Shoshone Indians v. United States
324 U.S. 335 (1945)

Annotate this Case

U.S. Supreme Court

Shoshone Indians v. United States, 324 U.S. 335 (1945)

Northwestern Bands of Shoshone Indians v. United States

No. 63

Argued November 10, 13, 1944

Decided March 12, 1945

324 U.S. 335



1. The treaty of July 30, 1863 with the Northwestern Bands of the Shoshone Indians was not a recognition or acknowledgment by the United States of the Indian title to the lands therein mentioned; therefore, a claim to compensation for the taking of the lands is not one "arising under or growing out of" the treaty, within the meaning of the special jurisdictional Act of February 28, 1929, and no recovery upon such claim can be had under that Act. Pp. 324 U. S. 340, 324 U. S. 354.

(a) The finding of the Court of Claims that the United States did not by the treaty intend to recognize or acknowledge Indian title to the lands, which finding was the basis of that court's decision, places the burden on petitioners to overthrow the judgment of the Court of Claims. P. 324 U. S. 346.

(b) Recognition of the Indian title is not to be implied from the grant by the Indians of permission for travel or mining and for the maintenance of communication and transportation facilities. P. 324 U. S. 348.

(c) That Indian title was recognized by the Fort Laramie treaty does not require the conclusion that Indian title was recognized by the treaty of July 30, 1863. P. 324 U. S. 349.

(d) Use in the treaty of the word "claim" or the phrase "country claimed," though designating the area over which the Indians asserted Indian title, did not constitute acknowledgment by the United States of such title. P. 324 U. S. 350.

(e) The Senate amendment to the treaty --

"Nothing herein contained shall be construed or taken to admit any other or greater title or interest in the lands embraced within the territories described in said treaty in said tribes or bands of Indians than existed in them upon the acquisition of said territories from Mexico by the laws thereof"

-- was not intended to give recognition to Indian titles, but only to avoid further complications in the Mexican Cession title situation. P. 324 U. S. 351.

Page 324 U. S. 336

2. Indian treaties are to be construed according to their tenor, and their terms are not to be varied by construction in order to avoid alleged injustices. P. 324 U. S. 353.

100 Ct.Cls. 455 affirmed.

Certiorari, 322 U.S. 721, to review the dismissal of a proceeding brought in the Court of Claims pursuant to a special jurisdictional Act.

MR. JUSTICE REED delivered the opinion of the Court.

The Northwestern Bands of Shoshone Indians, petitioners here, seek to recover from the United States damages estimated at fifteen million dollars for the taking of some fifteen million acres of the lands held by these Indians by aboriginal or immemorial title. This title was alleged by the Indians to have been recognized by the United States by the treaty between the petitioners and the United States at Box Elder, Utah Territory, July 30, 1863. 13 Stat. 663.

The suit was begun in the Court of Claims against the United States by the bands pursuant to a special jurisdictional act of Congress of February 28, 1929, 45 Stat. 1407. The Act consented to suit and recovery against the United States upon the following conditions:

Page 324 U. S. 337

"That jurisdiction be, and hereby is, conferred upon the Court of Claims, notwithstanding lapse of time or statutes of limitations, to hear, adjudicate, and render judgment in any and all claims which the northwestern bands of Shoshone Indians may have against the United States arising under or growing out of the treaty of July 2, 1863 (Eighteenth Statutes, page 685-2 Kappler, 848); treaty of July 30, 1863 (Thirteenth Statutes, page 863 [663] -- 2 Kappler, 850); Act of Congress approved December 15, 1874 (Eighteenth Statutes, page 291), and any subsequent treaty Act of Congress, or Executive order, which claims have not heretofore been determined and adjudicated on their merits by the Court of Claims or the Supreme Court of the United States. [Footnote 1]"

This Court has jurisdiction to grant certiorari under the jurisdictional act and § 3(b), Act of February 13, 1925, 43 Stat. 939, as amended by Act of May 22, 1939, 53 Stat. 752; see Colgate v. United States,280 U. S. 43. Certiorari was granted in view of the importance of the question in Indian affairs. 322 U.S. 721.

