Excerpts are copied from court cases. Full documents can be viewed here: 154 pgs .PDF file of the Ute Indian Tribe, Plaintiff, v. The State of Utah, 1981; Uintah Ute Indians of Utah v. The United States, 1993; and Uintah and White River bands of Ute Indians v the United States, 1957
The UTE INDIAN TRIBE, Plaintiff, v. The STATE OF UTAH, defendant in intervention, Duchesne County, a political subdivision of the State of Utah, Uintah County, a political subdivision of the State of Utah, Roosevelt City, a municipal corporation, and Duchesne City, a municipal corporation, Defendants, United States of America, Amicus Curiae, Paradox Production Corporation, a Utah corporation, Amicus Curiae
Civ. No. C 75-408
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
521 F. Supp. 1072; 1981 U.S. Dist. LEXIS 9948
June 19, 1981
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff Indian tribe filed suit seeking declaratory and injunctive relief establishing the exterior boundaries of the Uintah and Ouray Reservation, defining the force and effect of the Ute Tribe’s Law and Order Code within those boundaries, and restraining defendants, state and associated divisions, from interfering with enforcement of the Code.
OVERVIEW: Plaintiff Indian tribe sought declaratory and injunctive relief to establish the exterior boundaries of the Uintah and Ouray Reservation, to define the force and effect of the Ute Tribe’s Law and Order Code within those boundaries, and to restrain defendants, state and associated divisions, from interfering with enforcement of the Code. The court held that the express language, legislative history, and surrounding circumstances of 33 Stat. 1905 justified the conclusion that plaintiff’s reservation was diminished by the withdrawal of timber lands for national forests. The court held that the record wholly lacked the clear expression of congressional intent to disestablish plaintiff’s reservation and the hard evidence necessary to overcome the construction of ambiguities in favor of plaintiff was simply not there. The overall tone of the evidentiary record harmonized with a finding that plaintiff’s reservation continued in Indian reservation status, diminished only by the national forest and strawberry project withdrawals.
OUTCOME: The court held that congressional intent was lacking to disestablish plaintiff Indian tribe’s reservation and that the reservation continued, diminished only by national forest and strawberry project withdrawals.
Pg 64
The federal government initially made little effort to provide a viable agency establishment on the Uintah Valley Reservation or to afford the Utes any incentive for moving there. Combined with the closing of the Indian farms, the Indian Bureau’s neglect at Uintah left the Utes to their own devices. The bands scattered into loose associations of families which hunted, gathered and raided for food. A number of Utes prosecuted a series of raids upon white livestock and settlements.
Acting pursuant to congressional directive, O. H. Irish, new Superintendent of Indian Affairs for Utah, succeeded in securing the presence of many of the Utes at a treaty council at the old Indian farm at Spanish Fork, Utah, which was held in June, and included the presence of ex-Governor Brigham Young. 63 On June 8, 1865, [*1095] the assembled Utes concurred in a draft of a treaty by which they ceded all right, title and interest in their lands in Utah in return for the guarantee of possession of the Uintah Valley Reservation, to which they agreed [**65] to remove. 64 The treaty also made detailed provision for the staffing and operation of the Uintah Agency, and provided that the 291,480 acres of Indian farm reservations be sold, proceeds to be applied to improvements at the Uintah Reservation. 65 Superintendent Irish held a similar council with the Weber Utes, securing their agreement to the terms of the Spanish Fork Treaty under Article I of an abbreviated treaty of October 30, 1865. 66
66 See V Kapp. 698-699, or Appendix A, infra, for text.
While Irish and Young were adamant in their insistence that the Indians sign the treaty, they apparently failed to indicate to the Indians that there was doubt as to ratification of the treaties by the Senate. After all, Congress on February 23, 1865 had authorized a budget of $ 25,000 to finance the negotiation of these treaties. 67 A year earlier, Congress had mandated the sale of the small “farm” reservations and had confirmed the establishment of the Uintah Valley Reservation. 68 Yet when submitted, the treaties [**67] failed of ratification. 69
2 of 3 DOCUMENTS
UINTAH UTE INDIANS OF UTAH, Plaintiff, v. THE UNITED STATES, Defendant.
