United States v. Southern Ute Tribe or Band of Indians

PETITIONER:United States
RESPONDENT:Southern Ute Tribe or Band of Indians
LOCATION:Charlotte-Mecklenburg School District

DOCKET NO.: 515
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 402 US 159 (1971)
ARGUED: Mar 01, 1971
DECIDED: Apr 26, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – March 01, 1971 in United States v. Southern Ute Tribe or Band of Indians

Warren E. Burger:

— in number 515, United States against the Southern Ute Tribe or Band of Indians.

Mr. Wallace you may proceed whenever you’re ready.

Lawrence G. Wallace:

Thank you Mr. Chief Justice and may it please the Court.

The United States asked the Court to review this case because it seemed to us that the decision of the Court of Claims was inconsistent with and threatened to undermine clearly and repeatedly expressed the congressional policies regarding the jurisdiction and the business of the Indian Claims Commission.

From the outset, Congress has imposed explicit limitations on the Commission’s jurisdiction and has specified that it is a temporary tribunal whose business is to be completed within a fixed period of years.

It was originally established with a life span of 10 years and legislation enacted in 1946 and in a course of three, five-year extensions of the life of the Commission, Congress has shown increasing impatience to see the Commission’s business concluded.

We express this legislative history in our brief and the current state of the Commission’s business indicates that it is unlikely that, that business will be concluded when the present life of the Commission expires in April of 1972 but we feel in light of the congressional policies expressed, we are oblige to try to see that, that business is expedited.

We reproduced on page 12 of our petition for certiorari in this case some statistics about the present state of the Commission’s business.

At the time we filed the petition in August 1970, 158 Commission cases had proceeded to judgment at which 81 in addition to the present of case had been settled by compromise, and a 159 cases remained to be disposed of.

There has, to the best of our knowledge, been a changed in the status of only two cases in the intervening months, so that now 160 of the cases have proceeded to judgment and 157 remained to be disposed of.

How does this Court move into this, are we suppose to speed them up?

Lawrence G. Wallace:

Well, we are attempting in this case to enable the Commission’s business to be concluded in accordance with this congressional policy by asking this Court to review and the Court agreed to review the Court of Claims decision which seemed to ask to undermine, to jeopardize this congressional policy in two ways, Mr. Justice.

One is that it seemed to us to impair the finality of the judgment’s which have been arrived at in these cases particularly the judgment’s arrived at through the process of settlement and compromise.

We believe the Court of Claims failed to properly respect the principles of res judicata in this case.

And the second way in which this decision seemed to us to jeopardize these congressional policies was by impermissibly expanding the Commission’s jurisdiction beyond the statutory cut-off dates that Congress imposed on the Commission’s jurisdiction.

And if I may, I’ll proceed first to the res judicata issue in the case because under our view of the case that issue should be dispositive of the case in this Court.

Now, there’s a lengthy background, historical background which I think need not be reviewed in detail, I have asked the clerk to distribute a map to each of the Justices which may illuminate a little bit just what we’re talking about here relative to the res judicata issue.

Much of the history was reviewed by this Court in a decision in volume 330 U.S. written by Mr. Justice Black called the Confederated Bands of Ute Indians against the United States.

It’s 330 U.S. 169.

It was there noted that in 1868, a reservation was established by treaty arrangement with Confederated Bands of Utes which included all of the Ute Indians and that reservation was the entire large rectangular area on this map bordered in red and also in orange at one point.

And the treaty specified that any change in the reservation must be approved by three quarters of the males of the entire Confederated Bands of Utes.

The first change that took place was in 1874, the so-called Brunot Cession which is not in dispute in the present case and that ceded to the United States the area, the rectangular area marked off in yellow-orange crayon in our map.

And remaining after the Brunot Cession which was approved by three quarters of the males of the entire Confederated Bands was the rest of the reservation which was all one undifferentiated Ute reservation at the time as it had been under the 1868 legislation.

The map that we have used includes numbers on it so-called Royce numbers which were later applied by Charles Royce who drew up this map.

This is a copy of Charles Royce’s map drawn in 1896 but at the time, there was no such thing as Royce Areas there was only the one undifferentiated Ute Reservation.

Then by an agreement reached in 1880 as a result of the massacre which occurred at the Meeker Agency in the northern portion of the reservation and this too was reviewed in this Court’s previous case.

There was in effect a forced sale of this entire reservation to the United States and the language of the 1880 agreement ceded the reservation to the United States.

We have it reproduced in our brief in the appendix to our brief the legislation which is found in volume 21 of the statutes.

It was an agreement between the Confederated Bands of Utes which include the respondents in this case and the United States.

And on page 44 of our brief, we find the relevant language of the chiefs and headmen, I’m reading the last full paragraph now of the Confederated Bands, agree to use their best efforts to procure the consent, had to be consent of three quarters of the males to cede to the United States all the territory of the present Ute Reservation in Colorado with the exception of provisions for settlement by individual Indians in severalty and in the case of the Utes in the southern portion that settlement was to be made along the La Plata River in Colorado which is the area shaded in green on our map and if there was insufficient land there for the allotments in severalty to the individual Indians then they were to be settled under the La Plate River and it’s vicinity in New Mexico.

