Confederated Bands of Ute Indians v. United States , 64 F. Supp. 569 ( 1946 )

Whitaker, Judge,

delivered the opinion of the court:

The issue in this case is over the defendant’s liability to account for the sale of certain lands added to plaintiffs’ reservation by Executive Order.

On March 2, 1868, the parties entered into a treaty under the terms of which the plaintiffs ceded to the defendant all the lands to which they laid claim, except those in the southwest section of the present State of Colorado. The lands reserved were bounded on the east by the 107th parallel of west longitude, on the south by the southern boundary of the State of Colorado, on the west by the western boundary of that State, and on the north by a line drawn due east from the western boundary beginning at a point 15 miles north of the 45th parallel of north latitude.

. Not until more than seven years later was any attempt made to designate on the ground the northern boundary; but in the meantime the defendant, pursuant to the treaty, established an agency on the White Biver' at a place it thought was south of the northern boundary line of the reservation. The Indians believed that the northern boundary was far to the north of the location of this agency; and so, when some miners began working on Douglass Creek in Wyoming, they protested, because they said this was within the limits of their reservation. Later, they protested the location of a wagon road north of the White Biver agency, because they said this was within the limits of their reservation.

When in 1875 a survey showed that the northern boundary was south of this agency the Indians manifested considerable dissatisfaction. In order to pacify them, the President, on the recommendation of the Commissioner of Indian Affairs and the Secretary of the Interior, by Executive Order in 1875, withdrew from sale and set apart for the use of the plaintiff tribe certain lands north of the northern boundary “as an addition to the present reservation in said territory.” “This action,” the Commissioner of Indian Affairs wrote to the Indian Agent, “fully protects your Indians in the peaceable possession of their improvements in the White Biver valley and the Agency buildings, and will enable you to assure the Indians of the exact location of the limits of their reservation as enlarged.”

In September 1879 some of the White Biver Utes massacred the Indian Agent and all the agency’s male employees and others, and ambushed and killed a small detachment of soldiers. The chiefs and headmen of the tribe were summoned to Washington for the purpose of bringing about the apprehension of the guilty parties and of securing an agreement from them for the cession of their reservation. An agreement was secured to cede to the United States all of their reservation, except certain lands that were to be allotted to them in severalty. All the lands not allotted in severalty the defendant agreed to sell for the account of the Indians. This agreement was ratified by Congress on June 15,1880 (21 Stat. 199).

The question presented is whether or not there was included in the lands to be sold for the account of the Indians those lands which were added to the reservation by Executive Order in 1875.

The parties agree that the Indians secured no title to these lands by virtue of the Executive Order alone,¹ but' plaintiffs say that the President’s action in adding them to the reservation was ratified by Congress by the Act of June 15, 1880. Plaintiffs say that in the preamble to this Act it is recited that the chiefs and headmen of the confederated bands of the Ute Tribe of Indians had agreed upon a sale to the United States “of their present reservation in the State of Colorado,” (italics ours) and that the agreement itself recites that the chiefs and headmen agreed to use their best efforts to get their people to consent to the cession to the United States of “all the territory of the present Ute [Reservation in Colorado.” They say that at the time the chiefs and headmen entered into this agreement they believed that the lands added to their reservation by Executive Order were legally a part of their reservation and that, therefore, it is evident that it was their intention to convey these lands to the United States, as well as their other lands, and, therefore, it follows that they understood that the United States was agreeing to sell for their account these lands along with their other lands.

In all probability this is true. The Indians were no doubt ignorant of the legal requirements for vesting title in them to a part of the public lands, and so, when they were informed by the Indian Agent that these lands had been added to their reservation, they in all probability believed that they were as much a part of their reservation as were the lands set aside by the treaty of March 2, 1868. So, when these chiefs and headmen entered into the agreement ratified by the Act of June 15, 1880, they no doubt believed that they were ceding to the United States these lands as well as others.

However, the essential thing in order to charge the United States is that it should have agreed to sell these lands for the account of the Indians. If it did not, it is not liable for not having done so, whatever the Indians may have thought it had agreed to do.

The agreement of the United States is set forth in the Act of June 15, 1880. That Act in its preamble says that the chiefs and headmen of the Ute Tribe had presented an agreement to the Secretary of the Interior, and that the President had submitted the agreement to Congress “for acceptance and ratification.” Congress ratified it with certain provisos not material here. The agreement, which is set out in full in the Act, provided for a cession of the Ute reservation to the United States in consideration of which the United States agreed to do certain things which were enumerated. These were to make certain allotments, to pay a certain amount of annuities, to provide agricultural lands and farming equipment, to educate their children, and to continue in force the treaty of 1868 and the agreement which was ratified by the Act of April 29,1874. Nothing was said in the agreement about a sale of the ceded lands for the Indians’ benefit, but Congress added an agreement to that effect in section 3 of the Act of June 15,1880. This reads in part:

* * * and all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States, and subject to disposal under the laws providing for the disposal of the public lands, at. the same price and on the same terms as other lands of like character, except as provided in this Act: * * *.

The Act then proceeds to set forth what shall be done with' the money derived from the sale of the lands.

It will thus be seen that the United States agreed to sell for the account of the Indians only those unallotted lands “the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States.” This did not include the lands added to the reservation by Executive Order because the Indians did not have title to these lands and, hence, title to them was not conveyed by the agreement referred to. The United States agreed to sell for the account of the Indians only those lands the title to which was conveyed to them by this agreement.

At the time Congress ratified this agreement, it must have known of the addition to the reservation by Executive Order and, hence, purposely, it limited its agreement to sell the Indians’ lands for their account to those lands the title to which was conveyed by the agreement. It evidently meant to exclude the lands the Indians had been occupying under the Executive Order, but to which they had no title.

The Indians proposed to cede their “present reservation”; Congress knew they probably considered these Executive Order lands a part of their “present reservation,” and so it was careful to limit its agreement to sell for the Indians’ account those lands to which the Indians had title. It did not mean to ratify and confirm the President’s action in setting apart these lands “as an addition to their present reservation in said Territory,” and it plainly said so.

Whether this was explained to the Indians we do not know, but it is plain that Congress did not intend to agree that these Executive Order lands should be sold for the Indians’ account, and, in the absence of such an agreement, the defendant is not liable for not having done so.

The parties charged with carrying out the Act so construed it. On August 2, 1882, the Commissioner of Indian Affairs recommended to the Secretary of the Interior, “that the lands set aside by Executive Order of November 22,1875, for the use of the several tribes of Ute Indians, be restored to the public domain.” This was done by Executive Order on August 4, 1882. Had the Commissioner and the Secretary of the Interior and the President believed that Congress had intended by the Act of June 15, 1880 to vest title in the Indians to these Executive Order lands and had agreed that these lands should be sold for the account of the Indians, they would not have withdrawn them from the reservation and restored them to the public domain.

We are clearly of the opinion that the Indians never did acquire title to these Executive Order lands and that the Congress never did agree to sell them for the account of the Indians.

The view we take on the merits makes it unnecessary for us to consider the other defenses raised by the defendant.

Plaintiffs’ petition will be dismissed. It is so ordered.

Jones, Judge, and Whalev, Chief Justice, concur.

1 Sioux Tribe of Indians v. United States, 316 U. S. 317.