COOS (OR KOWES) BAY, LOWER UMPQUA (OR KALAWATSET), AND SIUSLAW INDIAN TRIBES v. THE UNITED STATES
[No. K-345. Decided May 2, 1938; plaintiff's motion for new trial overruled November 14, 1938]
On the Proofs
Indian claims. – The United States having never recognized the plaintiff Indians as the aboriginal owners of the lands claimed, and having consummated no treaty relationship with them, and having recognized no existing rights of property to any specific area of lands to be vested in them, what the United States did with respect to their existing status was done under its plenary authority over tribal Indians, their lands and funds.Evidence. – Oral testimony as to facts and traditions, by witnesses many of whom have a direct interest in the outcome of the case, is insufficient to establish Indian title to a vast acreage of lands; it does not afford a degree of proof sufficient to overcome contemporaneous documentary and historical evidence to the contrary.
Same. – An unratifed Indian treaty is not evidence of Governmental recognition of Indian title to lands described therein.
Same. – Jurisdictional acts merely provide a forum for the presentation and adjudication of Indian cases.
Same. – The fact that the United States did make treaties with other Indians in the same area falls short of establishing individual title to a described area in an unratified treaty.
The Reporter's statement of the case:
Mr. T. Hardy Todd for the plaintiffs. Mr. Daniel B. Henderson was on the briefs.
Mr. Charles H. Small, with whom was Mr. Assistant Attorney General Carl McFarland, for the defendant. Mr. George T. Stormont was on the brief.
The court made special findings of fact as follows:
1. The Act of Congress, approved February 23, 1929, 45 Stat. 1256, as amended by the Act of June 14, 1932, 47 Stat. 307, provides:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred on the Court of Claims to hear, examine, adjudicate, and render final judgment in any and all legal and equitable claims of the Coos (or Kowes) Bay, Lower Umpqua (or Kalawatset), and Siuslaw Indian Tribes of the State of Oregon against the United States arising under or growing out of the original Indian title, claim, or rights of the said tribes (with whom no treaty has been made), in, to, or upon the whole or any part of the lands and their appurtenances occupied by said tribes in 1848 and long prior thereto, and embraced within the following description, to wit:
Beginning at a point of rocks, known as Five Mile Point, in section 19, township 27 south of range 14 west of the Willamette meridian, Coos County, Oregon; and running thence north along the coast of Oregon, to the mouth of a creek, known as Ten Mile Creek, in section 27, township 15 south, range 12 west, Lane County, Oregon; thence east on the water shed between the waters of the Alsea and the Siuslaw Rivers to the summit of the Coast Range Mountains in township 15 south, range 6 west; thence in a southeasterly direction along the summit of said mountains, the same being the southwest boundary of the lands ceded by the Calapooia and the Willamette Tribes of Indians to the junction of the Calapooia Range, near the headwaters of the Siuslaw River, in township 21 south, range 4 west; thence in a westerly direction following the summit of the ridge between the waters of the Smith and the Umpqua Rivers, the same being the north boundary of the lands ceded by the Umpqua and the Calapooia Indians, to a point due north of the head of tidewater on the Umpqua River; thence south across the Umpqua River to the summit of the mountains dividing the waters of Camp Creek from the waters of the Umpqua River, the same being the west boundary of the lands ceded by the Umpqua and Calapooia Indians; thence in a southeasterly direction along the summit of the Coast Range Mountains, following the southwest boundary of the lands ceded by the Umpqua and the Calapooia Indians,
to the summit of the divide separating the waters of Looking Glass Creek from the waters of the South Fork of Coos River in township 27 south, range 8 west, Douglas County, Oregon; thence west to the point of beginning, which lands and the appurtenances thereunto belonging, including, among other things, claimants' original means of securing a living thereon and therefrom by hunting, fishing, and otherwise, the said tribes claim were taken from them, and appropriated by the United States to its own use, in or about the year 1855, without any treaty cession or agreement, and without compensation to the tribes therefor.