The suit is based upon the unlawful taking after the alleged recognition of the Indian title by the Box Elder treaty. We do not read the petition as claiming any right to compensation for the extinguishment of an Indian aboriginal title, which was unrecognized or unacknowledged by the Box Elder treaty. Under the words of the jurisdictional act, "arising under or growing out of the treaty," suit is authorized only for rights acknowledged by the treaty. The act does not authorize a suit for loss of Indian tribal rights arising from any other acts of the United States. If the treaty recognized the aboriginal

Page 324 U. S. 338

or Indian title, the authority to sue for the taking under the jurisdictional act is not questioned. [Footnote 2] No claim is brought forward by petitioners arising under or growing out of the other treaties, acts or orders which are referred to in the jurisdictional act. See Northwestern Bands of Shoshone Indians v. United States, 95 Ct.Cls. 642, 680. [Footnote 3]

The Court of Claims determined that the claim for the taking of land sued upon by petitioners did not grow out of the Box Elder treaty. Certiorari was sought and granted to determine whether there was "recognition" or "acknowledgment" of the Indian title by this treaty through the language employed or by the Act of entering into a treaty with the Indians as to the use by the United States of lands which were claimed by the petitioners.

Even where a reservation is created for the maintenance of Indians, their right amounts to nothing more than a treaty right of occupancy. Shoshone Tribe v. United States,299 U. S. 476, 299 U. S. 496. Prior to the creation of any such area, formally acknowledged by the United States as subject to such right of Indian occupancy, a certain nation, tribe, or band of Indians may have claimed the right because of immemorial occupancy to roam certain territory to the exclusion of any other Indians and in contradistinction to the custom of the early nomads to

Page 324 U. S. 339

wander at will in the search for food. United States v. Santa Fe Pacific R. Co.,314 U. S. 339, 314 U. S. 345. This claim has come to be known as Indian title, and is likewise often spoken of as the right of occupancy. To distinguish from a recognized right of occupancy, we shall refer to the aboriginal usage without definite recognition of the right by the United States as Indian title.

Since Johnson v. McIntosh, 8 Wheat. 543, decided in 1823, gave rationalization to the appropriation of Indian lands by the white man's government, the extinguishment of Indian title by that sovereignty has proceeded, as a political matter, without any admitted legal responsibility in the sovereign to compensate the Indian for his loss. Exclusive title to the lands passed to the white discoverers, subject to the Indian title with power in the white sovereign alone to extinguish that right by "purchase or by conquest." 8 Wheat. at 21 U. S. 574, 21 U. S. 585-588. The whites enforced their claims by the sword, and occupied the lands as the Indians abandoned them. [Footnote 4] Congress has authorized suits on the original Indian title, but no recovery has as yet been obtained on that ground. See Coos Bay, Lower Umpqua and Siuslaw Indian Tribes v. United States, 87 Ct.Cls. 143; cf. Wichita and Affiliated Bands of Indians v. United States, 89 Ct.Cls. 378, 413, 414. In this case, however, the success of the claim depends not upon proof of the Indian title, which may be admitted, 95 Ct.Cls. at 690, but upon recognition of that title by the Box Elder treaty. It is quite understandable from the point of view of both petitioners and Congress that the Government should limit its submission to suits to claims under the boundaries if acknowledged by the treaty, rather than to consent to judicial examination of claims for taking

Page 324 U. S. 340

the unknown area of their possible Indian title. [Footnote 5] The Shoshone Indian title was in Indian country (Act to regulate trade and intercourse with the Indian tribes, 4, stat. 729; Bates v. Clark,95 U. S. 204, 95 U. S. 206-208) and, as a consequence, subject to all the uncertainties of definition of boundaries and difficulties of proof to establish aboriginal title for tribes with a shifting habitat.

The decisive question in this case is whether it was intended by the Northwestern Shoshone or Box Elder Treaty of July 30, 1863, to recognize or acknowledge by implication the Indian title to the lands mentioned in that treaty. United States v. Santa Fe Pacific R. Co.,314 U. S. 339, 314 U. S. 347. From such recognition or acknowledgment by this treaty would flow a right of occupancy which would be compensable under the jurisdictional act.