Lawrence G. Wallace:

That language is right at the bottom of page 44 of the statute and repeatedly the statute refers to this proviso all to the session of all of the lands as a proviso for allotments in severalty.

That language is used on page 45 at the beginning of the third paragraph allotments and severalty of said lands and at the very bottom of that page the land that should be divided among the said Indians in severalty, and again at the bottom of page 46 that the reference to settlement in severalty.

And accordingly, in this Court’s previous decision dealing with the treaty at page 174 of volume 330 of the U.S. Reports after the relevant language of the treaty as quoted, this Court said quite succinctly, “This Act authorize specific allotments to individual Indians from the lands so ceded.”

The Court referred to this as the land ceded.

All of the lands of then present reservation.

The dominant intent of those who sponsored this legislation and this treaty was to extinguish reservation life for the Ute Indians.

This is clear from the reports and from the legislative history which we cite extensively in our brief.

This was partly for retaliatory reasons of the massacre and partly it represented prevalence of the view that many held at the time that it was wasteful of land to try to maintain the Indians in their aboriginal state that they should be settled on homestead size plots to be farmers.

Views were expressed by some who opposed the legislation that the Indians weren’t ready for this kind of settlement but those views did not prevail.

The Act was enacted and the agreement was duly ratified by the Ute Indians, by the Confederated Band which included the respondent.

There were subsequently legislation which was not referred to in the course of the settlement agreement in 1950 in which we rely and which I will refer to just briefly in the historical part of our brief.

We refer to the subsequent legislation at some length.

The 1882 Act was a very short statute which provided for the first time for the line to be surveyed which appears as the dotted line on our map.

This was necessary because all of the Utes in the northern part of the ceded reservation had been removed to Utah and therefore that part of the reservation was ready for settlement by non-Indians.

But the allotments had not yet been made to the Utes in the southern portion the so-called Southern Utes including the respondents and the settlement could not be made by the non-Indians until after the individual allotments had been made and therefore it was necessary to survey a line to cutoff the southern portion so that the northern portion could be open to non-Indian settlement.

I thought however that you told us of that those Southern Indians were to be settled along the La Plata Valley giving them homesteads and severalty?

Lawrence G. Wallace:

That is correct.

And that the La Plata Valley is a rather small area marked in green here, if that what you said is correct, I don’t quite see necessity of the 1882 —

Lawrence G. Wallace:

Well, the fact is that the Indians were still in the entire southern area.

They had not yet been settled along the La Plata valley.

The Southern area therefore was not a practical matter ready for settlement by the white settlers and that was why Congress said that this line should be drawn so that the northern part could be opened for settlements for homesteading and for sales.

In the 1895 legislation which then ensued the House Report which we quote on page 9 of our brief refer to the Southern Indians “anomalous condition of having ceded their reservation” that was the word used “having ceded their reservation and yet remaining upon it.”

And for that reason Congress decided that a reservation should be restored to the Southern Utes and for the first time a Southern Ute reservation was established by the Act of 1895 which we refer to and reproduce in the appendix to our brief.

Where was that in this map?

Lawrence G. Wallace:

That would now be the lengthy, the long, narrow rectangle at the bottom that would be formed by extending the dotted line to the Western boundary of Colorado.

And that was created or perhaps, you can say recreated as a reservation in 1895 for the Southern Utes?

Lawrence G. Wallace:

Yes.

Well, it was actually the left the corner of it.

That was established as a reservation for the Southern Utes by the Act of 1895 which is reproduced starting on page 48 of the appendix to our brief.

Say it was the left corner of it?

Left corner of what?

Lawrence G. Wallace:

The left corner of this southern part and the remainder of this southern strip was allotted in severalty to individual Indians.

But a reservation was established to that time not in the entire southern strip but in the left portion of the western portion of it.

Part of it was allotted in severalty as the Act of 1880 had provided, part of it was established for the first time as a Southern Ute reservation.

There was no Southern Ute reservation as such as we read the statute —

Until 1895?

Lawrence G. Wallace:

— as we think this Court read the statutes in the case that I’ve cited to you.

Now this is of significance because of the settlement agreement of that we think of the Court of Claims should have honored in our plea of res judicata in this case.

That settlement agreement which was formalized in the Court of Claims judgment was added into in 1950 the relevant portions of it are set forth on pages 98 and 99 of the appendix.

In these excerpts, these indented excerpts that appear in Judge Skelton’s dissenting opinion on the Court of Claims.

The judgment entered was entered, you notice in the first excerpt has full settlement in payment for the complete extinguishment of plaintiffs’ right, title, interest, estate, claims, and demands of whatsoever in nature to the land ceded by the plaintiffs to the defendant by the Act of 1880 and after a schedule of lands was included in the settlement agreement the portion on page 99 says that the judgment is res judicata not only as to the land described in this settlement but whether included there in or not also as to any land formerly owned or claim by the plaintiffs in Western Colorado ceded to defendant by the Act of June 15, 1880.

Now the respondents were parties to that settlement agreement and the four cases that were settled in that judgment after several years of negotiation and compromise between the Government and the present counsel for the respondents.

The Confederated Bands of Utes including the Southern Utes were awarded almost $32 million in settlement.

Judge Skelton estimates that this amounted to $15,600.00 per individual Indian not for family but for individual.

