Northwestern Bands of Shoshone Indians v. United States
ABORIGINAL INDIAN TITLE THROUGH THE EYES OF THE JUDICIARY
Like any sovereign nation, the United States is exempt from lawsuit unless it has expressly granted its consent to be sued. This is the sovereign immunity doctrine. In 1855 Congress established the Court of Claims, which provided a legal forum wherein aggrieved parties, including tribes, could bring suit against the Federal Government.67 Tribes began to frequent the Court, seeking legal redress for wrongs they had sustained in violation of treaty rights. When the Civil War arose, however, and because some tribes had allied themselves with the Confederate States, Congress unilaterally and retributively decided in 1863 to amend the Court of Claims Law. The amendment stated: “That the jurisdiction of the said Court shall not extend to or include any claims against the Government not pending in said Court on the first day of December, A.D. 1862, growing out of or dependent on any treaty stipulation entered into with foreign nations, or with the Indian tribes [emphasis mine].”68 Tribes were effectively denied legal recourse, and since they were extraconstitutional entities, they had very little hope for political redress.
As Cohen remarked, “whatever justification there may have been for discriminating against the contracts [treaties] we had made with the original owners of the country in giving the Court of Claims general jurisdiction over contract claims against the government, the effect of this discrimination has been to inject gross delays into our judicial settlements of treaty claims.”69 It was not until 1920 that a number of bills were introduced which allowed particular tribes (tribes of the Fort Bert-hold Reservation: Iowa, Klamath, and Modoc; and the Sioux Nation, Cheyenne, and Arapaho) to sue the government through the Court of Claims. While this was at least an avenue for some political redress, it was ad hoc and self contradictory, since access to the Court of Claims was dependent on a significant amount of Indian lobbying sufficient to move Congress to act. Of course, tribes were virtually without political power during the years they had lost their lands, and had become even less powerful during the zenith of Bureau of Indian Affairs authority over Indian lives and property from the 1880s to the 1920s.70 Altogether, an estimated 133 such acts were established. Of the resultant legal actions, tribes actually had monetary recoveries in fewer than one third of the suits.71 In part, the recovery rate was so low because the grounds for the suit were often narrowly construed. Moreover, it would sometimes take several decades for the Court of Claims to reach a decision.72
SHOSHONE – U.S. RELATIONS
The Shoshone Nation, now some ten thousand strong, which historically maintained jurisdiction over some eighty million acres of land, is actually composed of four distinct groups—the Eastern (or Wind River) Shoshone, who inhabited the Wind River Mountains and the high plains; the Western Shoshone, inhabiting lands in present-day Nevada, Idaho, California, and Oregon; the Northern Shoshone, who occupied lands in Utah, Nevada, Wyoming, and Idaho; and the Comanche-Shoshone. The vast Shoshone homeland was not really penetrated by Euro-American travelers and settlers until the 1840s. A small number of Mormons had settled around the Great Salt Lake, and forays by explorers or hunters had occurred from time to time; in fact, the Shoshone Nation, through Sacajawea, had provided guidance to members of the Lewis and Clark expedition (1804–1806) on their western travels. Shoshone physical isolation from whites, however, changed forever when gold was discovered in the mountains of California near Sacramento. This “discovery,” like that of Columbus in 1492, had devastating consequences for the indigenous inhabitants in both California and Shoshone territory. The flood of whites pouring into Shoshone lands led to a dramatic depopulation of the animal herds that the tribe had depended upon for subsistence and also denuded the grasslands, “causing great dissatisfaction among the Indians, aggravated frequently by the conduct of the wilder and more reckless element among the travelers.”73
In 1849, federal Indian agents and superintendents recommended that the United States negotiate treaties with the various tribes, including the Shoshone, Sioux, Cheyenne, Arapaho, Crow, Assiniboine, and others who were defending their territories. In the first six months of 1850 alone, more than forty thousand persons passed through Fort Laramie, Wyoming.74 The federal government decided it was necessary to construct roads and military posts through Indian territories which would allow for the safe passage of the whites.
