INDIAN AFFAIRS: LAWS AND TREATIES

Vol. V, Laws     (Compiled from December 22, 1927 to June 29, 1938)

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1941.

PART V
IMPORTANT COURT DECISIONS ON INDIAN TRIBAL RIGHTS AND PROPERTY⁵

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June 1, 1937 | 85 Ct. Cls. 331

IN THE COURT OF CLAIMS OF THE UNITED STATES
(Decided June 1, 1937, 85 Ct. Cls. 331.)
Shoshone Tribe of Indians of the Wind River Reservation in Wyoming v. the United States. No. H-219
Article 1 | 2 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11

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Mr. George M. Tunison and Mr. Albert W. Jefferis for the plaintiff.
Mr. Charles J. Kappler and Mr. Francis S. Howell were on the brief.
Mr. Charles H. Small and Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Carl McFarland, for the defendant.

This suit was instituted to recover $37,150,279.90, together with interest on certain amounts. It was brought under an act of Congress of March 3, 1927, 44 Stat. 1349, part 2, and is based upon the claim that the treaty with plaintiff made July 3, 1868, specifying a reservation of 3,054,182 acres of land in the State of Wyoming, was violated by the taking by the United States of a one-half interest in the reservation by placing the Northern Arapahoe Tribe of Indians on the Shoshone Reservation when the plaintiff tribe was not willing that such Indians be placed upon the reservation and the consent of the plaintiff tribe and the United States to such an arrangement was not obtained as required by the treaty.

Plaintiff contended that the taking of their land occurred March 3, 1927, when the Jurisdictional Act giving them a right to sue was enacted, and we held, 82 C. Cls. 23, that the taking of a one-half interest in the reservation for the Northern Arapahoe Indians occurred August 13, 1891. We determined the value, as of that date, to be $1.75 an acre, or $2,050,597.50 for a one-half interest in 2,343,540 acres composing the reservation at that time. Certain additional amounts totaling $100,395.49 were allowed and a number of items making up the total of plaintiff's claim were denied and the total amount found to be due the plaintiff tribe was $2,483,467.99. After deducting $1,689,646.50, determined to be the total offset to which defendant was entitled on account of gratuity payments and disbursements made for the benefit of plaintiff tribe, we entered judgment for $793,821.49. We denied plaintiff's claim for an additional amount measured by interest from the date of taking. Upon appeal by both parties the Supreme Court held, 299 U.S. 476, that the taking of a one-half interest in plaintiff's reservation for the Northern Arapahoe Indians occurred in March 1878 and that "the claimant's damages include such additional amount beyond the value of its property rights when taken by the Government as may be necessary to the award of just compensation, the increment to be measured either by interest on the value or by such other standard as may be suitable in the light of all the circumstances."

A further hearing was had and the case is now before the court on the questions (1) the character and extent of the property rights of the Shoshone Indians in the reservation of 3,054,182 acres specified in the Treaty of 1868 and the value on March 19, 1878, of such property rights in one-half of the reservation of 2,343,540 acres on that date, or 1,171,770 acres, and (2) the rate of interest to be used in measuring the amount to be added to the value of the interest taken to make just compensation.

Plaintiff contends (1) that the value in 1878 of the one-half interest in its reservation taken by the Government was $1.75 an acre, or $2,050,597.50; (2) that, in addition to this value plaintiff tribe sustained damages to the remaining one-half undivided interest of 87 1/2 cents an acre amounting to $1,025,298.75; (3) that to the total value of $3,075,896.25 there should be added, as a part of the just compensation, interest at the rate of 7% per annum from the date of taking amounting to $12,703,451.51, thus making the total amount of $15,779,347.76 due on April 8, 1937, as just compensation, to which should be added other amounts totaling $100,395.49 allowed by the court and not now in controversy; and (4) that from the total amount of $15,879,743.25 thus determined to be due there should be deducted on defendant's counterclaim under section 3 of the Jurisdictional Act an offset of $1,956,233.68, and judgment should be entered for $13,923,509.57 with interest at 7% per annum on $3,075,896.25 from Aril 8, 1937, until paid.

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Counsel for defendant contend that the only interest, legal or beneficial, which an Indian tribe has in a reservation is the right to live upon it, to hunt over it, and to use such parts of it as the Indians may desire for farming purposes, and that this is the character and full extent of the Indian title; that all other incidents affecting value of the reservation lands belong, and have always belonged, absolutely to the United States, which may be disposed of by the Government for its own benefit without legal or equitable accountability to the Indians under any treaty or any Act of Congress, and that in valuing the interest of plaintiff tribe to one-half of the reservation taken in 1878 for the benefit of the Arapahoe tribe no consideration whatever should be given to the value at that time of the land, as such, or to the value of timber or minerals thereon; that the fair and reasonable value of the right of the Shoshones to occupy and use the reservation of 2,343,540 acres was approximately 4 cents an acre in 1878, or a total value for the entire reservation of $92,000, and that the value of an undivided one-half interest therein taken for the Arapahoe tribe was $46,000; that in no event did the value in 1878 of a one-half interest in the reservation exceed $469,000, or approximately 40 cents an acre.

SPECIAL FINDINGS OF FACT

1. On July 2, 1863, plaintiff tribe of Indians and the United States entered into a treaty, 18 Stat. 685, which set apart for plaintiff a reservation of 44,672,000 acres located in Colorado, Utah, Idaho, and Wyoming in consideration of certain matters mentioned in the treaty. The United States agreed to pay to the tribe annually for twenty years the sum of $10,000 in such amounts as the President might deem suitable for their wants or conditions, either as hunters or herdsmen.

2. By the Treaty of July 3, 1868, 15 Stat. 673, plaintiff gave up and relinquished this reservation to the United States and accepted in lieu thereof the present reservation consisting originally of 3,054,182 acres in the State of Wyoming, together with the agreement of the United States to deliver at the agency house on the reservation annually for thirty years, in lieu of all sums of money or other annuities provided to be paid under any and all treaties theretofore made, certain articles of clothing and other supplies, and to construct certain buildings upon the reservation and furnish certain employees and instructors for the Indians, together with a school and a teacher. The important provisions of this treaty were as follows:

ARTICLE 1.

From this day forward, peace between the parties to this treaty shall forever continue. The Government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they hereby pledge their honor to maintain it. If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, on proof made to their agent and notice by him, deliver up the wrongdoer to the United States, to be tried and punished according to its laws; and in case they willfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the President, on advising with the Commissioner of Indian Affairs, shall prescribe such rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no such damages shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of Indian Affairs, and no one sustaining loss while violating or because of his violating the provisions of this treaty or the laws of the United States, shall be reimbursed therefor.

ARTICLE 2.

*** The United States further agrees that the following district of country, to-wit: Commencing at the mouth of Owl Creek and running due south to the crest of the divide between tile Sweetwater and Papo Agie Rivers; thence along the crest of said divide and the summit of Wind River Mountains to the longitude of North Fork of Wind River thence due north to mouth of said North Fork and up its channel to a point twenty miles above its mouth; thence in a straight line to headwaters of Owl Creek and along middle of channel of Owl Creek to place of beginning, shall be and the same is set apart for the absolute and undisturbed use and occupation of the Shoshone Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them; and the United States now solemnly agrees that no persons except those herein designated and authorized so to do, and except such officers, agents, and employees of the Government as may be authorized to

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enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians, and henceforth they will and do hereby relinquish all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the limits aforesaid.

ARTICLE 4.

The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.

ARTICLE 5.

The United States agrees that the agent for said Indians shall in the future make his home at the agency building on the Shoshone Reservation, but shall direct and supervise affairs on the Bannack Reservation, and shall keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint by and against the Indians as may be presented for investigation under the provisions of their treaty stipulations, as also for the faithful discharge of other duties enjoined by law. In all cases of depredation on person or property he shall cause the evidence to be taken in writing and forwarded, together with his finding, to the Commissioner of Indian Affairs, whose decisions shall be binding on the parties to this treaty.

ARTICLE 6.

If any individual belonging to said tribes of Indians, or legally incorporated with them, being the head of a family, shall desire to commence farming, he shall have the privilege to select, in the presence and with the assistance of the agent then in charge, a tract of land within the reservation of his tribe, not exceeding three hundred and twenty acres in extent, which tract so selected certified, and recorded in the "landbook", as herein directed, shall cease to be held in common, but the same may be occupied and held in the exclusive possession of the person selecting it, and of his family, so long as he or they may continue to cultivate it.

Any person over eighteen years of age, not being the head of a family, may in like manner select and cause to be certified to him or her, for purposes of cultivation, a quantlty of land not exceeding eighty acres in extent, and thereupon be entitled to the exclusive possession of the same as above described. For each tract of land so selected a certificate, containing a description thereof, and the name of the person selecting it, with a certificate endorsed thereon that the same has been recorded, shall be delivered to the party entitled to it by the agent, after the same shall have been recorded by him in a book to be kept in his office subject to inspection, which said book shall be known as the "Shoshonee (eastern band) and Bannack Land Book."

The President may at any time order a survey of these reservations, and when so surveyed Congress shall provide for protecting the rights of the Indian settlers in these improvements, and may fix the character of the title held by each. The United States may pass such laws on the subject of alienation and descent of property as between Indians, and on all subjects connected with the government of the Indians on said reservations, and the internal police thereof, as may be thought proper.

ARTICLE 7.

In order to insure the civilization of the tribes entering into this treaty, the necessity of education is admitted, especially of such of them as are or may be settled on said agricultural reservations, and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school; and it is hereby made the duty of the agent for said Indians to see that this stipulation is strictly complied with; and the United States agrees that for every thirty children between said ages who can be induced or compelled to attend school, a house shall be provided and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians and faithfully discharge his or her duties as a teacher. The provisions of this article to continue for twenty years.

ARTICLE 8.

