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329 U.S.

on original Indian title were held to be outside the limits of the act; and unless a treaty or act of Congress recognizing the Indians' title by right of occupancy were shown, recovery could not be had." A more specific jurisdictional act was deemed necessary to authorize a suit based upon original Indian title alone.

Petitioner reads into the Duwamish case far too much. When the first jurisdictional act specifically allowing suit on original Indian title in language identical with that of the 1935 Act later came before the Court of Claims in Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 (1938), the court clearly recognized the specific directives of the act and denied recovery solely because original Indian title had not been proved. "Recognition" appeared to count only as a possible method of proving Indian title itself, not as a requisite in addition to proof of that title. Furthermore, in the case at bar, the unmistakable language of the Court of Claims stands squarely against the significance petitioner would attach to the Duwamish decision: "The Duwamish case did not hold or intend to hold that an Indian tribe could not recover compensation on the basis of original Indian use and occupancy title as for a taking if the jurisdictional act authorized the bringing of a suit and rendition of judgment for compensation on the basis of such original title." Alcea Band of Tillamooks v. United States, 103 Ct. Cl. 494, 556, 59 F. Supp. 934 (1945).

Authority for petitioner's position is not found in Shoshone Indians v. United States, 324 U. S. 335 (1945). The jurisdictional act there limited suits to those claims "arising under or growing out of the treaty of July 2, 1863 . . ." 25 Suits based upon original Indian title were not authorized, but we thought a claim would properly arise under the treaty if it were based upon a taking of

24 Duwamish Indians v. United States, 79 Ct. Cl. 530, 600 (1934). 25 45 Stat. 1407.

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land which the treaty had in any way "recognized" or acknowledged as belonging to the Indians. The Court thrice noted that claims based upon original Indian title were not involved, and made no attempt to settle controversies brought under other jurisdictional acts authorizing the litigation of claims arising from the taking of original Indian title.20

Nor do other cases in this Court lend substance to the dichotomy of "recognized" and "unrecognized" Indian title which petitioner urges. Many cases recite the paramount power of Congress to extinguish the Indian right of occupancy by methods the justice of which "is not open to inquiry in the courts." United States v. Santa Fe Pacific R. Co., supra, at 347.27 Lacking a jurisdictional act permitting judicial inquiry, such language cannot be questioned where Indians are seeking payment for appropriated lands; but here in the 1935 statute Congress has authorized decision by the courts upon claims arising out of original Indian title. Furthermore, some cases speak of the unlimited power of Congress to deal with those Indian lands which are held by what petitioner would call "recog

26 Shoshone Indians v. United States, 324 U. S. 335, 337, 339, 354 (1945).

27 The statements in many cases are directed to disputes between third parties, one of whom attempts to raise a defect in the other's title by tracing it to a government grant out of Indian territory and attacking the power or the method used by the sovereign to convey Indian lands. Beecher v. Wetherby, 95 U. S. 517, 525 (1877); Buttz v. Northern Pacific Railroad, 119 U. S. 55, 66 (1886); Martin v. Waddell, 16 Pet. 367, 409 (1842); Clark v. Smith, 13 Pet. 195, 201 (1839). And in other cases, the issue was not the right of Indian tribes to be compensated for an extinguishment of original Indian title by the United States. Shoshone Indians v. United States, 324 U. S. 335 (1945); United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941); Conley v. Ballinger, 216 U. S. 84 (1910); Lone Wolf v. Hitchcock, 187 U. S. 553 (1903); Cherokee Nation v. Hitchcock, 187 U. S. 294 (1902).

28

Opinion of VINSON, C. J.

329 U.S.

was

nized" title; yet it cannot be doubted that, given the consent of the United States to be sued, recovery may be had for an involuntary, uncompensated taking of “recognized" title.29 We think the same rule applicable to a taking of original Indian title. "Whether this tract properly called a reservation . . . or unceded Indian country, . . . is a matter of little moment . . . the Indians' right of occupancy has always been held to be sacred; something not to be taken from him except by his consent, and then upon such consideration as should be agreed upon." Minnesota v. Hitchcock, 185 U. S. 373, 388-89 (1902).30

28 Lone Wolf v. Hitchcock, 187 U. S. 553, 566 (1903); Beecher v. Wetherby, 95 U. S. 517, 525 (1877). The Lone Wolf case was properly assessed in Shoshone Tribe v. United States, 299 U. S. 476, 497 (1937): "Power to control and manage the property and affairs of Indians in good faith for their betterment and welfare may be exerted in many ways and at times even in derogation of the provisions of a treaty." See also Oklahoma v. Texas, 258 U. S. 574, 592 (1922).

