By a treaty of 1868 between the United States and the Ute
Indians, a reservation was established for the Indians in Colorado.
Subsequently, an erroneous survey showed the northern boundary to
be south of the true boundary, and as excluding the White River
Valley lands which actually were in the reservation. Believing the
survey to be accurate, and desiring to preserve these lands for the
use of the Indians, the President, by an Executive Order of 1875,
withdrew from sale and "set apart for the use of the . . . Ute
Indians, as an addition to the present reservation in said
Territory" a strip of land north "of the present Ute Indian
Reservation." Later, in order to punish the Indians for a massacre,
dispossess them of the reservation, and remove them from Colorado,
Congress passed the Act of June 15, 1880, 21 Stat. 199, which
ratified and embodied an agreement by their leaders to cede to the
United States all territory of "the present Ute Reservation," and
provided that all lands so ceded and not allotted specifically to
individual Indians would be restored to the public domain for sale
as public lands and that, subject to certain conditions, the
proceeds of their sale should be distributed to the Indians. An
Executive Order of 1882 declared that the lands "set apart for the
use of the . . . Ute Indians" by the Executive Order of 1875 is
"hereby restored to the public domain." The Indians brought this
suit under the Act of June 28, 1938, 52 Stat. 1209, as amended, 55
Stat. 593, to obtain compensation for the lands north of the
original reservation made available to them by the Executive Order
of 1875.
Held:
1. Insofar as the claim rests on the Executive Order of 1875, it
cannot be sustained. P.
330 U. S.
176.
Page 330 U. S. 170
(a) The President had no authority to convey to the Indians a
compensable interest in the lands lying north of the true boundary
of the reservation created by the treaty of 1868. Pp.
330 U. S. 176,
330 U.S. 180.
(b) The Executive Order of 1875 made the Indians no more than
tenants at will of the Government on that part of the land outside
the true treaty reservation. P.
330 U. S.
176.
(c) The real purpose of the Executive Order was to protect the
Indians' enjoyment of the White River Valley lands conveyed to them
by the original treaty, and this purpose has been accomplished. Pp.
330 U. S. 177,
330 U.S. 180.
2. The Act of June 15, 1880, gives the Indians no right to
recover for the land north of the true boundary of the treaty
reservation set apart for their use by the Executive Order of 1875.
Pp.
330 U. S.
177-180.
(a) It contains nothing showing a congressional purpose to
convey such lands to the Indians. P.
330 U. S.
177.
(b) Nor was it intended to transform the Executive Order into a
conveyance of a compensable interest in lands not included in the
original treaty reservation. Pp.
330 U. S. 178,
330 U.S. 180.
(c) It was intended to compensate them only for the lands in the
original reservation which they ceded to the United States. P.
330 U. S.
178.
(d) The fact that it provided for the cession of the "present
Ute Reservation" is not sufficient to attribute to Congress a
purpose to treat as part of that reservation lands which never had
been legally conveyed to the Indians and had only been made
available to them for the sole purpose of making them secure in
their possession of the White River Valley. Pp.
330 U. S.
178-179.
3. Even if the Indians understood in 1880 that they owned the
lands described in the Executive Order of 1875 lying north of the
White River Valley, that their "present Ute Reservation" included
them, and that Congress undertook by the 1880 Act to sell these
lands for their benefit, and, even if Congress was aware of this
understanding, this would not require a different result, in view
of the fact that the Act neither conveyed nor ratified conveyance
of these lands. P.
330 U. S.
179.
4. While a treaty with Indians is to be construed so as to carry
out the Government's obligations in accordance with the fair
understanding of the Indians, this Court cannot, under the guise of
interpretation, create presidential authority where there was none,
or rewrite congressional acts so as to make them mean something
they obviously were not intended to mean. P.
330 U. S.
179.