*** And it is further stipulated that such persons as commence farming shall receive instructions from the farmers herein provided for, and whenever more than one hundred persons on either reservation shall enter upon the cultivation of the soil, a second blacksmith shall be provided, with such iron, steel, and other material as may be required.

ARTICLE 9.

In lieu of all sums of money or other annuities provided to be paid to the Indians herein named, under any and all treaties heretofore made with them, the United States agrees to deliver at the agency house on the reservation herein provided for, on the first day of September of each year, for thirty years, the following articles, to wit:

For each male person over fourteen years of age, a suit of good substantial woolen clothing, consisting of coat, hat, pantaloons, flannel shirt, and a pair of woolen socks; for each female over twelve years of age, a flannel skirt, or the goods necessary to make it, a pair of woolen hose, twelve yards of calico, and twelve yards of cotton domestics.

For boys and girls under the ages named, such flannel and cotton goods as may be needed to make each suit as aforesaid, together with a pair of woolen hose for each.

And in order that the Commissioner of Indian Affairs may be able to estimate properly for the articles herein named, it shall be the duty of the agent each year to forward to him a full and exact census of the Indians, on which the estimate from year to year can be based; and in addition to the clothing herein named, the sum of ten dollars shall be annually appropriated for each Indian roaming and twenty dollars for each Indian engaged in agriculture, for a period of ten years, to be used by the Secretary of the Interior in the purchase of such articles as from time to time the condition and necessities of the Indians may indicate to be proper. And if at any time within the ten years it shall appear that the amount of money needed for clothing under this article can be appropriated to better uses for the tribes herein named, Congress may by law change the appropriation to other purposes; but in no event shall the amount of this appropriation be withdrawn or discontinued for the period named. And the President shall annually detail an officer of the Army to be present and attest the delivery of all the goods herein named to the Indians, and he shall inspect and report on the quantity and quality of the goods and the manner of their delivery.

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ARTICLE 10.

The United States hereby agrees to furnish annually to the Indians the physician, teachers, carpenter, miller, engineer, farmer, and blacksmith, as herein contemplated, and that such appropriations shall be made from time to time, on the estimates of the Secretary of the Interior, as will be sufficient to employ such persons.

ARTICLE 11.

No treaty for the cession of any portion of the reservations herein described which may be held in common shall be of any force or validity as against the said Indians, unless executed and signed by at least a majority of all the adult male Indians occupying or interested in the same; and no cession by the tribe shall be understood or construed in such manner as to deprive without his consent, any individual member of the tribe of his right to any tract of land selected by him as provided in Article 6 of this treaty.

The plaintiff tribe immediately went upon this reservation and has ever since remained thereon. Certain portions of the original reservation defined by the 1868 Treaty were ceded to the United States by agreements in 1872, 1896, and 1904—the last cession being in trust for the purpose of sale or lease.

3. At the time of the making of the Treaty of 1868 the plaintiff tribe of Indians were full-blood blanket Indians, unable to read, write, speak, or understand English, with little previous contact with whites; but in all their contacts with the white people they had always been friendly. They lived mostly by hunting wild game and fishing. The affairs of the tribe were handled almost entirely by and under the advice of Chief Washakie until his death in 1900, and thereafter by the chief men and members of the tribal council.

The same condition existed in 1872 and in 1896 when agreements were made under which the tribe ceded portions of the reservation to the United States. Practically the same condition as to their education existed at the time the agreement of 1904, hereinafter mentioned, was made, except, at that time, the Shoshones had considerable contact with white settlers and the Indian agents of the reservation, and a few of them could speak and understand English fairly well.

4. The plaintiff's reservation, set apart by the Treaty of July 3, 1868, is located in the central-western part of Wyoming. The Owl Creek range of mountains: constituting the northern boundary of the reservation, rises to an approximate elevation of 12,000 feet. The Wind River range of mountains, constituting the west and southwest boundaries, rises to a maximum elevation of approximately 14,000 feet. The reservation is protected from the elements by these two ranges of mountains; also by the Beaver Divide to the south. The ancient Indian name for the reservation is Warm Valley.

The reservation comprises the choicest and best-watered portion of the State of Wyoming. The character of the land ranges from precipitous mountains at the extreme north and west, down through heavily timbered upland, lower down through well-grassed bench land, to a series of river valleys with level, deep soil toward the eastern portion of the reservation. In the lower altitudes between these river valleys are wide areas of rolling upland covered with salt sage, black sage, and grasses. The reservation is made up in part of unsurpassed mountain scenery. These mountains are the source of some of the largest rivers on the North American continent, and contain within their recesses numerous fresh-water lakes well stocked with trout and waterfowl, and on whose banks live beaver, otter, and other fur-bearing animals. The mountains contain more than 400,000 acres of spruce, pinon, hemlock, balsam, and yellow and white pine timber. The river valleys are level, easily irrigated, several miles in width, and contain a warm, rich, and productive soil. Stock lives the year round without other feed than being herded on the grasses growing from the mountain tops to the lowest valleys in greatest abundance, affording ample feed and range for livestock in the mountains in the summer season and in the lower reaches of the reservation in the fall and winter seasons. The water is pure, and the climate is mild and regular. The soil is rich and compares favorably in fertility to that of Illinois and Iowa. The climatic conditions are such that the grasses grown on the lower portions of the reservation cure on the ground without cutting or harvesting, and are available in that condition as feed for the livestock in the fall and winter. The average wind velocity is 4.1 miles an hour. This low-wind velocity makes for a low rate of evaporation of moisture from the soil and plants, thus facilitating the growth and preservation of plant life.

The soil and climatic conditions on the reservation are well suited for the production of alfalfa, sweet clover, hard and soft wheat, oats, barley, corn, beans, peas, toma-

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toes, sugar beets, garden vegetables, small fruits, and melons. The land has a high average yield of crops.

The reservation was known in 1878 to contain substantial deposits of coal, oil, gas, and gypsum. On the northern and western boundaries of the reservation are numerous streams, which, generally, converge toward the east and south boundaries of the reservation, where they unite to form the Big Horn River. These streams traverse level valleys in the lower portions of the reservation, ranging from a half mile to five miles in width and from a few miles to 30 or 40 miles in length. A tracing showing the boundaries of the reservation and the rivers that run through it is in evidence as an exhibit to the report of the General Accounting Office, and is made a part hereof by reference.

The land on the reservation best suited for agricultural purposes lies toward the eastern portion thereof, where the river valleys are wider, the soil deeper and free from boulders, easy to irrigate, and nearer a railroad; and due to elevation, the growing season is from three to four weeks longer in the eastern portion of the reservation than in the western portion. The Arapahoes were placed on the eastern portion of the reservation. The average annual precipitation on the reservation is from about ten to twenty inches in the lower portions thereof and from twenty to twenty-five inches in the mountainous portions. Ample water is available to irrigate all agricultural land on the reservation. The reservation is supplied with sufficient water power for the production of electric light and power.

At the time of the execution of the Treaty of July 3, 1868, buffalo, elk, bear, antelope, deer, and other wild animals suitable for food were in great abundance on the reservation. Such game was native and indigenous to the mountains and valleys of the reservation, and was found sufficiently adequate for subsistence of the Indians for many years. The plaintiff tribe of Indians went on annual hunts into the mountains for food, and the skins of certain wild animals were used for robes and other necessary uses for members of the tribe. Prior to and after execution of the Treaty of July 3, 1868, defining the original reservation for the Shoshone Indians, hunters and trappers killed many of the wild animals native to the territory covered by the treaty, and many of them were frightened away—all with the result that in the years following the date of the treaty the number of buffalo and other wild animals roaming the reservation and within the mountainous regions thereof was greatly reduced.

5. Promptly following the execution of the Treaty of 1868, the United States constructed on the reservation the agency house and other buildings mentioned therein, and furnished an agent, together with other employees, provided for in the treaty. Thereupon the Shoshone Tribe occupied the reservation, and ever since that date it has made the same its permanent home, making no settlement elsewhere, and that tribe has claimed the reservation as its own exclusive property continually and uninterruptedly since that date, and during such period it has held possession of and occupied the same. Ever since entering into the treaty the Shoshones have fulfilled all the obligations, terms, and conditions therein required of them.

6. Prior to the execution of the Shoshone Treaty, July 3, 1868, gold had been discovered at a point near the boundary line of the Shoshone Reservation on the south end of the Wind River Mountains and the gold-mining district extended within the boundary line of the reservation as fixed in the treaty and a large quantity of gold was removed from the mines on the reservation by persons engaged in that enterprise. As a result of this intrusion, Felix R. Brunot was appointed a commissioner to negotiate with the Shoshone Indians for the cession of a portion of the reservation located in the gold-mining district. The best gold mines in the district had been found to be located within the reservation. As a result, Brunot obtained an agreement from the Shoshones ceding 700,642 acres of the reservation for a total consideration of $27,500. At that time the Indians had no conception of the value of money or the value of the property they were surrendering to the Government and they accepted, without question, Brunot's first offer of the amount stated. With reference to the consideration to be paid for this cession, Brunot reported to the Commissioner of Indian Affairs that "Acting upon my experience of the general habit of Indians, the Shoshones were offered a sum as the basis of further negotiation, and which I supposed would have to be increased to meet the demand of the Indians. When the terms first offered were promptly

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accepted, I did not feel at liberty to make an addition. It seems eminently proper to solicit from Congress." No further amount was ever paid for this cession.

Between July 3, 1868, the date of the treaty, and 1874, when the cession agreement above mentioned was ratified, gold of the value of $500,000 was mined and removed from land within the boundary of the undiminished reservation. After this cession the diminished reservation contained 2,343,540 acres.

