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dry packing to be determined by the liquid method as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court's previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing

Sec. 3. Any suit brought under the provisions of this Act shall be instituted within one year from the date of the approval hereof, and the court shall consider as evidence in such suit any or all evidence heretofore taken by either party in the case of Allen Pope against the United States, numbered K-366, in the Court of Claims,* together with any additional evidence which may be taken.

SEC. 4. From any decision or judgment rendered in any suit presented under the authority of this Act, a writ of certiorari to the Supreme Court of the United States may be applied for by either party thereto, as is provided by law in other cases.

Approved, February 27, 1942.

* See 76 C. Cls. 64; 81 C. Cls. 658; 86 C. Cls. 18; 303 U. S. 654, certiorari denied.

CASES DECIDED

IN

THE COURT OF CLAIMS

December 1, 1941, to March 31, 1942

THE NEZ PERCÉ TRIBE OF INDIANS v. THE

UNITED STATES

(No. K-107. Decided October 6, 1941; Plaintiff's motion and defend.

ant's motion for new trial overruled, January 5, 1942)

On the Proofs

Indian claims; treaties of June 11, 1855, and June 9, 1863; alleged

failure to pay amounts due; duty of sovereign.-Plaintiff sued the defendant for $3,266,826.22, basing its claims on four items:

(1) Failure to pay to the tribe the amount received from the sale of lands within what is known as the "Old Agency Reserve" or the "Langford Claim”;

(2) Failure to pay to the tribe money received from the sale of lands allotted erroneously to nonmembers of the tribe and later cancelled ;

(3) Per capita payments erroneously made to nonmembers of the tribe;

(4) For gold mined and removed by nonmembers of the tribe from lands alleged to be within the plaintiff's reservation.

The case was befcre the Court under Rule 39(a), and it was held:

(1) That plaintiff was not entitled to recover the amount received from the sale of, or for the value of, the lands in the "Old Agency Reserve" which were purchased by the de fendant.

(2) That plaintiff was entitled to recover the value of the number of acres of cancelled allotments which were opened to homestead entry by the proclamation of the President on November 8, 1895 (29 Stat. 873,876), with interest at 5 percent per annum.

(3) That plaintiff was entitled to recover whatever part of the $1,626,222 was paid to nonmembers of the tribe and for which the defendant has not accounted to the plaintiff, with interest at 5 percent per annum.

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35 C. Cls. Reporter's Statement of the Case (4) That plaintiff was not entitled to recover the value of

any gold removed from its reservation. Same; no guarantee to exclude nonmembers of tribe.—Where there

is no allegation that white people went upon plaintiff's lands at the direction of the defendant, or even at defendant's instigation; and where liability is predicated solely on the defendant's failure to keep out said white persons; it is held that from the language of the treaty of 1855 it cannot be inferred that the defendant intended to guarantee that no white men should reside on said reservation and that defend

ant should respond in damages if they did. Same; duty of sovereign.-Independent of treaty, the defendant as

the sovereign power was under the duty of protecting the plaintiff in the peaceful occupation and possession of its property but this duty goes no further than to use its forces to endeavor to prevent a threatened wrong and to afford plaintiff redress in its courts against the wrongdoer if such wrong is committed.

The Reporter's statement of the case:

Mr. F. M. Goodwin for the plaintiff. Messrs. Lawrence Cake, C.C. Dill, and G. W. Jewett were on the briefs.

Mr. Walter C. Shoup, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the briefs.

The court made special findings of fact as follows:

1. Plaintiff's petition is filed under the authority of an act approved February 20, 1929 (45 Stat. 1249), conferring jurisdiction on this court “to hear, determine, adjudicate, and render final judgment” on plaintiff's claims as set out in the act.

2. The Nez Percé Tribe of Indians originally occupied an area in what is now northwestern Idaho, northeastern Oregon, and southeastern Washington, on the lower Snake River and its tributaries, between the Blue Mountains of Oregon and the Bitter Root Mountains of Idaho, a part of which area was ceded and the remainder reserved by them by their first treaty of June 11, 1855 (12 Stat. 957).

3. By the treaty of June 9, 1863, ratified April 17, 1867 (14 Stat. 647), the Nez Percé Tribe ceded their reservation under the treaty of 1855, supra, except a portion thereof which was set apart as their diminished reservation.

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Reporter's Statement of the Case 4. An agreement between the United States and the Nez Percé Tribe of Indians was concluded on May 1, 1893, and ratified by Congress on August 15, 1894 (28 Stat. 286, 326– 331; Sen. Ex. Doc. No. 31, 53rd Cong., 2d sess., pp. 19-25, Cong. Doc. Series No. 3160).

Under the terms of this agreement all of the unallotted lands were ceded with certain reservations, among which was a tract of land described as follows:

Also that there shall be reserved from said cession the land described as follows: "Commencing at a point at the margin of Clearwater River, on the south side thereof, which is three hundred yards below where the middle thread of Lapwai Creek empties into said river; run thence up the margin of said Clearwater River at low-water mark, nine hundred yards to a point; run thence south two hundred and fifty yards to a point; thence southwesterly, in a line to the southeast corner of a stone building, partly finished as a church; thence west three hundred yards to a point; thence from said point northerly in a straight line to the point of

beginning; These lands were purchased by the United States upon the performance of the conditions specified in the agreement.

5. In arriving at the price to be paid for the lands ceded by the agreement of 1893, the parties calculated that the total reservation comprised 756,968 acres, and that 182,234 acres had been allotted. The plaintiff reserved 32,660 acres of timber land and, except for the Old Agency Reserve, sold the balance to the defendant for $3.00 an acre, or a total consideration of $1,626,222. Among the 182,234 acres that had been allotted, there were 10,542.68 acres that had been erroneously allotted. These allotments were later cancelled. Of this acreage the defendant reallotted 3,336.94 acres to members of the Nez Percé Tribe, 74.55 acres were set apart for the Craig's Domain claim, and the balance was opened to homestead entry by Presidential Proclamation on November 8, 1895 (29 Stat. 873–876).

6. Under the terms of the agreement of 1893 the consideration to be paid for the lands ceded was to be paid to members of the plaintiff tribe per capita. Some portion of the funds distributed prior to the cancellation of the errone95 C. Cls. Opinion of the Court ous allotments was distributed to persons who were not members of the plaintiff tribe.

7. In 1860 gold was discovered on lands alleged to be within the lands reserved by the treaty of 1855. White men undertook to locate camps thereon and to extract the gold. Some effort was made by the defendant to exclude them from the lands, but these efforts were unsuccessful. Several camps were established and a large quantity of gold was extracted before execution of the agreement of 1893 ceding to the defendant all unallotted lands, with certain reservations. These settlements were not made with the permission of the plaintiff tribe and the superintendent and agent.

The court decided that the plaintiff was entitled to recover the value of the number of acres of cancelled allotments which were opened to homestead entry by the proclamation of the President on November 8, 1895 (29 Stat. 873-876), with interest at 5 percent per annum; that plaintiff was entitled also to recover whatever part of the $1,626,222 was paid to nonmembers of the tribe and for which the defendant has not accounted to the plaintiff, with interest at 5 percent per annum; and that plaintiff was not entitled to recover the amount received from the sale of or for the value of the lands in the Old Agency Reserve which were purchased by the defendant; and that plaintiff was not entitled to recover the value of any gold removed from its reservation.

WHITAKER, Judge, delivered the opinion of the court:

The plaintiff sues the defendant for $3,266,826.22, basing its claim on four items: (1) the failure to pay to the tribe the amount received from the sale of lands within what is known as the "Old Agency Reserve” or the "Langford Claim;" (2) failure to pay to the tribe money received from the sale of lands allotted erroneously to nonmembers of the tribe and later cancelled; (3) per capita payments erroneously made to nonmembers of the tribe; (4) for gold mined and removed by nonmembers of the tribe from lands alleged to be within the plaintiff's reservation.

The case is before us under rule 39 (a).

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