Sec. 2. In any suit instituted hereunder the Court of Claims shall have authority to determine and adjudge the rights, both legal and equitable, of the claimants in the premises, notwithstanding lapse of time or statutes of limitation; and the right of appeal to the Supreme Court of the United States is hereby granted to both parties.
Sec. 3. The court shall also hear, examine, consider, and adjudicate any claim or claims, including gratuities, which the United States may have against the said tribes properly chargeable in such suit; but any payment or payments which have been made by the United States upon any claim or claims of the tribes shall not operate as an estoppel but may be pleaded by way of set-off; and any other tribes or bands of Indians which the court may deem necessary to a final determination of such suits may be joined therein as the court may order.
Sec. 4. If in any suit instituted hereunder for the value of unceded lands taken, sold, or disposed of by the United States it be determined by the court that the Indians are entitled to recover judgment, the price of such lands shall be limited to $1.25 an acre, except as to any tracts that have been actually sold or disposed of under laws enacted by Congress establishing higher prices; in which case the court may be governed by the latter prices.
Sec. 5. Any and all claims against the United States within the purview of this act shall be forever barred unless suit be instituted or petition, subject to amendment, filed as herein provided in the Court of Claims within five years from the date of the approval of this Act; and such suit or suits shall make the Coos (Kowes) Bay, Lower Umpqua (Kalawatset), and Siuslaw Tribes of Indians of the State of Oregon party or parties plaintiff and the United States party defendant.
The petition shall be verified by the attorney or attorneys employed to prosecute such claim or claims under contract with the Indians approved in accordance with existing law.
Official letters, papers, documents, maps and records, or certified copies thereof, may be used in evidence, and the departments of the Government shall give to the attorney or attorneys so employed access to such treaties, papers, maps, correspondence and reports as they may require in the preparation or prosecution of any suit or suits instituted hereunder.
Sec. 6. Upon final determination of such suit or suits the Court of Claims shall have jurisdiction to fix and determine a reasonable fee, not to exceed 10 per centum of the recovery, together with all necessary and proper expenses incurred in the preparation and prosecution of such suit or suits, to be paid to the attorney or attorneys employed, as herein provided, by the said tribes, and the same shall be included in the decree, and be paid out of any sum or sums adjudged to be due, the balance to be placed in the Treasury of the United States, to the credit of said tribes, where the money shall draw interest at the rate of 4 per centum per annum until paid and shall be thereafter subject to appropriation by Congress for educational, health, industrial, and other purposes for the benefit of said Indians, including the purchase of lands and building of homes, and no part of said judgment shall be paid out in per capita payments to said Indians.
2. In 1849, shortly after the establishment of the Territory of Oregon, there were reported to be within this territory at least sixty-five tribes and bands of Indians. Thirty tribes or bands lived north of the Columbia River and the remainder south of the Columbia. Practically none of the more than thirty-five tribes or bands living between the Columbia River and the California boundary line in the territory was engaged in agricultural pursuits. Nearly all these so-called Coast Indians subsisted principally upon fish and other sea food, roots, grass seed, berries, and small game. Very few of the Oregon Indians were engaged in labor of any kind. Most of them were friendly with the Whites and well disposed toward each other. Many of these tribes and bands lived on the shores of the Pacific Ocean. In population the tribes and bands in Oregon Territory numbered
from about twenty to about two thousand each, the majority having but a very small membership.
3. At or about the time of the establishment of the Territory of Oregon in 1848, there were many small bands and tribes of Indians located along the Pacific Coast between the southern boundary of Oregon on the south and the Columbia River on the north and the mountain range on the east. Amongst these small tribes and bands were many which have never been under treaty relations with the United States, including those known and designated in 1855, and for some years thereafter, as the Kowes Bay tribe, the Umpqua tribe, and the Siuslaw tribe, which three tribes, shortly after the establislnnent of the Territory of Oregon, were placed on the Coast Reservation in Oregon under the jurisdiction of the Umpqua and Alsea sub-agencies. These three tribes continued to be under the jurisdiction of such sub-agencies until 1877, when the sub-agencies were abolished and the Indians then placed, together with many other small bands and tribes, under the jurisdiction of the Siletz Reservation Agency, Oregon. Gradually diminishing in population, the three tribes continued under the jurisdiction of the Siletz Agency, until they became so reduced in number that for more than half a century they have been merged with the remnants of many other bands and tribes and for many years with the others have been known as "Indians residing on the Siletz Reservation."