7. On March 19, 1878, the United States took from the Shoshone Tribe of Indians an undivided one-half interest in their reservation of 2,343,540 acres described and set apart for said tribe in the Treaty of July 3, 1868, and on the same date permanently placed and settled the Northern Arapahoe Tribe of Indians on the eastern and most valuable portion thereof with equal rights with the Shoshones in and to the entire reservation. The Shoshone Tribe was not willing that this be done and the Northern Arapahoe Tribe was placed upon the reservation without the consent of the plaintiff tribe and in violation of the provisions of the treaty with the Shoshone Tribe of Indians of July 3, 1868, 15 Stat. 673. Some of the facts which were known concerning the reservation of plaintiff tribe at the time it was set apart to the Shoshone Tribe by the Treaty of July 3, 1868, are accurately set forth in the annual report of the Secretary of the Interior, 1866 (Serial 1284, p. 127), in the form of a quotation from a report of Indian Agent Mann, as follows:

The valley of the Wind River Mountains is the territory which the tribe has selected for its home, and this is the place where such a reservation should be set apart and any agency established. The country abounds in game, has a very mild climate, and possesses agricultural advantages which make it a great desideratum to the white man. Numerous oil springs have been discovered and located in the valley of the Pawpawgee, but this tribe is strongly opposed to any invasion of its territory by the whites. I greatly fear that these mineral and agricultural resources will turn out to be a bone of contention between the whites and the reds, and would therefore urge that the tribe have a reservation staked out which may be held sacred to them, and not be encroached upon by the whites. Several of our citizens are looking towards the Wind River country with a view to its development, and I give you a few extracts from a letter written by one who passed the winter and a part of the spring in the valley. He says, "The air is pure, the water of the best, the climate mild and regular. The soil is not second in fertility to that in Illinois or Iowa, farming land enough to support a population of two hundred thousand persons, the climate well adapted to the growth of small grain and fruit, especially apples and vegetables. There is plenty of timber for building and fencing purposes; the scenery is most beautiful and picturesque. There are two oil springs in the valley, one of which pours forth one hundred barrels per day. There are good indications of stone, coal, and iron, with numerous quarries of limestone suitable for building purposes. The foot-hills and valleys are covered, winter and summer, with a luxuriant growth of nutritious grass, making the finest grazing west of the Missouri. The mountains have indications of mineral deposits. But little snow fell and what did fall soon disappeared. Stock can be wintered without any feeding. Buffalo and other game abounds," etc., etc.

The annual report of the Secretary of the Interior for 1878, Serial 1850, page 644, also stated true facts concerning the Shoshone reservation, in part, as follows:

The mountains are the source of some of the most magnificent rivers on the continent, and contain within their recesses an almost innumerable number of fresh-water lakes, many of which are of unknown depths, full of the finest trout and thousands of water-fowls, and on whose banks live the beaver, otter, and many other fur-bearing animals. The mountains *** contain an inexhaustible supply of spruce, pinon, hemlock, balsam, and yellow and white pine timber. The whole reservation is the fairest and best watered portion of the territory, and includes all of the Wind River valleys, which are level, easily irrigated, and from one-half to five miles in width; soil warm and rich, and with ordinary care very productive. No part of the reservation can be considered valueless for all purposes. For agriculture and grazing purposes it is simply a wonderful country. Stock lives all the year without any other care than being herded on the nutritious grasses growing from the mountain tops to the lowest valleys in the greatest abundance ***.

The fertility and productiveness of the farming land comprised within the Shoshone Reservation are accurately illustrated in the annual report of territorial Governor Hoyt, of Wyoming, to the Secretary of the Interior for 1878, pages 42 and 43, describing the farm products produced on land bordering the Shoshone Reservation as follows:

There are now in this office some as fine samples of wheat, oats, clover, timothy, red-top, and other grasses, gathered by my own hand in the valley of the Big Popo Agie (Lander Valley), 15 miles this side of Camp Brown, as can be found in any state in the Union. And they were not the product of garden culture. They were gathered off a farm of 160 acres all in cultivation, and itself but one of a number of farms in that immediate neighborhood aggregating 1,500 acres under thorough and very successful cultivation, whole fields of wheat standing over 5 feet, and so thick that I walked through it with difficulty; oats, also over 5 feet in height, as heavy as they could stand and nodding with the weight of grain; timothy, 4 feet and of first quality; clover, 3 ½ feet, standing erect; and other grasses equally luxuriant, and all promising to mature a most abundant harvest.

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The assessed value of the land in Fremont County in the State of Wyoming for the year 1887, which was the earliest assessment, was $5.44 an acre. Fremont County at that time included the Shoshone Reservation. The prices in effect in 1878 for various types of lands recognized by the land laws at that time and sold by the Federal Government were as follows: Agricultural land (tillable), $2.50 an acre; desert land (tillable only under irrigation), $1.25 an acre; mineral land containing lode deposits, $5 and acre; mineral land containing placer deposits, $2.50 an acre; coal lands, $20 an acre if within fifteen miles of a completed railroad or $10 an acre if otherwise situated; and timber and stone lands, $2.50 an acre. Lands containing oil and gas, phosphate rock, or gypsum, or involving power site or reservoir value, or valuable only for grazing, were not differentiated in 1878 from lands in the categories mentioned. Railroad facilities were near at hand.

On April 21, 1896, the plaintiff tribe, after negotiations with Indian Inspector James McLaughlin, acting for and on behalf of the United States, ceded 55,040 acres of land embracing Big Horn Hot Springs, and this agreement was approved June 7, 1897, 30 Stat. 62, 93. This land was located in the northeast corner of the reservation and, as a tract, was not as valuable as the remainder of the Shoshone Reservation as a whole. The consideration agreed to be paid, and which was paid, for this cession was $60,000.

April 21, 1904, the Shoshone Indians and the Northern Arapahoe Indians entered into an agreement with the United States ceding 1,480,000 acres of land to the United States in trust for the sale of such lands, timber thereon, and other products on the reservation and for the making of leases for various purposes. The net proceeds derived from such ceded lands were to be credited to the Shoshone and Arapahoe Indians. After these agreements the diminished reservation consisted of 808,500 acres. No further cessions have been made. During the period 1907 to 1919 a total of 245,058 acres of land on the diminished reservation was allotted in severalty to the Shoshone and Arapahoe Indians. Additional lands have subsequently been allotted, but the record does not disclose the extent of such allotments. The lands allotted to the Arapahoe Indians were located on the eastern portion of the reservation, which were the most valuable of the farming lands within the reservation. The respective population of the Shoshone and the Northern Arapahoe Tribes of Indians from 1878 to date has been approximately equal.

8. The fair and reasonable value of a one-half undivided interest of the Shoshone or Wind River Reservation of a total of 2,343,540 acres, which was taken by the United States on March 19, 1878, from the Shoshone Tribe of Indians for the Northern Arapahoe Tribe, was, on March 19, 1878, $1,581,889.50.

9. The amount to be added to the value of plaintiff's property rights of $1,581,889.50 when taken by the Government March 19, 1878, necessary to the award of just compensation is $4,682,392.92. This additional amount is measured by interest on such value at March 19, 1878, at 5 percent per annum, which was the usual and customary rate of interest provided in Indian treaties, agreements, and statutes concerning funds belonging to Indian tribes and held and used by the Government in the management of Indian affairs and in the use of Indian funds generally for the benefit of the Indian tribes.

The above-mentioned additional amount of $4,682,392.92 is arrived at by computing interest, not as interest but as a part of just compensation, on the value of the property rights taken from March 19, 1878, to June 1, 1937.

10. Under finding 24 of the findings of fact and item 14 of the opinion heretofore rendered December 2, 1935, 82 C. Cls. 23, plaintiff is entitled to recover the amount of $89,704.17 due it to June 30, 1927, on account of the proceeds from the Wind River Reservation erroneously credited to the Northern Arapahoe Tribe of Indians.

Under the agreement of September 26, 1872, 18 Stat. 291, plaintiff is entitled to recover the unpaid balance of $14.50.

Under the agreement of April 21, 1896, 30 Stat. 62, 93, covering the Big Horn Hot Springs cession of 55,040 acres, plaintiff is entitled to recover $7,661.84.

Under the agreement of April 21, 1904, 33 Stat. 1016, plaintiff is entitled to recover $3,014.98.

11. Offsets under gratuity disbursements.—Section 3 of the Jurisdictional Act provided that "In said suit the court shall also hear, examine, and adjudicate any claim

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which the United States may have against said tribe, but any payment, including gratuities which the United States may have made to said tribe, shall not operate as an estoppel, but may be pleaded as an offset in such suit." During the period July 1, 1867, to June 30, 1927, the Congress appropriated and the Indian Department made gratuity disbursements totaling $1,223,266.26, of which $166,189.28 was charged against the plaintiff tribe directly and $1,057,076.98 against the Shoshone, Bannock, and Arapahoe Tribes jointly for the purposes and in the amounts following:

12. All of the charges made directly against plaintiff tribe totaling $166,189.28, except $12,294.73 thereof, represented expenditures after the advent of the Arapahoe Indians upon the Shoshone Reservation. Of the last-mentioned amount of $12,294.73 charged directly against the plaintiff, the amount of $7,510.31 represented expenditures for purposes in the benefits of which the Bannock Tribe shared equally with plaintiff during the time that tribe lived on the Shoshone Reservation. The population of the Bannock Tribe during the period they shared in expenditures for the Shoshones was 800 and that of plaintiff tribe during that time was 2,400. The amount of $4,784.42 of the above-mentioned $12,294.73 represented that portion of the total expenditure of $166,189.28 disbursed and charged directly against the plaintiff tribe before the Arapahoe Tribe of Indians moved to the Shoshone Reservation. The Arapahoe Indians shared equally with the Shoshones in the benefits of $127,661.58 of the total expenditures charged directly to plaintiff for the purposes specified in items 4, 7, 14, 17, 18, 24, 26, 38, 50, 51, and $6,815.62 of item 33 of the above-mentioned tabulation.