Full findings of fact appear with the opinion below in Northwestern Bands of Shoshone Indians v. United States, 95 Ct.Cls. 642. These findings show that petitioners here, the Northwestern bands, were, at the time of the treaty, a part of the Shoshone tribe, a nomadic Indian nation of less than ten thousand people which roamed over eighty million acres of prairie, forest, and mountain in the present states of Wyoming, Colorado, Utah, Idaho and Nevada. The group with which we are concerned was comprised of some fifteen or eighteen hundred persons, and claimed, by the treaty, Indian title to some ten million acres, and now claim compensation for over six million additional acres.

Page 324 U. S. 341

After the discovery of gold in California, white travelers and settlers began to traverse and people the Shoshone domain, with the result that the Indians' game disappeared from their hunting grounds. Racial relations degenerated to the point that Indian depredations interfered with travel and settlement, the overland mails, and the new telegraph lines. By the time of the outbreak of the Civil War, the Commissioner of Indian Affairs, the agents, and superintendents of the Shoshone territory were aware of the misery of the Shoshones, the dangers to the emigrant trains, and need for peace to enable travel and settlement in the area. Word had reached the Commissioner from his superintendent in Utah that the Shoshone were inclined toward accepting support on limited reservations, and were willing in return to cede their other lands to the United States.

On July 5, 1862, 12 Stat. 512, 529, Congress appropriated $20,000 for defraying the expenses of negotiating a treaty with the Shoshones. The appropriation followed a letter from the Secretary of the Interior to the chairman of the House Committee on Indian Affairs expressing the view that the lands owned by the Indians of Utah were largely unfit for cultivation, and that it was "not probable that any considerable portion of them will be required for settlement for many years." A special commission was promptly appointed and instructed that it was not expected that the proposed treaty would extinguish Indian title to the lands, but only secure freedom from molestation for the routes of travel, and

"also a definite acknowledgment as well of the boundaries of the entire country they claim as of the limits within which they will confine themselves, which limits it is hardly necessary to state should be as remote from said routes as practicable."

As the distances made it impracticable to gather the Shoshone Nation into one council for treaty purposes, the commissioners made five treaties in an endeavor to clear

Page 324 U. S. 342

up the difficulties in the Shoshone country. These are set out in full in the report below. 95 Ct.Cls. 642. Four will be found also in 13 Stat. 663, 681, and 18 Stat. 685, 689. The fifth, or Mixed Band, treaty was not proclaimed. It is at 5 Kappler 693. It is sufficient here to say that, by the treaties, the Indians agreed not to molest travelers, stage coaches, telegraph lines, or projected railroads. [Footnote 6] All

Page 324 U. S. 343

the Shoshone treaties were similar in form. They show that the boundaries claimed, as petitioner points out, covered the entire Shoshone country. After all five were negotiated, Commissioner Doty was able to trace a rough map of the Shoshone country to show the Commissioner of Indian Affairs

"the exterior boundaries of the territories claimed by the Shoshonees in their recent treaties, as also the lines of the country occupied by different portions of the tribe indicated upon it as correctly as the map will allow."

He had asked Indian Affairs for the map upon which this information was traced "to show the boundaries of the country ceded by the Shoshones."

Petitioners' treaty, the Northwestern Shoshone Treaty, needs to be set out in full for ready examination. It reads as follows:

"Articles of agreement made at Box Elder, in Utah Territory, this thirtieth day of July, A.D., one thousand eight hundred and sixty-three, by and between the United States of America, represented by Brigadier General P. Edward Connor, commanding the military district of Utah, and James Duane Doty, commissioner, and the northwestern bands of the Shoshonee Indians, represented by their chiefs and warriors:"

"ARTICLE I. It is agreed that friendly and amicable relations shall be reestablished between the bands of the Shoshonee Nation, parties hereto, and the United States, and it is declared that a firm and perpetual peace shall be henceforth maintained between the said bands and the United States. "

Page 324 U. S. 344

"ARTICLE II. The treaty concluded at Fort Bridger on the 2nd day of July, 1863, between the United States and the Shoshonee Nation, being read and fully interpreted and explained to the said chiefs and warriors, they do hereby give their full and free assent to all of the provisions of said treaty, and the same are hereby adopted as a part of this agreement, and the same shall be binding upon the parties hereto."