No. 92-427L
UNITED STATES COURT OF FEDERAL CLAIMS
28 Fed. Cl. 768; 1993 U.S. Claims LEXIS 107
August 6, 1993, Filed
CASE SUMMARY:
PROCEDURAL POSTURE: Under the Treaty with the Utah, Dec. 30, 1849, art. IV, 9 Stat. 984 (1849 treaty), plaintiff Indian tribe filed suit against defendant federal government, asserting aboriginal title in certain lands. The federal government defended with an alternative motion seeking either dismissal or summary judgment.
OVERVIEW: The Indian tribe asserted that it had aboriginal title to land in Utah to which the federal government asserted sole ownership. The federal government’s dispositive motion raised four issues regarding 1) whether the Indian tribe was a party to the 1849 treaty; 2) whether the Indian tribe had aboriginal title in the lands at issue; 3) whether the Indian tribe properly pled a breach of trust; and 4) whether collateral estoppel barred the Indian tribe’s claim. The court granted summary judgment to the federal government. The court held that an earlier ruling of the Indian Claims Commission collaterally estopped the Indian tribe’s successful prosecution of its claim in the current litigation. The court also concluded that the Indian tribe did not possess aboriginal title to the lands claimed because that title had not previously been recognized, and there was no evidence of the Indian tribe’s actual and continuous use of the lands claimed. The Indian tribe’s breach of trust claim failed because the 1849 treaty did not create a trust relationship, and the court had no jurisdiction over claims that Congress breached a trust relationship.
OUTCOME: The court granted the federal government’s motion for summary judgment.
Pg 2
1 The parties dispute the exact identity and location of plaintiff’s band. Indeed, the multiple bands of Ute Indians confuse the analysis. Plaintiff tribe calls itself the Uintah Utes and the Ute Band.
- FORT DOUGLAS
In July 1862 the Government erected a military outpost, Camp Douglas, in the Utah Territory. On October 26, 1862, the Government renamed the camp Fort Douglas. On September 3, 1867, President Andrew Johnson reserved the land as a military post. The Fort was subsequently enlarged in 1887 and 1890. Fort Douglas is located on the east side of the Salt Lake Valley at the mouth of the Red Butte Canyon in the Wasatch Mountains. The fort lies two miles east of Salt Lake City. This land is the focal point of the case at bar. Plaintiff alleges that its ancestors “were the original [**3] inhabitants upon the land . . . now known as Fort Douglas, and exclusively used and occupied that land in accordance with their lifestyle, habits, customs, and usage.” Plf’s Compl. filed June 25, 1992, P 5. Plaintiff further alleges that in 1852 “the territorial governor of the State of Utah 2 and [an] Indian agent” acknowledged unspecified “Indian” title to the land encompassed in Fort Douglas. Id. P 6. Plaintiff contends that the Weber Utes, with whom the tribe asserts continuity of [*772] identity, continued to live in and around Salt Lake City until 1872, when they left subsequent to the signing of the Spanish Fork Treaty.
Pg 4
II. GENERAL HISTORICAL BACKGROUND
1. Aboriginal settlement of the Salt Lake Valley
Indians inhabited the area in and around what is now Fort Douglas as early as 1805 when Lewis & Clark encountered an Indian who spoke of the inhabitants in and around the Great Salt Lake. 3 Other explorers recorded contacts with Indians in the Salt Lake Valley in 1825, 1842, and 1844. In 1847 Mormon settlers arrived in Utah. Many early Mormon settlers noted encounters with Indians in and around Red Butte Canyon, near and on Fort Douglas’ present site. These early settlers called the Indians “Utes” or “Shoshone.” Plaintiff alleges that Indians later known as Uintahs inhabited the Salt Lake area under various names, such as Weber Utes (also known as Cumumbah) or Gosiute. Eventually these sub-tribal groups were all classified as the Uintah Band. In 1850 Congress created the Utah Territory which included part of what became the Colorado Territory.
