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Opinion of the Court

146 C. Cls.

in silver. The United States also agreed to build for the Miamis a gristmill and a sawmill wherever the chiefs might wish them built, and to provide a blacksmith and a gunsmith and to give the tribe agricultural implements and 160 bushels of salt annually. This October 6, 1818, cession of Royce's Area 99 was the last large cession in Indiana of land relinquished by the United States to the signatory tribes of the 1795 Treaty of Greenville.

On the basis of the above facts the Indian Claims Commission concluded that in the Treaty of Greenville (1795) the United States intended to and did recognize the right and title of all the signatory tribes, including the Miamis, the Weas and the Delawares, in the land relinquished by the United States within the area described in Article IV of that treaty, and that by subsequent treaties, including particularly the Treaty of Grouseland (1805) and the Treaty of Fort Wayne (1809), the areas owned by the separate tribes, including the claimants herein, were identified and located and again acknowledged by the United States to be the exclusive property of the respective tribes. The Commission also found that on October 2, 1818, the Weas ceded to the United States 815,000 acres to which that tribe had recognized title in the western part of Area 99 (7 Stat. 186), and that on October 3, 1818, the Delaware Tribe ceded to the United States its recognized one-half interest in 3,859,000 acres in the southern part of Area 99, being the country watered by the White River. The Commission also found that on October 6, 1818, the Miami Tribe had recognized and exclusive title to 4,291,500 acres of land in Area 99 (7 Stat. 189). The Commission also found that the Pottawatomis, the Kickapoos and the Six Nations had not established any interest in Area 99. Inasmuch as there is before us no final determination involving the claims of the Weas and the Delawares, we do not pass on the Government's contentions as to the Commission's findings and conclusions on the amount of land owned by them and ceded to the United States in October 1818. With respect to the amount of land ceded by the Miamis on October 6, 1818, and the nature of their title to that land, we are of the opinion that on the basis of the facts of record and the applicable law as expressed in a

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Opinion of the Court

number of court decisions of this court and the Supreme Court, the Commission is correct in its conclusion that the Miamis had recognized title to 4,291,500 acres of land in Indiana ceded to the United States in 1818.

Where Indian lands are held by so-called Indian title, i.e., aboriginal use and occupancy title, their right to occupy the land and to use it is permissive and temporary and this right or title may be extinguished by the United States at any time, with or without the consent of the Indians, and by any means which the sovereign may deem appropriate. In the absence of special legislation conferring upon some court or commission jurisdiction to adjudicate matters relative to this permissive right of occupancy, the Government's disposition of such right is a political and not a judicial matter. Northwestern Band of Shoshone Indians v. United States, 95 C. Cls. 642, affd. 324 U.S. 335.

Where Congress has by treaty or statute conferred upon the Indians or acknowledged in the Indians the right to permanently occupy and use land, then the Indians have a right or title to that land which has been variously referred to in court decisions as "treaty title", "reservation title", "recognized title", and "acknowledged title." As noted by the Commission, there exists no one particular form for such Congressional recognition or acknowledgment of a tribe's right to occupy permanently land and that right may be established in a variety of ways. Tee-Hit-Ton v. United States, 348 U.S. 272; Hynes v. Grimes Packing Co., 337 U.S. 86; Minnesota v. Hitchcock, 185 U.S. 373. In the instant case the Commission was of the opinion that the language contained in the provisions of the Treaty of Greenville was sufficient in itself to show the intention of the United States to "recognize" the Indians' title in the land, but the Commission did not rest its conclusion on the Greenville Treaty alone but referred to the instructions to the Treaty Commissioner, the negotiations between the Commissioner and the Indian tribes, the report of the Treaty Commissioner concerning the negotiations and the treaty agreed upon, as well as the language of subsequent treaties and the circumstances surrounding them involving the rights of the Greenville Treaty Indians in

Opinion of the Court

146 C. Cls.

the land relinquished by the United States in Article IV of that treaty.

Turning first to the language of Article IV of the Treaty of Greenville, we note that it states that the United States "relinquish their claims to all other Indian lands" within a well defined area, reserving therefrom certain specific tracts of land for the use of the United States. This relinquishment was stated to be in consideration of the peace which had been established between the Indians and the United States, and of the cessions and relinquishments of land made by the Indians to the United States in Article III of the treaty. Further consideration for the relinquishment made by the United States was the permission it secured from the Indians in Article III to allow the people of the United States free passage by land and water through country belonging to the Indians along a chain of some 16 posts on tracts of land ceded to the United States by the Indians, and also for permission to the people of the United States to use the harbors and mouths of rivers along the lakes adjoining the Indian lands. It seems obvious from the language of Articles III and IV of the Greenville Treaty that the parties intended to extinguish Indian title to some areas, to confirm Indian title in, and grant permanent possessory rights to, other areas, and to secure from the Indians their relinquishment of mere claims or pretenses of claims to further areas. As further consideration for the cessions, relinquishments and rights given by the Indians to the United States, the United States undertook to give to the Indians permanent annuities in the form of goods to be delivered annually to each tribe. In Article V of the Treaty of Greenville the meaning of the "relinquishment" of the land north and west of Greenville ceded to the Indians by the United States in Article IV is spelled out as follows:

To prevent any misunderstanding about the Indian lands relinquished by the United States in the fourth article, it is now explicitly declared, that the meaning of that relinquishment is this: The Indian tribes who have a right to those lands are quietly to enjoy them, hunting, planting, and dwelling thereon as long as they please, without any molestation from the United States; but when those tribes, or any of them, shall be disposed

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to sell their lands, or any part of them, they are to be sold only to the United States; and until such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same. And the said Indian tribes again acknowledge themselves to be under the protection of the said United States and no other power whatever. The rights which were conferred upon the Indians by the 1795 Treaty in accordance with the above explanation in Article V of the treaty are considerably more than a right of temporary and permissive occupancy of land. The Indians were given the right to permanently "as long as they please" occupy the land without interference from the United States. The United States reserved to itself only the right to buy the land from the Indians, and the only restriction put upon the Indians' use of the land was that they might not sell it to any but the United States and this restriction was one placed upon all Indian tribes with respect to the disposition of their lands. In addition, the United States undertook to protect the Indians in the permanent use of their lands against all citizens of the United States and against all other persons who might intrude upon the lands.

The guarantees contained in Article V of the Treaty of Greenville were made in strict compliance with the instructions given to General Wayne, the Treaty Commissioner. He was told to impress upon the Indians the fact that the United States conceded to them fully the right and possession of the soil as long as they desired to occupy it and that when they chose to sell it they could do so, but only to the United States who would in the meantime protect the Indians against any and all impositions. Since, in general, the United States does not have an obligation to compensate a tribe for unrecognized Indian title land (Tee-Hit-Ton Indians v. United States, 348 U.S. 272), an agreement to permit the Indians to occupy land permanently or until they were disposed to sell it to the United States seemed to the Commission, as it does to us, to be a clear indication of an intention on the part of the United States to recognize in the Indian treaty parties more than aboriginal use and occupancy title to the land in question.

Opinion of the Court

146 C. Cls.

If we had before us only the Treaty of Greenville and if the Indian claimants were relying on that treaty alone, it would, of course, be necessary for them to prove what part of the land covered by Article IV of the treaty and relinquished to the Indians by the United States was owned by each of the claimants. General Wayne had found it impossible in 1795 to define the boundaries enclosing the various areas used and occupied by the signatory tribes. But those boundaries were established by subsequent treaties as described in the findings and decision of the Commission and as discussed earlier in this opinion. By the time the cession of October 6, 1818, was made, the boundaries of the land owned by the Miami Indians, including land owned by the Weas and the Delawares, had been established by a number of previous treaties. In those treaties and in the negotiations leading up to them, as well as in the negotiations for the Treaty of October 6, 1818, the right of the Miami Indians as the permanent and recognized owners of the lands ceded in the 1818 Treaty had been unmistakably confirmed by the United States.

The Commission relies to a large extent on the decisions of this court involving land covered by the Treaty of Fort Laramie, September 17, 1851, 11 Stat. 749. In the case of the Fort Berthold Indians v. United States, 71 C. Cls. 308, the court stated that the important question for decision was whether the "reservation" claimed in the petition was fixed and set aside by treaty stipulations between the United States and the Indians and whether the treaty relied upon did in fact create the "reservation" claimed. Prior to 1851 but after the discovery of gold on the Pacific Coast, travel across the plains and through the country occupied by the Indians who later signed the Fort Laramie Treaty, was greatly increased with the result that the primary means of livelihood of the plains and mountain Indians, i.e., buffalo and game, was greatly diminished. The Indians became aroused and resisted the invasion of their lands by the white travelers. In addition, the mountains and plains Indians were continually fighting among themselves. In order to establish permanent peace and friendship among the hostile tribes, and between the tribes and the United States, to secure the per

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