"ARTICLE III. In consideration of the stipulations in the preceding articles, the United States agree to increase the annuity to the Shoshonee nation five thousand dollars, to be paid in the manner provided in said treaty. And the said northwestern bands hereby acknowledge to have received of the United States at the signing of these articles, provisions and goods to the amount of two thousand dollars, to relieve their immediate necessities, the said bands having been reduced by the war to a state of utter destitution."

"ARTICLE IV. The country claimed by Pokatello for himself and his people is bounded on the west by Raft River and on the east by the Porteneuf Mountains."

13 Stat. 663. Before it or the other treaties were ratified by the Senate, an additional article was added to each and, except for one treaty not further involved here, accepted by the Indians. The addition reads as follows:

"Nothing herein contained shall be construed or taken to admit any other or greater title or interest in the lands embraced within the territories described in said treaty in said tribes or bands of Indians than existed in them upon the acquisition of said territories from Mexico by the laws thereof."

The portions of the Fort Bridger treaty of July 2, 1863, of any possible effect will be found in note 6supra.

Subsequent to the ratification of the treaties, an act of Congress was passed on February 23, 1865, 13 Stat. 432,

Page 324 U. S. 345

for the extinction of Indian title to lands in Utah territory, and another act on July 20, 1867, 15 Stat. 17, for dealing with hostile Indians and choosing reservations for Indians dwelling east of the Rocky Mountains. None of the Shoshones entered into treaties under either of these acts except the Eastern Shoshones who had signed the Fort Bridger treaty of July 2, 1863. On July 3, 1868, they relinquished all claim to United States territory except a reservation in Wyoming of 3,047,730 acres. 15 Stat. 673. No other treaty or other formal arrangement has been made between petitioners and the United States dealing with their lands. [Footnote 7]

Page 324 U. S. 346

Without seeking any cession or relinquishment of claim from the Shoshone, except the Eastern Shoshone relinquishment of July 3, 1868, just referred to, the United States has treated the rest of the Shoshone territory as a part of the public domain. School lands were granted. 13 Stat. 32; 26 Stat. 216; 28 Stat. 109. National forests were freely created. 33 Stat. 2307; 34 Stat. 3099, 3198, 3206, 3247, 3251; 37 Stat. 1678. The lands were opened to public settlement under the homestead laws. Report of the Commissioner of the General Land Office (1868), pp. 55, 59, 63; Report of the Commissioner of the General Land Office (1869), pp. 163, 168, 177. Thus, we have administration of this territory by the United States proceeding as though no Indian land titles were involved.

The Court of Claims examined the evidence adduced before it and reached the conclusion as a finding of fact that the United States

"did not intend that it [the treaty] should be a stipulation of recognition and acknowledgement of any exclusive use and occupancy right or title of the Indians, parties thereto. . . . The treaty was intended to be, and was, a treaty of peace and amity with stipulated annuities for the purposes of accomplishing those objects and achieving that end."

95 Ct.Cls. at 676. This finding molded the opinion and judgment below. Whether the issue as to acknowledgment by a treaty of Indian title to land is treated as a question of fact, like

Page 324 U. S. 347

Indian right to occupancy itself, United States v. Santa Fe Pacific R. Co.,314 U. S. 339, 314 U. S. 345; 53 Stat. 752, or as a matter of inference to be drawn by the trier of fact from the treaty and surrounding circumstances or as a conclusion of law to be reviewed by this Court upon the record, this finding places the burden on petitioners to overthrow the judgment of the Court of Claims. In reaching its conclusion, the lower court pointed out in its opinion that nothing in the legislation or official documents, communications, or instructions which brought about the treaty indicated any purpose to recognize Indian title to the territory over which the Shoshone roamed and hunted. The commissioners were instructed specifically on July 22, 1862, that they were not expected to negotiate for the extension of the Indian title, but for the security or routes over the lands and "a definite acknowledgment as well of the boundaries of the entire country they [the Indians] claim." The letter shows uncertainty as to the location of the bands. The Commissioner of Indian Affairs wrote to the Shoshone nation as roaming Utah and Eastern Washington, but the very indefiniteness of the information required a statement from the Indians of their claims. 95 Ct.Cls. at 690. The Commissioner learned from the treaties that the Shoshones claimed territory in Colorado, Wyoming, Idaho, and Nevada aggregating several times the acreage in Utah. There apparently was no claim to Washington land. Commissioner Doty's letter transmitting the map describing the territories claimed by the Shoshones and telling of the negotiations has nothing that indicates the possibility of an acknowledgment by the United States of the Indian title to any of the lands. Seenote 5supra.

