some interest in the project.1 See United States v. Cooper, 25 Fed. Cas. 627, 629; United States v. Logan, 26 Fed. Cas. 990, 992; Seiden v. United States, 16 F. 2d 197, 199; Partson v. United States, 20 F. 2d 127, 129; Anderson v. United States, 30 F. 2d 485, 487. Aiding and abetting in the illicit manufacture of liquor is one thing. Aiding and abetting in carrying on the business with intent to defraud the United States of a tax is quite a different matter, and requires a different test, if the two offenses are not to be blended. The evidence in the case and the instructions given the jury seem to us inadequate to sustain a con

1

3

1 Judge Learned Hand, after reviewing the various definitions of aiding and abetting, said: "It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used— even the most colorless, 'abet'-carry an implication of purposive attitude towards it." United States v. Peoni, 100 F. 2d 401, 402.

2 Thus § 2833 (a) makes it an offense to "carry on the business of a distiller without having given bond as required by law." Section 2834 makes it unlawful to make or ferment mash, fit for distillation, in any building or on any premises other than an authorized distillery.

366 '. . . if you find that he was merely an underling, serving at the beck and call of an employer and nothing more than [sic] that would not justify your finding him to be engaged in the business of a distiller. But if from the evidence you conclude logically that he aided and abetted in the carrying on of this business, then he would be chargeable as a principal. . . . Aiding and abetting is something more than merely committing an act which may have the effect of assisting or furthering a criminal transaction. Before a defendant can be held as an aider and abetter the government must prove beyond a reasonable doubt that he committed an act which furthered or assisted the criminal transaction, and at the time he committed the act he knew that a crime was in process of commission, and with that knowledge he acted with intent to aid and abet in the criminal transaction." While the above charges were requested by defendant, we nevertheless feel that the failure of the instructions to satisfy the standard we suggest is an error which we should notice. Sibbach v. Wilson & Co., 312 U. S. 1, 16.

viction under count one, charging Bozza with aiding and abetting in a tax fraud scheme.

In view of this conclusion, MR. JUSTICE RUTLEDGE reserves expression of opinion concerning the legality of the sentence.

CONFEDERATED BANDS OF UTE INDIANS v. UNITED STATES.

CERTIORARI TO THE COURT OF CLAIMS.

No. 141. Argued January 14, 15, 1947.-Decided February 17, 1947.

By a treaty of 1868 between the United States and the Ute Indians, a reservation was established for the Indians in Colorado. Subsequently, an erroneous survey showed the northern boundary to be south of the true boundary and as excluding the White River Valley lands which actually were in the reservation. Believing the survey to be accurate and desiring to preserve these lands for the use of the Indians, the President, by an Executive Order of 1875, withdrew from sale and "set apart for the use of the . . . Ute Indians, as an addition to the present reservation in said Territory" a strip of land north "of the present Ute Indian Reservation." Later, in order to punish the Indians for a massacre, dispossess them of the reservation, and remove them from Colorado, Congress passed the Act of June 15, 1880, 21 Stat. 199, which ratified and embodied an agreement by their leaders to cede to the United States all territory of "the present Ute Reservation," and provided that all lands so ceded and not allotted specifically to individual Indians would be restored to the public domain for sale as public lands and that, subject to certain conditions, the proceeds of their sale should be distributed to the Indians. An Executive Order of 1882 declared that the lands "set apart for the use of the . . . Ute Indians" by the Executive Order of 1875 is "hereby restored to the public domain." The Indians brought this suit under the Act of June 28, 1938, 52 Stat. 1209, as amended, 55 Stat. 593, to obtain compensation for the lands north of the original reservation made available to them by the Executive Order of 1875. Held:

1. Insofar as the claim rests on the Executive Order of 1875, it cannot be sustained. P. 176.

(a) The President had no authority to convey to the Indians a compensable interest in the lands lying north of the true boundary of the reservation created by the treaty of 1868. Pp. 176, 180.

(b) The Executive Order of 1875 made the Indians no more than tenants at will of the Government on that part of the land outside the true treaty reservation. P. 176.

(c) The real purpose of the Executive Order was to protect the Indians' enjoyment of the White River Valley lands conveyed to them by the original treaty; and this purpose has been accomplished. Pp. 177, 180.

2. The Act of June 15, 1880, gives the Indians no right to recover for the land north of the true boundary of the treaty reservation set apart for their use by the Executive Order of 1875. Pp. 177– 180.