The combined population of the three tribes appears to have been greatest in 1868 when it was 386, gradually diminishing from that time until 1884 when the total population of these tribes is given as 178 in tbe annual report of the Commissioner of Indian Affairs for 1884. A census of the Coos Bay, Lower Umpqua, and Siuslaw tribes is not set out in the annual reports of the Commissioner of Indian Affairs for 1885 and subsequent years, due to the fact that the members of these tribes have intermarried with Indians of other tribes within the jurisdiction of the Siletz Agency, thus losing their tribal identity, and the tribes as such have become virtually extinct.
4. In 1855, plaintiffs, together with twenty-five other tribes and bands of Indians residing along the coast west of
the summit of the Coast Range of mountains and between the Columbia River on the north and the southern boundary of Oregon on the south, were confederated and claimed jointly and attempted jointly to cede to the United States their pretended right to the area.
5. By order of the President, dated November 9, 1855 (1 Kapp. 890, 891), a reservation described therein was established as a residence and reservation for these confederated Indians, which reservation was known for a long time as the Coast Reservation and later became designated as the Siletz Reservation. On this reservation were collected all the said confederated tribes except the Tillamooks, Nehalins, and Clatsops. Besides the confederated tribes, there were other Indian tribes on this reservation. One thousand, one hundred thirty-four Indians on the reservation were in 1860 provided for by treaties, while 1,866 were there without treaty provisions.
6. Among the many small tribes and bands of Indians which were residing in 1860 on the Coast or Siletz Reservation under the care and protection of the United States, but without treaty rights, were the Coos Bay tribe, the Lower Umpqua tribe, and the Siuslaw tribe. The combined population of these three tribes then numbered less than four hundred and sixty (460). These three tribes, subsequent to 1860, have been under the control of various Indian subagencies under the jurisdiction of the Siletz Reservation Agency, and continuously since then have been gratuitously granted substantially the same benefits and advantages that have accrued to the tribes on said reservation who were under treaty relations.
7. By the Executive order of December 21, 1865 (1 Kapp. 891), and the act of March 3, 1875 (18 Stat. 420, 446), approximately three-fourths of the Siletz Reservation was restored to the public domain, and a portion of the diminished reserve was allotted in severalty under the authority
contained in the act of February 8, 1887 (24 Stat. 388). The unallotted lands of the diminished reserve were ceded to the United States by Article 1 of the agreement of October 31, 1892, as ratified by the act of August 15, 1894 (28 Stat.
286, 323), and modified by the act of May 31, 1900 (31 Stat. 221, 233), with the exception of five sections reserved by Article 4 of the above agreement. The land so reserved was disposed of by the United States for the benefit of the plaintiffs and other Indians under the authority contained in the act of May 13, 1910 (36 Stat. 367), as amended by the act of May 18, 1916 (39 Stat. 123, 149).
8. The Coos Bay tribe, the Lower Umpqua tribe, and the Siuslaw tribe were parties to the agreement of October 31, 1892, ratified by the act of August 15, 1894 (supra), by which agreement "the Alsea and other bands of Indians located on said Siletz Reservation," ceded, relinquished, and conveyed to the United States all their claim, right, title, and interest in and to virtually all the unallotted lands of the Siletz Reservation; and the three tribes duly received their proportionate shares of the funds accruing to the Indian tribes, parties thereto, by virtue of the above agreement.
9. Except for the agreement of October 31, 1892 (supra), no treaty or agreement has ever been consummated by and between the United States and any of plaintiff tribes or any representative thereof.
10. The United States has never recognized plaintiff tribes, or any of them, as the aboriginal owners or occupants of any designated area of land.