3 Defendant also initially disputed the very existence of any Indians within the subject area. In its reply brief, defendant apparently concedes that some non-Uintah Utes inhabited the Salt Lake Valley.
Pg 11-12
In 1861 President [**11] Abraham Lincoln issued an executive order creating the Uintah Reservation. Exec. Order of Oct. 3, 1861 (1 Kappler 900). Congress did not immediately ratify the order. 7 Plaintiff alleges that the Government desired a buffer zone between the Mormons in Utah and the eastern half of the United States. Moreover, the Government worried that Indian proximity to the overland routes to the West Coast imperiled the safety of settlers, miners, and the mails. The Army constructed Fort Douglas to protect these overland routes. Despite the executive order, however, the Government made no immediate effort to relocate the Uintahs.
7 It is unclear whether ratification of such an order was required. However, in 1864 Congress ratified the order, thus consenting to the creation of the Uintah Reservation. Act of May 5, 1864, ch. 77, 13 Stat. 63 (1864).
In 1863 the Government entered into two agreements with the Utahs. The first, an oral agreement finalized on July 7, 1863, was concluded with Chief Little Soldier and the Weber (or Cumumbah) [**12] Indians near Salt Lake City. According to a written summary of this oral peace agreement, the Weber Utes agreed to cease depredations against the white man. They further agreed to remain encamped near the Great Salt Lake until allowed to venture to their hunting grounds. At a later meeting, James Doty, the Superintendent of Indian Affairs met with other unspecified Ute bands. These bands also agreed to make peace in return for presents and provisions.
On October 12, 1863, Superintendent Doty entered into the Treaty of Tuilla Valley (also known as the Shoshonee-Goship Treaty). Shoshonee-Goship Treaty, Oct. 12, 1863, 13 Stat. 681. Plaintiff alleges that the Cumumbah were among the Indians who signed this treaty of amity and peace. Because plaintiff contends that the Cumumbah constituted part of the Uintah Band, plaintiff views itself as a party to this treaty. However, the treaty document only specifies the Shoshonee-Goship Band of Indians. This treaty specified the following area as Shoshonee territory: “On the north by the middle of the Great Desert; on the west by Steptoe Valley; on the south by Tooedoe or Green Mountains; and on the east by Great Salt Lake, Tuilla, and Rush Valleys.” [**13] Shoshonee-Goship Treaty, Oct. 12, 1863, art. V, 13 Stat. 682. Plaintiff alleges that these boundaries encompass the area now occupied by Fort Douglas. The Shoshonee-Goship agreed to keep travel routes unobstructed. They also consented to the construction of military posts along the westward emigrant routes. The Senate ratified the treaty in 1864.
According to plaintiff, the peace treaties entered into with plaintiff tribe did not provide for extinguishment of aboriginal title to land. The issue of who owned land in the Utah Territory therefore remained unsettled. The discovery of valuable minerals in the mountains and the resultant influx of miners further encroached upon the Indians already driven from the lowlands. Settlers in the area began to complain that the Utes had not moved with dispatch to their reservation. In 1864 the Governor of Utah, Amos Reed, asked the Government to negotiate treaties to extinguish Indian title to the land. In February 1865 Congress passed a law authorizing the President to enter into treaties with Indians in the Utah Territory that would extinguish Indian title. An Act, To Extinguish the Indian Title to lands in the Territory of Utah Suitable for [**14] Agricultural and Mineral Purposes, ch. 45, 13 Stat. 432 (1865). The Act also provided for the establishment of reservations as far as practicable from areas of white settlement. Plaintiff takes the position that this was the first congressional act to extinguish Indian title in the Salt Lake Valley. Plaintiff also urges that the Act mandated that extinguishment could only be accomplished by treaty.