(a) It contains nothing showing a congressional purpose to convey such lands to the Indians. P. 177.

(b) Nor was it intended to transform the Executive Order into a conveyance of a compensable interest in lands not included in the original treaty reservation. Pp. 178, 180.

(c) It was intended to compensate them only for the lands in the original reservation which they ceded to the United States. P. 178.

(d) The fact that it provided for the cession of the "present Ute Reservation" is not sufficient to attribute to Congress a purpose to treat as part of that reservation lands which never had been legally conveyed to the Indians and had only been made available to them for the sole purpose of making them secure in their possession of the White River Valley. Pp. 178-179.

3. Even if the Indians understood in 1880 that they owned the lands described in the Executive Order of 1875 lying north of the White River Valley, that their "present Ute Reservation" included them, and that Congress undertook by the 1880 Act to sell these lands for their benefit, and, even if Congress was aware of this understanding, this would not require a different result, in view of the fact that the Act neither conveyed nor ratified conveyance of these lands. P. 179.

4. While a treaty with Indians is to be construed so as to carry out the Government's obligations in accordance with the fair understanding of the Indians, this Court cannot, under the guise of interpretation, create presidential authority where there was none or rewrite congressional acts so as to make them mean something they obviously were not intended to mean. P. 179.

106 Ct. Cl. 33, 64 F. Supp. 569, affirmed.

In a suit by the Ute Indians under the Act of June 28, 1938, 52 Stat. 1209, as amended, 55 Stat. 593, to recover compensation for lands made available to them by an 1875 Executive Order of the President and subsequently taken from them by the United States, the Court of Claims held that they had no compensable interest in such lands. 106 Ct. Cl. 33, 64 F. Supp. 569. This Court granted certiorari. 329 U. S. 694. Affirmed, p. 180.

Ernest L. Wilkinson argued the cause for petitioners. With him on the brief were John W. Cragun, Francis M. Goodwin and Glen A. Wilkinson.

Marvin J. Sonosky argued the cause for the United States. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Bazelon, Roger P. Marquis and Fred W. Smith.

MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioners brought this action in the Court of Claims under the Act of June 28, 1938, 52 Stat. 1209, as amended, 55 Stat. 593, to recover compensation for lands made available to them by an 1875 Executive Order of the President and subsequently taken from them by the United States. Their claim was that by an Act of 1880, Congress had undertaken to sell these lands for the benefit of the petitioners, but that they had never been compensated for them. The Court of Claims, one judge concurring specially, made findings of fact and concluded as a matter of law that petitioners had no compensable interest in the lands because they "never did acquire title to these . . . lands and . . . the Congress never did agree to sell them for the account of" petitioners. 106 Ct. Cl. 33, 51, 64 F. Supp. 569, 571. We granted certiorari, 329 U. S. 694.

The findings of the Court of Claims from official letters, Executive Orders and statutes incorporated in these findings were as follows:

Opinion of the Court.

330 U.S.

A treaty of 1868, 15 Stat. 619, between the United States and petitioners' ancestors, the Ute Indian tribes, established a reservation for them in Colorado. The northern boundary of the 15 million acres there ceded was described in the treaty as a line fifteen miles north of, and parallel to, the 40th parallel of north latitude. In the 15-mile wide strip north of the 40th parallel lay the White River Valley which had been settled by the Utes as a most suitable place for grazing and cultivation. One of the two Government Indian agencies provided for the reservation by the treaty was established in that strip.

As a result of misunderstandings in 1869 and 1874 between the Utes and white settlers to the north as to the true location of the northern treaty boundary, a survey was made in 1875 by one Miller. Miller's instructions, however, required him to stake out a line which he admitted to the local Indian agent and to the Utes themselves to be fifteen to eighteen miles south of the true boundary described in the treaty. If Miller's line had been correct, it would have excluded from the 1868 reservation the fertile White River Valley, and would have also excluded the agency buildings which had been erected there.

The marking out of the erroneous Miller line greatly upset the Indians because they feared they would be driven from the White River Valley. This embarrassed the local Indian agent who had previously assured the Indians that the White River Valley lay within their reservation. He promptly reported the results of the survey and the reaction of the Indians to the Commissioner of Indian Affairs in Washington, and urged the necessity of a new survey at the earliest practicable date. He stated that if the Miller survey were correct, however, the Indians would be driven from the White River Valley-"the only farming land and . . . stock range . . . in this portion of the Reservation"-and forced to settle on