This led to one of the greatest gatherings of indigenous nations ever assembled. The convening took place at Fort Laramie (in eastern Wyoming) in September 1851. This impressive assemblage of indigenous peoples and federal officials included a delegation of sixty Shoshone chiefs and headmen, led by their esteemed leader, Washakie. The invitation of the Shoshone was an explicit recognition that the Shoshone were an important presence and that any treaty would have to consider their sovereign rights to the immense lands they controlled. The Shoshone, however, left the treaty proceedings prematurely and were not signatories to the 1851 treaty. There are conflicting accounts as to why the Shoshone left. Deloria asserts that when Washakie and his delegation arrived, the Sioux objected to their presence because of a battle in which a group of Shoshone had killed a number of Sioux. A Sioux warrior, Deloria says, even attempted to assassinate Washakie. The federal government, according to this account, “realizing there was no practical way to make the Sioux and the Shoshones agree to peace terms . . . decided to make a separate treaty with the Shoshones at a later time.”75
Another account, however, suggests that the government’s treaty commissioner, Colonel D. D. Mitchell, doubted whether his instructions from Washington authorized the inclusion of the Shoshone Nation. Commissioner of Indian Affairs Luke Lea reported the following in his Annual Report of 1851:
A delegation of the Shoshones or Snake Indians, a disaffected and mischievous tribe, infesting one of the principle routes of travel to Oregon and California, was conducted by the agent to the grand council recently held at Fort Laramie with the wild tribes of the prairies. These Indians were not considered by the Superintendent as embraced in his instructions, and were, consequently, not parties to the treaty negotiated with the other tribes. The delegation, however, were kindly received, suitable presents were bestowed upon them, and they returned to their people with more friendly feelings toward the government and the whites.76
Whichever account is honored, the fact remains that the Shoshone Nation had the requisite political and military standing to be treated as a sovereign entity by the United States. The fact that their treaties with the United States were delayed until 1863 in no way diminishes their legal affect.
THE SHOSHONE TREATIES
As whites continued to stream westward, their depredations against the tribe and the game of the area continued unabated. Such actions understandably outraged the Shoshone. Furthermore, stagecoach lines had been established and telegraph and overland mail lines had been constructed without the consent of the Shoshone. By 1861, Commissioner of Indian Affairs William P. Dole reported that “the Shoshones, or Snakes, and the Flathead, are wealthy and powerful, and can cause their hostility to the remoter settlements and the overland emigration to be severely felt. Hence, the pressing necessity of some speedy arrangement with them, which with the Snakes [Shoshone] it is suggested should be (as a temporary measure) a treaty granting annuities in consideration of a right-of-way across their country.”77
The subsequent discovery of additional gold veins in the early 1860s in the Beaver Head, Salmon River, and Boise areas in Idaho, along with the expansion of the Civil War, exacerbated an already delicate interracial situation. The Civil War compelled the United States to confront the reality of tribal military powers west of the Rocky Mountains. And since gold provided the economic stability that the North needed to continue the war, the struggle for the control of roads on which to transport this precious material was critical.78
On July 5, 1862, Congress appropriated twenty thousand dollars for the purpose of negotiating a treaty with the Shos
hone Nation.79 U.S. military expeditions, sent to provide safety for their westward-bound citizens, felt the need to maintain the roads for the transport of gold and other supplies, and to ensure the passage of mail and other freight items. Although the superintendent of Indian affairs for Utah had earlier recommended that the treaty have as its main objective the extinguishment of the Shoshone’s right of occupancy, Congress, in authorizing the appointment of the treaty commission, emphatically chose not to terminate Shoshone land title. Acting under the statute, the commissioner of Indian affairs instructed the treaty commissioners as follows:
It is not expected that the treaty will be negotiated with a view to the extinguishment of the Indian title to the land, but it is believed that with the assurances that you are authorized to make of the amicable relations which the United States desires to establish and perpetuate with them, and by the payment of Twenty thousand dollars of annuities . . . you will be enabled to procure from them such articles of agreement as will render the routes indicated secure for travel and free from molestation; also a definite acknowledgment as well of the boundaries of the entire country they claim, as of the limits within which they will confine themselves, which limits it is hardly necessary to state should be as remote from said routes as practicable.”80
The only specifics sought by the United States in the appropriating legislation were peaceful relations with the Shoshone and safe passage for American citizens and U.S. mail. The federal government also hoped to learn what the outer boundaries of Shoshone territory were. Shoshone lands, importantly, were given specific acknowledgment. These lands were, from the government’s viewpoint, considered “largely unfit for cultivation” and were not considered even remotely attractive enough to warrant white settlement “for many years.”81
In January 1863, several months before the treaty negotiations began, several hundred Northwestern Shoshone who had gathered at one of their customary winter encampments at Bear Lake in Southeastern Idaho were brutally attacked by Brigadier General P. Edward Connor of the U.S. Volunteers, District of Utah, and his 250 men, fresh from a campaign to crush California Indian resistance to white intrusion. When the Bear Lake massacre had ended, some 224 Shoshone lay dead. The United States lost 14 men. The senseless killing of so many Indians left an indelible mark on the Shoshone people. It was the last time the Northwestern Band ever took up arms against the United States.82
Between July 2 and October 14, 1863, the United States negotiated five treaties with the geographically dispersed bands of the Shoshone Nation. These were: Eastern Shoshone Treaty, held at Fort Bridger, Wyoming, on July 2, 1863;83 Northwestern Shoshone Treaty, held at Box Elder, Utah, on July 30, 1863;84 Western Shoshone Treaty, held at Ruby Valley, Nevada, October 1, 1863;85 Shoshone-Goship Treaty, held at Tuilla Valley, Utah, October 12, 1863;86 and the Mixed Band of Bannocks and Shoshones Treaty, held at Soda Springs, Idaho, on October 14, 1863. All five treaties were subsequently ratified by the Senate, though an important amendment was tacked onto each of the treaties except for the Western Shoshone agreement. This amendment affirmed that the Indians’ unspecified title to their lands was comparable to the title or interest they had held when Mexico ceded control of the area to the United States in 1848. This amendment, article 5 of the Northwestern Shoshone Treaty, was an explicit, if ill-defined acknowledgment that the Shoshone groups had a title to their territory which had been recognized by both Mexico and the United States.
The Fort Bridger agreement negotiated with the Eastern Shoshone (the largest of the bands) was a prototype for the rest, but it was unique in that Washakie, the principal chief of the Eastern Shoshone Nation and a pivotal player in long-term Shoshone/U.S. relations, presided over this agreement for his people. As was the case with all five treaties, the major emphasis lay in securing from the tribe their permission to allow white travelers safe passage and to allow the construction of stagecoach stations, telegraph lines, and projected railroads.
The Northwestern Shoshone Treaty (held at Box Elder, Utah) is the one most salient for our purposes because it is the treaty the petitioners to this suit based their case on. It was negotiated, on the part of the federal government, by James Duane Doty, the governor and acting superintendent of Indian affairs for the Utah Territory, and General Connor. The Northwestern Shoshone were led by their principal chief, Pokatello. The treaty is brief enough and substantive enough to warrant full recitation:
Articles of agreement made at the Box Elder, in Utah Territory, this thirtieth day of July, a.d., Eighteen hundred sixty-three, by and between the United States of America, represented by Brigadier-General P. Edward Connor, commanding the military district of Utah, and James Duane Doty, commissioner, and the northwestern bands of the Shoshonee Indians, represented by their chiefs and warriors:
Article I. It is agreed that friendly and amicable relations shall be reestablished between the bands of Shoshonee Nation, parties hereto, and the United States, and it is declared that a firm and perpetual peace shall be henceforth maintained between the said bands, and the United States.
Article II. The treaty concluded at Fort Bridger on the 2nd day of July, 1863, between the United States and the Shoshonee Nation, being read and fully interpreted and explained to the said chiefs and warriors, they do hereby give their full and free assent to all of the provisions of said treaty, and the same are hereby adopted as a part of this agreement, and the same shall be binding upon the parties hereto.