[*775] In June 1865, pursuant to the congressional legislation, ex-Governor Brigham Young and the Utah Superintendent, O.H. Irish, negotiated a treaty with the Utes. On June 8, 1865, they signed the Treaty with the Utes, Yampah Ute, Pah-vant, Sanpete Ute, Tim-p-nogs, and Cumumbah Bands of the Utah Indians (also known as the Spanish Fork Treaty). In the Spanish Fork Treaty, the signatory Indians agreed to cede their claims to land title in Utah and to move to the Uintah Reservation in exchange for an annual subsistence payments. On October 30, 1865, the Weber (Cumumbah) Utes signed a treaty incorporating the terms of the Spanish Fork Treaty. From 1865-1866 most of the Utes were removed to the reservation. In March 1866 President Johnson submitted the treaty to Congress for ratification. Three years [**15] later, on March 11, 1869, Congress rejected the Spanish Fork Treaty.
Pg 16
III. THE INDIAN CLAIMS COMMISSION’S FINDINGS
The Uintah Ute Band previously brought suit against the United States for a taking of aboriginal land. In Uintah Ute Indians v. United States, $ Ind. Cl. Comm. 1 (1957), the Uintah Band sued for compensation under the fifth amendment to the U.S. Constitution and the Indian Claims Commission Act, ch. 959, 60 Stat. 1049 (1946), codified at 25 U.S.C. §§ 70-70n, 70o-70v-3 (1976) (omitted 1978), § 70w (repealed 1949). The Indian Claims Commission (“the Commission”) made extensive findings and issued an opinion in plaintiff’s favor. 8 The Commission’s findings and discussion differ from the position advanced by the same plaintiff in the instant litigation. Because the parties, subject matter, and legal issues before the Commission mirror those in the instant litigation, the court will closely canvass the Commission’s opinion.
8 In a related case, the Commission also decided a dispute involving the Uintah and Ouray Reservation itself. Uintah Ute Indians v. United States, 5 Ind. Cl. Comm. 47 (1957).
[**16] The procedural aspects of the case before the Commission reveal important details for this case. First, the original petition filed with the Commission included the Yampah, Cumumbah, and Weber Ute Bands. Plaintiff amended the petition to omit these bands and add the Seuvarit Band. 5 Ind. Cl. Comm. at 20-21. Thus, plaintiff did not allege continuity of identity with the Weber Utes, and the Commission did not discuss that band. Plaintiff alleged descent from the Uintah, Timpanoag, Pahvant, Sampitch, and Seuvarit Bands.
Pg 19-20
2. The Colorado and Utah Utes
The second major dispute concerned whether the Uintahs were parties to treaties entered into with the Colorado Utes. These treaties provided for cession [**20] of aboriginal title and therefore would have defeated plaintiff’s claims of a taking. The Commission found that in aboriginal times the Utah Utes included the following five groups: the Uintahs, located in the Uintah Valley; the Timpanoags located around Utah Lake; the Pahvants, located around Sevier Lake and Corn Creek; the Sampitches, located in San Pete County; and the Seuvarits, roaming in the area to the east of the Wasatch Mountains. 5 Ind. Cl. Comm. at 2. These groups ultimately merged under the common name of Uintah Utes. The Commission did not include the Weber or Cumumbah Utes in this amalgamation. Moreover, the Commission found that “on all four sides of their original lands . . . [plaintiff tribe was] bounded by Indian peoples of a different language, or culture, or both.” Id. at 4. The Shoshone inhabited the area west and north of plaintiff’s lands. Id. at 5. This would encompass Salt Lake City. The Southern Paiutes occupied the area to the south while the Colorado Utes lived to the east, largely in the State of Colorado.
Pg 28
1. Identity of issues
The court begins by examining the issues presented to the factfinders. Before the Commission, the parties disputed, and the Commission decided, the following issues: 1) What were the areas that plaintiff’s ancestors aboriginally [**27] occupied? 2) Were plaintiff’s ancestors legally capable of holding such title? 3) Did plaintiff tribe descend from its alleged ancestors? 4) Did the ancestors divest themselves of aboriginal title? 5) Was plaintiff estopped in this suit by previous litigation? 6) What were the boundaries of plaintiff’s aboriginal land? Uintah Ute Indians v. United States, 5 Ind. Cl. Comm. 1, 21 (1957). In the instant case, issues before the court include the following: 1) Did plaintiff’s ancestors sign the 1849 Treaty with the Utahs? 2) Did plaintiff aboriginally occupy the land encompassed within Fort Douglas? 3) Has plaintiff divested itself of title to that land? 4) Was plaintiff’s title extinguished? The court concludes the Commission’s resolution of issues 1 and 6 precludes litigation before the Court of Federal Claims of the composition of the band and the areas and boundaries of plaintiff’s aboriginally occupied lands.