13. The direct charges made against the plaintiff tribe out of expenditures for the period mentioned for purposes in which the Arapahoe Tribe did not share equally with

Page 729

the Shoshones total $38,527.70. Of the last-mentioned amount, $7,510.31 represented expenditures for the benefit of the plaintiff tribe of Indians and the Bannock Indians jointly, and on the basis of population of these two tribes during the time the Bannock Indians were on the Shoshone Reservation the amount of $2,503.44 represented the share of the Bannock Indians, leaving a total direct expenditure for the benefit of the plaintiff tribe of Indians, in the benefits of which neither the Bannocks nor the Arapahoes shared, of $36,024.26. The defendant is entitled to offset this amount against plaintiff.

14. With respect to the above-mentioned sum of $127,661.58, being that portion of the disbursements of $166,189.28 charged directly against the plaintiff tribe for purposes in the benefits of which the Arapahoes shared equally with the Shoshones, the defendant is entitled to an offset against plaintiff in the amount of $63,958.45 on the basis of the average annual population of plaintiff tribe to the total population of both tribes in the proportion of 50.18 percent for the Shoshones for the period 1878 to 1927, inclusive.

15. During the period July 1, 1867, to June 30, 1927, the United States appropriated and expended for the benefit of plaintiff tribe jointly with the Bannock and the Northern Arapahoe tribes on the Shoshone Reservation a total of $1,057,076.98, which included the amount of $116,820.84 made reimbursable by the act of February 8, 1887, but which amount has not been repaid.

The amount of $32,502.52 of the total joint charges of $1,057,076.98 represented expenditures made for the joint benefit of plaintiff and the Bannock tribes during the years July 1, 1867, to the fiscal year 1876, inclusive. The records are such that it is now impossible to determine what portion of this amount of $32,502.52 should be charged to plaintiff tribe. However, both tribes shared equally in the benefits and the plaintiff tribe should be charged with $21,668.34. The defendant is entitled to offset this amount in respect of this item.

On the basis of percentage of population of plaintiff tribe in each year during the period 1878 to 1927, inclusive, the defendant is entitled to an offset of $511,791.92 in respect of expenditures totaling $1,024,574.46 charged jointly to plaintiff and the Arapahoe Tribe.

16. During the fiscal years 1882 to 1921, inclusive, gratuity disbursements were made out of appropriations in the total sum of $4,147,322.55 for the benefit of the Shoshone and the Arapahoe tribes of Indians on the Shoshone Reservation in Wyoming. The sum of $611,842.22 of this amount was charged directly against the plaintiff tribe, and $3,535,480.33 was charged against the Northern Arapahoe and plaintiff tribes jointly. The purposes for which these disbursements were made and the direct and joint charges were as follows:

Page 730

17. With reference to the amount of $611,842.22 charged directly against plaintiff, as above mentioned, the amount of $96,847.94 under items 7, 10, 11, 16, 17, 18, 22, and 26 of the above tabulation represented the total of disbursements directly charged to plaintiff for facilities and services in the benefits of which the Northern Arapahoe Indians shared equally with plaintiff tribe, and for which the record does not show any direct charge against the Northern Arapahoe Indians, leaving a balance of $514,994.28 which the defendant is entitled to offset against plaintiff.

With respect to the above-mentioned amount of $96,847.94, the defendant is entitled to offset against plaintiff the amount of $49,198.75 on the basis of the average annual population of plaintiff tribe of 50.8 percent during the period 1882 to 1921, inclusive.

18. In the expenditures for the joint benefit of plaintiff tribe and the Northern Arapahoe Tribe in the sum of $3,535,480.33, disbursed during the period July 1, 1882, to June 30, 1927, there was included the sum of $235,963.07 disbursed during the years 1913 to 1927, inclusive, for roads and bridges on the Shoshone Reservation which was made reimbursable by the acts authorizing such expenditures.

By the act of July 1, 1932 (47 Stat. 564), it was provided:

That the Secretary of the Interior is hereby authorized and directed to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made. *** Provided further, That any proceedings hereunder shall not be effective until approved by Congress unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within sixty legislative days after the filing of said report, in which case they shall become effective at the termination of the said sixty legislative days.

On December 15, 1932, the Secretary of the Interior reported to Congress that the outstanding indebtedness for roads and bridges on the Shoshone Reservation was $131,492.50, and he recommended that the entire amount of the unpaid reimbursable balance be canceled. Congress not having disapproved this recommendation within sixty legislative days after December 1932, the outstanding reimbursable balance was no longer a charge against the Shoshone Tribe of Indians, as appears from the statement of the Commissioner of Indian Affairs of July 10, 1933, that "In accordance with the terms of the act of July 1, 1932, this sum is no longer regarded as a reimbursable charge against the tribal funds."

The aforementioned expenditures of $3,535,480.33 also included disbursements for "Irrigation System, Wind River Diminished Reservation, Wyoming", totaling $2,264,123, made during the period 1906 to 1927, and more than one-half of which was expended in the years 1918 to 1925. Of this last-mentioned amount, expenditures totaling $1,582,285.25 were made reimbursable by the appropriation acts under which that amount was expended.

19. Allotments of land on the diminished reservation were made to the Shoshone and Arapahoe Indians in severalty and during the period 1907 to 1919, 245,058 acres had been allotted. By the act of August 1, 1914, 38 Stat. 582, 583, it was provided that the costs of irrigation systems incurred by the Government, before or after the date of the act, were to be assessed against the landowners who were to receive the benefits of the irrigation. Under this act the cost of such irrigation development was transferred from the tribe to the individual Indian allottee having irrigable land under any project on the reservation. The act provided that "all moneys expended heretofore or hereafter under this provision shall be reimbursable where the Indians have adequate funds to repay the Government, such reimbursements to be made under such rules and regulations as the Secretary of the Interior may prescribe." Apportionment of such irrigation construction cost was directed by the act of February 14, 1920, 41 Stat. 408, 409, and the apportionment was made and approved by the Department. That act provided that "The Secretary of the Interior is hereby authorized and directed to require the owners of irrigable land under any irrigation system heretofore or hereafter constructed for the benefit of Indians and to which water for irrigation purposes can be delivered to begin partial reimbursement of the construction charges, where reimbursement is required by law, at such times and in such amounts as he map deem best; all payments hereunder to be credited on a per-acre basis in favor of the land in behalf of which such payments shall have been made and to be deducted from the total per-acre charge assessable against said land."

Page 731

In order to insure the United States reimbursement for the advancement of money for the construction, operation, and maintenance of irrigation projects on the Shoshone Reservation, Congress, by the act of March 7, 1928 (45 Stat. 200, 210), created a lien on the land of allottees under the Shoshone Indian irrigation projects. This act provided as follows:

That the costs of irrigation projects and of operating and maintaining such projects, where reimbursement thereof is required by law, shall be apportioned on a per-acre basis against the lands under the respective projects and shall be collected by the Secretary of the Interior as required by such law, and any unpaid charges outstanding against such lands shall constitute a first lien thereon which shall be recited in any patent or instrument issued for such lands.

In accordance with the provisions of these acts the cost of irrigation projects on the Shoshone Reservation has been apportioned.

The Superintendent of the Indian Field Service reported, on June 17, 1931, that

The cost of the irrigation project constructed for Indians on the Shoshone or Wind River Reservation has been apportioned in accordance with the benefits received by each individual Indian so far as practicable against such Indians on a per-acre basis against the lands under the respective projects, and the unpaid charges outstanding against such lands constitute a first lien thereon.

On July 3, 1931, the Commissioner of Indian Affairs stated of record in this case with reference to expenditures for irrigation involved in the case at bar that

the statements contained in Superintendent Haas' letter *** are in accord with the facts. Prior to the act of August 1, 1914 (38 Stat. 5821, the cost of irrigation work on this reservation was payable out of tribal funds. By that act the cost was shifted from the tribal burden to that of the individual Indian or allottee having irrigable land under the project on that reservation. The equitable way of distributing costs is by taking the acreage under a unit or a project and dividing same into the cost: of the works, thereby giving the per-acre assessment of charge against each acre of land under the particular unit or project. This method is consistent with usual practice and works the greatest equity to all under the project. Apportionment of construction cosh was directed by the act of February 14, 1920 (41 Stat. 408). The act of March 7, 1928 (45 Stat. 200), created a lien against, lands of the Shoshone Indian irrigation project, which lien is recited in patents issued for irrigable lands thereunder prior to the payment of the share of the cost of the irrigation works.

20. The elimination of the item of $2,264,123 for irrigation and $235,963.07 for roads and bridges, totaling $2,500,086.07, from the total expenditure of $3,535,480.33 made during the period July 1, 1881, to June 30, 1927, for the joint benefit of the Northern Arapahoe and plaintiff tribes, leaves $1,035,394.26, and from this sum here should be further eliminated the item of "Payment to settlers", set forth in item 27 of the tabulation above, amounting to $9,121.50, representing payments made by the United States to persons who had settled upon the Shoshone Reservation in order to obtain their removal therefrom; this leaves a balance of $1,026,272.76 in respect of which the defendant is entitled to offset against the plaintiff tribe the amount of $508,005.02, on the basis of the average annual population of plaintiff tribe of 49.5 percent to the total population of both tribes during the period 1884 to 1927, inclusive.

21. The total amounts of $2,264,123 and $235,963.07 expended for irrigation and roads and bridges, respectively, under specific appropriations for the joint benefit of plaintiff tribe and the Northern Arapahoe Tribe of Indians were expended in the years and in the amounts following:

22. Subsequent to the accounting report filed in this case for the period July 1, 1878, to June 30, 1927, on the basis of which the foregoing offsets totaling $1,705,641.02 against the plaintiff tribe have been determined, a supplemental report of accounting of

Page 732

payments made by the United States from appropriations for the Indian Service generally and out of available funds has been filed showing disbursements for the benefit of the plaintiff tribe for the period July 1, 1927, to June 30, 1934. During this period the amount of $6,904.48 was disbursed and charged directly to plaintiff tribe. This amount the defendant is entitled to offset.

