608 Opinion of the Court different from that involved in and intended by the patent, merely because it is impossible or impracticable to construct the other device so that it can be operated without inadvertently or unskillfully, upon occasion, infringing upon the outside boundaries of what might seem literally to be within the patent. The purpose and the real or supposed advantages of the patent have a bearing upon the scope of the monopoly. If the accused infringer does not recognize as an advantage the idea of the patent, avoids the use of the idea to the greatest extent possible, and does not in fact gain any advantage from his occasional straying across the supposed boundary, he is not, in fact, an infringer because the proper boundary of the patent does not extend so far. In the instant case, it would not be a proper application of the purpose of the patent laws to construe plaintiff's assumed patent for a device to retard the speed of a plane while still in flight so broadly as to prevent the development and use by others of a device to stop the roll of a plane after it has touched the landing surface. The two ideas are different. Indeed, plaintiff's asserted novelty lay only in the accomplishment of the former, since the latter was plainly anticipated. But because the whole problem arises out of the necessity for landing planes on a surface of limited area, and because the accomplishment of the feat is at best a hazardous one involving great skill, the defendant, desiring to retard the speed of the plane after it has touched the surface, should not be compelled, in order to avoid infringement, to waste a considerable amount of the limited landing area by locating its transverse cables so far forward on the deck that its planes will never engage one of the cables until after they have touched the landing surface. We conclude that all of plaintiff's claims are invalid as having been anticipated, and that his claim to a device attached in the rear of and so disposed as to exert a retarding force in approximate fore and aft horizontal alinement with the center of gravity of the plane, in order to retard the speed of the plane while still in flight, was not infringed by the defendant. The findings of fact, conclusion of law, and opinion heretofore filed are vacated and withdrawn, and new findings of Syllabus 95 C. Cls. fact, conclusion of law dismissing the petition, and this opinion are now filed. It is so ordered. JONES, Judge; and WHALEY, Chief Justice, concur. LITTLETON, Judge, concurs in the findings, and the opinion as to claim 1 of the patent, and dissents as to claims 2, 3, 9, and 12 to 16 inclusive. WHITAKER, Judge, took no part in the decision of this case. THE NORTHWESTERN BANDS OF SHOSHONE INDIANS v. THE UNITED STATES [No. M-107. Decided March 2, 1942] On the Proofs Indian claims; exclusive use and occupancy; treaty of July 30, 1863.— Where, in the treaty of July 30, 1863, between the Northwestern Bands of the Shoshone Nation or Tribe of Indians and the United States, the defendant did not set aside any specific area for the exclusive use and occupancy by plaintiff bands; and where by said treaty the defendant did not recognize or acknowledge any exclusive use and occupancy right and title of said Indians to the whole or any portion of the acreage claimed in the instant case; it is held that plaintiffs are not entitled to recover as for a taking by the United States. Same; limitation in the Jurisdictional Act.-Although the plaintiff bands, insofar as other tribes were concerned, may have exclusively occupied and used all or a portion of the territory involved in the instant claim as their aboriginal home (and the record is held to be sufficient to show they did); it is held that plaintiff bands are not entitled to recover, for the reason that the Jurisdictional Act under which the instant case is brought authorizes the court to consider, adjudicate and render judgment only on a claim "arising under and growing out of the treaty with said plaintiff bands." Same. Such a claim must be one that is within the terms of and supported by the provisions of the treaty; and aboriginal occupancy and use is not such a claim. Same; treaties of 1863; peace and amity. The treaties made with the Shoshone Indians in 1863 were treaties of peace and amity, and it was not the intention of the Government to recognize, by said treaties, any exclusive use and occupancy 642 Reporter's Statement of the Case title of the Indians to the lands which said Indians then occupied. Same; Mexican cession; status of Indian lands.-The question whether under the Mexican laws at the time of the Mexican cession of 1848 plaintiff bands had use and occupancy rightsthat is, "Indian title"-to certain of the lands involved in the instant case based upon aboriginal possession or occupancy, to the exclusion of other Indian tribes, has been decided adversely to such contention in the decision of the Supreme Court in United States, as Guardian, v. Santa Fe Pacific Railroad Co., 314 U. S. 339. Same; deficiency in expenditures of appropriated amounts.—Where, following the ratification of the treaty of July 30, 1863, there was appropriated by Congress for the Northwestern Bands of Shoshone Indians the sum of $5,000 annually for 20 years, as stipulated in said treaty; and where it appears from the record that the total of the amount so appropriated, except $10,804.17, was expended and disbursed by the Government in goods and provisions for said Northwestern Bands; an interlocutory order, under Rule 39a of the court, was entered reserving for further proceedings the determination of the amount of recovery, if any, in respect to said amount of $10,804.17 after determination of the amount of offsets, if any. Same; interest as part of just compensation.