11. None of plaintiff tribes has ever possessed any right, title, or interest in or to any designated area of land, save and except such right as may have accrued to them, together with other bands of Indians, under the agreement of October 31, 1892, and subsequent legislation, the full benefits of which right have been duly accorded plaintiff tribes.
The court decided that the plaintiffs were not entitled to
recover.
BOOTH, Chief Justice, delivered the opinion of the court:
The permissive legislation enabling the plaintiff Indians to bring this suit appears in Finding 1. This act not only describes the character of plaintiffs' suit but gives by metes and bounds a description of the lands alleged to have been occupied and in possession of the plaintiffs and which as
alleged were later taken and disposed of by the defendant. The amount claimed in the petition is $6,177,587.50 and interest thereon, reduced in the requested findings to $5,975,056.25 and interest.
In all essential particulars the gravamen of plaintiffs' complaint is similar to numerous other cases involving an alleged taking of the original lands occupied by the Indians in their early settlements in the country designated, which were thrown open to settlement and homestead entries by the United States as emigration to the west increased, and territories and States were created and white settlement encouraged.
The special jurisdictional act discloses that the lands described therein are a portion of the lands described in the treaty of 1855 to which the plaintiffs were parties, and this brings us to a discussion of this treaty. The Territory of Oregon was created by the act of August 14, 1848 (9 Stat. 323); about two years later, June 5, 1850 (9 Stat. 436), Congress passed an act authorizing the President to appoint one or more commissioners to negotiate treaties with the Indians within the territory for the extinguishment of their claims to lands lying within the district involved in this case.
On and prior to the above date it was reported that at least sixty-five tribes of Indians resided within the confines of the Territory. Thirty tribes resided North of the Columbia River and the remaining tribes South of the same. Joel Palmer, Superintendent of Indian Affairs in Oregon, was duly authorized to conduct negotiations with the tribes residing in the district where plaintiffs locate their lands.
September 8, 1855, Palmer completed negotiations for a treaty with twenty-five bands of Indians for the cession of large portion of their lands to the United States. The plaintiffs were parties signatory to this treaty and it appears from the terms of the treaty and the description of the lands ceded that it was a joint cession from confederated bands. This treaty was never ratified, and the plaintiffs now seek to carve out of the cession then contemplated a landed estate to which they assert a common Indian title.
It is most difficult to ascertain the origin of the plaintiff tribes. The reliable sources of information available desig-
nate them as of the Kusan family, which was "a small linguistic stock occupying villages on the Coos River and Bay and on the lower Coquille River in Oregon." The Handbook Of American Indians, Bureau of Ethnology, vouches for the fact that while originally these bands may have occupied a territory remote from the coast, they were forced therefrom by other tribes, and eventually occupied villages along the Coast and tributaries of Coos Bay.
There is no doubt but that the plaintiff Indians established their villages along the coast, and subsisted primarily upon sea food, making infrequent excursions inland to procure berries and other products of the soil. They were decidedly peaceable and friendly Indians. Their bands were small in number, never hostile nor practicing the savage customs of other tribes. It is impossible to establish with any degree of certainty the location of these tribes prior to 1855.
In 1855 as previously stated, we find the plaintiffs with the confederated bands which joined in signing the treaty of November 9, 1855, and by an Executive order of that date the so-called Siletz Reservation was established out of the lands ceded by the confederated Indian tribes in the treaty of 1855 as a reservation for these and other Indian tribes.
Shortly after the treaty of 1855 had been signed by the Indians the Rogue River War occurred. This hostility involved the Rogue River and other Indians, and the outbreak was not supressed until 1856. When this war broke out the Lower Umpquas were placed upon a temporary reservation under the care of a special Indian agent. The Coos were placed upon another temporary reservatlon and the Siuslaws remained upon land within the Siletz or Coast Reservation.
