23 Reporter's Statement of the Case Palmer had but slight knowledge of the country and its topography, having passed through it but once. The plaintiff was familiar with it to a somewhat greater extent, having roamed over it to hunt, fish, and gather roots and berries. At the time it was negotiated Palmer exhibited to the Council a sketch of the territory, filed in this case as enclosure No. 47 to the report of the Secretary of the Interior, dated November 2, 1933, which is reproduced herein and attached as appendix No. 1 to this opinion. 4. The Mutton Mountains run from southwest to northeast. The northeast terminus of these mountains is on the De Chutes River between the mouths of Antoken and Eagle Creeks. There is a range of high lands running from the Cascade Mountains on the west, southeastwardly toward the De Chutes River in a fairly uniform course, which forms a well defined divide between the White River system on the north and the Warm Springs system on the south. The existence of this divide and its general course was known to the parties at the time the treaty was signed. About 8 or 9 miles west of the De Chutes River this divide breaks up into spurs, one running northeastwardly, and another southeastwardly. From this point to the De Chutes River there is no continuous east and west divide, although from the point where the east and west divide breaks up into spurs more than one divide can be followed to the De Chutes River. This region is traversed by the Antoken, Eagle, Nena and Wapinitia Creeks, which empty into neither the Warm Springs River nor the White River, but into the De Chutes River. 5. About two years after the treaty was negotiated and signed Indian Agent R. R. Thompson, together with the principal chiefs and headmen of the bands, made an exploration of the reservation. At this time Thompson pointed out to the Indians his idea of the general course of the northern boundary. No reservation was ever selected by the Indians other than the reservation described in the treaty. Reporter's Statement of the Case 95 C. Cls. Before 1859 practically all of the Indians who were parties to the above-mentioned treaty had been settled upon the reservation described in the treaty. 6. In 1871 a survey of a portion of the northern boundary was made by T. B. Handley, United States Surveyor, who ran the line from a certain point on the De Chutes River to his thirty-one mile post. Later, the remainder of the northern boundary was run by R. T. Campbell from Handley's twenty-six mile post, due west to the Cascade Mountains, to the Handley-Campbell 36-mile post; thence Campbell ran the western boundary in a direct line to Mt. Jefferson. 7. In 1887 another survey of the northern boundary was run by John A. McQuinn. McQuinn originally established his starting point on the De Chutes River 20 chains south of the starting point established by Handley. But, on account of the opposition of the Indians, he later determined upon another point between the mouths of Nena and Eagle Creeks. From this point he ran southwestwardly in a straight line to his 72-mile post, which was located at a tree alleged to have been blazed by Indian Agent Thompson as being on the northern boundary of the reservation pointed out by him to the Indians. From this point McQuinn's survey ran in a straight line northwestwardly to his 30-mile post at Little Dark Butte on the Cascade Mountains. There is reproduced herein and attached as appendix No. 2 to this opinion a diagram showing the Handley-Campbell survey and the McQuinn survey, and also the topography of the country on the northern and western boundaries (filed in this case as enclosure No. 49 to the report of the Secretary of the Interior dated November 2, 1933). 8. In 1888 a representative of the General Land Office and a representative of the Indian Office, H. B. Martin and George W. Gordon, appointed to investigate the two surveys and report on which one more nearly conformed to the treaty, reported (S. Ex. Docs. Vol. 7, No. 70, 50th Cong., 1st sess., 1887-1888) that the Handley line more nearly conformed thereto, but that it materially varied from the boundary as described in the treaty. Attached to their report was a diagram giving their idea of the true course of the northern boundary, which coincided in some respects with Handley's 23 Reporter's Statement of the Case line, and in other respects with McQuinn's line, but varied materially from both. 9. In 1889 the line surveyed by McQuinn was adopted by the Department of the Interior as the true northern boundary of the reservation. 10. In 1890 a Commission was appointed under authority of an act of Congress (26 Stat. 336, 355) to investigate the various claims as to the true northern boundary. This commission reported that the Handley-Campbell line was the true northern boundary, and Congress on June 6, 1894, passed an act (28 Stat. 86) establishing this boundary as the true northern boundary of the reservation. 11. In 1917 (39 Stat. 969) Congress appropriated the sum of $5,000 for a further investigation into the question of the true northern boundary. Pursuant thereto Fred Mensch, United States Surveyor, investigated the question and reported that the McQuinn survey was the correct northern boundary of the reservation. 12. In 1919 the Commissioner of the General Land Office reviewed the Mensch report and concluded that the Handley-Campbell line was the true northern boundary. 