The settlement provided pursuant to stipulation of the tribes that 40% of the award would go to the Southern Utes including the respondents and this is a recited in Section 672 of Title 25 of the United States Code.

It seems significant to us that although the respondents now claimed that no Southern Ute lands were involved in that settlement.

Their percentage of the award that’s 40% was larger than the one third which was specified in the 1880 agreement in legislation as the share that the Southern Utes were to take in proceeds under that agreement.

Was there any reservations of the claims of the Southern Utes in the settlement?

Lawrence G. Wallace:

There were not sir.

As a matter of fact, the settlement agreement recited very specifically and this is at page 43 of volume 117 in the Court of Claims “such judgment shall be final adjudication of all issues between the plaintiffs and the defendant in the case.”

It recited this, as to each of the settlements, I’m quoting the one that’s directly relevant here, appears on 438 of volume 117.

But also of great significance in our view is the context in which this settlement and judgment were reached, the context of contemporaneous litigation in this Court between the same parties represented by the same counsel.

On pages 11 and 12 of our brief, we cite a Council for the Utes repeated an emphatic representations in that case, in the complaint and in the briefs and the case that’s in volume 330 U.S. that the 1880 agreement had ceded to the Government all of the consolidated bands, Colorado lands except for the individual allotments in severalty which were provided for.

And is noted in our brief, this was also the view taken in previous Court of Claims cases and the Government in it’s brief in that case in this Court acknowledged the correctness of this representation.

Moreover, this Court in language which we quote in our brief on page 25 of our brief and I think this is very significant, this Court specifically referred to the then pending Court of Claims litigation which reached settlement three years later in 1950 and said in the language that we quote there in the middle of page 25 of our brief, “except for 13 treaty lands not at issue here, litigation concerning which is now pending in the Court of Claims, the only lands in Colorado for which the Indians have not been paid are those to the North of an outside the 1868 treaty reservation.”

And the Court in that case this case rejected their claim for payment for those lands that were north of the treaty reservation, the original treaty.

And the Court went on to say it is considered that petitioners, the Confederated Utes including the respondents have either been or are currently pressing litigation in the Court of Claims by which they seek to be compensated for the White River Valley lands and in fact for all of the land which was contained in the true boundaries of the 1868 reservation and that is the entire large rectangle on the map which of course includes the lands in the southern strip for which the Court of Claims upheld in additional reward in this case.

Now we emphasize this language, we believe that was correct but we emphasized this language not because there’s no possibility that this Court could have been an error in saying this but because this language was based on representations of the same counsel who then negotiated the settlement agreement.

They were aware of what this Court had held and had said in the case 1947, and it seems inconceivable to us at least that counsel, aware that the Court had said this about the litigation then pending, would enter into a settlement agreement using this broad language referring to all of the lands ceded in 1880 Act without reservation of any other claims, a settlement which recite that it’s a final adjudication of everything that was of issue in those cases.

It seems inconceivable to us that counsel would enter into such a settlement agreement using that language in the context of this Court’s recent opinion if they had mend to reserve further claims to the southern lands.

Well, you are going to, Mr. Wallace you are going to address yourself to what doors the other side claims were left open by the settlement?

Lawrence G. Wallace:

Well, they of course point to statements that were previously made by the Secretary of the Interior and by the other officials in the interior department the latest of which were in 1938 in which in our view there were some confusion as to what was established by the 1880 Act.

How do you — but how does the other side get into this, take this settlement agreement a part, say well it settles something but not others.

I mean what language and it leaves anything open?

Lawrence G. Wallace:

Frankly, I don’t see language.

But only covered, for one thing it only covered lands ceded by the Act of 1880, didn’t it?

Lawrence G. Wallace:

That — and that is what — that embrace all of the land of their reservation.

Well, there’s some argument about that isn’t it?

Lawrence G. Wallace:

Well, of course they make some arguments about it but frankly I don’t see that any —

With the Court of Claim — the majority of Court of Claims sought something was left over —

Lawrence G. Wallace:

With the majority of the Court of Claims entertained parol evidence on the question of the parties intent and took the Government severely the task because we raised the claim of executive privilege with respect to the attorneys work product of the attorney who negotiated the settlement with the respondents who wanted to refer to his notes and work product who is no longer in the government but really the claim of executive privilege was in our view essentially is the purpose, our basic position was it that this was not a situation that admitted of parol evidence as to the intention.

What if it were, Mr. Wallace?

Lawrence G. Wallace:

Well then there would be an issue.

About what?

Lawrence G. Wallace:

As to whether the claim of the executive privilege was a proper one in the circumstances.

Well, let’s assume that it wasn’t.

Let’s assume it wasn’t and parol evidence was a quite proper.

Lawrence G. Wallace:

And whether there was a sufficient basis for the resolution of the issue.

What would have been the issue?

What would have been the evidence so, what would the claim — what would have been suggested was left open? I mean in terms of the settlement language we didn’t mean to do what?

Lawrence G. Wallace:

Well, their claim is that we had treated the 1880 Act right along as reserving a reservation for the Southern Utes even though it did not in terms reserve anything but individual allotments and it was not until the 1895 Act that anything can be found in the statute books which indicates the statutes of a reservation.

Now, what’s your answer to that?