106 Ct.Cl. 33, 64 F. Supp. 569, affirmed.
Page 330 U. S. 171
In a suit by the Ute Indians under the Act of June 28, 1938, 52
Stat. 1209, as amended, 55 Stat. 593 to recover compensation for
lands made available to them by an 1875 Executive Order of the
President and subsequently taken from them by the United States,
the Court of Claims held that they had no compensable interest in
such lands. 106 Ct.Cl. 33, 64 F. Supp. 569. This Court granted
certiorari. 329 U.S. 694.
Affirmed., p.
330 U.S. 180.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioners brought this action in the Court of Claims under the
Act of June 28, 1938, 52 Stat. 1209, as amended, 55 Stat. 593, to
recover compensation for lands made available to them by an 1875
Executive Order of the President and subsequently taken from them
by the United States. Their claim was that, by an Act of June 15,
1880, 21 Stat. 199, Congress had undertaken to sell these lands for
the benefit of the petitioners, but that they had never been
compensated for them. The Court of Claims, one judge concurring
specially, made findings of fact and concluded as a matter of law
that petitioners had no compensable interest in the lands, because
they "never did acquire title to these . . . lands and . . . the
Congress never did agree to sell them for the account of"
petitioners. 106 Ct.Cl. 33, 51, 64 F. Supp. 569, 571. We granted
certiorari, 329 U.S. 694.
The findings of the Court of Claims from official letters,
Executive Orders, and statutes incorporated in these findings were
as follows:
Page 330 U. S. 172
A treaty of 1868, 15 Stat. 619, between the United States and
petitioners' ancestors, the Ute Indian tribes, established a
reservation for them in Colorado. The northern boundary of the 15
million acres there ceded was described in the treaty as a line
fifteen miles north of, and parallel to the 40th parallel of north
latitude. In the 15-mile wide strip north of the 40th parallel lay
the White River Valley, which had been settled by the Utes as a
most suitable place for grazing and cultivation. One of the two
Government Indian agencies provided for the reservation by the
treaty was established in that strip.
As a result of misunderstandings in 1869 and 1874 between the
Utes and white settlers to the north as to the true location of the
northern treaty boundary, a survey was made in 1875 by one Miller.
Miller's instructions, however, required him to stake out a line
which he admitted to the local Indian agent and to the Utes
themselves to be fifteen to eighteen miles south of the true
boundary described in the treaty. If Miller's line had been
correct, it would have excluded from the 1868 reservation the
fertile White River Valley, and would have also excluded the agency
buildings which had been erected there.
The marking out of the erroneous Miller line greatly upset the
Indians because they feared they would be driven from the White
River Valley. This embarrassed the local Indian agent, who had
previously assured the Indians that the White River Valley lay
within their reservation. He promptly reported the results of the
survey and the reaction of the Indians to the Commissioner of
Indian Affairs in Washington, and urged the necessity of a new
survey at the earliest practicable date. He stated that, if the
Miller survey were correct, however, the Indians would be driven
from the White River Valley -- "the only farming land and stock
range in this part of the reservation" -- and forced to settle
on
Page 330 U. S. 173
a river forty miles to the south. The Commissioner, acting on
this report and a statement by Miller's attorney that Miller's line
was correct, wrote to the Secretary of the Interior that the Miller
survey
"develops the fact that the White River and surrounding valleys.
as well as the Agency buildings and improvements at the White River
Agency. lie north of the . . . boundary, and consequently are not
within the limits of the . . . Ute Reservation."
He therefore recommended to the Secretary that the President be
requested to issue an Executive Order to make available to the Utes
additional territory north of the 1868 treaty boundary. The
President, on the recommendation of the Secretary of the Interior,
issued the order. [
Footnote 1]
And thereafter, the Commissioner wrote the local agent that the
order included
"all that tract of country lying between the north boundary of
the Ute reservation as defined in the treaty of March 2, 1868 . . .