a. Aboriginal title
The Commission made detailed findings with respect to plaintiff’s aboriginal lands. In finding number 3, the Commission stated:
3. That at the time plaintiff’s were deprived of their lands by defendant they were in [**28] the exclusive use and occupancy of lands lying within the following boundaries:
Commencing at the northwest corner of the Uintah and Ouray reservation in the Uintah Mountains and running thence along the crest of said mountains through Clayton, Sunset and Lone Peaks and across Jordan Narrows, where Jordan River cuts through the mountains separating Salt Lake and Utah Lake valleys; thence along the crest of such mountains to Butterfield Peaks; thence along the crest of the Oquirrah Mountains to a point thereon due east of the town of Lofgreen . . . .
5 Ind. Cl. Comm. at 2. In fact, the northern aboriginal boundary found by the Commission was consistent with plaintiff’s contentions at the time.
The described aboriginal land does not include the Salt Lake Valley and therefore does not include the land conveyed by the Government to the University of Utah. In this case plaintiff asks the court to designate [*779] the Salt Lake Valley as Uintah aboriginal land. The tribe thereby seeks to redefine and expand its aboriginal lands. For example, plaintiff presents documentary and anthropological reports showing Weber Ute occupancy of the Salt Lake Valley. Plaintiff classifies [**29] the Weber Utes as having merged into the Uintah Band. 13 In effect, plaintiff argues that the court should revisit the aboriginal boundaries established by the Commission in 1957 because the Weber or Cumumbah Utes constitute a sub-group amalgamated into the Uintah Band, along with other sub-groups, such as the Pahvants. Plaintiff further contends that the Weber Utes aboriginally occupied the Salt Lake Valley and Fort Douglas. In this manner plaintiff obtains aboriginal title to more than the Commission found in 1957. Plaintiff puts forth considerable effort to present the court with historical evidence to achieve a supplementation of a finding made by the Commission over 25 years ago.
13 Plaintiff’s historical data also indicate that the Weber Utes may more properly be classified as Shoshone or mixed Shoshone-Ute. In any event, plaintiff maintains that they integrated into the Uintah Band.
Plaintiff acknowledges that in the 1950’s the tribe argued for a northern boundary that did not include the Salt Lake Valley, [**30] but ascribes this position to counsel’s concomitant representation of the Shoshone. According to Carl S. Hawkins, a law professor at Brigham Young University, then an associate in plaintiff’s counsel’s former law firm, the Utes’ northern boundary (the court assumes that the affiant refers to the Uintah Band) contained a “region of intermixture” of Utes and Shoshone. Affidavit of Carl S. Hawkins, dated July 7, 1993, P 6. Mr. Hawkins avers: “If we attempted to define an exact boundary between the Shoshones and the Utes, the partners felt it would clutter the Northwestern Shoshone claim with an unnecessary distraction from the issues and delay resolution of that claim.” Id.P 7. Mr. Hawkins indicates that ethnological evidence linked the Salt Lake Valley with both tribes. Due to a perceived conflict of interest, plaintiff’s former counsel decided not to argue for the inclusion of the Salt Lake Valley within plaintiff’s aboriginal lands. Mr. Hawkins avers that plaintiff’s former counsel therefore drew the Uintah’s northern boundary between Utah Valley and the Salt Lake Valley.
While Mr. Hawkins’ affidavit does raise troubling questions regarding his [**31] firm’s representation of the Uintah Band, 14 it does not affect the identity of issues in the case before the Commission and the case at bar. At this stage in the analysis, the question is not whether a Uintah Band did inhabit Salt Lake Valley, but whether the issues in the two cases are identical. The Hawkins affidavit supports a conclusion that the issue of the scope of Uintah aboriginal lands was present in both the Commission proceeding and the instant case.