23. During the same period, July 1, 1927, to June 30,1934, the defendant expended out of other than Treaty Appropriations for the benefit of plaintiff tribe and the Northern Arapahoe Tribe, jointly, a total of $487,376.36 for the following purposes:

During this period the population of the two tribes was almost equal. Each tribe shared equally in the benefits of these expenditures. The defendant is entitled to offset against plaintiff tribe one-half of the total of these expenditures, or $243,688.18.

24. The amount which the defendant is entitled to offset under the Jurisdictional Act against the total amount due plaintiff tribe is $1,956,233.68, itemized as follows:

Page 733

CONCLUSION OF LAW

Upon the foregoing special findings of fact, which are made a part of the judgment herein, the court decides, as a conclusion of law, that plaintiff is entitled to recover $6,364,677.91.

The defendant on its counterclaim is entitled to offset against the total amount due plaintiff the amount of $1,956,233.68, leaving a balance of $4,408,444.23 due plaintiff.

It is therefore adjudged and ordered that the plaintiff recover of and from the United States four million four hundred eight thousand four hundred forty-four dollars and twenty-three cents ($4,408,444.23), with interest at 5 percent per annum on $1,581,889.50 from June 1, 1937, to date of payment.

OPINION

LITTLETON, Judge, delivered the opinion of the court

The Jurisdictional Act, under which this suit was instituted, was approved March 3, 1927, 44 Stat. 1349. It conferred jurisdiction upon this court, with right of appeal to the Supreme Court by either party, to hear, examine, adjudicate, and render judgment in any and all legal and equitable claims which the Shoshone Tribe of Indians of the Wind River Reservation in the State of Wyoming might have against the United States arising under or growing out of the Treaty of, July 3, 1868, or arising under or growing out of any subsequent treaty or agreement between said Shoshone Tribe and the United States or any subsequent act of Congress affecting the tribe which claims have not heretofore been determined and adjudicated upon their merits by this court or the Supreme Court. In section 3 it was provided that "In said suit the court shall also hear, examine, and adjudicate any claims which the United States may have against said tribe, but any payment, including gratuities which the United States may have made to said tribe, shall not operate as an estoppel but may be pleaded as an offset in such suit: Provided, however, That the United States may interpose to such suit or action any and all pleas of defense, affirmative and negative, legal and equitable, which it may have thereto not herein specifically barred by the provisions of this act. In reference to all claims which may be the subject matter of the suits herein authorized, the decree of the court shall be in full settlement of all damages, if any, committed by the Government of the United States, and shall annul and cancel all claim, right, and title of the said Shoshone Indians in and to such money, lands, or other property."

The questions now involved in this case are (1) the value on March 19, 1878, of the property rights of the plaintiff in and to one-half of a reservation of 2,343,540 acres of land, known as the Shoshone or Wind River Reservation, in the State of Wyoming taken by the government on the date mentioned for the Northern Arapahoe Tribe of Indians; (2) the amount to be added to such value necessary to the award of just compensation.

The property taken by the government consisted of a one-half undivided interest in the entire reservation, or 1,171,770 acres. For this plaintiff contends for a value of $1.75 an acre, or $2,050,597.50 on March 19, 1878, and an additional amount as a part of just compensation at the rate of 7 percent per annum to date of payment. As further damages plaintiff contends for an allowance of 8732 cents an acre to the remainder of the reservation on the ground that the Arapahoes were placed on and given the most valuable portion. From the total of these amounts plaintiff deducts the total allowable disbursements made by the government for the benefit of plaintiff tribe from 1878 to June 30, 1934, the date on which the evidence of accounting between the government and the "plaintiff tribe ended, and asks judgment for the balance, which it computes as $13,923,509.57, as follows:

Page 734

Counsel for the defendant contend that the only rights of plaintiff in and to the reservation specified in the Treaty of July 3, 1868, which may be considered in arriving at the just compensation to which the tribe may be entitled because of a taking by the government of a one-half undivided interest in the reservation for the Arapahoe Indians were the rights to live upon the reservation, to use such materials thereon as might be necessary for building and farming purposes and for the purpose of carrying on farming operations thereon, and that no consideration whatsoever should be given by the court in fixing the amount of just compensation to any value existing in March 1878 for the value of land, as such, or for the timber or mineral content of the land. On this theory counsel contend that the value of the property rights taken was approximately 4 cents an acre, or $46,000, to which should be added 5 percent per annum. In the alternative, it is contended that, in any event, the value of the property rights of plaintiff tribe did not exceed $469,000, arrived at on the basis of $25 for each Arapahoe Indian, or $23,450 for the entire population of the tribe in March 1878 capitalized at 5 percent per annum. This total of $469,000 amounts to approximately 40 cents an acre for 1,171,770 acres. In support of the contention that the extent of the property rights of plaintiff tribe consisted merely of the right to live upon the reservation, counsel for the defendant rely upon the case of United States v. Cook, 19 Wall. 591, and subsequent cases involving the same or similar questions, namely, whether individual Indians upon a reservation had a right to cut and sell timber from the reservation and retain the proceeds and otherwise deal with the tribal property as a private owner might do. We shall discuss that case later in the opinion. It is also argued that the Supreme Court in the case at bar, 299 U.S. 476, affirmed the rule contended for by the government in the following language: "Confusion is likely to result from speaking of the wrong to the Shoshones as a destruction of their title. Title in the strict sense was always in the United States, though the Shoshones had the treaty right of occupancy, with all its beneficial incidents. United States v. Creek Nation, supra, p. 109. What those incidents are, it is needless to consider now. Cf. United States v. Cook, 19 Wall. 591; Pine River Logging Co. v. United States, 186 U.S. 279; United States v. Paine Lumber Co., 206 U.S. 467." In that statement the court was discussing the contention of plaintiff tribe that the taking of their property occurred in March 1927 upon the passage of the Jurisdictional Act authorizing this suit to be brought, for the reason that this act destroyed their title to one-half of the reservation. We think it is clear that the court did not intend to hold as counsel for defendant now contend, but reserved the question of the character and. extent of the property rights of an Indian tribe in and to a reservation specified and set apart by a treaty, inasmuch as the case was being remanded for consideration and determination of just compensation to which the plaintiff tribe was entitled as of March 1878. Following the quotation above mentioned, the court also said: "The right of occupancy is the primary one to which the incidents attach, and division of the right with strangers is an appropriation of the land pro tanto, in substance, if not in form." Article 2 of the Treaty of July 3, 1868, provided that the reservation in question "is set apart for the absolute and undisturbed use and occupation of the Shoshone Indians ***; and the United States now solemnly agrees that no persons except those herein designated [the Shoshones] and authorized so to do, and except such officers, agents, and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians, and henceforth they will and do hereby relinquish all title, claims, or rights in and to any portion of the territory of the United States except such as is embraced within the limits aforesaid." We are of the opinion that this right to "absolute and undisturbed use and occupation" of the reservation includes, as beneficial incidents, the net value of the land, including the net value of any timber or minerals within the, boundaries of the reservation, and, so far as we have been able to ascertain, this view is consistent with the established policy of the government from the beginning of its dealings with the Indian tribes, the making of treaties providing reservations for them, and in the management of tribal lands and other affairs of the Indian tribes at least for several years prior to 1878 and at all times subsequent thereto. Reference to various treaties and cession agreements at very early dates when the government was endeavoring to locate all Indian tribes upon definitely defined reservations does not overcome

Page 735

this conclusion. Instances can be found where commissioners dealing with Indian tribes secured agreements ceding lands for small amounts on a "per acre" basis, but, standing alone, these transactions indicate nothing more than that perhaps the Indian tribes concerned were paid or allowed much less than the amount to which they, were really entitled. Iowa Tribe of Indians v. United States, 68 Ct. Cls. 585. Other transactions of a similar nature can be found where much larger amounts per acre were paid, and where, in arriving at the amounts paid to the Indian tribes concerned, consideration was given to the value of the land, as such, and all that went with it.

The nature of the Indian title has been discussed in many cases. In Worcester v. State of Georgia, 6 Pet. 515 (1832); the court said," *** Their right of occupancy has never been questioned, but the fee in the soil has been considered in the government. This may be called the right to the ultimate domain, but the Indians have a present right of possession."

Again, in Mitchel v. United States, 9 Pet. 711, 746 (1835), it was said:

Indian possession or occupation was considered with reference to their habits and modes of life; their hunting-grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its conclusive enjoyment in their own way and for their own purposes were as much respected; until they abandoned them, made a cession to the government, or an authorized sale to individuals. ***

*** it is enough to consider it as a settled principle that their right of occupancy is considered as sacred as the fee-simple of the whites.

In Holden v. Joy, 17 Wall. 211., 244 (1872), the court held as follows:

Throughout, the Indians, as tribes or nations, have been considered as distinct, independent communities, retaining their original natural rights as the undisputed possessors of the soil, from time immemorial, subject to the conditions imposed by the discoverers of the continent, which excluded them from intercourse with any other government than that of the first discoverer of the particular section claimed. They could sell to the government of the discoverer, but they could not sell to any other governments or their subjects, as the government of the discoverer acquired, by virtue of their discovery, the exclusive preemption right to purchase, and the right to exclude the subjects of all other, governments, and even their own, from acquiring title to the lands.

Enough has already been remarked to show that the lands conveyed to the United States by the treaty were held by the Cherokees under their original title, acquired by immemorial possession, commencing ages before the New World was known to civilized man. Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as such successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs.