In Barker v. Harvey, 181 U. S. 481 (1901), the Indian claims were deemed extinguished by non-presentment to the land commission, and this was true even if the claims had been "recognized" by the Mexican government prior to the cession of lands to the United States.

29 United States v. Klamath Indians, 304 U. S. 119 (1938); Chippewa Indians v. United States. 301 U. S. 358 (1937); Shoshone Tribe v. United States, 299 U. S. 476 (1937); United States v. Creek Nation, 295 U. S. 103 (1935).

30 Other cases also draw no distinction between original Indian title and "recognized" Indian title. "The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government. When Indian reservations were created, either by treaty or executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated." Spalding v. Chandler, 160 U. S. 394, 403 (1896). Of similar tenor is Conley v. Ballinger, 216 U. S. 84, 90-91 (1910).

The older cases explaining and giving substance to the Indian right of occupancy contain no suggestion that only "recognized” Indian title

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Requiring formal acknowledgment of original Indian title as well as proof of that title would nullify the intended consequences of the 1935 Act. The rigors of "recognition," according to petitioner's view, would appear to require in every case some definite act of the United States guaranteeing undisturbed, exclusive and perpetual occupancy, which, for example, a treaty or statute could provide. Yet it was the very absence of such acknowledgment which gave rise to the present statute.

Congress was quite familiar with the precision advisable when drafting statutes giving jurisdiction to the Court of Claims in Indian cases. In 1925 an act authorizing the litigation of any and all claims of certain Indian tribes was passed. In June, 1934, that act was held, for lack of specificity, not to extend to claims based on original title.31 The following year Congress passed the present Act, employing the specific language used once before in the Act of 1929,32 under which Coos Bay Indian Tribe v. United States, supra, arose. The considered attention given to the many ramifications of Indian affairs in the 1930's 33 suggests that Congress well realized the import of the words used in the jurisdictional act of 1935, and that Congress did not expect respondent tribes to be turned out of court either because congressional power over Indian title was deemed to have no limits or because there was, as was obvious to all, no formal guarantee of perpetual and

was being considered. Indeed, the inference is quite otherwise. Mitchel v. United States, 9 Pet. 711, 746 (1835); Worcester v. Georgia, 6 Pet. 515, 543-48 (1832); Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823).

31 Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934). 32 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307.

33 "The decade from 1930 to 1939 is as notable in the history of Indian legislation as that of the 1830's or the 1880's." Cohen, Handbook of Federal Indian Law (1945) 83.

BLACK, J., concurring.

329 U.S.

exclusive possession prior to the taking of respondents' lands in 1855.

Respondents have satisfactorily proved their claim of original Indian title and an involuntary taking thereof. They are entitled to compensation under the jurisdictional act of 1935. The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." It does not "enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them." United States v. Creek Nation, 295 U. S. 103, 110 (1935).

In view of the grounds upon which decision rests, it is not necessary to consider the alternate holding of the court below relative to the 1848 act affording sufficient "recognition" of respondents' Indian title.

Affirmed.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE BLACK, concurring.

Before Congress passed the special Act under which this suit was brought, I think that the Government was under no more legal or equitable obligation to pay these respondents than it was under obligation to pay whatever descendants are left of the numerous other tribes whose lands and homes have been taken from them since the Nation was founded. See Northwestern Shoshone Indians v. United States, 324 U. S. 335, 354-358, concurring opinion. It seems pretty clear to me, however, that Congress in the Act of August 26, 1935, 49 Stat. 801, created an obligation on the part of the Government to pay these Indians for all lands to which their ancestors held an "original Indian title." This interpretation of the Act is not only consistent

34 Stephens v. Cherokee Nation, 174 U. S. 445, 478 (1899).