14 The court observes that former counsel’s representation of two Indian tribes which had claims to the same land raised a potentially disqualifying conflict of interest issue. Even if the Uintah Band consented to such representation, the court finds it difficult to understand why the Band would consent to a reduction in its aboriginal lands. How Mr. Hawkins’ firm procured the Weber Utes’ consent to withdraw as a plaintiff is also mystifying. Apparently neither the Commission nor the parties raised these concerns, and plaintiff is bound by the decades-old tactical decisions of its former counsel.
[**32] b. Sub-groups included within the Uintah Band
In order to draw aboriginal boundaries, the Commission had to determine which sub-group bands merged into the Uintah Band. Before the Commission plaintiff withdrew the Weber Utes as a plaintiff; therefore, the Commission found that the Uintah Ute Band contained the following sub-groups: Uintahs, Timpanoags, Pahvants, Sampitches, and Seuvarits. 5 Ind. Cl. Comm. at 2-3. The Commission did more than merely accept plaintiff’s representations. The Commission also separately found that “to the west and north of the original habitat of the plaintiffs lived various bands of Shoshone Indians. . . .” Id. at 5. Moreover, as previously noted, the Commission opined that the Shoshone inhabited the region around the Great Salt [*780] Lake and present Salt Lake City, whereas the Utes resided around Provo and Utah Lake. Id. at 44. In the instant case, plaintiff, on the basis of historical and documentary evidence, asks the court to include the Weber Utes within the Uintah Band as part of the court’s analysis of plaintiff’s aboriginal lands. Thus, the composition [**33] of the Uintah Band is also an identical issue before the Commission and the court.
Pg 35
4. Full representation
[HN10] The fourth prong of issue preclusion requires the court to analyze whether plaintiff tribe was fully represented in the Commission case. Though it appears that plaintiff’s former counsel ill-served at least his Weber Ute clients, the court notes that plaintiff prevailed in the Commission case in which a large portion of Utah was included within the tribe’s aboriginal lands. The court cannot conclude that plaintiff was not fully represented in the Commission case.
5. Special circumstances/change in controlling facts or legal principles
[HN11] Exceptions exist to invocation of issue preclusion when special circumstances merit or when facts or legal principles have significantly changed since the prior judgment. These exceptions apply, however, only when unrelated subject matter arises in subsequent cases between [**36] the same parties involving similar issues. Montana, 440 U.S. at 162.
The court is satisfied that the Commission acted as a court of competent jurisdiction. In particular, the Commission’s enabling statute provided that the Commission [*781] could adjudicate “claims arising from a taking by the United States.” Indian Claims Commission Act, ch. 959, § 2(4), 60 Stat. 1050, codified at 25 U.S.C. § 70a (1976) (omitted 1978). The Commission’s judgments had the effect of a final judgment of the Court of Claims and, upon payment to the plaintiff tribe, constituted a full discharge of all matters in controversy. § 22(a), 60 Stat. 1055, codified at 25 U.S.C. § 70u. Furthermore, the Act provided that “[a] final determination against a claimant made and reported in accordance with . . . [the] Act shall forever bar any further claim or demand against the United States arising out of the matter in controversy.” § 22(b), 60 Stat. 1055, codified at 25 U.S.C. § 70u.
The court recognizes that plaintiff’s present cause of action allegedly matured in 1991 and therefore [**37] could not have been brought prior to 1951, the expiration date for claims presented to the Commission. Issue preclusion does not bar future claims, but it does bar relitigating issues, even if they are presented later as wholly new theories or causes of action. The doctrine of issue preclusion thus forecloses plaintiff from relitigating the same issues that it could, or should, have framed more broadly when the issues concerning the lands aboriginally occupied by plaintiff’s ancestors and the boundaries of those lands were litigated fully and decided over 35 years ago. The court concludes that the Commission finally decided the issues of aboriginal title and the constituent sub-groups included within the Uintah Band. Plaintiff is precluded from arguing that it retained aboriginal title to the subject land of Fort Douglas and from alleging that the Weber Utes form a constituent part of the Uintah Band. Consequently, plaintiff cannot maintain the present action for a breach of trust or a constitutional taking of a right to trust protection as to the subject land.