which was the boundary surveyed by Mr. Miller. . . . This action
fully protects your Indians in the peaceable possession of their
improvements in the White River Valley and the Agency buildings,
and will enable you to assure the Indians of the exact location of
their reservation as enlarged. "
Page 330 U. S. 174
In 1879, several years after the Executive Order was issued,
hostilities broke out between some of the Utes and Government
representatives in which the Indian agent at White River, all the
agency's male employees, and a U.S. military detachment were killed
in the so-called "Meeker massacre." H.R.Ex.Doc. No. 1, pt. 5, 47th
Cong., 2d Sess. (1879) 16-19, 82-97. There have been charges and
countercharges as to who was responsible for inciting these
hostilities. Whoever was responsible, it is clear that Congress,
aroused by the massacre, took steps to punish the Indians who
participated in it, to dispossess the Utes of their reservation,
and to remove them from Colorado. Congressional action to
accomplish this was provided by the Act of June 15, 1880, 21 Stat.
199, which ratified and embodied an agreement reached earlier that
year between the Government and the leaders of the Utes who had
promised "to use their best endeavors with their people to procure
their consent to cede to the United States all the territory of the
present Ute Reservation. . . ." This Act authorized specific
allotments to individual Indians from the lands so ceded. But § 3
provided that
"all the lands not . . . allotted, the title to which is, by the
said agreement of . . . the Ute Indians, and this acceptance by the
United States, released and conveyed to the United States . .
."
would be restored to the public domain for sale as public lands.
The proceeds of the sale of the land so conveyed by the Utes to the
United States were, upon satisfaction of indemnity conditions
imposed because of the massacre, to be distributed to the Indians.
Thereafter, in 1882, an Executive Order declared that the lands
withdrawn from the public domain by the Executive Order of 1875 and
"set apart for the use of the . . . Ute Indians . . . hereby is
restored to the public domain." 1 Kappler,
supra, pp.
834-835.
Pursuant to an Act of 1909, 35 Stat. 781, petitioners recovered
a judgment for the proceeds of certain lands sold
Page 330 U. S. 175
by the Government, as well as the value of certain lands
appropriated by the Government to its own use, all of which were
part of the 1868 treaty lands.
Ute Indians v. United
States, 45 Ct.Cl. 440; 46 Ct.Cl. 225. Thus, except for certain
treaty lands not at issue here, litigation concerning which is now
pending in the Court of Claims, the only lands in Colorado for
which the Indians have not been paid are those to the north of and
outside the 1868 treaty reservation which were made available to
them by the Executive Order of 1875. In pursuit of compensation for
these Executive Order lands, petitioners have brought this action
pursuant to the Act of June 28, 1938,
supra. That Act
confers jurisdiction on the Court of Claims to hear, determine, and
render final judgment on all legal and equitable claims of the
Utes, and to award judgment for the Indians where it is found "that
any lands formerly belonging" to them "have been taken by the
United States without compensation. . . ."
Petitioners contend here that their predecessors understood that
they not only owned the White River Valley lands, but that they
also owned the Executive Order lands when, in 1880, they agreed to
cede their reservation, and that Congress, by incorporating the
agreement in the 1880 Act, thereby ratified it along with the
Indians' understanding of it. Petitioners further contend that,
whether or not Congress intended to obligate the Government to
account for the Executive Order lands, they knew of the Indians'
understanding, so that, "the understanding of the Indians having
been established," their understanding entitles them to recover.
Finally they argue that the Executive Order, unlike the one in
issue in
Sioux Tribe of Indians v. United States,
316 U. S. 317,
conveyed a compensable interest to these Indians. The Government
counters that the President had no power to give a compensable
interest to the Indians to lands lying outside the true 1868 treaty
boundaries; that, if the President intended
Page 330 U. S. 176
to make available lands outside the true boundary, it was only
to give a transitory, possessory, and not a compensable, interest;
that his intent was, in fact, only to secure the Indians in their
possession of the White River Valley, but no more, on the mistaken
assumption that the White River Valley had been cut off from the
reservation by the Miller survey; that the 1880 Act neither by its
terms, its legislative history, nor its administrative
interpretation suggests that Congress intended to ratify or expand
the Executive Order or to compensate the Indians for the Executive
Order lands; that the Indians did not have a contrary
understanding; that, in the face of such clear legislative language
and intent, a contrary understanding of the Indians, even if
established, could not justify a holding that the Indians obtained
a compensable interest.