An examination of the text of the Northwestern Shoshone Treaty and the others which were entered into with the other Shoshone tribes, 95 Ct.Cls. 642, shows the commissioners carefully followed their instructions. In the

Page 324 U. S. 348

Eastern Shoshone treaty, the boundaries are spoken of "as defined and described by said nation," note 6supra. In the Northwestern Shoshone Treaty, the land is described as "The country claimed by Pokatello for himself and his people." In the Western Shoshone treaty, permission was given for mineral prospecting and extracting, and the boundaries are said to define "the country claimed and occupied." The same language is used as to the boundaries in the Shoshonee-Goship Treaty. This treaty also permitted prospecting for and the working of mines. The Mixed Bands treaty described a country "claimed by the said bands" and "as described by them." Nowhere in any of the series of treaties is there a specific acknowledgment of Indian title or right of occupancy. It seems to us a reasonable inference that, had either the Indians or the United States understood that the treaties recognized the Indian title to these domains, such purpose would have been clearly and definitely expressed by instruction, by treaty text, or by the reports of the treaty commissioners to their superiors, or in the transmission of the treaties to the Senate for ratification.

Petitioners argue that the permission from the Indians for travel or mining and for the maintenance of communication and transportation facilities by the United States for its citizens imply a recognition by the United States of the Indian title. They quote, as persuasive, these words from an early Indian case: "The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them." Worcester v. Georgia, 6 Pet. 515, 31 U. S. 556. An examination of the circumstances under which this Court made the just-quoted statement illustrates how inapposite its use by petitioners is to the present question. The quotation was written in explanation of rights of passage which were granted by the Cherokees through lands which, by other articles of the treaty, had been specifically set apart and solemnly guaranteed to the Cherokees. 7 Stat. 39. No such specific recognition is in

Page 324 U. S. 349

the Box Elder treaty. But we see nothing inconsistent with nonrecognition of the Indian title and the insertion of these provisions against molestation of structures, travelers, or exploiters of mineral deposits within the territories. The United States undoubtedly might have asserted at the time of the treaty its purpose to extinguish Indian title, or it might have recognized Indian title or, it might, as the Court of Claims held, have sought only freedom from hostile acts from roving bands by the commitments for supplies. The treaties were made in the midst of civil war, and before the outcome of that conflict was clear.

Petitioners urge that recognition of the Indian title was inferred from the language of the Fort Laramie Treaty of September 17, 1851, 11 Stat. 749; Indians of the Fort Berthold Indian Reservation v. United States, 71 Ct.Cls. 308; Assiniboine Indian Tribe v. United States, 77 Ct.Cls. 347, 370; Crow Nation v. United States, 81 Ct.Cls. 238, 272, and that a different inference in the present case is inconsistent with those holdings. Apart from the fact that different treaties are involved, the circumstances surrounding the execution of the Fort Laramie treaty indicate a purpose to recognize the Indian title to the lands described in the Fort Laramie treaty which may well have induced the Court of Claims to reach one conclusion in those cases and another in this. For example, the instructions to the commissioners for the Fort Laramie negotiations contained this direction:

"It is important, if practicable, to establish for each tribe some fixed boundaries within which they should stipulate generally to reside, and each should agree not to intrude within the limits assigned to another tribe without its consent."