Lawrence G. Wallace:

Well, my answer is these even though clauses, there had been some misunderstanding by some Interior Department officials as to the effect of the 1880 Act, the effect of the 1895 Act but always in a context in which it was a immaterial whether the reservation was established by the one or the other and these matters, these expressions of confusion which are cited and we refer them in our reply brief were remote in time from unsettlement negotiations that were being conducted in 1947 through 1950 in the context of what counsel, the very same counsel had said to this Court and what this Court had said which indicate completely in our view that the 1950 settlement covered all of the lands within this large order.

When did the confusion exist years ago?

Lawrence G. Wallace:

The latest expression was in the restoration of 1938.

There was also an expression in the early part of the 20th century.

But then you think of whatever confusion there was, was washed down in the settlement?

Lawrence G. Wallace:

Well, it seemed to us clear from the context, the attorneys who has just litigated this case in this Court and we are aware of the language this Court had use if they entered into a sweeping a settlement agreement as they did, it seems to us the way any other judgment is treated they obviously meant to settle all the claims that were at issue.

That would certainly be the view on an antitrust consent to create any other settlement judgment and we don’t think that this judgment which was the result of a compromise negotiated by very able counsel over a period of several years should be treated any differently.

Now, we also —

What’s the amount of the initial award that’s been (Inaudible)?

Lawrence G. Wallace:

It has to be in a valued in further proceedings Mr. Justice that the claim is just for evaluation of an accounting.

Warren E. Burger:

Do you have any estimate of the range of it at all?

Are there anything in this record that would reveal that to us?

Lawrence G. Wallace:

I don’t’ think the record really indicates it and I don’t know the answer to that, this remains to be evaluated.

There is of course an additional issue as to the extent of the accounting that’s properly required under the judgment in this case.

Should the Court disagree with us under res judicata issue, we’ve developed that in our brief it seemed to us that they both, the Commission the Court of Claims when way beyond the explicit cut-off dates on the Commission’s jurisdiction in accepting 10 years after the accounting was rendered exceptions which brings in to issue claims other than those made during the statutory limitations period in which would require a general accounting up to date which seemed us to go way beyond the statutory limitations on the Commission’s jurisdiction.

John M. Harlan:

If you prevail on res judicata, all those other claims are wash out.

Lawrence G. Wallace:

That is correct Mr. Justice Harlan.

The res judicata point that we’re making would be dispositive of the case.

Thank you.

Warren E. Burger:

Thank you Mr. Wallace.

Mr. Wilkinson.

Glen A. Wilkinson:

Mr. Chief Justice and may it please the Court.

I’m having a chart brought in if I may so that as Mr. Wallace says the history of the treatment by the United States of the Confederated Bands in Ute Indians — Confederated Bands of Ute Indians by the United States is somewhat complicated.

I would like to use this to give a picture as we see it and as it relates to the case before the Court today.

Like the Government’s sketch, this is adopted from Royce 1896 Bureau of Ethnology report interpretation of Indian land sessions in the United States.

Prior to 1868, the Confederated Bands of Ute Indians who were composed of the White River Band the Uncompahgre Band, and the Southern Ute Band occupied in the usual Indian fashion a tremendous area in Colorado, New Mexico, and Utah.

In 1868, the Confederated Bands, the three units comprising Confederated Bands agreed to limit its area of occupation to the outside perimeters shown on this sketch approximately or just slightly lower than 16 million hectares.

Warren E. Burger:

Mr. Wilkinson, in 1868, approximately how many people are involved in these tribes and bands?

Glen A. Wilkinson:

Somewhere between 3,000 and 4,000 people.

In 1873, as counsel has explained, there is a highly mineralized area found in the location of Colorado which is identified here as Royce Area 566.

The United States obtained from the Confederated Bands of Ute Indians and an agreement to cede that that was ceded in 1873 and ratified by an Act of Congress of 1874.

The next Act of course is the agreement between the Confederated Bands of Ute Indians in the United States an agreement which was worked out by nine representatives of the three bands constituting with Confederated Bands of Ute Indians over a period of several weeks in Washington.

As indicated, it was decided by the people of Colorado and probably people and Congress that the Confederated Bands be removed from Colorado because of many things but because eventually of the Meeker Massacre which occurred in 1879.

That agreement provided that the chiefs and headmen of the Confederated Bands would exercise their most persuasive powers to get their people to agree to a cession of lands indicated in what I call the 1868 reservation that agreement had to be ratified or accepted by three quarters of the male adult Utes.

It was to be brought back to Congress for ratification.

It provided for assessment of the 1868 reservation with two extremely important exceptions.

One was is it provided that the Uncompahgre Band which occupied generally the middle area of the 1868 reservation was to be provided with land on the Grand River near the mouth of the Gunnison River in a western portion of middle section of this area.

The other important exception on the one which determines this case, there’s the fact that I preserved for the Southern Ute area.

Glen A. Wilkinson:

The area in the south which is the Southern Utes had used from time immemorial.

Southern Utes as a part of the agreement agreed to remove to and remained on the La Plata River and the area adjacent to it in the State of Colorado and if that was insufficient then on the La Plata River an area adjacent in the territory of New Mexico.

This was the way of expressing where the Southern Utes were living and continued to live.