It is conceded that the petitioners have either been, or are
currently, pressing litigation in the Court of Claims by which they
seek to be compensated for the White River Valley lands, and in
fact for all of the land which was contained in the true boundaries
of the 1868 reservation. The additional claim, insofar as it rests
on the Executive Order of 1875, cannot be sustained. For the
President had no authority to convey to the petitioners a
compensable interest in the lands described in the order lying
north of the true 1868 boundary.
Sioux Tribe of Indians v.
United States, supra. [
Footnote 2] Nor is there any indication in the findings
that the President intended to convey more than a transitory,
possessory interest by the 1875 Order. That order made the Indians
no more than tenants at the will of the Government on that part of
the land outside the true treaty reservation.
Id. at
316 U. S. 331.
Moreover, the Court of Claims' findings of fact, as emphasized
Page 330 U. S. 177
by the special concurring opinion, indicate that the Executive
Order was promulgated under the mistaken belief that its issuance
was necessary in order to give the Indians the use of the White
River Valley lands intended to be granted to them by the 1868
treaty, and from which they might otherwise have been excluded by
the Miller survey. These findings do not indicate that the
Commissioner, the Secretary, or the President intended the order to
make available the lands it in fact described lying north of the
true treaty boundary. The order was designed only to resolve the
misunderstanding created by Miller about the White River Valley
lands. [
Footnote 3] The fullest
possible purpose of the Executive Order has actually been carried
out. For the Indians' enjoyment of the White River lands was
protected during their stay on the reservation, and the lands have
either already been paid for or are the subject of pending
litigation in the Court of Claims whereby the Indians seek payment
for them. It is with these things in mind that we must consider
petitioner's contention that they have a right to recover
compensation because of the 1880 Act.
There is not one word in that Act showing a congressional
purpose to convey the Executive Order lands, or any other lands, to
the Indians. On the contrary, the Act embodied a transaction
whereby the Indians were the transferors, and conveyed lands to the
Government. For the value of lands so conveyed, and for no other,
the Government was to make an account to the Indians after certain
deductions had been made.
Page 330 U. S. 178
Nor is it possible to deduce from the 1880 Act a congressional
purpose to transform the Executive Order into a conveyance of
something more than a mere temporary and cancellable possessory
right to the Indians. Neither the language of the 1880 Act, its
legislative history, nor the circumstances which brought it about
justify the claim that Congress intended to expand the Executive
Order into a transfer of a compensable interest in lands not
included in the original treaty reservation. The Act was an
aftermath of the "Meeker massacre." With the massacre in mind,
Congress decided to remove the Indians from the Colorado
reservation as part of the punishment meted out for this tragedy.
[
Footnote 4] The very first
section of the 1880 Act prohibited any payments at all to the
Indians until the Indians involved had surrendered, been
apprehended, or until the President had proof that they were dead
or outside the United States. Compensation for the families of the
massacre victims was to be deducted from the land sale proceeds
payable to the Indians. We cannot find from this background a
congressional purpose to make a gift to the Indians of the
Executive Order lands for which compensation is here sought. The
only lands for which Congress agreed in 1880 to compensate the
Indians were those that "the title to which" the Indians then
"released and conveyed to the United States." They could only
release and convey the lands that belonged to them, and only the
lands given to them by the original 1868 treaty belonged to them.
It was for compensation for such lands only that Congress, in 1938,
authorized this action to be maintained. Under all these
circumstances, the fact that the 1880 Act required the chiefs and
headmen to procure the consent of their people to the cession of
"the present Ute Reservation" is not sufficient to attribute to
Congress
Page 330 U. S. 179
a purpose to treat as a part of that reservation lands which had
never been legally conveyed to the Indians and which had only been
made available to them by the Executive Order for the sole purpose
of making them secure in their possession of the White River
Valley.