13. The true northern boundary of the reservation runs from the 72-mile post of the McQuinn survey in a direct line to his 30-mile post at Little Dark Butte in the Cascade Mountains. From McQuinn's 712-mile post it runs in a direct line to the point in the middle of the channel of the De Chutes River established by Handley as his initial point. The western boundary of the reservation runs from McQuinn's northwest corner in a direct line to the summit of Mt. Jefferson. [13a. The southern boundary of the reservation runs from Mt. Jefferson along the Jefferson Creek until this creek empties into the Metolius River; thence along this River to its junction with the De Chutes River. The eastern boundary runs from the junction of the Metolius River and the De Chutes River northernly along the De Chutes River to Handley's initial point in the middle of the channel of the De Chutes River, said point being "opposite the eastern termination of a range of high lands usually known as the Mutton Mountains."] Opinion of the Court 95 C. Cls. 14. Pursuant to the provisions of articles 2, 3, and 4 of the treaty of June 25, 1855 (12 Stat. 963), the United States has disbursed for the benefit of plaintiff Indian tribe the sum of $313,682.72. 15. Pursuant to the provisions of the treaty of Novemember 15, 1865 (14 Stat. 751), the United States has disbursed for the benefit of plaintiff Indian tribe the sum of $3,500.00. The court decided (1) that the northern boundary runs from McQuinn's 30-mile post at Little Dark Butte southeastwardly along the line established by him to his 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 is the western boundary established by McQuinn; (3) that the plaintiff was entitled to recover the value of the lands between these boundaries and the northern and western boundaries established by Handley and Campbell; and (4) the plaintiff was not entitled to recover on its other claims. WHITAKER, Judge, delivered the opinion of the court: By the treaty of June 25, 1855 (12 Stat. 963), the plaintiff Indians ceded to the United States all the lands to which they laid claim, except a certain tract which was set apart for their exclusive use. This tract is described as follows: Commencing in the middle of the channel of the De Chutes River opposite the eastern termination of a range of high lands usually known as the Mutton Mountains; thence westerly to the summit of said range, along the divide to its connection with the Cascade Mountains; thence to the summit of said mountains; thence southerly to Mount Jefferson; thence down the main branch of De Chutes River; heading in this peak, to its junction with De Chutes River; and thence down the middle of the channel of said river to the place of beginning. The setting apart of the above-described lands as a reservation for them was, however, subject to the following proviso: Provided, however, That prior to the removal of said Indians to said reservation, and before any improvements contemplated by this treaty shall have been com 23 Opinion of the Court menced, that if the three principal bands, to wit: the Wascopum, Taih or Upper De Chutes, and the Lower De Chutes bands of Walla-Wallas shall express in council a desire that some other reservation may be selected for them, that the three bands named may select each three persons of their respective bands, who with the superintendent of Indian Affairs or agent as may by him be directed, shall proceed to examine, and if another location can be selected, better suited to the condition and wants of said Indians, that is unoccupied by the whites, and upon which the board of commissioners thus selected may agree, the same shall be declared a reservation for said Indians, instead of the tract named in this treaty. The plaintiff alleges that in pursuance of the agreement contained in this proviso another tract was selected. This tract embraces the reservation which the defendant claims is the one described above and, in addition, a very large territory, some three or four times larger. 1. The first question presented is whether or not the tribe did in fact select a reservation other than the one above described. There is no proof whatever in the record that the bands named in the proviso met in council and expressed a desire that some other reservation should be selected for them, as the treaty required. The extent of plaintiff's proof is that Indian Agent R. R. Thompson, together with the chiefs and a number of the principal men of the bands included in the treaty, went upon the reservation and that there Thompson pointed out to them its boundaries. Plaintiff's proof, therefore, is not that another reservation was selected, but only that the boundaries of the reservation described in the treaty, as pointed out to them by the Indian Agent, were not the boundaries contended for by the defendant. There is no proof that the Indians selected any reservation other than that described in the treaty. Since no other reservation was selected, the plaintiff is bound by the description of the reservation as contained in the treaty. The trip of the Indian Agent and the chiefs and principal men of the tribes to the reservation was made some two years after the treaty was signed. Even if it be true that on this trip the Indian Agent pointed out to them boundaries other 449973-42-CC-vol. 95- 4 |