71 Ct.Cls. 312. Further, in reporting the treaty, it was said:

"The laying off of the country into geographical, or rather national, domains I regard as a very important measure, inasmuch as it will take away a great cause of quarrel among themselves, and at the same time enable the Government to ascertain who are the depredators,

Page 324 U. S. 350

should depredations hereafter be committed."

71 Ct.Cls. 313.

Furthermore, the words of the Fort Laramie treaty are more apt to express recognition of Indian title than those of Box Elder. Articles 5 says:

"The aforesaid Indian nations do hereby recognize and acknowledge the following tracts of country, included within the metes and boundaries hereinafter designated, as their respective territories, viz: . . ."

71 Ct.Cls. 315. In consideration of the treaty stipulations, the United States bound itself to furnish supplies and to protect the Indian nations against depredations by its citizens. Such distinctions may quite justifiably have led the Court of Claims to different conclusions than it reached from consideration of the Northwestern Shoshone treaty. [Footnote 8]

Petitioners point out that the word "claim" or the phrase "country claimed" was often used on the frontier

Page 324 U. S. 351

to indicate title or right. We know this meaning in mining law and in entries for land patents. The meaning of the word or phrase depends upon its use. In these treaties, it seems clearly to designate the boundaries over which the Indians asserted Indian title, but that falls short of acknowledgment of such right by the United States.

Reliance is also placed by petitioners upon the Senate's amendment to the treaty [Footnote 9] as a limitation of the treaty's recognition of Indian title to the described lands. This limitation, petitioners argue, demonstrates that no other limitation was intended. Petitioners take the position that there was no need for this limitation "if the treaty recognized no rights." While such a limitation would not have been needed if the Senate of that day were positive, on weighing the issue as we now do, that the treaty was ineffective to give any additional color to Indian titles within or without the Mexican Cession, it is unlikely that the ratifying body could or did appraise the several possibilities which are now presented. The Senate was well acquainted with the complications of Mexican land titles in the Cession. A portion of the lands lay within the boundaries of the former Mexican state of Alta California. The Senate was familiar, too, with the legal position of Indian titles in the Shoshone country outside the Mexican Cession. [Footnote 10] Such titles were subject to the same rules as similar titles in all Indian country. 4 Stat. 729. The

Page 324 U. S. 352

status of Indian titles within the Mexican Cession of 1848, however, had not then been judicially determined. [Footnote 11] The treaty of Guadalupe Hidalgo, 9 Stat. 922, guaranteed the property rights of Mexicans in the Cession. [Footnote 12] Controversies over these rights had caused the rejection by the Senate of Article X of the treaty as submitted. [Footnote 13] The rejection was followed by the protocol of Queretaro of 1848, in which our commissioners for the exchange of ratifications undertook to make explanation to Mexico of the rejection of Article X. [Footnote 14] The protocol itself was a subject of House and Senate debate, and of extensive diplomatic correspondence. [Footnote 15] There had been, also, the Act of March 3, 1851, 9 Stat. 631,

Page 324 U. S. 353

to settle the private land claims in California after its admission as a state. Litigation over land titles in the Mexican Cession had already reached this Court. United States v. Nye, 21 How. 408; United States v. Bassett, 21 How. 412; United States v. Rose, 23 How. 262. We do not think that the amendment indicates more than an intention to be sure the new treaty did not add to the complexities of the Mexican Cession title situation. Cf. Barker v. Harvey,181 U. S. 481, 181 U. S. 491; United States v. Title Ins. & Trust Co.,265 U. S. 472, 265 U. S. 484.

Petitioners suggest that, in the construction of Indian treaties, we, as a self-respecting nation, hesitate to construe language which is selected by us as guardian of the Indians to our ward's prejudice. "All doubts," say petitioners, "must be resolved in their [the Indians'] favor." Mr. Justice McLean, concurring in Worcester v. Georgia, 6 Pet. 515, at 31 U. S. 582, said, "The language used in treaties with the Indians should never be construed to their prejudice." But the context shows that the Justice meant no more than that the language should be construed in accordance with the tenor of the treaty. [Footnote 16] That, we think, is the rule which this Court has applied consistently to Indian treaties. We attempt to determine what the parties meant by the treaty. We stop short of varying its terms to meet alleged injustices. Such generosity, if any may be called for in the relations between the United States and the Indians, is for the Congress. [Footnote 17]

Page 324 U. S. 354

It seems to us clear from the circumstances leading up to and following the execution of the Box Elder Treaty that the parties did not intend to recognize or acknowledge by that treaty the Indian title to the lands in question. Whether the lands were in fact held by the Shoshones by Indian title from occupancy or otherwise or what rights flow to the Indians from such title is not involved. Since the rights, if any the Shoshones have, did not arise under or grow out of the Box Elder treaty, no recovery may be had under the jurisdictional act.


MR. JUSTICE ROBERTS is of the view that the judgment should be reversed.

[Footnote 1]

The other sections of the jurisdictional act are routine, and not here involved. They provide for the employment of attorneys for the Indians, for set-offs to the United States, for review in this Court, process, service on and appearance by the Attorney General, and the disposition of sums recovered.

[Footnote 2]

The claim upon which the Indian Affairs Committee of the House based its recommendation for the passage of an identical jurisdictional act was a claim for the taking of this aboriginal title which the Committee said was recognized by the Box Elder treaty. H.Rep. No. 1030, 70th Cong., 1st Sess.; cf. United States v. Creek Nation,295 U. S. 103, 295 U. S. 108.

[Footnote 3]

In a similar jurisdictional act for the benefit of the Eastern Shoshone, the question of whether their claim arose under or grew out of a certain treaty was not involved. That treaty, Fort Bridger, July 3, 1868, specifically recognized and set apart a reservation for the Eastern Shoshone. Art. II, 15 Stat. 673; 44 Stat. 1349; Shoshone Tribe v. United States,299 U. S. 476.

[Footnote 4]

Beecher v. Wetherby,95 U. S. 517, 95 U. S. 525; Buttz v. Northern Pacific R. Co.,119 U. S. 55, 119 U. S. 70; Lone Wolf v. Hitchcock,187 U. S. 553, 187 U. S. 564; United States v. Santa Fe Pacific R. Co.,314 U. S. 339, 314 U. S. 347.

[Footnote 5]

Letter of Commissioner Doty, transmitted by Message of the President, January, 1864, Executive K, L, M, N, O, 38th Cong., 1st Sess., p. 17:

"As none of the Indians of this country have permanent places of abode, in their hunting excursions, they wander over an immense region, extending from the fisheries at and below Salmon falls, on the Shoshonee river, near the Oregon line, to the sources of that stream. and to the buffalo country beyond."

[Footnote 6]

Articles II and III from the Fort Bridger treaty of July 2, 1863, the one first made, will illustrate the type of agreement:

"ARTICLE II. The several routes of travel through the Shoshonee country, now or hereafter used by white men shall be and remain forever free and safe for the use of the Government of the United States, and of all emigrants and travelers under its authority and protection, without molestation or injury from any of the people of said nation. And if depredations should at any time be committed by bad men of their nation, the offenders shall be immediately seized and delivered up to the proper officers of the United States, to be punished as their offences shall deserve, and the safety of all travelers passing peaceably over said routes is hereby guaranteed by said nation. Military agricultural settlements and military posts may be established by the President of the United States along said routes; ferries may be maintained over the rivers wherever they may be required, and houses erected and settlements formed at such points as may be necessary for the comfort and convenience of travelers."

"ARTICLE III. The telegraph and overland stage lines having been established and operated through a part of the Shoshonee country, it is expressly agreed that the same may be continued without hindrance, molestation, or injury from the people of said nation, and that their property, and the lives of passengers in the stages, and of the employees of the respective companies shall be protected by them."

"And further, it being understood that provision has been made by the Government of the United States for the construction of a railway from the plains west to the Pacific ocean, it is stipulated by said nation that said railway, or its branches, may be located, constructed, and operated, without molestation from them, through any portion of the country claimed by them."