On the first definite expression of this comes from the fact that Mr. Manypenny who was Chairman of the Commission appointed pursuant to the Act of 1880 when he visited the Southern Utes recommended to the Department of the Interior and the Congress that the area heretofore and presently occupied by the Southern Utes should be preserved for the home of the Southern Utes.

What was the reaction of Congress —

One of the questions in the case is whether if that was a reservation or whether it was simply a designation of the area to be occupied by the Southern members of the Confederated Ute Tribes and severalty, isn’t that one of the issue you?

You stated this is the fact, isn’t that a matter of some controversy between you and your brother counsel?

Glen A. Wilkinson:

It’s the key controversy in this case —

That’s what I thought.

Glen A. Wilkinson:

— if Your Honor please.

The 1880 treaty, an agreement that has been indicated removed in the Southern Utes for whatever purpose.

And whether or not that was a reservation at that time, is a key issue in this case?

Glen A. Wilkinson:

Whether it was reserve for the Southern Utes, that’s right.

The 1882 Act came along.

There was concern in the Attorney General to Congress that it did not dispose under the public land laws, the area indicated a 616 without additional legislation.

Congress responded with two facts in the 1882 legislation.

First it opened area 616 to dispose along under the public land laws and it provided for a line to be drawn between the area to be dispose of under that Act and the area occupied by the Southern Ute Tribe.

That line was drawn as I indicate from the Southwest corner of Royce Area 566 to the boundary of the territory in Utah.

Now from that period on from 1882 until 1895, in every session of Congress save one, in most days most of the Congress has had three sessions.

There was legislation pending concerning the treatment and disposition of the Southern Utes and their lands.

When it came along the 1888, Congress passed a law which established to Commission to negotiate with the Southern Utes for preservation or settlement of their treaty and other rights including the possibility of exchange of “their reservation.”

Their reservation meant only Royce Area 617.

They reached agreement with the Utes.

The Utes agreed to the Southern Utes to trade that area for an area in Utah territory three times as large as this.

There was objection from the citizens in Utah.

The Utes were sort of unwanted people at this time even the territory of New Mexico didn’t want them to move there.

But this agreement in 1888 which provided for exchange of that reservation for the exchange for the land in Utah was reached by the Commission and it passed the Senate.

It died in a House.

Still there was a continuation of legislative effort throughout.

In about 1893 or 1894, Congress sort of changed this direction toward the handling of the Southern Ute reservation and I might say that during all of this time, there was adequate, an apple administrative recognition of the ownership of the area Royce 617 involved on the part of administrative officers of the United States.

Glen A. Wilkinson:

When 1895 came along, Congress had some slight heat or tension to the Act of 1880 by saying that the property involved in the Royce Area 617 should be handled as provided by the 1880 treaty as herein provided.

It then changed direction considerably from what it had done in the 1880 Act.

The 1880 Act had provided for instance the proceeds from the lands to be sold in the Royce Area 616 should be divided three ways between the White Rivers, the Uncompahgre, and the Southern Utes.

In 1895, and even though the treaty of 1868 had required that any session of Ute land obtain permission from three quarters.

The male, adults of the bands involved it provided possibly different factors.

First, it created the divisions between Royce Area 617.

It said, those members of the Southern Ute Tribe who elect and are qualified to receive allotments shall be allotted in the area at the east end of this track as to those who did not elect or were not qualified, the Government would create and reserve for them a reservation in a 40-mile track in the western end of Royce Area 617.

Congress didn’t require the three quarters of the male, adult Utes vote for this required only a majority vote.

It also provided that within six months following the passage of that Act, the President should arrange for the allotments for those to be allotted in the eastern end and the balance should be sold under the public land lost at not less than $1.25 per acre.

And that was in what year 1895?

Glen A. Wilkinson:

1895.

The proclamation was actually issued four years later in 1899.

Do you know about how many Utes there were at that time?

Glen A. Wilkinson:

At that time the Southern Utes numbered approximately 1,100.

What are they number now?

Glen A. Wilkinson:

They are now two different tribes, if Your Honor please.

This is now known as the Ute man — Ute band.

This is known as the Southern Ute Tribe.

The Southern Ute Tribe latest to normal is just under 800.

The Ute man — Ute band is almost as large.

What was the acreage?

(Inaudible)

Glen A. Wilkinson:

The acreage in Royce Area 617 was approximately 1,070,000 acres.

It was an area 15 miles wide and approximately 100 miles long.

It was often referred to as 15 x 100-mile strip.

And there were how many at the time?

Glen A. Wilkinson:

There were approximately 1,100.

This was on of the factors which caused Congress to give this problem so much consideration also caused the administrative officers to be so concerned.

The Southern Utes were setting on a strip of land these 15 miles wide and advancing settlement was encroaching on all sides especially to the north and south.

The City of Durango which was in the session of 1873 along in 1895 had reached the population 4,000 people.

Glen A. Wilkinson:

The administrators were concerned that friction would develop between a non-Indians and Indians and this is one of the reasons there were access to remove the Southern Utes from what the administrative officers considered a small, slender portion of land on which there to live.

Now the area on the east which was not allotted was put up for sale and in the 1902, Congress passed another Act which is called the Free Homestead Act.

Now the 1895 Act which provided for the allotting in the east provided that after the deduction of expenses of sale, the remainder, the proceeds should be saved and put in trust for the benefit of the Southern Utes and the Southern Utes only; another clear indication of the congressional recognition that Royce Area 617 was Southern Ute territory.

Now, two administrative decisions came along in 1903 and 1920.

1903 one man sought a homestead in that area.

He used history, the fact that this had been ceded by the Act of 1880.

His application was denied, reviewed and denied by the Secretary of the Interior.

The same application type of application was made under the Minerals Act of 1920.

And again was denied by the Secretary of the Interior.

And the final main Act which shows beyond any doubt that this area, Royce Area 617 was preserved for the Southern Utes and was not ceded by the Act of 1880 is a fact that in that year, the Secretary of the Interior pursuant to provisions the Indian Reorganization Act of 1934 restored to the Southern Ute Tribe in excess of 300,000 acres of land in the eastern section of Royce Area 617 which had not been disposed of under the public land laws.

In the meantime, between 1900 and 1938, the United States Government had given away free to homesteaders in excess of 225,000 acres of land.

And it did this in clear violation of the Act of 1895 which provided for sale of that land to settlers at not less than $1.25 per acre, the balance to be saved and held in trust for the Southern Utes.

Now, the Government says we ignore all of this history.

We ignore the recognition by Congress over continuing long period of time and we do this because in the settlement of other cases unrelated to this area involving other parties, involving other issues there is a stipulation which provided in a catchall phrase that the settlement in four cases which were involved there and only one is really important here and that is case number 46640, a judgment to be entered is res judicata not only as to the land described in Schedule 1, but whether included there in or not also as to any land formerly owned or claimed by the plaintiffs in Western Colorado ceded to defendant by the Act of June 15, 1880.

Warren E. Burger:

Mr. Wilkinson let me ask you this.

If this stipulation that you just referred to which, is that the same one that appears on page 98 of the appendix?

Glen A. Wilkinson:

Yes, sir.

Warren E. Burger:

Recited in the dissenting in the Court of Claims?

Glen A. Wilkinson:

Yes, sir.

Warren E. Burger:

Now, if that stipulation does indeed relate to the total claims, is that the dispositive factor in this case?

Glen A. Wilkinson:

If the Court should find contrary to what we think is the fact in the language of the 1880 Act that legislative history, the administrative interpretation that this area Royce Area 617 was indeed ceded by the Act of 1880 then I’m afraid that the Southern Utes will never have an opportunity to get reimbursed for the 230,000 acres given away.

Where is the language of the 1880 Act at which the Government denies of having ceded the entire reservation?

Glen A. Wilkinson:

It’s in the defendant’s — the Government’s brief page 43, Section 3 of the bottom page.

Did you say 44?

Glen A. Wilkinson:

44.

If Your Honor please, the second full paragraphs said, chiefs and headmen agreed to do what was required by the agreement.

Then the language is that the Southern Utes agree to remove to and settle upon unoccupied agricultural lands on the La Plata River in Colorado.

[Voice Overlap] Do you dispute that the rest of the reservation was ceded at that time?

Glen A. Wilkinson:

Area 616 was yes.

It was ceded in trust.

Alright.

But where in this language do you find the distinction between 616 in the Royce 617?

Glen A. Wilkinson:

The Royce —

You mean if it ceded one, why didn’t it cede the other?

Glen A. Wilkinson:

Because it treated each of the three bands of the Confederated Utes a little bit differently.

The White Rivers who were in the northern area were moved to Utah territory.

That may be true but the cession language that applies generally is the entire area.

Glen A. Wilkinson:

Except —

If it ceded, well except this herein.

But where is the, except?

Glen A. Wilkinson:

It’s in the paragraph before You Honor, except this hereinafter after provided for this —

(Inaudible) Except this hereinafter, where is that hereinafter?

Glen A. Wilkinson:

That’s the Southern Utes and Uncompahgre Utes which the Uncompahgre Ute provision is dealt with on the top of page 45.

Well, I know but do you think that’s an exception to the —

Glen A. Wilkinson:

Yes sir, we do and we think that conclusion is very well fortified by the later congressional history and congressional action which followed the adoption of this Act.

Well, do you think then that they’re still unclaimed outstanding within the Southern Utes?

Glen A. Wilkinson:

Well, there was a plan file for the Uncompahgre Utes and that claim was successful.

Do you mean —

Glen A. Wilkinson:

For failure of the United States to locate land for them on the Grand River near the mouth of the Gunnison River.

They didn’t carry on the strip but there was no question on what the lands have been ceded?

Glen A. Wilkinson:

We think there is and that’s the basis of this lawsuit and we think Congress thought so and we thought the adminis —

Upon which you rely as the last four paragraph on page 44, isn’t it?

And you say that’s a reservation for the Southern Utes?

Glen A. Wilkinson:

Yes, it’s a preservation of the land.

Theretofore occupied by the Southern Utes and we say this constitutes as Mr. Manypenny put it a preservation of the land now and here fore occupied by the Southern Utes.

And you drop the fee and you say it was a reservation, is that right?

Glen A. Wilkinson:

Yes, sir.

And also there — I might call your attention the fact that there is language in the report of the Commission of Indian Affairs in 1881 which provides and interprets this as ceding and selling the diminished 1868 treaty reservation accepting and reserving such lands on the La Plata River and it’s vicinity for the Southern Utes in pursuance of the Act of 1880.

Warren E. Burger:

Now, all this historical facts were well-known to everyone I take it when the stipulation was made, the one that appears on page 98 of the appendix, is that correct?

Glen A. Wilkinson:

They were well-known to the people who were involved, yes.

Warren E. Burger:

Why should it be necessary to go outside the four corners of the stipulations to find out what the stipulation meant?

Glen A. Wilkinson:

I don’t think it is we oppose the remand, Mr. Chief Justice.

We didn’t think its necessary —

Warren E. Burger:

Where did the idea of taking parol evidence for that explanation originate?

With the Court of Claims?

Glen A. Wilkinson:

With the Court of Claim.

I think both parties oppose the remand but when the remand was allowed, we introduced the evidence, we introduced evidence not only by the chief attorney for the Utes but also by two expert plan researchers who testified that before the stipulation and the settlement of 1950 they were working at our request on compilation of records for the Southern Ute tribe involving area 617.

The Government of course is, the Court is well aware, refused to offer any evidence at that time.

Now, if the Court please, if it feels or you feel that there’s some uncertainty about whether the 1880 Act did cede Royce Area 617 and we submit that it did not and we submit as I’ve said that Congress and the administrative did not think so, counsel has said that the Secretary of Interior in 1938 was merely mistaken in his interpretation of this Act.

But if he was mistaken he gave to the Southern Ute Indians over 300,000 acres of land to which they were not entitled.

May I ask — Mr. Wilkinson, I gather that this provision on page 45, allotments in severalty. Does an allotment presuppose that the United States had land to allot?

Glen A. Wilkinson:

It was an allotment.

It was a method of carrying out was then the new Indian policy of breaking up —

No, my question was whether a provision for allotments in the severalty must be — was or was not on a premise that the United States had land to allot.

Glen A. Wilkinson:

No.

No, the United States held this land.

Any of this land only entrust even as to Area 616, it held that entrust only for the benefit of the Confederated Bands of Utes.

They have a legal title.

Yes, to hold it in trust.

Why was there a cession of 616?

Glen A. Wilkinson:

Because Congress and the people in the State of Colorado wanted to let the Utes out of Colorado.

They wanted to put title in the United States?

Glen A. Wilkinson:

Title was already in the United States —

As trustee?

Glen A. Wilkinson:

— legal title by virtue of the 1863 treaty.

And what did the cession accomplished?

Glen A. Wilkinson:

It moved the —

It removed the Indian claim?

Glen A. Wilkinson:

No, it removed the Indians personally.

Yes, but removed whatever claim on the property it had.

Glen A. Wilkinson:

No, sir.

No sir, like the 1868 treaty the United States is merely holding that land in trust for the Indians.

Then the 1880 cession to the extent — the 1880 cession whatever it appraised did not terminate the trust and was not (Voice Overlap)?

Glen A. Wilkinson:

No, sir.

In fact, Your Honor the case is —

What did the cession accomplished?

Glen A. Wilkinson:

Move the people out of Colorado.

A cession does nothing except moved the people physically, right?

Glen A. Wilkinson:

And when the 1882 Act came along, it did give the United States authority to dispose of this land under the public land laws.

The Attorney General Brewster advised the Congress in 1881 and didn’t have authority even under the 1880 Act to dispose of this land, and I’m talking of 616 without additional authority from Congress.

Likewise, we say the same is true as to area 617 with respect to the Southern Utes.

And whatever the motivation of Congress was in 1880, it let all Southern Utes occupy that area just as they had theretofore until 1895 when it retraced it’s steps, went in another direction and provided for the allotting the separate reservation, the sale of some of the eastern area and then the proclamation by the President to open that up for public settling.

On the bottom of this, the parties to this 1880 arrangement must have had — they must have thought the session was doing something because they recited that the Utes would cede but on the condition that the Government cause the land so set apart to be surveyed and divided among the Indians in severalty.

And that as soon as the consent of the tribe, the permission shall be sent to superintendent to remove the settlement of the Utes.

And in consideration of the cession of the territory, they must have thought the cession did something?

Glen A. Wilkinson:

Yes.

It provided for a census and the separation of the three bands and two of them were moved to Utah eventually and the Southern Ute Band was left essentially where it had live before.

Mr. Wilkinson, what — the title is enact to accept and ratify the agreements for the sale of their reservation in the said state?

What were they selling?

Glen A. Wilkinson:

Well the Attorney General, the following year told the man then enough to sell it.

They need it one more Act so that they could sell track 616.

I want to say —

Hugo L. Black:

Mr. Wilkinson, may I ask you one or two questions and I am not sure if this in the record.

Does the Government wins it leaves the Utes only with the land which there’s no controversy about now?

How much land would that be for each Indian, per Indian to admit the population?

Glen A. Wilkinson:

I don’t know, Your Honor.

I guess there are 450,000 acres in the Ute reservation which was created by the Act of 1895.

The population of that group, that tribe is I think in a neighborhood of 700 in Southern Ute reservation which is the eastern and the Royce Area 617.

Hugo L. Black:

700 at 450,000 acres you said?

Glen A. Wilkinson:

Approximately, yes.

Hugo L. Black:

Even if you don’t win this?

Glen A. Wilkinson:

They still have that and they will continue to have that.

Hugo L. Black:

Suppose you win this, how much will it be per Indian?

Glen A. Wilkinson:

Those people will still have that but we’re trying to collect for is 230,000 acres of land in the area.

Hugo L. Black:

How much it is per Indian?

I can think of it better?

Glen A. Wilkinson:

My arithmetic is a little too slow Mr. Justice Black, but if you divide thousand into 400,000 and I guess you’ll get a 400 hectares.

Hugo L. Black:

About 400 hectares?

Is this a mountainous land or valley land or farming land or –?

Glen A. Wilkinson:

It has an elevation at various points between about 6,000 feet and 12,000 feet.

It’s fairly mountainous but it has been indicated there are five or six small river valleys also.

And notice where the places were the allotments were made approximately 150,000 acres of land was allotted pursuant to the Act of 1895 and the Government gave away free to homesteaders about 230,000 acres.

If those are none, your theory of the case, what is the estimation for that 40% as part of the settlement the Southern Utes got in 1957?

Glen A. Wilkinson:

The settlement was for lands involved in Royce Areas 616.

There were three components of the Confederated Bands of Ute Indians.

And those judgments for all for the Confederated Bands of Ute Indians with the Southern Utes received 40%, the Uncompahgre Utes receive I think 20%, and the White River Utes 40%.

Something on that order because all of them pursuant to the treaty of 1868 owned the land involved in the chart you see before you.

What’s the money that’s involved total in this case?

Glen A. Wilkinson:

Just under 32 million and the most —

32 million representing what?

Glen A. Wilkinson:

The biggest part was one case which approximated $25 million.

So as involved on this was litigated?

Is this suit we have before us?

Glen A. Wilkinson:

As Indians claims go this is a small case.

Well, I know but how much is involved?

Glen A. Wilkinson:

We don’t know.

This is still in an interlocutory stage.

My guess would be that you’re talking about 230,000 acres valued in different tracks as between 1900 and 1938 of land which is not extremely valuable and also we’re dealing and asking for an accounting of the proceeds of other land sold but for which the Government has made no accounting to —

And how much did the Government get for that land?

That’s a 230,000 acres, isn’t it?

Glen A. Wilkinson:

That’s what shows in their reports so far $215,000.00.

$215,000.00?

Glen A. Wilkinson:

That’s right.

So this —

And this case is under a million dollars, is that it?

Glen A. Wilkinson:

That’s a good ballpark guess in my judgment.

I still don’t understand why the Southern Utes premise is proscribed that way in 1957?

Is that (Inaudible) here?

Glen A. Wilkinson:

They didn’t, Your Honor.

They got 40%?

Glen A. Wilkinson:

At that time there were two tribes here, each of them got 20%, combined taking all Southern Ute Tribe they got 40%.

Likewise, the Uncompahgre Band got approximately the same and the White River Band got about 20%.

Now, the treaty or the agreement of 1880 provided for three ways split between these bands but the population shifts that accrued up to the time of the stipulation in 1950 been such.

But the tribes agreed among themselves upon a division of the judgments in Congress ratified that agreement, and that’s the background to why that happened. So I might say, one thing more, if I may impose on the Court.

If there’s uncertainty about what the Act of 1880 did, we ask you to look at that short section of our brief in which Mr. Chief Justice Marshall as early as 1832 indicated that agreements and treaties between the United Stated and the tribes should not be interpreted to the detriment of an Indian tribes and we ask with that tradition of this great country be continued in this case.

I thank you.

Warren E. Burger:

Thank you Mr. Wilkinson.

Mr. Wallace your time has expired but we have extended Mr. Wilkinson.

If you have anything pressing or urgent we’ll give you a few moments.

Lawrence G. Wallace:

Well just very briefly, Mr. Chief Justice.

I do want to call specific attention to page 8 of our reply brief that we filed in this Court in which we quote from the brief that was filed on behalf of the Confederated Utes in this Court in 1947 including the respondents.

Our reply brief was filed in February 1971.

It’s on the front cover it says petitioner’s reply brief.

On page 8 of that reply brief we quote from the brief that was filed by Mr. Wilkinson, Mr. Ernest Wilkinson, Mr. Glen Wilkinson’s law partner, in this Court in 1946 term in the case that I referred to previously and that brief said that the central purpose of the 1880 Act was “to acquire all of the land of the then present Ute reservation” and the sole “exceptions” —

Sale — sale.

Lawrence G. Wallace:

Well that is a misprint, I’m sorry.

The word should be “sole” and the sole exceptions were unoccupied agricultural lands on the La Plata River, agricultural lands on Grand River, etcetera for individual allotments.

That is the representation that the Ute Band made at this time.

They’re now claiming that that reservation in the 1880 Act was for a reservation for the Southern Ute Tribe but it seems to me that in light of what they had said in the 1947 litigation and what this Court had said that the stipulation in 1950 would have read quite differently if they had meant to reserve Southern Ute Lands from that settlement.

Thank you.

Warren E. Burger:

Thank you Mr. Wallace.

Thank you Mr. Wilkinson.

The case is submitted.