Hugo Black

“ In other words, if the railroads failed to pay to the Secretary the required annual charges for each mile of road constructed, it was the Secretary's duty to act to protect the Indian beneficiaries who should not be expected to assume the burden of acting on their own behalf, especially when the payments were to be made to the Secretary and not to them. ”

“ It provides that the railroads shall pay the tax to the Secretary, but puts no mandatory duty on the Secretary to do the work of collecting. We cannot suppose from any evidence before us either of legislative history or administrative practice that the United States repeatedly assumed obligations to indemnify the Indian tribes for charges which railroad companies, telephone companies, and telegraph companies constructing lines across Indian lands may have failed to pay. ”

“ They agreed to permit the railroads to buy strips up to three miles in width on each side of the track. In the succeeding thirty-six years, Congress, by a series of special acts, authorized the construction and operation of railroads, [3] and in 1902 it passed a general statute concerning future railroad construction in the Indian territory. [4] The 1902 Act included a provision, § 16, that railroads should pay a fixed annual sum per mile to the Secretary of the Interior for the benefit of the tribes. ”

“ The Indians allege that the railroads have not complied with the terms of the treaties and statutes in that they have taken and held certain station reservations unnecessary for railroad purposes for their own benefit, that they have received rents and profits from the use of these lands, and that they have failed to pay the annual mileage charge. ”

“ Thus in the section quoted above hostile tribes, and not the government, were explicitly made liable for the tribe's depredations. There is no such provision putting a similar liability for lossees of any sort on the United States. [7] A promise by the a similar liability for losses of any sort government to try to keep the peace is not equivalent to a promise to make payments if the peace is not kept ”

“ The petitioners contend that under this section the Secretary was obligated to bring suit for all damages suffered by the tribes for failure to pay sums owing under §§ 15 and 16 of the 1902 Act, for trespass and mileage taxes, for any breach of the treaty, and for rents and profits collected by the railroads. ”

“ Cherokee Nation v. Southern Kan. R. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295. See e.g. the Committee Report and discussion of the bill granting a right of way to the Gulf, Colorado, and Sante Fe Railway, 15 Cong.Rec. 4711 et seq. (1884) . ”