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Opinion of the Court

First Item

On June 11, 1855, a treaty between the parties was agreed upon, later ratified on March 8, 1859 (12 Stat. 957), under the terms of which a certain reservation was set apart to the plaintiff, and under which plaintiff relinquished its claim to all other lands. Later, in 1863, a treaty was negotiated between the parties, ratified on April 17, 1867 (14 Stat. 647), under which, in consideration of the sum of $262,500, the plaintiff ceded to the defendant all of its lands except a certain area therein described.

Finally, in 1893 an agreement was entered into between the parties, which was ratified by the Congress on August 15, 1894 (28 Stat. 286, 326–332), under which the plaintiff ceded to the defendant all of its unallotted lands, with certain reservations, for a consideration of $1,626,222. Among the lands reserved from the cession was a tract 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; The plaintiff alleges that these lands were later sold by the United States and the proceeds thereof were deposited in the general funds of the Treasury of the United States, and it is alleged that the plaintiff has received no compensation therefor. Whether or not these allegations are true, plaintiff is not entitled to recover on this item, because in the article reserving these lands from the cession it is provided that the United States shall purchase them upon certain conditions, whereupon the right of occupancy of the tribe in the land "shall terminate and cease and the complete title

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95 C. Ols. Opinion of the Court thereto immediately vest in the United States.” The lands were purchased by the United States, the condition having been complied with, and upon their purchase, in accordance with the agreement, the right of occupancy of said Indians in said described tracts terminated and ceased and the complete title thereto immediately vested in the United States.

Second Item

By the treaty of 1863 the plaintiff relinquished to the United States all the lands previously reserved for their use and occupation by the treaty of 1855, except a certain described tract. This tract was reserved for them "for a home, and for the sole use and occupation of said tribe.” The treaty provided for a survey of the lands and for the allotment of 20 tillable acres thereof to each male person of twenty-one years or over. These allotments were to be "set apart for the perpetual and exclusive use and benefit of such assignees and their heirs.” It was also provided that the “residue of the land hereby reserved shall be held in common for pasturage for the sole use and benefit of the Indians.”

After these, and perhaps other, allotments had been made, the plaintiff and the defendant entered into the agreement of 1893, under the terms of which the plaintiff ceded to the defendant "all the unallotted lands within the limits of said reservation," with certain reservations. It later developed that of the allotted lands not sold 10,542.68 acres had been erroneously allotted to persons who were not members of the Nez Percé tribe. Accordingly, these allotments were cancelled. Of the total of 10,542.68 acres of allotments which were cancelled, 3,336.94 acres were reallotted to members of the Nez Percé tribe. Of the balance, 5,867.5 acres were patented on homestead entries, 74.55 acres were set apart for the Craig's Domain Claim, and 1,263.69 acres are vacant. The plaintiff sues for the value of all the cancelled allotments, except those which were reallotted to members of the Nez Percé tribe.

We are of opinion that plaintiff is entitled to recover on this claim. The only lands ceded to the defendant by the plaintiff were the “unallotted” lands. The 10,542.68 acres had been allotted, although erroneously, and, therefore, were

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Opinion of the Court not included in the cession. Title to these lands never passed from the plaintiff to the defendant. When these allotments were cancelled, title to the lands, therefore, reverted to the plaintiff, their original owner.

If there could be any doubt that these erroneously allotted lands were not ceded, the negotiations between the Indians and the defendant's commissioners leave no question about it. Throughout the negotiations they speak only of the unallotted lands. Nowhere is there a suggestion that any part of the allotted lands should be ceded. There was no suggestion that some of them may have been erroneously allotted, and, therefore, no exception of these from the lands retained by the plaintiff.

On the sixth day of council one of the Indians requested the commissioners to "bring the amount of the number of acres on the reservation before allotment was made and also the amount of land that has been allotted to the Indians." "Then,” it was said, “we can find out how much there is on the outside of the allotments." The following day the commissioners reported as follows (Senate Ex. Doc. 31, p. 47):

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The reservation contains_-
The allotments comprise.

