Stanley Forman Reed

“ It does not command us to overthrow the moral obligation of the United States to fulfill its treaty obligations. And it does not warrant the application of narrow principles of construction to the injury of the Indians' interests. If Congress desires to place in the Treasury any money that might be recovered by the Indians in this suit that is the business of Congress, not ours. Our function here is at an end when we have determined if the Northwestern Bands have any claim 'arising under or growing out of' the Box Elder Treaty. ”

“ The Indian parties to the treaty were a band of simple, relatively peaceful, and extremely primitive men. The population of the band was only about 1500, and the territories claimed to have been occupied as their home consisted of over 15,000,000 acres of land in Idaho, Utah, and Nevada-about 10,000 acres for every individual in the band. Of course so few could not patrol and defend so vast a territory against inroads by the more aggressive and efficient whites. The white was a better killer. The game disappeared, the lands were not productive, and in peace the Indians became destitute. ”

“ As stated by the Attorneys General of Idaho and Utah who appear here as amicicuriae: 'The result is that a peaceful and friendly people, lulled into a sense of security by the proffers of the United States of peace and amity, have been reduced from a nation able to wrest their living from their primitive ancestral home to a nondescript, homeless, and poverty-stricken aggregation of bands of Indians, without the means to compete in the modern civilization which had disseised them. ”

“ 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 the unknown area of their possible Indian title. ”

“ The amendment added in the Senate provided: '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.' That should put beyond dispute that the Senate understood the treaty to accord recognition of the title which these Indians had under Mexican law. To say it gives no recognition to any claim is to erase this provision from the treaty. ”

“ Nothing is gained by dwelling upon the unhappy conflicts that have prevailed between the Shoshones and the whites-conflicts which sometimes leave one in doubt which side could make the better claim to be civilized. The generation of Indians who suffered the privations, indignities, and brutalities of the westward march of the whites have gone to the Happy Hunting Ground, and nothing that we can do can square the account with them. ”

“ Here we are asked to go back over three quarters of a century to spell out the meaning of a most ambiguous writing made in 1863. One of the parties did not keep, or know how to keep, written records of negotiations. Written evidence bearing on intention is only that which the whites chose to make. It does not take a particularly discerning eye to see that these records, written usually by Indian agents, are quite apt to speak well of the writer's virtue and good intentions. Evidence from the memory of man is no longer available. ”

“ 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. ”

“ Any judgment that we may render gives to these Indians neither their lands nor money. The jurisdictional act provides that the proceeds above attorneys' fees shall 'be deposited in the Treasury of the United States to the credit of the Indians' at 4 per cent interest and 'shall be subject to appropriation by Congress only for the health, education, and industrial advancement of said Indians.' The only cash payment is attorneys' fees. ”

“ It chose to negotiate a treaty. And through the medium of the treaty it obtained from these Indians rights of way, rights to settle, rights of transit. It was stated in Worcester v. Georgia, 6 Pet. 515, 556, 8 L.Ed. 483, that 'The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them.' That is good law. It is as applicable here as it was in that early case. There, to be sure, lands had been specifically set apart for the Cherokees. But that is not a material difference. Indian title is the right to occupancy based on aboriginal possession. ”

“ Whether the issue as to acknowledgment by a treaty of Indian title to land is treated as a question of fact, like Indian right to occupancy itself, United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260; 53 Stat. 752, 28 U.S.C.A. § 288 (b) , 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. ”

“ On one side were dominant, powerful, shrewd, and educated whites, who knew exactly what they wanted. On the other side were destitute, illiterate Indians who primarily wanted to be let alone and who wanted by some means to continue to live their own accustomed lives. Here we are asked to decide whether their intent was to relinquish titles or make reservations of titles or recognition of titles. ”

“ White emigrants and the Government were caused considerable trouble by depredations and warlike acts of these oppressed Indians. Some agreement whereby white emigrants could travel and the Government could maintain a communication system through the Shoshone area was imperative. ”

“ H. Rep. No. 1030, 70th Cong., 1st Sess.; cf. United States v. Creek Nation, 295 U.S. 103, 108, 55 S.Ct. 681, 683, 79 L.Ed. 1331.↑ 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. ”