It is said, however, that the Indians understood in 1880 that
they owned the Executive Order lands which lay north of the White
River Valley; that they understood their "present Ute reservation"
to include them; that they understood that Congress undertook by
the 1880 Act to sell the lands for their benefit, and that Congress
was aware of this understanding. The majority opinion of the Court
of Claims stated that "in all probability" this was true. The
writer of the concurring opinion thought differently. But even if
the Indians had believed that they had a compensable interest in
the Executive Order lands, this fact would not necessarily have
given it to them. Certainly the absence of presidential authority
to give them a compensable title could not be supplied by the
Indians' understanding that the President had such authority. The
Sioux Indians may also have thought the President had authority to
convey title to them; but the reasons on which our decision in the
Sioux case,
supra, rested do not indicate that
our holding depended in any way upon the understanding of the
Indians. Nor can this alleged understanding be imputed to Congress
in the face of plain language and a rather full legislative history
indicating that the 1880 Act neither conveyed nor ratified
conveyance of these lands. While it has long been the rule that a
treaty with Indians is to be construed so as to carry out the
Government's obligations in accordance with the fair understanding
of the Indians, we cannot, under the guise of interpretation,
create Presidential authority where there was none, nor rewrite
congressional acts so as to make them mean something they obviously
were not intended to mean.
Choctaw Nation v.
United
Page 330 U. S. 180
States, 318 U. S. 423,
318 U. S.
431-432. We cannot, under any acceptable rule of
interpretation, hold that the Indians owned the lands merely
because they thought so. Solicitous as the Government is to carry
out its promises to the Indians in good faith, we are satisfied
from this record that the Government has performed all that it
promised.
As we have pointed out, it seems obvious to us from the findings
of the Court of Claims that the Executive Order was only intended
to secure for these Indians' ancestors possession of the White
River Valley lands conveyed to them by the original 1868 treaty,
and which was jeopardized by the Miller survey. [
Footnote 5] In fact, the President had no
authority to convey a compensable interest in these or other lands
to the Utes. Fairly to carry out the 1868 treaty was the order's
aim. The 1880 Act, we believe, did not enlarge upon the limited
purpose of the Executive Order. To compensate these Indians for
lands not intended to be conveyed by the 1868 treaty, the Executive
Order, nor the 1880 Act would be to pay them for lands which
neither they nor their ancestors ever owned and to which they had
no claim in equity or justice, so far as the transactions here at
issue are concerned. No rule of construction justifies such a
result.
Affirmed.
[
Footnote 1]
The Executive Order of November 22, 1875, 1 Kappler, Indian
Affairs, Laws and Treaties, p. 834 (1904) is as follows:
"It is hereby ordered that the tract of country in the Territory
of Colorado lying within the following-described boundaries,
viz: commencing at the northeast corner of the present Ute
Indian Reservation, as defined in the treaty of March 2, 1868
(Stats. at Large, vol. 15, p. 619); thence running north on the
107th degree of longitude to the first standard parallel north;
thence west on said first standard parallel to the boundary line
between Colorado and Utah; thence south with said boundary to the
northwest corner of the Ute Indian Reservation; thence east with
the north boundary of the said reservation to the place of
beginning, be, and the same hereby is, withdrawn from sale and set
apart for the use of the several tribes of Ute Indians, as an
addition to the present reservation in said Territory."
[
Footnote 2]
Cf. Executive Order of August 17, 1876, which
interpreted a treaty so as to
"set apart [certain land] as a part of the Ute Indian
Reservation, in accordance with the first article of an agreement
made with said Indians and ratified by Congress. . . ."
1 Kappler,
supra, p. 834.
[
Footnote 3]
The Court of Claims did not find this as an ultimate fact. But
the correspondence which plainly shows it was incorporated in the
findings. This Court has said with reference to findings of the
Court of Claims that the
"absence of the finding of an ultimate fact does not require a
reversal of the judgment if the circumstantial facts as found are
such that the ultimate fact follows from them as a necessary
inference."
United States v. Wells, 283 U.