Article III. In consideration of the stipulation in the preceding articles, the United States agree to increase the annuity to the Shoshonee Nation, to five thousand dollars, to be paid in the manner provided in said treaty. And the said northwestern bands hereby acknowledge to have received of the United States, at the signing of these articles, provisions and goods to the amount of two thousand dollars, to relieve their immediate necessities, the said bands having been reduced by the war to a state of utter destitution.
Article IV. The country claimed by Pokatello, for himself and his people, is bounded on the west by Raft River and on the east by the Porteneuf Mountains.
Article V. Nothing herein contained shall be construed or taken to admit any other or greater title or interest in the lands embraced within the territories described in said treaty in said tribes or bands of Indians than existed in them upon the acquisition of said territories from Mexico by the laws thereof.87
At the conclusion of this bilateral agreement in the autumn of 1863, Commissioner Doty, chairman of the treaty commission, was able to draw a crude map of Shoshone country which he then sent to the commissioner of Indian affairs. This map sketched out “the exterior boundaries of the territories claimed by the Shoshonees in their recent treaties, as also the lines of the country occupied by different positions of the tribe indicated upon it as correctly as the map will allow.”88 The commissioner in his 1863 Annual Report recommended “that measures be taken for the negotiation of further treaties with the [Shoshone] Indians, having for their object the extinguishment of their title to the soil. . . .”89 And while Congress subsequently passed two laws90 for the squelching of Indian title in Utah, and for dealing with so-called hostile Indians, the only Shoshone that entered political arrangements for cessions to their territory were the Eastern Band. On July 3, 1868, the Eastern Shoshone ceded all claim to the territory “except a reservation in Wyoming of 3,047,730 acres.”91
Nevertheless, between 1863 and the 1920s, practically all the land claimed by the Northwestern Shoshone, some 15,643,000 acres that would be valued at fifteen million dollars in the 1930s, was openly encroached upon by the United States and its citizens.
CONGRESS AND THE COURT OF CLAIMS
From the January 1863 massacre of more than 200 Northwestern Shoshone to the negotiation of their treaty at Box Elder later that year, the tribe had been placed in a dependent position relative to the United States, forced to stand by as the federal government, without the consent of the Shoshone Nation, began to grant their territory for the constr
uction of public schools, to establish a national forest within Shoshone territory, and to allow public settlement of tribal lands under federal homestead laws.92 Although in 1926 the tribe hired two claims attorneys, Charles H. Merrillat and Charles Kappler, the government made no formal efforts to allow the Shoshone any redress for the multitude of intrusions into their territory until December 9, 1927, when Senator King of Utah introduced a bill which conferred jurisdiction on the Court of Claims to “hear, adjudicate, and render judgment in any and all claims which the Northwestern bands of Shoshone Indians may have against the United States arising under or growing out of the treaty of July 2, 1863, treaty of July 30, 1863, Act of Congress approved December 15, 1874, and any subsequent treaty, Act of Congress, or Executive Order. . . .”93
The bill was sent to the secretary of the interior for his analysis and recommendation. The secretary acknowledged that the Shoshone band in question had indeed been party to the treaty of July 30, 1863, and that they were asserting claims for lands in Utah, Nevada, Oregon, and Idaho which they believed had been disposed of by the government without tribal consent.94 Senator King’s bill, without amendment, was enacted into law and became the jurisdictional act under which this lawsuit was initiated.95 The Shoshone filed their petition in the Court of Claims on March 28, 1931. Prohibited from actually recovering any land, the tribe sought to recover 15 million dollars for what they claimed had been the unlawful taking of their 15 million acres in violation of the 1863 treaty. They also sought to recover $70,000 of the treaty annuities which had been promised to them for twenty years under the treaty. The government contended that the 1863 treaty was simply one of peace and amity and that the agreement failed to recognize in the Shoshone an exclusive use and occupancy right to the lands. Instead, the government claimed that it had exercised dominion and complete ownership of the territory in question.96
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