Opinion of the Court

95 C. Cls.

treaty refused to move to the treaty reservation and continued to roam over the country as they had previously done.

In 1873, upon recommendation of the Commissioner of Indian Affairs, the President, by executive order, withdrew from entry the Wallowa area and set it aside as a reservation for the "roaming Nez Perce Indians." However, the nontreaty Nez Perces continued to roam and made no attempt to establish permanent homes in the Wallowa reservation. In 1875 the President revoked his order of 1873 and restored the land covered by it to the public domain.

After the revocation in 1875 of the order reserving Wallowa from entry, white settlers moved in and conflicts ensued, with fatalities on both sides. Efforts were made to induce the younger chief Joseph, who had succeeded his father, and his band to move to the reservation of the 1863 treaty. These efforts seemed to be about to succeed when further fatalities occurred, defendant's troops intervened, and open war followed. The Indians were finally captured in Montana in 1876, and were taken first to Oklahoma, and then in 1885 some to the Nez Perce Reservation in Idaho and some to the Colville Reservation in Washington.

Plaintiff's contentions here are that Joseph's band owned the Wallowa area, that plaintiff's title was recognized by the treaty of 1855, that the treaty of 1863 could not and did not lawfully deprive it of its property because it did not consent thereto, and that it is entitled to compensation for the land taken; or in the alternative, that in the treaty of 1855 it obtained recognition of its title and surrendered the title to the Nez Perce Tribe generally, so that the tribe could and did, without Joseph's consent, effectively cede Wallowa to the defendant by the treaty of 1863, in which event plaintiff claims that it is entitled to receive its pro rata share in the consideration paid to the Nez Perces and to receive compensation for the allotments in the Nez Perce Reservation which it should have been given and never obtained.

Plaintiff encounters at the outset the difficulty of establishing title to the Wallowa area in Joseph's band, as distinguished from the tribe as a whole, a difficulty which its

11

Opinion of the Court

evidence does not overcome. Claim of title is based on its alleged immemorial possession of Wallowa. But it does not appear from the evidence that Joseph and his band ever had exclusive possession of the Wallowa area. What does appear is that Joseph and his band made their peculiar home at different periods in the region around the mouth of the Salmon, on the Snake River, on the Imnaha River, and on the Grande Ronde River near its mouth. The latter two locations are within the Wallowa area. In the summer Joseph's band went to the interior of the Wallowa area for the purpose of hunting, fishing, and grazing, but other bands of Nez Perce Indians regularly resorted there for the same purpose.

There was nothing in the treaty of 1855 which either recognized any title to the Wallowa area in Joseph's band or gave to that band or any other band title to specific parts of the lands reserved to the Nez Perce Tribe by that treaty. Indeed the elder Joseph's conduct in participating in the negotiation of and signing the treaty of 1855 shows that there must have been power in the tribe to act as a whole with reference to all lands of the tribe or any of its bands. If not, Joseph in that treaty would have been relinquishing lands which he and his band did not own, since none of the land now claimed to have been immemorially occupied by Joseph's band was relinquished in that treaty.

We conclude that the Nez Perce Tribe, as an entity, had the power to make the treaty of 1863 and that the dissenting minority, including the members of plaintiff band and the other nontreaty Nez Perces, was bound by that treaty.

Plaintiff does not, and could not, found its claim on the executive order of 1873. That order is offered only as a recognition of a title then existing in plaintiff. It was not such a recognition. It was for all the nontreaty or "roaming" Nez Perces, and not for Joseph's band alone.

Plaintiff's alternative claim for relief, viz, the right to a pro rata share of the Nez Perce tribal income and property under the treaties and agreements of the tribe with the United States, is not set forth in its petition, and is not properly before the court. Further, it is not proved that

Opinion of the Court

95 C. Cls.

such benefits were denied to any member of plaintiff's band, because he was such a member, if he was willing to accept them.

In our consideration and decision of this case we have not been unaware of the fact that to assimilate the political organization of a tribe of Indians such as the Nez Perces at the time of the treaties here in question, to the political organization of white men, is a procrustean process. The tribal organization was, no doubt, loose and informal. The necessity for its becoming more definite, or being treated as if it were more conventional, according to white men's standards, arose from the white man's encroachments. There was no head chief of the tribe until the white men needed such a chief. It is probable, though, that the white man's need was also the Indian's need, once the white man had come. If "treaties" could not have been made, the alternative would no doubt have been worse for the Indians.

The treaties themselves, under consideration here, were by no means voluntary agreements between equals. Perhaps treaties seldom are, or were, even as between white men, and even before the current plague of "treaties." But the negotiations for the treaty of 1863, with the giving of presents, the reiterated protestations to the Indians of the Government's unselfish motives, the cajoling and threatening of the dissident chiefs, and the complete insistence that the treaty be made as the Government desired it, and with no compromise, does not make pleasant reading. In these respects this negotiation probably did not distinguish itself among the numerous councils at which treaties with Indians were made.

This method, such as it was, was the Government's then method of dealing with the Indians, and hence these treaties define the legal rights of the Indians and the Government. It follows that, though the discontent of Joseph and his brethren was natural and understandable, the present remnant of his band has no basis for suit.

The petition will be dismissed. It is so ordered.

JONES, Judge; WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur.

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Reporter's Statement of the Case

THE WARM SPRINGS TRIBE OF INDIANS OF

OREGON v. THE UNITED STATES

[No. M-112. Decided November 3, 1941. Plaintiff's motion for new trial overruled and findings amended February 2, 1942]

On the Proofs

Indian claims; boundaries of reservation set aside for plaintiff tribe under the treaty of 1855.-Under the jurisdictional act of December 23, 1930 (46 Stat. 1033), authorizing the Court of Claims to hear, determine, adjudicate and render judgment on all legal and equitable claims of whatsoever nature of the Warm Springs Tribe of Indians or of any band thereof against the United States, arising under or growing out of or incident to the treaties of June 25, 1855 (12 Stat. 963), and of November 15, 1865 (14 Stat. 751), or either of them, notwithstanding the lapse of time and notwithstanding the provisions of the Act of June 6, 1894 (28 Stat. 86), it is held:

1. That the northern boundary of the reservation set aside for the Warm Springs Tribe of Indians by the said treaty of 1855 runs from McQuinn's 30-mile post at Little Dark Butte southeastwardly along the line established by McQuinn to McQuinn's 72-mile post, and thence in a straight line to the starting point on the De Chutes River established by Handley; 2. That the western boundary of said reservation is the western boundary established by McQuinn;

3. That the plaintiff is entitled to recover the value of the lands between these boundaries and the northern and western boundaries established by Handley and Campbell;

4. That the plaintiff is not entitled to recover on its claims involving amounts agreed to be spent by defendant for the benefit of the Indians and for the erection of certain buildings and for other purposes, where it is shown by the proofs that far more money had been spent than was called for by the treaty;

5. That there is no proof that the bands named in the proviso to the treaty of 1855 met in council and expressed a desire that some other reservation should be selected for them, as required by said proviso.

The Reporter's statement of the case:

Mr. F. M. Goodwin for the plaintiff. Messrs. Lawrence Cake, Francis B. Galloway, William S. Lewis, A. R. Serven, and John G. Carter were on the briefs.

Mr. Charles H. Small, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief.

Reporter's Statement of the Case

95 C. Cls.

The decision in this case was filed November 3, 1941. A motion for new trial was filed by the plaintiff on the ground that the court in its opinion fixed incorrectly the southern boundary of the reservation in question. On February 2, 1942, said motion was in all respects overruled.

However, the findings of fact filed on November 3, 1941, were on the court's own motion amended by adding a finding (13-a), as indicated.

The court made special findings of fact as follows:

1. This case is before the Court under the jurisdictional act of December 23, 1930 (46 Stat. 1033), which authorizes the Court to hear, determine, adjudicate and render judgment on all legal and equitable claims of whatsoever nature of the Warm Springs Tribe of Indians or of any band thereof against the United States, arising under or growing out of or incident to the treaties of June 25, 1855 (12 Stat. 963), and of November 15, 1865 (14 Stat. 751), or either of them, notwithstanding the lapse of time and notwithstanding the provisions of the act of June 6, 1894 (28 Stat. 86).

2. The Warm Springs Tribe of Indians occupied a large area of land in Oregon south of the Columbia River and east of the Cascade Mountains, chiefly along the De Chutes River and its tributaries. They are described in governmental literature and reports as the Taih or Upper De Chutes Band of Walla Wallas, the Wyam or Lower De Chutes Band of Walla Wallas, the Tenino Band, the Dock Spus or John Day's River Band of Walla Wallas, and several bands of Wascoes or Dalles Indians, all of whom were confederated together by the United States and described as the Warm Springs Tribe of Indians.

3. The treaty of June 25, 1855 (12 Stat. 963), was negotiated by Joel Palmer, acting for and on behalf of the United States, and by the chiefs and headmen of the bands of Indians known as the Warm Springs Tribe of Indians. It was negotiated at a time of Indian hostilities, at a place removed some fifty miles from the nearest boundary of the Indian reservation described in the treaty as set apart for the plaintiff.