S. 102,
283 U. S.
120.
[
Footnote 4]
See S. 772 and S.Res. 51, 10 Cong.Rec. pt. 1 (1879) 30,
77; H.Res. 142, 10 Cong.Rec. 44; H.R. 2420, 10 Cong.Rec. 17; H.Res.
154, 10 Cong.Rec. 113; H.R. 50 2, 10 Cong.Rec. pt. 2 (1880)
1538.
[
Footnote 5]
See p.
330 U. S. 177,
supra.
MR. JUSTICE MURPHY, dissenting.
The United States, in my opinion, is morally and legally
obligated to pay for the land in issue in this case. The Executive
Order of 1875, by its terms, set aside certain land up to the
"first standard parallel north" for the use of the Ute Indians "as
an addition to their present reservation." That order alone, of
course, could convey no compensable interest to the Indians under
the rule of
Sioux Tribe v. United States, 316 U.
S. 317. But events subsequent to
Page 330 U. S. 181
the issuance of the Executive Order in this case make
inapplicable the principle of the
Sioux case. In 1880, the
United States and the Ute chiefs and headmen entered into an
agreement whereby the latter promised
"to use their best endeavors with their people to procure their
consent to cede to the United States all the territory of the
present Ute Reservation in Colorado."
Congress thereupon passed the Act of June 15, 1880, which
recited in its preamble that the chiefs and headmen had "submitted
to the Secretary of the Interior an agreement for the sale to the
United States of their present reservation in the Colorado." The
Act then incorporated the agreement previously made, and provided
that all unallotted lands should be deemed to be released and
conveyed to the United States.
It seems clear to me that, by 1880, the term "present
reservation" included the land which the Executive Order of 1875
stated had been set aside as an addition to the then present
reservation. And, when the 1880 agreement and the 1880 Act referred
to "present reservation," they must have included that additional
land. Adding this informal acknowledgment by Congress of the
expanded reservation to the occupation of the land by the Indians
and their understanding that it belonged to the reservation, a
compensable interest becomes evident. It is immaterial that there
was no formal documents conveying a fee simple interest to the
Indians; it is likewise irrelevant that there was no formal
acknowledgment of the Indian title.
Spalding v. Chandler,
160 U. S. 394;
United States v. Alcea Band of Tillamooks, 329 U. S.
40. It is enough that the Indians had the right to
possess and occupy the land, and that the Indians fairly understood
that to be the case. An acknowledgment by Congress, however
informal, then adds a legal obligation to the moral duty of the
United States to pay for the land involved. Such is the situation
here.
Page 330 U. S. 182
The Court indicates, however, that the Executive Order of 1875
does not mean what it says. It clearly set apart for the use of the
Indians "as an addition to the present reservation" all the
described land up to the "first standard parallel north." But it is
now suggested that those responsible for the promulgation of that
order did not really intend to set aside all the land up to the
"first standard parallel north," despite the explicit language
used. It is said, rather, that the order actually was designed to
affect only the White River Valley lands -- lands which are some
nine miles south of the "first standard parallel north." That
interpretation of the intent of the framers of the order would make
the northern boundary of the Executive Order land coterminous with
the northern boundary of the true treaty reservation.
But there is nothing in the findings of the Court of Claims to
justify such an interpretation. To disregard the plain words of the
order by subtracting a nine-mile strip from a clearly worded
description requires definite findings to that effect which are
supported by the record. It is not our function, of course, to
supply those findings ourselves. Nor can we infer them from the
decision of the Court of Claims. That court alone has the power and
the duty to make the necessary findings on material issues. 53
Stat. 752, 28 U.S.C. § 288;
United States v. Causby,
328 U. S. 256,
328 U. S.
267-268. If it is material that the framers of the
Executive Order intended to set aside less land than that described
in the order, the case should be remanded to the Court of Claims so
that it can make the necessary findings in this respect.
MR. JUSTICE FRANKFURTER and MR. JUSTICE DOUGLAS join in this
dissent.