Acres 756, 968 182, 234

Leaving a surplus of lands.---
Reserved for wood and timber---

574, 734 61, 820

509, 914

If the amount of timber land is reduced to 34,820 acres it will

add to surplus ---

30,000

And the surplus to be sold will amount to..

539, 914 For these the commissioners originally proposed to pay a price of $2.50 an acre, but, after seven days of meeting in council, on the eighth day they finally agreed to pay $3.00 an acre. The price paid at $3.00 an acre was for 542,074 acres, a total of $1,626,222. This was the entire acreage in the reservation, except 32,660 acres reserved for timber lands and the 182,234 acres that had been allotted, which included the 10,542.68 acres that had been erroneously allotted. It follows that the Government did not acquire and did not pay for these 10,542.68 acres.

95 C. Cls.

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Opinion of the Court On November 8, 1895, the President issued a proclamation which, after reciting the cession of 1893, declared "that all of the unallotted and unreserved lands acquired from the Nez Percé Indians, by said agreement, will, at and after the hour of 12 o'clock, noon, (Pacific Standard time) on the 18th day of November 1895 and not before, be opened to settlement.

The proclamation recited that the lands to be opened for settlement were particularly described in a schedule attached. This schedule is not before us, but it is evident it included the acreage in question because the report of the Assistant Secretary of the Interior in this case shows that of this acreage 5,867.5 acres have been patented in homestead entries.

This proclamation of the President was an expropriation of these lands for the benefit of the defendant, both the acreage later disposed of and the vacant land, for which the plaintiff is entitled to a money judgment under the jurisdictional act (45 Stat. 1249) conferring jurisdiction on this court to adjudicate

all

1 legal and equitable claims of whatsoever nature

arising under or growing out of the original Indian title * including all title, claim, or rights growing out of [the treaties above mentioned

and more particularly as to the following claims:

2. Claim for certain lands included in canceled allotments

and thereafter disposed of by the United States, said lands not being included in the area ceded by said treaties or said agreement of May 1, 1893.

Third Item

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Under the agreement of 1893 the defendant was obligated to pay to the individual members of the Nez Percé Tribe the $1,626,222 agreed to be paid for the lands ceded under the agreement. Plaintiff says that $41,550.05 of this amount was paid to persons not entitled thereto because the allotments of land to them had been erroneously made, because made to nonmeinbers of the tribe, and were later cancelled.

By article III of the agreement of 1893, it was provided that the consideration of $1,626,222 for the ceded lands should

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Opinion of the Court be paid to the plaintiff Indians per capita. If some part of the money for distribution has been paid to nonmembers of the tribe, the plaintiff, of course, is entitled to recover it. In many instances, however, it is not clear from the report of the General Accounting Office, which is the only proof on this feature of the case, that the payments set out were payments to nonmembers of the tribe or their representatives.

As the case is submitted under rule 39 (a) it is not necessary for us to determine at this stage of the proceeding the amount paid to nonmembers of the tribe.

Fourth Item

Lastly, the plaintiff sues for the value of gold alleged to have been removed from the reservation by white people prior to the agreement of 1893. Plaintiff relies on the following portion of article II of the treaty of 1855, later reaffirmed by the agreement of 1893, which reads:

All which tract shall be set apart, and, so far as necessary, surveyed and marked out for the exclusive use and benefit of said tribe as an Indian reservation; nor shall any white man, excepting those in the employment of the Indian department, be permitted to reside upon the said reservation without permission of the tribe and the

superintendent and agent; There is no allegation that white people went upon plaintiff's lands at the direction of the defendant or even at its instigation. Liability is predicated solely on the defendant's failure to keep them out.

The purpose of the above provision was to set apart absolutely the lands described for the exclusive use and benefit of the plaintiff. The second clause, that no white man should be permitted to reside on the reservation, was inserted only to emphasize the statement in the first clause that the lands were set apart "for the exclusive use and benefit of said tribe.” We are clearly of opinion that no intention can be gathered therefrom that the defendant intended to guarantee that no white man should reside thereon and that it should respond in damages if they did.

Independent of treaty, the defendant as the sovereign power was under the duty of protecting the plaintiff in the

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