In United States v. Cook, supra (1873), on which counsel for defendant rely, the controversy concerned the ownership of logs cut from the Oneida Indian Reservation in Wisconsin by a member of the tribe for the sole purpose of sale. In holding, as had always been held, and as was clearly stated in Holden v. Joy, supra, that the Indians in possession of a reservation had only a right of occupancy in the land, that the fee is in the United States, and that the Government had the power to manage the property and affairs of the tribe, the court decided that the members of the Oneida Tribe had no right to cut the timber on the land solely for the purpose of sale; that to do so was waste as in the case of the cutting of timber by a trespasser; and that the United States as the owner of the fee became the owner of the logs. In reaching its conclusion, the court said that "The right of the Indians to their occupancy is as sacred as that of the United States to the fee." Page 593. And further, that—

This right of use and occupancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may be reasonable under the circumstances. The timber taken off by, the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized.

The timber, while standing, is a part of the realty, and it can only be sold as the land could be. The land cannot be sold by the Indians, and consequently the timber, until rightfully severed, cannot be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully severed it is no longer a part of the land, and there is no restriction upon its sale. Its severance under such circumstances is, in effect, only a legitimate use of the land.

Page 736

In that case two points were decided: first, it was decided by analogy to the law relating to the respective rights of life-tenant and remainder-man, that the Indians have no right to cut the timer on an Indian reservation for the purpose of sale only; that to do so is waste, and that the title to timber so cut vests in the United States as the owner of the fee or "ultimate domain"; second, that the Indians have an exclusive right of use and occupancy of unlimited duration, and the right to cut the standing timber during the whole period of such occupancy not only for use upon the premises but "for the purpose of improving the land or the better adapting it to convenient occupation"; also the right to sell all timber cut for the latter purpose. It is clear therefore that this decision did not hold that the government had the right to cut or dispose of the timber on Indian Reservations, or to sell Indian lands for its own use and benefit without accounting therefor to the Indian tribe. When a reservation is definitely set apart for au Indian tribe by treaty or statute, the Government has only the right and power to control and manage the property and affairs of the Indians in good faith for their betterment, but, as stated by the court in Shoshone Tribe of Indians v. United States, 299 U.S. 476:

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. Lone Wolf v. Hitchcock, 187 U.S. 553, 564, 565, 566. The power does not extend so far as to enable the Government "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 that 'would not be an exercise of guardianship, but an act of confiscation.'" United States v. Creek Nation, supra, p. 110, 113; ***.

Government counsel argue here that United States v. Cook, supra, decided that the interest of the Indians in. the reservation lands and timber thereon is that of a life-tenant and no more. In that case the court did say that "What a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more." But in thus comparing the position of the Indian with that of a life-tenant for the purpose of stating what the Indians may or may not do on their reservations, we think the court did not intend definitely to hold that the interest of the Indians in the lands of their reservations is only that of a tenant for life. Such a holding would have been in conflict with the statement of the court after reviewing prior cases concerning the nature of Indian title, that the Indians have the right of use and occupancy of unlimited duration. We think also that the contention of counsel for defendant is inconsistent with the holding of the Supreme Court in the case at bar—that the power of the government to control and manage the property and affairs of the Indians in good faith for their betterment and welfare does not extend so far as to enable the government to give the land to others or to appropriate them to its own purposes.

The case of Leavenworth, et al. R.R. Co. v. United States, 92 U.S. 733, 742 (1875), arose under the Treaty of June 2, 1825, between the United States and the Osage Tribe of Indians; that treaty (7 Stat. 240) reserved for the occupancy of the Indians for an unlimited period a tract of land lying within the boundaries of what subsequently became the State of Kansas. By an act approved March 3, 1863 (12 Stat. 772), Congress granted to the State every alternate section of land on each side of a projected line of the railroad to aid in its construction. The state assigned the grant to the plaintiff in error. The line of the proposed railroad traversed part of the reservation of the Osage Indians. By a Treaty of January 21, 1867, the Indians ceded a part of their reservation to the government, including the part through which this railroad passed. The question before the court was whether the grant made by the Act of March 3, 1863, supra, included the interest of the United States in the sections of land contiguous to the railroad in the Osage Reservation. It was held that this could not have been intended for the reason, among others, that the interest of the United States was only an "ultimate fee", subject to a "perpetual right of occupancy" in the Indians, and, therefore, would have been of no immediate practicable benefit for the purpose of the grant. In discussing the nature of the Indian title, the court said:

As long ago as in Cherokee Nation v. Georgia, 5 Pet. 1, this court said that the Indians are acknowledged to have the unquestionable right to the lands they occupy, until it shall be extinguished by a voluntary cession to the Government; and, recently, United States v. Cook, 19 Wall. 591, that right was declared to be as sacred as the title of the United States to the fee. *** This perpetual right of occupancy, with the correlative obligation of the Government to enforce it, negatives the idea

Page 737

that Congress, even in the absence of any positive stipulation to protect the Osages, intended to grant their lands to a railroad company, either absolutely or cum onere. For all practical purposes, they owned it; as the actual right of possession, the only thing they deemed of value, was secured to them by Treaty, until they should elect to surrender it to the United States. In the free exercise of their choice, they might hold it forever; and whatever changed this condition, or interfered with it, violated the guaranties under which they had lived. [Italics ours.]

See, also, Beecher v. Wetherby, 95 U.S. 517, 525, 526, and also 34 Ops. Atty. Gen. 171, 181, in which it was held, on the question whether the Indians' rights of occupancy and use included any right to the hidden and latent resources of land, as follows:

If a transfer by the United States would convey only the naked fee, it goes without saying that the complete equitable property was in the Indians. The earlier and fundamental decisions make this plain. In Worcester v. Georgia, 6 Pet. 515, 544, 545, Chief Justice Marshall clearly states that the right asserted in behalf of the discovering European nations was merely a right, as against each other, which he defines as "the exclusive right of purchasing such lands as the natives were willing to sell." As late as 1872 the Supreme Court said: "Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right *** to prohibit the sale of the land to any other governments or, their subjects" (Holden v. Joy, 17 Wall. 211, 244). [Italics ours.]

The position of counsel for the government is that this opinion of the Attorney General did not rule on the question of the Indians' rights in the natural resources of their reservations, but only expressed an inclination, as shown by the statement that "If it were necessary here to decide as between these opposing views I should incline strongly to the latter." This position is based, we think, on an erroneous interpretation of what the opposing views were to which the Attorney General referred. They were not whether in 1924 the Indian tribes had a mere right to use and occupancy or the equivalent of a fee-simple title to their reservation, but, as shown in the same paragraph of the opinion, they were whether the Indians' interest in the natural resources of their reservations was bestowed upon them by the grace of Congress or whether it was a preexisting right. P.180. On either theory, the Indians at the time in question were the beneficial owners of these resources, and the Attorney General so held. Inasmuch as either theory supported his conclusion it was not necessary, as he said, to decide between them, but he expressed the clear preference for the view that the Indians' beneficial ownership of the natural resources of their reservations was a preexisting or treaty right, and that the acts of Congress merely recognized and confirmed it, adding, "Support for this view is found in many expressions of the courts", some of which, as we have seen, he then proceeded to cite. Pp, 180-181.

Again in an opinion relating to the rights in standing timber on lands of the White Mountain Apache Indian Reservation, a reservation created by Executive Order, which had been subsequently included in a forest reservation proclaimed by the President under authority of an act of Congress, the Attorney General, 29 Ops. A.G., 239, 244, said:

From the character of the legislation so passed in review,¹there can be little doubt that in the mind and policy of Congress this reservation was not only a valid reservation set apart for the occupancy and enjoyment of the various tribes which have inhabited it from the beginning, and subject to be allotted in part to the individual members composing them, but was also devoted to them in its entirety in such a sense that no part of it should be taken from them without their consent or giving something in return by way of compensation. And, of course, no distinction here is to be taken between the land and the timber growing upon it and, presumably, constituting its chief value. (U.S. v. Cook, 19 Wall. 591.) [Italics ours.]

The decisions cited establish, first, that the Indians have the right of possession and absolute use and occupancy in perpetuity until voluntary abandonment, subject to the power of the United States to control and manage the property and affairs of the Indians for their betterment and welfare, and that the beneficial incidents of this right of perpetual possession and absolute use aid occupancy consist of the net value of the land, including any timber or minerals upon the reservation. In other words, the beneficial interest belongs to the Indians. Second, that the United States has a naked fee and the right to the ultimate domain which gives it the right to prevent waste and to recover the proceeds of anything severed from the land by acts constituting

Page 738

waste, and also the right to control alienation of the Indians' interest, but nothing more unless the Indians should abandon possession, in which event the right of possession would attach to the fee:

Acts of Congress relating to. the disposition of Indian lands likewise recognize, we think, that the beneficial interest in the lands of an Indian, reservation, including standing timber, mineral deposits, etc., belongs to the Indians.

Prior to the Act of March 3, 1883 (22 Stat. 582, 590), numerous acts of Congress relating to Indian lands dealt with each tribe separately. Prior to 1871 the disposition of Indian lands was handled by treaties and agreements made with the Indians by the executive department of the government subject to ratification by Congress. An examination and study of many cession agreements, made at very early dates in the history of the relationship between the Indian tribes and the government, disclose that scant consideration was given by the commissioners, acting on behalf of the government, to the actual value of the possessions of the Indians. As was said by this court in Blackfeet Indians v. United States, 81 C. Cls. 101, 136, that—

Few, if any, Indian treaties disclose a bargain and sale of the Indians' lands upon the strict commercial basis observed in ordinary transfers of landed property. For this reason the court is firmly convinced that an established value applicable in all cases is not available to the parties as a precedent. Too many factors varying with respect to the case to be adjudicated enter into the issue to warrant the court in sustaining a fixed value upon the theory thatt he sum claimed is the same sum fixed in some prior litigation.

In 1863 and 1891 Indian lands were sold at 81.25 and 82.50 an acre. Sisseton Wahpeton Bands of Sioux Indians v. United States, 58 C. Cls. 302. The annual report of the Secretary of the Interior for 1879, Serial 1910, page 454, shows the amounts received for the sale of Indian lands during the year ending June 30, 1879, as follows:

The above tabulation, which embraces a large area of land in ten Indian, reservations located in several states, shows an average sales price of approximately 81.65 an acre.

