Page images
PDF
EPUB

40

Opinion of VINSON, C. J.

12

Act,10 passed in 1929, reached this Court." In 1930 12 Congress again authorized adjudication of Indian claims arising out of original Indian title, but expressly directed an award of damages if a taking of lands held by immemorial possession were shown. This Act thus eliminated any judicial determination of a right to recover, once original

Indian title was established.

Prior to 1929, adjudications of Indian claims against the United States were limited to issues arising out of treaties, statutes, or other events and transactions carefully designated by Congress. This Court has always strictly construed such jurisdictional acts and has not offered judicial opinion on the justness of the handling of Indian lands, except in so far as Congress in specific language has permitted its justiciable recognition.

The language of the 1935 Act is specific, and its consequences are clear. By this Act Congress neither admitted nor denied liability. The Act removes the impediments of sovereign immunity and lapse of time and provides for judicial determination of the designated claims. No new right or cause of action is created. A merely moral claim is not made a legal one. The cases are to be heard on their merits and decided according to legal principles pertinent to the issues which might be presented under the Act.1 Accordingly the 1935 statute permits judicial determina

13

10 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307.

11 Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 (1938), discussed infra p. 50, arose under the 1929 Act.

12 46 Stat. 531, amending 44 Stat. 1263. Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347 (1933) was litigated under this jurisdictional act.

13 United States v. Mille Lac Chippewas, 229 U. S. 498, 500 (1913); The Sac and Fox Indians, 220 U. S. 481, 489 (1911).

Opinion of VINSON, C. J.

329 U.S.

tion of the legal and equitable claims growing out of original Indian title. That which was within the power of Congress to withhold from judicial scrutiny has now been submitted to the courts. If, as has many times been said," the manner of extinguishing Indian title is usually a political question and presents a non-justiciable issue, Congress has expressly and effectively directed otherwise by seeking in the 1935 Act judicial disposition of claims arising from original Indian title. "By consenting to be sued, and submitting the decision to judicial action, they have considered it as a purely judicial question, which we are now bound to decide, as between man and man. . ." United States v. Arredondo, 6 Pet. 691, 711 (1832).

It has long been held that by virtue of discovery the title to lands occupied by Indian tribes vested in the sovereign. This title was deemed subject to a right of occupancy in favor of Indian tribes, because of their original and previous possession. It is with the content of this right of occupancy, this original Indian title, that we are concerned here.

16

As against any but the sovereign, original Indian title was accorded the protection of complete ownership; 10 but it was vulnerable to affirmative action by the sovereign, which possessed exclusive power to extinguish the right of occupancy at will. Termination of the right by sovereign action was complete and left the land free and clear of Indian claims. Third parties could not question the justness or fairness of the methods used to extinguish the right of occupancy." Nor could the Indians themselves prevent a taking of tribal lands or forestall a termination of their title. However, it is now for the first time asked

14 United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 347 (1941), and cases note 27 infra.

15 Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823).

16 United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941). 17 Beecher v. Wetherby, 95 U. S. 517 (1877).

40

Opinion of VINSON, C. J.

whether the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title.

We cannot but affirm the decision of the Court of Claims. Admitting the undoubted power of Congress to extinguish original Indian title compels no conclusion that compensation need not be paid. In speaking of the original claims of the Indians to their lands, Marshall had this to say: "It is difficult to comprehend the proposition . . . that the discovery . . . should give the discoverer rights in the country discovered, which annulled the pre-existing right of its ancient possessors. .. It It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. . . . The king purchased their lands, . . . but never coerced a surrender of them." Worcester v. Georgia, 6 Pet. 515, 543, 544, 547 (1832). In our opinion, taking original Indian title without compensation and without consent does not satisfy the "high standards for fair dealing" required of the United States in controlling Indian affairs. United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 356 (1941). The Indians have more than a merely moral claim for compensation.'

18

A contrary decision would ignore the plain import of traditional methods of extinguishing original Indian title. The early acquisition of Indian lands, in the main, progressed by a process of negotiation and treaty. The first treaties reveal the striking deference paid to Indian claims,

18 The "moral" obligation upon Congress, of which the cases speak, refers more to the obligation to open the courts to suit by the Indians. It does not mean that there is no substantive right in the Indians. So in United States v. Blackfeather, 155 U. S. 180, 194 (1894) it was held that, "While there may be a moral obligation on the part of the government to reimburse the money embezzled by the Indian superintendent...," the jurisdictional act in point did not extend to such a claim. Yet, given consent to suit, it would hardly be said that there was no substantive right against the United States for embezzlement of Indian funds.

Opinion of VINSON, C. J.

329 U.S.

as the analysis in Worcester v. Georgia, supra, clearly details. It was usual policy not to coerce the surrender of lands without consent and without compensation.19 The great drive to open Western lands in the 19th Century, however productive of sharp dealing, did not wholly subvert the settled practice of negotiated extinguishment of original Indian title.20 In 1896, this Court noted that

.. nearly every tribe and band of Indians within the territorial limits of the United States was under some treaty relations with the government." Marks v. United States, 161 U. S. 297, 302 (1896). Something more than sovereign grace prompted the obvious regard given to original Indian title.

Long before the end of the treaty system of Indian government and the advent of legislative control in 1871,21 Congress had evinced its own attitude toward Indian relations. The Ordinance of 1787 declared, "the utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent . . .” 1 Stat. 50, 52. When in 1848 the territorial government of Oregon was created, § 14 of that Act 22 secured to the inhabitants of the new territory all the rights and privileges guaranteed by the Ordinance of 1787. Nor did congressional regard for Indian lands change in 1871. In providing for the settlement of Dakota Territory, Congress in 1872 directed the extinguishment of the interests of Indians in certain lands and the determina

19 "The practical admission of the European conquerors of this country renders it unnecessary for us to speculate on the extent of that right which they might have asserted from conquest . . . The conquerors have never claimed more than the exclusive right of purchase from the Indians . . ." 1 Op. A. G. 465, 466 (1821) (William Wirt).

20 See the analysis in Cohen, Handbook of Federal Indian Law (1945) 51-66.

21 16 Stat. 544.

22 9 Stat. 323, 329, § 14.

40

Opinion of VINSON, C. J.

tion of what "compensation ought, in justice and equity, to be made to said bands . . . for the extinguishment of whatever title they may have to said lands." 17 Stat. 281; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 59 (1886). The latest indicia of congressional regard for Indian claims is the Indian Claims Commission Act, 60 Stat. 1049, 1050, § 2 (5), in which not only are claims similar to those of the case at bar to be heard, but "claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity" may be submitted to the Commission with right of judicial review.

Congressional and executive action consistent with the prevailing idea of non-coercive, compensated extinguishment of Indian title is clear in the facts of the present case. The Act of 1848 declared a policy of extinguishing Indian claims in Oregon only by treaty. The statute of 1850 put in motion the treaty-making machinery. Respondent tribes were among those with whom treaties were negotiated. In many cases, expected ratification did not follow. In the case of respondent tribes alone have no steps been taken to make amends for the taking of Indian lands pending treaty ratification. To determine now that compensation must be paid is only a fair result.

Petitioner would admit liability only if, in addition to clear proof of original Indian title, some act of official "recognition" were shown. Original Indian title would not attain the status of a compensable interest until some definite act of sovereign acknowledgment followed. Apparently petitioner has seized upon language of the Court of Claims in Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934), and from it has fashioned a full-blown concept of "recognized Indian title." The jurisdictional act in that case authorized suits on "all claims of whatsoever nature, both legal and equitable." Claims based solely

23 43 Stat. 886.

19 23

« PreviousContinue »