-Plaintiff bands are not entitled to recover interest on such deficiency, if any, in the treaty annuities, for the reason that the record does not establish that this money was taken by the United States under such circumstances as would entitle the plaintiff bands to interest as a part of just compensation. The Choctaw Nation v. United States, 91 C. Cls. 320 cited. The Reporter's statement of the case: Mr. Ernest L. Wilkinson and Mr. Herman J. Galloway for the plaintiffs. Mr. Joseph Chez, Mr. Charles J. Kappler, Mr. Frank K. Nebeker, and Mr. Clinton D. Vernon were on the brief. Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief. In the petition plaintiff bands of the Shoshone tribe seek to recover $15,000,000 for the alleged unlawful taking of their lands, aggregating 15,643,000 acres, in alleged violation of a treaty of July 30, 1863, and $70,000 of the treaty annuities of $5,000 per annum for twenty years which it is Reporter's Statement of the Case 95 C. Cls. alleged the Government failed to furnish in goods and provisions as agreed. Defendant contends that the treaty of July 30, 1863, with plaintiff bands was a treaty of peace and amity and that it did not recognize, acknowledge, or concede as against the sovereign an exclusive use and occupancy right or title of the Indians; that the United States did not at that time recognize or has it ever recognized an exclusive right of occupancy in plaintiff bands to the whole or any part of the territory now claimed by them, but that it has ever exercised dominion and complete ownership over it. Defendant further contends with reference to the annuity provisions of the treaty that if there was any deficiency in the furnishing of the annuity goods provided therein, such deficiency did not exceed $10,804.17. The court, having made the foregoing introductory statement, entered special findings of fact as follows: 1. Plaintiff bands of Shoshone Indians were in 1863 and prior thereto a part of about fourteen bands of the Shoshone nation or tribe of Indians located in the territories of Washington and Utah. The area inhabited and occupied by the Shoshone nation or tribe of Indians became a part of the states of Wyoming, Colorado, Utah, Idaho, and Nevada. For convenience the officials and agents of the United States having charge of Indian affairs designated and referred to the plaintiff Indians of the Shoshone tribe as the "Northwestern" bands of the Shoshone Indians in their correspondence, reports, and treaties. The Shoshone nation, or tribe, itself had no such recognized division. The Shoshone tribe of Indians with its affiliated bands of Bannock Indians and a number of individual Indians of other friendly tribes, who had extensively intermarried among the Shoshones and lived with them, roamed over, occupied, and used as their home a vast area approximating 80,825,000 acres. During and prior to 1863 the Shoshone Tribe of Indians and the affiliated bands of Bannocks, from time immemorial, roamed over, lived upon, occupied, and used a territory of the approximate area above mentioned as their home and for their support and livelihood, by hunt 642 Reporter's Statement of the Case ing and gathering roots, berries and nuts. This approximate area was exclusively claimed by the Shoshone tribe and Bannock Indians as against other tribes, and their possession, occupancy, and use thereof was asserted by them to the exclusion of other tribes of Indians and was thus recognized generally by other separate Indian tribes. During and prior to 1863 the Indians of the Shoshone tribe and the affiliated bands of Bannocks numbered about 9,700. Washakie was the main or principal chief of the Shoshone nation or tribe and of the affiliated Bannocks, and the Shoshone and Bannock Indians and the chiefs of the various bands of these tribes so recognized him as the principal chief of the tribe. As was the usual custom among Indian tribes, the Shoshone and Bannock Indians had various bands, each having a chief and various subchiefs or headmen. 2. The territory for which compensation is claimed by plaintiff bands of the Shoshone tribe as for a taking by the United States of their use and occupancy title, which interest they claim was recognized and acknowledged by the United States in a treaty of July 30, 1863, consists of 15,643,000 acres of land of which 6,067,000 acres are located in the southeastern part of Idaho, 6,389,000 acres in the northwestern corner of Utah, including Great Salt Lake, and 3,187,000 acres in the northeast corner of Nevada. The population of plaintiff bands in 1863 was between 1,500 and 1,800. 3. In 1850, and prior thereto, practically nothing was known by the Government with reference to the Indians inhabiting the region which became southern Idaho, eastern Oregon, northern Nevada and northern Utah, and little, if anything, was definitely known of the tribal distinctions or racial affiliations, and the Government had no knowledge of the particular or specific areas occupied by particular tribes or bands. The Indians of this region were denominated as Shoshones, Snakes, and Diggers, or Paiutes. The Indians of the Shoshone and Bannock tribes have always shown an attitude and desire to be peaceful and friendly to the whites and to the Government. Washakie, principal chief of the Shoshone tribe, and the majority of |