From 1871 many acts were passed by Congress dealing with reservation lands of various Indian tribes. The Act of February 6, 1871, 16 Stat. 404, sections 1-4, relating to the lands of the Stockbridge-Munsee Tribe of Indians in the State of Wisconsin, provided for an appraisement and the sale of a portion of their reservation, including timber, the net proceeds of such sales to be paid to or deposited to the credit of the Indians. No instance is cited where the government, through either the Executive or Legislative Departments, ever took a position or, expressed a definite policy that the rights and interests of Indian tribes in and to reservations described and given to them by treaties; acts of Congress, or Executive Order were other than the rights and interest of a beneficial owner prior or subsequent to 1871. The established course of conduct has been that the Indians were entitled to all net proceeds from lands, timber, etc., not as a gratuity but as of right. In other words, the position of the government and the Indian tribes has ever been that of the primary right of Indian tribes to the absolute and undisturbed use, occupancy, and, possession of their reservations carried, with it, as beneficial incidents, an interest in the lands, as such, and timber, etc., embraced within

Page 739

the reservation, and the right to have the net proceeds derived from the control and management of their properties by the government held and used in good faith for their benefit, betterment, and welfare. It seems clear that no other conclusion is justified under the established principle that the United States stands in the position of guardian for the Indians and is without power to give the tribal lands to others or to appropriate them to its own purposes without payment of just compensation. Shoshone Tribe of Indians v. United States, supra; United States v. Creek Nation, 295 U.S. 103, 110 Lane, et al. v. Pueblo of Santa Rose, 249 U.S. 110, 113; Cherokee Nation v. Hitchcock, 187 U.S. 294, 307-308. This consistent policy in the construction of Indian treaties was, prior to 1883, definitely expressed hi specific acts of Congress relating to Indian reservations and the proceeds from resources thereon, and in 1883 (22 Stat. 582, 590), and subsequently, was expressed in acts of Congress of general application to all Indian reservations. Counsel for the defendant argue that these acts of Congress relating to lands, timber, etc., within the boundaries of Indian reservations, which acts in great number prior to 1883 concerned specific reservations, and thereafter applied to all Indian reservations generally, gave the Indians no greater property rights or interests in their reservations than they previously possessed or subsequently acquired by treaty or other method employed in. setting apart a reservation for them. We agree in principle with this statement, but we cannot agree with the conclusion which counsel attempt to draw, namely, that these acts of Congress and the long-continued uniform practice of the government in its dealings with Indian tribes did not amount to a construction of Indian treaties and a recognition that, under a proper construction and in accordance with the intent and purpose of the parties, the Indian title of absolute and undisturbed use and occupancy carried with it an interest in the land and the net proceeds derived therefrom so long as they continued to hold, use, and occupy the reservation solemnly set apart for them by treaty. The right to any net proceeds derived from a reservation is, it seems to us, no more than a .necessary incident to the property right of absolute and exclusive use and occupany which, it has been held, is a "perpetual right of occupancy", Leavenworth, et al. R. R. Co. v. United States, supra; Spalding v. Chandler, 160 U. S. 394, 402-403; and "as sacred as that of the United States to the fee", United States v. Cook, supra. Nor can we agree with counsel for the defendant in the further conclusion which they seek to draw from the same premise, i.e., that use and occupancy is only the right to live upon and cultivate the land, that the holding by the government in trust for the Indians and use for their exclusive benefit of all the net proceeds derived, from the sale of Indian lands, timber, etc., and the products from. Indian reservations constituted only the granting of a gratuity to the Indians which, if necessary, could be setup as a charge against the Indian tribe concerned. This last proposition advanced by counsel demonstrates, it seems to us, the weakness of the underlying premise that the Indian title consisted merely of the right to live upon a reservation. No attempt has ever been made to charge such funds against the Indians as reimbursable items or to include them as offsets in suits by the Indian Tribes to recover for reservation lands taken by the government. In the case at bar such proceeds amounted for the period 1885 to 1927 to $1,628,744.56, and we are giving plaintiff judgment for such portion of such funds as were taken and used for the benefit of the Arapahoe Indians. The guardianship of the Federal Government over an Indian does not cease when an allotment of land is made and the allottee becomes a citizen of the United States. Bowling v. United States, 233 U.S. 528, The Congress of the United States has undertaken from the earliest history of the government to deal with the Indians as dependent people, and to legislate concerning their property with a view to their protection as such. Tiger v. Western Investment Co., 221 U.S. 286. No right which is actually conferred on the Indians can be arbitrarily abrogated by statute. Choate v. Trapp, 224 U.S. 665. The fact that Indians own property in fee simple ad are citizens of the United States does not prevent the Congress having full power to legislate concerning the tribal property, and lands so held are still subject to the legislation of Congress enacted in the exercise of the government's guardianship over such Indian communities and their affairs. Tiger v. Western Investment Co., supra. U.S. v. Sandoval, 231 U.S. 28. But the ownership of the government or its interest in Indian lands, timber, etc., is, it seems to us, no greater than its right to use for its own purpose, or otherwise than for the benefit of the Indians concerned, any of the net proceeds derived from the sale of Indian lands,

Page 740

timber, etc. It has been consistently held that the government is liable for any such proceeds which may have been appropriated to its own use or diverted to other purposes, and it has also been held that, the Indians are the beneficial owners of treaty lands. In United States v. Brindle, 110 U.S. 688, 693 (1884), the court said: "These Indian trust lands were never public lands of the United States, and were never subject to sale at the Lecompton land office. The cessions to the United States were in trust, to survey, manage, and sell the lands and pay the net proceeds to or invset them for the Indians. There was never a time that the United States occupied any other position under the cessions than that of trustees, with power to sell for the benefit of the Indians. In equity, under the operation of the treaties, the Indians continued, until sales were made, quii the beneficial owners of all their country ceded in trust. Of this we have no doubt." (Italics ours.) In Iowa Tribe of Indians v. United States, 68 C. Cls. 585, where, as here, the Indian title was a right of use and occupancy, and representations were made to the Indians by the commissioners of the United States in acquiring 219,803 acres of their lands for 38 cents an acre that they had but a limited and qualified interest (p. 594), which is the contention made by government counsel here, the court, at page 609, said:

Without ascribing improper motives to the commissioners, the record at the very outset discloses an obvious and serious misconception of the Indians' title to their lands, and the making of representations to the Indians, calculated to inspire fear, which had absolutely no basis in law or in fact.

Counsel for defendant also point to a statement in the former opinion of this court in the case at bar, 82 C. Cls. 23, where, in discussing the interest of Indian tribes in reservation lands subsequent to the Act of March 3, 1883 (22 Stat. 582, 590), it was indicated that prior to that time the Indians were not the beneficial owners of the reservation lands. In that opinion we held that the taking occurred in 1891, and the statement was dictum. The reasons hereinbefore stated in this opinion demonstrate its inaccuracy.

Most of the prior opinions in cases brought to recover the value of Indian lands appear to have proceeded, in the determination of the value of the property rights taken, on the principle that the value of the ole and absolute right of use and occupancy was the value of the land, without otherwise discussing the nature and extent of the Indian title or defining the beneficial incidents which attach to the primary right of absolute use and occupancy. Thus, in the case of The Ute Indians v. United States, 45 C. Cls. 440, the court, after referring to the provisions of section 3 of the Ute Agreement of June 15, 1880 (21 Stat. 199), and quoting the Act of April 24, 1820 (3 Stat. 566), which fixed the minimum price of public lands at $1.25 an acre, said, at pp. 462 and 463:

A similar question was involved in an appeal from this court to the Supreme Court in the case of United States v: Blackfeather (155 U.S. 180; 28 C. Cl. 447). In commenting upon the obligation of the United States to expose the lands in question at public sale, Mr. Justice Brown, in delivering the opinion of the Court, said:

"In the absence of any proof of the actual value of these lands at this time, there would seem to be no method of estimation except by taking the price at which public lands were subject to be sold at private sale, namely, $1.25 per acre. Not only is there some presumption that the Government would not sell them for less than they were worth, but the very fact that at that time all public lands were subject to entry at $1.25 per acre would render it impossible to sell them at a greater price unless by reason of their peculiar location, abundant timber, or extraordinary fertility they were exceptionally valuable." (Id. 191.) [Italics supplied.]

The average price at which the lands within the Ute reservation were sold between the date of the agreement (1880) and June 30, 1908, was $1.68 per acre. Presumably the choicest lands were selected by the purchasers. The forest reservations were set apart at different dates between 1891 and 1905. While it is doubtless true that considerable of the land within these forest reservations is quite valuable, on the other hand, the official reports show, and it is a fact so well known as to come within judicial notice, that considerable portions of them are valueless and can never be sold at any price.

In view, therefore, of the law and the facts as stated, we have found the value of the lands thus set apart in forest reservations to be $1.25 per acre, amounting to $3,835,323.75 [covering 3,199,258 acres].

The title of the government in Indian lands, which has been designated as the "naked fee", is a sovereign title. The government has no landlord from whom it holds the "fee."

Page 741

The interpretation of defendant's counsel of the Indians' "right of, absolute use and occupancy" is too restricted. "A treaty with Indians must be construed not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Jones v. Meehan, 175 U.S. 1, 11. The right of occupancy is the real ownership. It is the full title, or as much title, as, under our conception, any other than the sovereign usually holds. After the Treaty of July 3, 1868, the government had no real ownership of the Shoshone Reservation, but only the right to control and manage the property and affairs of the Shoshone Indians for their betterment and welfare, and a possibility of acquiring an ownership of the reservation lands. As held by the court in California & Oregon Land Co. v. Worden, 85 Fed. 94, 96 (1898), after discussing United States v. Cook, supra. "For all purposes, therefore, save only that of private sale, the Indians were in fact the owners of these lands. And this right, title, or interest has never been surrendered by them." Although Indians are under the protection of the general government, and are, of necessity, kept as a separate, subordinate, and independent people, United States v. Lariviere, 93 U.S. 188, and though dependent political communities, with whom the United States may deal only through treaties or Acts of Congress, Indians are in a dependent condition which cannot be put off without the consent of the United States. Elk v. Wilkins, 112 U.S. 94; nevertheless, it was held by the Supreme Court in The Chippewa Indians of Minnesota v. United States, 301 U.S. 358,375. "Our decisions, while recognizing that the government has power to control and manage the property and affairs of its Indian wards in good faith for their welfare, show that this power is subject to constitutional limitations and does not enable the government to give the lands of one tribe or band to another, or to deal with them as its own." From what has been said, it seems clear that the beneficial incidents attaching to the absolute right of possession, use, and occupancy were more than the mere right to live upon the lands and cultivate them. If the latter were the full extent of the Indians' interest, few, if any, Indian tribes could secure compensation for the taking of their lands, for in most, if not all, of such cases sufficient territory has been left to supply the Indians with a place to live and with farms as large as the adult Indians of the tribes were capable of cultivating. But we think it is clear that under a proper construction of the treaties this is not the measure of their right to compensation for treaty lands taken from them.

The next question concerns the value of a one-half interest in the lands of plaintiff taken for the Arapahoe Tribe. The contentions of the parties with reference to the value of a one-half interest in plaintiff's reservation taken for the Northern Arapahoe Indians in 1878 have already been stated. Upon the whole record and in the light of conditions existing in March 1878, when a one-half interest in the reservation was taken, we are of opinion that the value of the property rights of plaintiff, in and to one-half of their reservation, taking into consideration the fact that the portion of the reservation on which the Arapahoe Indians was placed, namely, the eastern portion, from which the plaintiff tribe was thereafter excluded, and which has subsequently been allotted in severalty to the Arapahoe Indians, was $1,581,889.50, or at the rate of $1.35 an acre for, 1,171,770 acres, being one-half of the Indian Reservation of 2,343,540 acres. The greater portion of the lands embraced within this reservation was very fertile and unusually well adapted to farming by reason of an adequate supply of water well situated for the use of irrigation purposes. The reservation also embraced a very large area of fine grazing land from which a large amount of income has been derived from grazing leases. The reservation contained more than a billion feet of excellent timber and portions of the reservation were underlaid with bituminous coal. It contained a large but undetermined quantity of oil and gas, and these conditions were known to exist in 1878. The 1926 present value of the oil reserves on the reservation were fixed by the government at $6,000,000.

Net income has been steadily derived from various sources on the reservation, and for the period from 1885 to 1927 net proceeds totaling $1,628,744.56 were derived from the reservation and deposited in the Treasury to the credit of the plaintiff and the Arapahoe tribes of Indians. This amount does not include any portion of the amounts paid for lands ceded. In 1872 plaintiff tribe ceded 740,642 acres of their reservation

Page 742

from which private parties had, without the consent of the government or plaintiff, mined gold to the value of $500,000. The consideration offered by the government's commissioner appointed to negotiate for the cession, and included in the cession agreement, was $27,500. This government commissioner drove a hard bargain with the Indians, and he so stated in returning the cession agreement to the government. Obviously the consideration paid was inadequate, but, as stated in the previous opinion in this case, the agreement having been made and ratified, and the consideration paid, the matter is not now before the court. In making that agreement no consideration was given to the value of the property rights of the Indians or to the value of the land. The transaction is obviously of no value in the determination of the value of the property rights of plaintiff in one-half of the entire reservation taken in March 1878. Cession agreements of this character, negotiated and brought about in the manner in which the one in 1872 was obtained, are not helpful in arriving at the net value of Indian lands, for in most, if not all, of such agreements negotiated and obtained at an early date the lands were secured for an amount which the Indians could be induced to take rather than for an amount based upon what their property rights were really worth. Iowa Tribe of Indians v. United States, supra, p. 612. This is illustrated by the fact that under the 1872 cession agreement approximately three cents an acre was paid, and twenty years later another cession agreement was obtained to a portion of the reservation not nearly so valuable as that ceded under the 1872 agreement, nor as valuable as the remaining portions of the reservation, at a price of more than one dollar an acre.

The established prices at which the Federal Government sold agricultural, timber, and mineral lands in 1878 ranged from $1.25 an acre for desert land, tillable only under irrigation, to $20 an acre for coal lands. The lands embraced within the Shoshone Reservation, by reason of their peculiar location, abundant supply of water for irrigation purposes, and timber, and their extraordinary fertility, were especially valuable: As found by the Secretary of the Interior in 1878, "No part of the reservation can be considered valueless for all purposes." The facts concerning the character and location of the lands in question, their productiveness and capabilities, and their yield of profits to the Indians have been set forth in detail in the findings and need not be repeated here.

Prior to the controlling date in this case, a trusted representative of the government in its dealings with Indian tribes, with many years experience, and fully familiar with the reservations set apart for Indian tribes, reported that the Shoshone Indians "are rich in valuable land" and further stated, "I have visited many other reservations, but I have found none that excels or even equals the land in Big Wind, Little Wind, and Popo Agie Valleys." He also described the lands embraced within this reservation as "the finest grazing west of the Missouri." In arriving at the value on March 19, 1878, of the property rights of plaintiff tribe, which were taken on that date by the government for the Northern Arapahoe Tribe, we have taken into consideration and given due weight to the fact that the eastern portion of the reservation on which the Arapahoe Tribe was placed was the choicest portion and more valuable than the other farming and grazing lands of the reservation, and these lands were subsequently allotted to the Arapahoe Indians. The facts of record clearly support the net value of $1,581,889.50 for a one-half interest in plaintiff's reservation in 1878, and we have so found. Plaintiff is therefore entitled to recover this amount. In arriving at the net value of $1.35 an acre for 1,171,770 acres constituting a one-half interest in plaintiff's reservation we have, in addition to considering all factors affecting value, given consideration and due weight to well-known facts, which are also disclosed by this record first, that large areas of Indian lands, if sold, are not disposed of and have never been sold as a whole, but usually in small or comparatively small tracts; second, that such lands if not sold are, and were in 1878, capable of returning to the Indians large annual net profits over a long period of time; third, that the timber and oil and gas rights, etc., are sold or leased separately from the lands, as such; fourth, that if sold the reasonable and necessary costs of surveying and selling the lands must be deducted from the gross proceeds.

Page 743

In addition to this value, plaintiff's damages include an additional amount beyond the value of its property rights when taken by the government, which is necessary to the award of just compensation. The parties agree that such additional amount should be measured by interest at a reasonable rate on the value of the property rights taken in 1878 to the date of payment and from the total amount determined to be due at the date of judgment there should be deducted the total offset to which the government is held entitled. The government claims a total offset under its counterclaim of $2,141,070.75. In accordance with the findings and for the reasons therein stated, we have reduced the total of the defendant's counterclaim to $1,956,233.68.

Plaintiff contends that the additional amount to be added to the value of the property in 1878 to make just compensation should be measured by interest at the rate of 7 percent per annum, which has been the statutory rate of interest in Wyoming since 1923. The statutory interest in that state was 12 percent prior to 1895 and 8 percent from that date until 1923.

The defendant insists upon the use of an interest rate of 5 percent, which we think, under all the circumstances, is reasonable and the rate that should be used in this case. Cf. United States v. Creek Nation, supra.

As a general rule, treaties, acts of Congress, and agreements have in practically every case in which interest is mentioned, provided for interest on funds held in trust by the government for the benefit of Indians at a rate of 5 percent per annum. There are a number of reasons which support the use of this rate in cases of this character, notwithstanding a higher rate was provided by state statutes and notwithstanding, also, the Act of February 26, 1931, 46 Stat. 1421, U.S. Code, 1934 Edition, Title 40, section 258 (a), provided an interest rate of 6 percent per annum in just compensation cases.

The field for investment by an Indian tribe was and is limited in the absence of an agreement to a deposit of the amount due the Indians in the Treasury of the United States and the payment thereon by the government of interest at the rate of 5 percent. The field for investment by citizens of funds received for property taken, and paid contemporaneously with the taking, is unlimited, and he is in a position and capable of taking full advantage of the local rate of interest. If, therefore, his money is not paid at the time of the taking, but later, the courts add to the value of his property at the time of taking an additional amount measured by interest, usually at 6 percent per annum, and, in some cases, a higher rate which he probably would have earned with his capital to the date of payment. We think a rate of 5 percent is reasonable between the parties here. The, additional amount to which plaintiff is entitled to have added to the value of its property rights at the date of taking, computed as above to June 1, 1937, is $4,682,392.92. There is, therefore, due plaintiff on June 1, 1937, the total amount of $6,264,282.42 plus $100,395.49 (Finding 10), totaling $6,364,677.91.

Section 3 of the Act of March 3, 1927, under which this suit was brought, provides that the court shall hear, examine, and adjudicate any claims which the United States may have against plaintiff, that the government may plead as an offset against any amount determined to be due the tribe any payment made by the United States, including gratuities. The total payment, including gratuities made by the United States for the benefit of plaintiff, which we have determined to be a proper offset against the Shoshone Indians, is $1,956,233.68. The deduction of this amount from the amount of $6,364,677.91 due plaintiff leaves $4,408,444.23 for which judgment will be entered in favor of plaintiff with interest at 5 percent per annum on $1,581,889.50 from June 1, 1937, until date of payment. It is so ordered.

WILLIAMS, Judge; GREEN, Judge; and BOOTH, Chief Justice, concur.
WHALEY, Judge, dissents on the ground that the valuation placed on, the land taken is excessive.

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