The location of the plaintiff tribes upon temporary reservations, while somewhat vigorously attacked by plaintiffs, was undoubtedly intended for their good. The Coos and Lower Umpqua Tribes remained upon the temporary reservations until 1860, when they were transferred to a tract of land on the coast part of the Coast Reservation. At this time numerous small tribes of Indians resided upon this reservation; in fact, all the confederated tribes signatory to
the unratified treaty of 1855 were removed thereto except three.
December 21, 1865 (1 Kappler 891), an Executive order was issued and later, on March 3, 1875 (18 Stat. 420, 446), an act passed whereby about three-fourths of the Coast or Siletz Reservation was thrown open to public settlement and the remaining lands were allotted to the Indians in severalty under the act of February 8, 1887 (24 Stat. 388). Finally all the unallotted lands of the reservation were ceded to the United States by Article 1 of the agreement of October 31, 1892, ratified by the act of August 15, 1894 (28 Stat. 286, 323). The act of May 31, 1900 (31 Stat. 221, 233), modified the act of 1894, supra, and all the lands involved, with certain exceptions not important, were disposed of by the United States for the benefit of all the Indians including plaintiffs under the act of May 13, 1910 (36 Stat. 367), as amended by the act of May 18, 1916 (39 Stat. 123, 149). The plaintiffs were parties to the agreement of October 31, 1892.
We have recited the above facts, which appear in detail in the findings, to disclose what the record indisputably establishes, viz, that the United States never recognized the plaintiff Indians as the aboriginal owners of the lands they now claim. What the United States did with respect to their existing status was done under its plenary authority over tribal Indians, their lands and funds. The United States consummated no treaty relationship with them and until the agreement of October 31, 1892 (supra), recognized no existing rights of property to any specific area of lands to be vested in them.
Plaintiffs rest their case in the essential particular to sustain it upon the oral testimony of twenty-one witnesses. If this testimony is to prevail in every way over documentary and historical evidence it is sufficient to observe that it does prove by hearsay that plaintiffs did occupy the lands claimed from time immemorial. The oral testimony of numerous Indian witnesses, some of whom were aged and others younger, details facts and traditions. In this case, at least seventeen of the twenty-one witnesses produced have a direct interest in the outcome of this case.
To establish Indian title to a vast acreage of lands by oral testimony, irrespective of the obstacles of establishing
it by any other method, exacts a degree of proof sufficient to overcome contemporaneous documentary and historical evidence to the contrary. No doubt exists that the plaintiff Indians originally did reside upon the Coast Reservation with the other tribes thereon; how long they continued this residence and what particular portion thereof was concededly theirs are impossible of ascertainment.
Executive order of November 9, 1855, a governmental procedure obviously induced by solicitude for the Indians, which established the Coast Reservation, did not segregate a distinct and carefully described portion of all the lands in the reservation to any one tribe or band. This order comprehended all the lands involved in the unratified treaty of 1855, and dealing with confederated tribes did not preclude any of the individual tribes from their common interest in the entire reservation.
The plaintiff Indians are admittedly small tribes, and it is conceded they lived in villages adjacent to the waters of the bay or ocean, depending primarily upon fish and sea food for subsistence. Because of their intimate contacts with other tribes, intermarriages have to a large extent obliterated their tribal entity, and it is impossible under the law to ascribe to them other landed interests than the findings show. Duwamish Indians v. The United States, 79 C. Cls. 530; Conley v. Ballinger, 216 U.S. 84.
An unratified Indian treaty is not evidence of governmental recognition of Indian title to lands described therein. Conley v. Ballinger, supra. Jurisdictional acts merely provide a forum for the presentation and adjudication of Indian cases. United States v. Mille Lac Indians, 229 U.S. 498, 500. The fact that the United States did make treaties with other Indians in this same area falls short of establishing individual title to a described area in an unratified treaty. Blackfeet Indians v. United States, 81 C. Cls. 101.
We think the defendant's requested findings are correct, and we have adopted the same as our findings. The petition will be dismissed. It is so ordered.
WHALEY, Judge; WILLIAMS, Judge; LITTLETON, Judge;
and GREEN, Judge, concur.