Pg 59
2. Was plaintiff’s aboriginal title extinguished?
Since aboriginal title may form the basis for a fifth amendment takings claim, assuming that it is recognized, the court will address whether plaintiff has a valid claim to aboriginal title. For the purposes of this discussion, the court also assumes that the Weber or Cumumbah Utes formed a constituent part of the Uintah Band and that they occupied the subject area.
[HN25] The Government can extinguish aboriginal title in various ways. Generally, the failure of an Indian tribe to satisfy any of the elements of aboriginal possession will defeat an [**60] aboriginal title claim. In particular, a tribe must demonstrate actual and continuous possession up until the date of the alleged taking. Therefore, the sovereign’s exercise of complete dominion adverse to the Indian right of occupancy defeats a claim to aboriginal title. Quapaw Tribe v. United States, 128 Ct. Cl. 45, 49, 120 F. Supp. 283, 286 (1954), overruled on other grounds, United States v. Kiowa, 143 Ct. Cl. 545, 166 F. Supp. 939 (1958), cert. denied, 359 U.S. 934, 3 L. Ed. 2d 636, 79 S. Ct. 650 (1959).
[HN26] When an Indian tribe ceases for any reason, by reduction of population or otherwise, to actually and exclusively occupy and use an area of land clearly established by clear and adequate proof, such land becomes the exclusive property of the United States as public lands, and the Indians lose their right to claim and assert full beneficial interest and ownership to such land; and the United States cannot be required to pay therefor on the same basis as if it were a recognized treaty reservation.
128 Ct. Cl. at 49, 120 F. Supp. at 286 [**61] (citations omitted). Various actions that end actual, exclusive, and continuous use of the land by the Indians can extinguish aboriginal title. Pueblo of San Ildefonso, 206 Ct. Cl. at 661, 513 F.2d at 1390. However, extinguishment of Indian title “cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Santa Fe, 314 U.S. at 354.
Contrary to plaintiff’s contention, the 1865 Act regarding extinguishment, ch. 45, 13 Stat. 432, does not mandate that the Government extinguish Indian title only by treaty. The Act specifies that if the President enters into treaties with Indians in the Utah territory, such treaties shall provide for extinguishment of Indian title. Other methods of extinguishment would still be effective, the statute notwithstanding.
The undisputed facts reveal that plaintiff has not been in possession of the subject lands since 1872, if not before. Plaintiff, in effect, concedes that it has not actually, exclusively, and continuously occupied the subject land up to 1991, the alleged taking date. Plaintiff may have held the [**62] requisite occupancy until 1872 at the latest. (It would seem that 1872 is a more appropriate taking date.) Be that as it may, plaintiff seems to argue that the Government acted as an Indian proxy until 1991, thus obviating the bar of the statute of limitations. Without actual and continuous Indian use, however, the court cannot find aboriginal possession. In fact, the mere establishment of the fort in 1862, its official inauguration in 1867, and its expansions in 1887 and 1890, alone or in concert, would constitute dominion adverse to Indian title. [HN27] Even if Indians continued to occupy some portions of the Fort’s land (which plaintiff has not alleged), a military base destroys the exclusivity prong of the aboriginal title test. 21 That the Government [*788] established a military outpost is even more inconsistent with Indian title than occupation by white settlers. See United States v. Gemmill, 535 F.2d 1145, 1148 (9th Cir.) (holding that forced expulsion of Indians followed by Government use of land extinguishes Indian title), cert. denied, 429 U.S. 982 (1976); Pueblo of San Ildefonso, 206 Ct. Cl. at 661, 513 F.2d at 1390 [**63] (holding the impact of white settlement a factor in extinguishment of Indian title). In these circumstances the court concludes that the creation, occupation, and Indian departure from the lands encompassed in Fort Douglas extinguished any aboriginal title to the subject land.