Article IV, relating to boundaries, in this Fort Bridger treaty reads as follows:

"It is understood the boundaries of the Shoshonee country, as defined and described by said nation, is as follows: on the north, by the mountains on the north side of the valley of Shoshonee or Snake river; on the east, by the Wind River mountains, Peenahpah river, the north fork of Platte or Koochin-agah, and the north Park or Buffalo House, and on the south, by Yampah river and the Uintah mountains. The western boundary is left undefined, there being no Shoshonees from that district of country present, but the bands now present claim that their own country is bounded on the west by Salt Lake."

18 Stat. 685, 686.

[Footnote 7]

The Court of Claims summarized the history of the petitioner bands, subsequent to the Box Elder treaty, in this way:

"After the making of the treaty of July 30, 1863, the plaintiff bands became widely scattered over northern Utah and Nevada, and southern Idaho. In 1873, the Commissioner of Indian Affairs appointed a commission to investigate all tribes and bands in this region and to ascertain their number and the probability of gathering them upon one or more reservations where they could be more immediately under the care of the Government. The commission made an exhaustive investigation into the matters entrusted to it and reported that it had no trustworthy information as to the number of bands of the Northwestern Shoshone Indians. The commission further reported that a part of the Northwestern Shoshones under Pocatello (who signed the treaty of July 30, 1863) had already gone to the Fort Hall (Idaho) Reservation in southeast Idaho, and that Chief Tav-i-wun-shea, with his small band, had gone to the Wind River (Wyoming) Reservation created and set apart under the treaty with the Eastern Shoshones in 1868. Toomontso (who had signed the Northwestern Treaty of July 30) and his band at about this time took up their abode on the Fort Hall Indian Reservation, and an indefinite number of Indians of this band had gone to the Wind River Reservation. Eventually the remnants of the bands of Indians under San Pitz (a signer of the Northwestern Shoshone treaty of July 30), and Saigwits, also a party to the treaty, were induced by the commission to remove to the Fort Hall Indian Reservation, thus making a total of 400 Northwestern Shoshone Indians on the Fort Hall Reservation. The commission further reported that a careful enumeration disclosed that there were 400 Northwestern Shoshone Indians in southern Idaho. In 1873, a number of Northwestern Shoshone Indians had gathered in northeastern Nevada, and were assigned by the Indian Agent in Nevada to a small area in that section as a home. On May 10, 1877, this tract, by order of the President, was withdrawn from sale or settlement and set apart as a reservation for the Northwestern Shoshone Indians. However, in 1879, all the Indians thereon, numbering about 300, were removed to the Western Shoshone Indian Reservation known as the Duck Valley Indian Reservation in southwestern Idaho and northern Nevada."

95 Ct.Cls. at 677.

[Footnote 8]

We note, but consider unimportant because this issue was not involved, casual references by this and other courts that the Shoshone treaties recognized Indian title in the Shoshones. Shoshone Tribe v. United States,299 U. S. 476, 299 U. S. 485; United States v. Shoshone Tribe,304 U. S. 111, 304 U. S. 113; Shoshone Tribe of Indians v. United States, 85 Ct.Cls. 331, 335; United States v. Board of Comm'rs, 145 F.2d 329.

We do not consider the references of the administrators in routine communications called for in the preparation of this case before the Court of Claims to the "Shoshoni Indian Reservation (Northwestern Band)" to the fact that the territory of the Shoshones "was recognized by the United States" or "set apart for the Shoshone Indians" of any more weight. Nothing in these statements shows that the attention of the administrators was focused on the problem of recognition, or that they reflected a contemporaneous interpretation.

It does not seem important to determine whether the Court of Claims abused its discretion in refusing admission to such administrative letters written in 1939, relating to preparation for this suit, of maps of the territory. We have examined the tendered evidence. It was also seen by the Court of Claims, and if it had been admitted, it would have been merely cumulative, and could not have changed the conclusion below.

[Footnote 9]

"Nothing herein contained shall be construed or taken to admit any other or greater title or interest in the lands embraced within the territories described in said treaty in said tribes or bands of Indians than existed in them upon the acquisition of said territories from Mexico by the laws thereof."

[Footnote 10]

Spanish claims north of the 42nd parallel of latitude, then the northern line of Mexico, were ceded to the United States in 1821, Treaties and Other International Acts of the United States, Vol. 3, p. 3, and Art. 8; Russian claims south of 54

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