille Lac*Indians, 229 U. S., 498, 500, that the jurisdic*551tional act created a liability; but the Supreme Court, citing a number of cases, said:

“The jurisdictional act makes no admission of liability, nor any ground of liability, on the part of the Government, but merely provides a forum for the adjudication of the claim according to applicable legal principles.”

By section 1 of the treaty of March 16, 1854, *supra,*the Omahas ceded to the United States all of their right and title to the country south of a line drawn due west from the point where the Aoway Creek flows into the Missouri Biver to the western boundary of the Omaha country, with a proviso that if the country north of said line, reserved for their future home, should upon exploration by a delegation of said Indians, accompanied by their agent, be found unfit and unsuitable for said Indians, the President was authorized to assign to them a reservation either in the ceded territory or outside not greater in extent than 300,000 acres, “ and then and in that case all the country belonging to said Indians north of said due west line shall be, and is hereby, ceded to the United States by the said Indians, they to receive the same rate per acre for it, less the number of acres assigned in lieu of it for a home, as now paid for the lands south of said line.”

If the Omaha Indians owned at the time of the treaty of 1854 all of the country bounded on the south by the Aoway Creek due west line and the Missouri Biver on the east and north, why was a distinction made between the country north and south of said line? Why was the line drawn due west from Aoway Creek and the area of their proposed reservation north of said line fixed at 300,000 acres? Why were they to be paid for lands belonging to them north of said line in excess of 300,000 acres instead of to the Missouri Biver if that was their northern boundary ? If this country north of said line was the old home and hunting grounds of the Omahas, why was it necessary for a delegation, accompanied by their agent, to explore it in order to discover whether or not it was suitable for a reservation?

All of these questions are susceptible of one answer. By the treaty of 1854 it was intended that the Omaha Indians should cede the country from the Platte Biver to parallel 42° *55240' north latitude, reserving for a home, if satisfactory on exploration, 300,000 acres, the approximate area between the Aoway Creek due west line and 42° 40', which, taking as their western boundary the line from the headwaters of Shell Creek due north to the Missouri River, the line after-wards adopted for the Pawnee cession, actually amounted to 327,680 acres.

Commissioner of Indian Affairs Manypenny, who negotiated and signed the treaty of 1854, in his annual report for that year states emphatically that the Omaha cession of March 16, 1854, was bounded on the north by 42° 40' north latitude, and a report from the Interior Department, after discussing this statement of Mr. Manypenny, says that it is conclusive of the northern boundary of the Omaha country.

During the negotiations which led up to the treaty of March 12, 1858, 12 Stat. 997, the De Smet map was used to show Ponca and Omaha country. The treaty of 1858 was signed by Charles E. Mix, Commissioner, on the part of the United States, and two chiefs who had signed the petition of March 16, 1857, “The Whip” and “Mitchell Cera,” on the part of the Poncas.

The rough draft of the treaty of March 12, 1858, supra, after giving the title of the act, recited:

“Whereas the Ponca Tribe of Indians assert a claim to all the lands west of the River Missouri, in the Territory of Nebraska, within the following limits: Beginning at the mouth of the River Aoway, thence up Elk Creek to the old Omaha village on the River Elkhorn, thence westwardly to the Black Hills, thence along the Black Hills to the courses of the White River, thence down said river to where it empties into the Missouri, thence down the Missouri to the beginning; but as said boundaries would embrace a large portion of the country which was conceded as belonging to the Sioux and a portion of the lands purchased .by the United States of the Omahas in the treaty made with them in 1854, in addition to what is admitted to be clearly the lands of the Poncas, these articles are, therefore, entered into for the purpose of acquiring title, not only to all the lands really appertaining to them, with the exception of a reservation to be named, but of purchasing their claim to all lands whatever.”

*553Article I of the treaty of March 12, 1858, as finally agreed upon, reads:

“ARticle I. The Ponca Tribe of Indians hereby cede and relinquish to the United States all the lands now owned or claimed by them, wherever situated, except the tract bounded as follows, viz: (Then follows a description of the Ponca reserve between the Ponca and Niobrara Elvers.) ”

The description of the Ponca boundaries as set out in the rought draft of the treaty of 1858 was amended in the treaty on account of the conflict with the Sioux boundaries as set out in the Laramie treaty of 1851, and not on account of any conflict with the Omaha treaty of 1854, and this is shown by the statement of Commissioner Mix to the delegation, who afterwards signed the treaty.

After the execution of the treaty of March 12, 1858, *supra,*the Legislature of Nebraska in a memorial and joint resolution addressed to Congress, approved October 9, 1858, urging the ratification of the treaty said:

“ Whereas the Government of the United States by their commissioner has entered into and concluded negotiations with the Ponca Indians inhabiting the northwestern part of this Territory for the purchase of all their lands; and

“ Whereas the said Indians have, in accordance with the provisions of said treaty, given possession of their homes, hunting grounds, and cultivated fields to the United States, and have removed to a point designated and set apart by the provisions of said treaty aforesaid; and

“ Whereas by said removal they abandoned their hunting grounds and cultivated fields from which they have hitherto derived their sustenance and support, with the express understanding and assurance that the Government would at an early day ratify said treaty aforesaid and the annuities accruing would be paid to said Indians; * *

The Poncas, it will be noted, had been removed to their reservation between the Ponca and Niobrara Eivers prior to the memorial of the Nebraska Legislature.

If the Poncas only owned, as claimed by the plaintiff, the lands between the Ponca and Niobrara Rivers, they ceded practically nothing to the United States by the treaty of 1858, as part of those lands were reserved for their home in said treaty. The Sioux also claimed the lands north of the Niobrara, including those reserved as a home for the *554Poncas, and notwithstanding its reservation, and the fact that the Poncas had been removed to and settled on it, those lands were set apart in the treaty of April 29, 1868, 15 Stat. 635, as part of the Sioux reservation. The Pawnees also claimed under their treaty of September 24, 1857, north of the Niobrara to the Keya-Paha River, being part of the lands between the Niobrara River and Ponca Creek, which the plaintiff contends were the only lands owned by the Poncas.

We have shown conclusively that the Poncas at the date of the Omaha treaty of 1854 were the absolute and undisputed owners of the country north of the Aoway Creek line, and that their title of occupancy and possession was as sacred to them as the fee belonging to the United States. *United States*v. *Oooh,*19 Wall., 591; *Beecher*v. *Wetherby,*95 U. S., 517.

Plaintiffs’ claim for loss of life, limb, and property is made under Article VII of the treaty of 1854, by which it was agreed that the Government would protect the Omaha Indians from the Sioux and all other hostile tribes as long as the President should deem such protection necessary on any reservation to which they might be assigned. The article in question made no provision for reimbursement out of the Treasury of the United States for the loss of Omaha life, limb, or property. Many treaties with Indian tribes have contained similar stipulations as to protection, but this court, so far as we have been able to learn, has never regarded such agreements as requiring the United States to make reimbursement unless specifically provided for in the treaty.

This court in treaties where Indian tribes have merely stipulated in general terms to keep the peace and treat citizens honestly and humanely has said that it could not read into the agreement a stipulation to reimburse citizens for depredations committed upon their property; that to justify an allowance in such a claim there must have been an express undertaking on the part of the tribe, in the form of a treaty, to pay for depredations. *Mares*v. *United States,*29 C. Cls., 197; *Labadie*v. *United States,*31 C. Cls., 205; *Grow*v. *United States,*32 C. Cls., 16.

*555Congress well knew that a general agreement to protect the person or property of Indians did not involve an obligation to reimburse them for its failure to carry out the agreement. Where such an obligation was intended it was clearly stated in the treaty. This was done in Article I of the treaty of April 29, 1868, 15 Stat., 685, with the Sioux, and Article XIV of the treaty of June 22, 1855, 11 Stat., 614, with the Choctaw and Chickasaw Indians, in which the United States agreed to protect the Choctaw and Chickasaw Indians from domestic strife, hostile invasion, and aggression by other Indians and white persons not subject to their jurisdiction and laws, and to indemnify them for any loss, out of the Treasury of the United States. This provision of the treaty was construed in the cases of *Campbell*v. *United*States, 44 C. Cls., 488, *Hayes*v. *United*States, id., p. 493, and *Byrd*v. *United*States, id., p. 498.

The following are the facts of the case as found by the court:

I. The act of Congress approved June 22, 1910, 36 Stat., 580, provided as follows:

“ That all claims of whatsoever nature which the Omaha tribe of Indians may have or claim to have against the United States 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 tribe from the United States under the treaty between United States and the said tribe of Indians, ratified and affirmed March 16, 1854, or under any other treaties or laws, or for misappropriation of any funds of said tribe not for its material benefit, or for failure of the United States to pay said tribe any money due; and jurisdiction is hereby conferred upon the Court of Claims to hear and determine all legal and equitable claims, if any, of said Omaha tribe of Indians against the United States, and also any legal or equitable defense, set-off, or counter-claim which the United States may have against said tribe, and to enter judgment thereon. The Court of Claims shall advance said cause upon the docket, and shall have authority to settle the rights, both legal and equitable, of both the Omaha tribe of Indians and the United States, notwithstanding lapse of time or statutes of limitation, and the final judgment and satisfaction thereof shall be a full settlement of all claims of said Omaha Indians against the United States.”

*556II. The treaty between the United States and the Omaha tribe of Indians of March 16, 1854, provides:

“Article 1. The Omaha Indians cede to the United States all their lands west of the Missouri River and south of a line drawn due west from a point in the center of the main channel of said Missouri River due east of where the Ayoway River disembogues out of the bluffs, to the western boundary of the Omaha country, and forever relinquish all right and title to the country south of the line: Provided, however, that if the country north of said due west line, which is reserved by the Omahas for their future home, should not, on exploration, prove to be a satisfactory and suitable location for said Indians, the President may, with the consent of said Indians, set apart and assign to them, within or outside of the ceded country, a residence suited for and acceptable to them. And for the purpose of determining at once and definitely, it is agreed that a delegation of said Indians, in company with their agent, shall, immediately after the ratification of this instrument, proceed to examine the country hereby reserved, and if it please the delegation, and the Indians in council express themselves satisfied, then it shall be deemed and taken for their future home; but if otherwise, on the fact being reported to the President, he is authorized to cause a new location, of suitable extent, to be made for the future home of said Indians, and which shall not be more in extent than three hundred thousand acres, and then and in that case, all of the country belonging to the said Indians north of said due west line, shall be and is hereby ceded to the United States by the said Indians, they to receive the same rate per acre for it, less the number of acres assigned in lieu of it for a home, as now paid for the land south of said line.

“Article 2. The Omahas agree, that so soon after the United States shall make the necessary provision for fulfilling the stipulations of this instrument, as they can conveniently arrange their affairs, and not to exceed one year from its ratification, they will vacate the ceded country, and remove to the lands reserved herein by them, or to the other lands provided for in lieu thereof, in the preceding article, as the case may be.”

III. The Omaha Indians were not satisfied with the country to the north of the due west line mentioned in Article 1 of the treaty of March 16, 1854, and duly elected to take for their future home a tract of country of 300,000 acres south of said line. This fact was reported to the President and *557by his direction a tract of 300,000 acres south of said line was set apart for the Omaha Indians.

The area of land north of the due west line mentioned in Article 1 of the aforesaid treaty is 783,365 acres which belonged to said Omaha Indians, and after deducting therefrom the 300,000 acres set apart for the Omaha Indians in accordance with the provisions of the aforesaid treaty there is an excess of 483,365 acres for which the Omaha Indians have not been paid.

The price per acre which the United States agreed to pay for this excess of land is 19.6 cents, and amounts to the sum of $94,739.54.

IV. The treaty between the United States and the Omaha tribe of Indians of March 16, 1854, provides:

“ARticle 5. In order to enable the said Indians to settle their affairs and to remove and subsist themselves for one year at their new home, and which they agree to do without further expense to the United States, and also to pay the expenses of the delegation who may be appointed to make the exploration provided for in article first, and to fence and break up two hundred acres of land at their new home, they shall receive from the United States the further sum of forty-one thousand dollars, to be paid out and expended under the direction of the President, and in such manner as he shall approve.”

There was expended by the officials of the Government in carrying out the provisions of the above article of the treaty the sum of $23,453.21; the balance of the $41,000 agreed to be paid by said article to the Omahas, together with other moneys of said tribe, remained in the hands of the Indian agents and are carried over to the item of the claim of the plaintiffs dealing with misappropriation of Omaha moneys by Indian agents, the facts pertaining to which will be found in Finding VII.

V. The treaty between the United States and the Omaha tribe of Indians of March 16, 1854, in the seventh article thereof provides that:

“ Should the Omahas determine to make their permanent home north of the due west line named in the first article the United States agree to protect them from the Sioux and all other hostile tribes as long as the President may deem such *558protection necessary, and if other lands be assigned them the same protection is guaranteed.”

After the treaty of 1854, and after the Omahas had removed to their new homes, the Sioux made repeated attacks upon them in the year of removal and subsequent years. The United States were called upon by the Omahas to protect them as was provided in the treaty. No protection of any kind was afforded the Omahas by the United States. Pi’otection was necessary as soon as the Omahas removed to their new home and for several years thereafter. The Sioux killed 22 Omahas and stole 152 horses. The Winnebagos stole from the Omahas 178 horses for which they have been paid. The average value of horses and ponies at that time was $30 per head. It does not appear what price one tribe should pay to another for killing a member of the tribe. One hundred and fifty-two horses at $30 per head amounts to the sum of $4,560.

VI. There was a large amount of timber stolen from the Omaha reservation by Omaha Indians without the knowledge or consent of the agent.

VII. Two of the Indian agents of the United States who were charged with the disbursement of Omaha treaty funds to the Omahas defaulted with funds belonging to the Omahas in the sum of $18,202.19. Agent Hepner defaulted in the sum of $15,068.80 on August 3, 1856, and Agent Kobert-son defaulted in the sum of $3,133.39 on August 11, 1858. The United States has never repaid to the Omahas the aforesaid sum of $18,202.19.

VIII. James P. Williams under his contract of June 1, 1867, delivered on September 10, 1867, to Superintendent H. B. Denman at Omaha, Nebr., 103 head of stock cattle, for which he was paid $3,432.99 out of money belonging to the Omahas. These cattle when they reached the reservation were in bad condition and 50 of them died. These cattle were of an average value of $33.33 per head. Fifty cattle were worth the sum of $1,666.50.

IX. In 1875 an infirmary was constructed upon the Omaha and Winnebago consolidated reservation. It appears that this building was not used, and it was not such a building as was contemplated by the treaties between the United *559States and the Omaha Tribe of Indians. This building cost $4,738, of which $3,127.08 was paid out of money belonging to the Omahas and $1,610.92 out of the money belonging to the Winnebagos.

Hay, *<Judge,*

delivered the opinion of the court:

This case is here for decision by virtue of an act of Congress approved June 22, 1910, which act is set out in full in Finding I.

On March 16,1854, the United States entered into a treaty with the Omaha Tribe of Indians. By the first article of this treaty it is provided that the Omaha Indians cede to the United States all their lands west of the Missouri River and south of a line drawn due west from a point in the center of the main channel of that river due east of where the Ayoway River disembogues out of the bluffs to the western boundary of the Omaha country. The treaty further provides that if the country north of said due-west line should not prove a satisfactory and suitable location for the Omaha Indians the President may, with the consent of the Indians, set apart and assign to them within or outside of the ceded country a residence suited for and acceptable to them, which shall not be more in extent than 300,000 acres. Then in that case all of the country belonging to said Indians north of the due-west line shall be ceded to the United States, and the United States agreed to pay the same per acre for it as they agreed to pay for the land south of said line, after deducting from the land so ceded the number of acres set apart for said Indians.

From the evidence in this case it appears that the number of acres belonging to the Omaha Indians north of the due west line, and ceded by them to the United States, was 783,365; the number of acres set apart for them under the terms of the treaty south of the due-west line was 300,000, leaving 483,365 acres, for which the United States agreed to pay them the same price per acre as they agreed to pay for the land ceded south of said due-west line. The land ceded by the Omahas to the United States south of said line contained 4,500,000 acres, for which the United States agreed to pay the sum of $881,000, thus making the treaty price nineteen and six-tenths cents per acre.

*560It does not appear, nor is it contended by the defendants, that they have ever paid anything to the Omaha Indians by virtue of this treaty. The contention of the defendants is that the Omaha Indians never owned any land north of the due-west line above referred to, and never had the right to cede the land to the defendants. At the time the treaty was made the United States recognized the Omahas as having title to this land north of the due-west line, and specifically promised to pay for it. Those making the treaty for the United States were well acquainted with the country; they knew what the Omahas claimed; they knew that their possession and occupation of this land was considered with reference to their habits and modes of life; that the Indians had a right to the exclusive enjoyment of it in their own way until they abandoned the land or ceded it to the Government; their right of occupancy was considered as firmly established — this the treaty makers on behalf of the Government recognized when this treaty was made, and the defendants can not now be heard to say that the Indians did not own the land when the treaty was made and had no right to make a cession of it.

The treaty provides that the United States shall pay to the Omaha Indians the sum of $41,000 to enable the Indians to remove and subsist themselves for one year in their new home, and for other purposes set forth in the fifth article of the treaty. The Government expended $23,453.21 in carrying out the provisions of the treaty; the balance of the $41,000 was placed in the hands of the Indian agents of the Government to be expended for the purposes set out in the treaty. It appears that these agents misappropriated the sum of $18,068.80, and that amount was never accounted for nor expended for the benefit of the Indians.. The Indians are entitled to this money.

The amounts found to be due the Indians in thé fifth, seventh, eighth, and ninth findings are supported by the evidence, and are allowed under the provisions of the treaty of March 16, 1854.

A judgment will therefore be entered for the sum of $122,295.31. It is so ordered.