21 Plaintiff presented evidence to the court of substantial mixed-tribal use of the subject area, namely by Shoshone and Weber Utes. This would impact plaintiff’s allegation of exclusive use. While the court does not have the benefit of a complete record in this regard, the evidence suggests that plaintiff would face a serious obstacle in proving joint and amicable use of the Salt Lake Valley area by the two groups. Even if the bands lived in joint and amicable possession, the court would also inquire into the composition of the Weber Utes, since they are variously described as Ute, mixed-blood, and Shoshone.
Pg 69
CONCLUSION
Accordingly, based on the foregoing, defendant’s motion for summary judgment is granted because plaintiff is precluded by the doctrine of collateral estoppel from relitigating issues decided by the Indian Claims Commission. Alternatively, defendant is entitled to a grant of summary judgment [**70] because plaintiff’s breach of trust and takings theories are not actionable. 24 The Clerk of the Court shall dismiss the complaint.
3 of 3 DOCUMENTS
THE UINTAH AND WHITE RIVER BANDS OF UTE INDIANS v. THE UNITED STATES
No. 47569
United States Court of Claims
139 Ct. Cl. 1; 1957 U.S. Ct. Cl. LEXIS 89; 152 F. Supp. 953
June 5, 1957. Defendant’s motion for amendment of the judgment denied October 9, 1957
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff Indian bands sought just compensation for land that was part of their reservation. Defendant government incorporated the former reservation land into a national forest. The government filed a motion to amend the judgment of the commissioner of the United States Court of Claims, which found that the value of the land was $ 1.25 per acre.
OVERVIEW: Initially, the court determined that it had jurisdiction of the controversy pursuant to the special Ute Jurisdictional Act. Next, the court found that the Indian bands had title to the reservation when the government returned it to the public domain. The court upheld the commissioner’s finding that the land was valued at $ 1.25 per acre when it was returned to the public domain. The court deferred to the commissioner’s finding in part because of the sharp disagreement between the parties’ experts. The government made a payment to compensate the Indian bands for the land. The court thought that the government was not entitled to credit for a portion of the payment because it was made to another Indian band, which was living on the reservation but did not have title to any land. The court decided that the government received credit for payment made to the Indian bands that were the plaintiffs in this suit. The payment was applied so that the principal was reduced to the extent that the payment was sufficient to cover accrued interest. The court found that the Indian bands were entitled to interest on the remaining principal from the time that the reservation land was taken.
OUTCOME: The court affirmed the judgment that determined the value of the reservation land, which the government took from the Indian bands’ reservation and incorporated into a national forest. The court remanded the case to the commissioner for further proceedings with respect to the government’s entitlement to any other offsets.
Pg 23
4. By an act of February 23, 1865, 13 Stat. 432, “* * * to extinguish the Indian Title to Lands in the Territory of Utah suitable for agricultural and mineral Purposes.”, the President was [**23] authorized and directed to enter into treaties with the various tribes of Indians of Utah Territory, providing for the surrender of their possessory right to all such lands, except such part as might be set apart for reservations. Pursuant to this act, treaties were negotiated with the “Pieede or Pah-Ute” Indians on September 18, 1865, the “Weber Ute” on October 30, 1865, 5 Kappler 698, and various groups of “Utah” Indians on June 8, 9, and 10, 1865, 5 Kappler 695. None of the said treaties was ever ratified.
5. The Indian parties to the treaty negotiated on June 8, 9, and 10, 1865, commonly referred to as the Spanish Fork Treaty, were designated therein as the “* * * Utah, Yampah Ute, Pah-Vant, Sampete Ute, Tim-p-nogs and Cum-nm-bah Bands of the Utah Indians occupying the lands within Utah Territory, * * *.” The said treaty provided for the cession by said Indians of “all their possessory right of occupancy” to an area described therein, reserving a designated part thereof for their exclusive use and occupation as follows: