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Opinion of the Court

95 C. Cls.

peaceful occupation and possession of its property; Cherokee Nation v. Hitchcock, 187 U. S. 294; but this duty, of course, goes no further than a duty to use its forces to endeavor to prevent a threatened wrong and to afford it redress in its courts against the wrongdoer if the wrong is committed. No one has ever asserted that because a person's rights are invaded by a stranger the sovereign is liable in damages for a failure to afford adequate protection. Cf. Choctaw and Chickasaw Nations v. United States, 75 C. Cls. 494. This is true even though the sovereign be grossly negligent in failing to afford the necessary protection against the threatened danger. The sovereign is not liable for failure to perform a governmental function. Gianfortone v. City of New Orleans, 61 Fed. 64; City of New Orleans v. Abbagnato, 62 Fed. 240, 245-246; Campbell v. Montgomery, 53 Ala. 527; Western College v. Cleveland, 12 Ohio St. 375; Louisiana v. New Orleans, 109 U. S. 285, 291, concurring opinion by Mr. Justice Bradley; and other cases collected in 13 A. L. R. 751, 23 A. L. R. 297, and 44 A. L. R. 1138.

We are satisfied that it was not intended by the treaty to impose on the defendant any greater duty to protect plaintiff in the peaceful occupation and possession of its property than already existed. Certainly there was not expressly assumed an obligation to respond in damages, if the protection afforded was inadequate; nor will such an obligation be implied unless such implication is inescapable. Robinson v. Greeneville, 42 Ohio St. 625; Western College v. Cleveland, supra; Gianfortone v. New Orleans, supra. The treaty says that white persons shall not be permitted to reside on the reservation, but it does not say that if they do the United States shall be liable in damages for any injury done by them.

In Leighton v. United States, 161 U. S. 291, 296, the court considered the liability of the United States and the Indian Tribe for depredations. It said that the obligation assumed by the Indians under treaty "to cease all hostilities against the persons and property of its [United States] citizens" was a promise "to keep the peace, and not a promise to pay if the peace is not kept." Here the United States said that white persons would not be permitted to reside on the reser

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Syllabus

vation, but it did not agree to pay damages inflicted if they did so. Cf. Blackfeet, et al. Nations v. United States, 81 C. Cls. 101, 119–123.

The agreement was intended to do no more than to make it as plain as possible that the reservation was intended for the sole use and benefit of the tribe and that the defendant would do what it could to effect that, or, failing in this, to afford plaintiff redress in its courts against the wrongdoer. We are of opinion the plaintiff is not entitled to recover on this item.

It results that the plaintiff is entitled to recover the value of the number of acres of cancelled allotments which were opened to homestead entry by the proclamation of the President on November 8, 1895 (29 Stat. 873-876), with interest at 5 percent per annum; that plaintiff is entitled to recover whatever part of the $1,626,222 was paid to nonmembers of the tribe and for which the defendant has not accounted to the plaintiff, with interest at 5 percent per annum; that plaintiff is not entitled to recover the amount received from the sale of or for the value of the lands in the Old Agency Reserve which were purchased by the defendant; and that plaintiff is not entitled to recover the value of any gold removed from its reservation. It is so ordered.

MADDEN, Judge; JONES, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur.

JOSEPH'S BAND OF THE NEZ PERCÉ TRIBE OF INDIANS v. THE UNITED STATES

[No. L-194. Decided October 6, 1941. Plaintiff's motion for new trial overruled January 5, 1942]

On the Proofs

Indian claims; treaty of 1855; title to land included in reservation.-Where, on June 11, 1855, a treaty was concluded between the defendant and the Nez Percé Tribe of Indians, by which much of the land of the tribe was ceded to the defendant, the land not ceded being expressly set aside as a reservation for the said

Syllabus

95 C. Cls.

tribe; and where said treaty was signed on behalf of the Indians by Principal Chief Lawyer and the chiefs of the various bands, including Joseph, the chief of the plaintiff band, who was the third Indian signer; and where the land claimed in the instant suit was included in the Nez Perce reservation of said treaty; it is held that there was nothing in said treaty of 1855 which either recognized any title in plaintiff band to, or gave to that band or any other band title to, specific parts of the land reserved to the Nez Percé tribe by said treaty. Same; authority of tribal chief to sign treaty.-The conduct of the then chief of the plaintiff band, the elder Joseph, in participating in the negotiations and signing the treaty of 1855 shows that there must have been power in the tribe to act as a whole with reference to all lands of the tribe or of any of its bands. Same; immemorial possession.-Where claim of title to the Wallowa area is based on alleged immemorial possession by plaintiff band, it is held that it does not appear from the evidence that Joseph and his band ever had exclusive possession of said Wallowa area.

Same; treaty of 1863; dissenting minority bound by action of tribe.Where in 1863 a treaty with the Nez Perce Indians was signed, reducing the reservation to a described area, and where in said treaty the land claimed in the instant suit, known as the Wallowa reservation, was included in the land relinquished to the defendant by the tribe; and where Joseph, the then chief of the plaintiff band, refused to sign said treaty or to recognize it is binding; it is held that the Nez Perce tribe, as an entity, had the power to make the said treaty of 1863 and that the dissenting minority, including the members of the plaintiff band, was bound by said treaty.

Same; recognition of title.-Where in 1873 upon the recommendation of the Commissioner of Indian Affairs the President, by Executive Order, withdrew from entry the Wallowa area and set it aside as a reservation for the "roaming Nez Perce Indians"; and where, however, the nontreaty Nez Perce Indians continued to roam and made no attempt to establish permanent homes in the Wallowa reservation; and where in 1875 the President thereupon revoked his order of 1873 and restored to the public domain the said area; it is held that said Executive Order of 1873 was not a recognition of a title then existing in plaintiff band.

Same; alternative claim not in petition.-Plaintiff's alternative claim for relief, the right to a pro rata share of the Nez Percé income and property under the treaties and agreements of the tribe with the United States, not having been set forth in plaintiff's petition was not properly before the court.

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Reporter's Statement of the Case

The Reporter's statement of the case:

Mr. F. M. Goodwin for the plaintiff. Messrs. F. W. Clements, Lawrence H. Cake, C. C. Dill, and G. W. Jewett were on the brief.

Mr. Walter C. Shoup, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief.

The court made special findings of facts as follows:

1. This suit was filed pursuant to an act of Congress of February 20, 1929, 45 Stat. 1249, which so far as here material, reads as follows:

That jurisdiction is hereby conferred on the Court of Claims, with the right of appeal by either party to the Supreme Court of the United States, notwithstanding lapse of time or statutes of limitation, to hear, determine, adjudicate, and render final judgment on all legal and equitable claims of whatsoever nature of the Nez Perce Tribe of Indians in Idaho, or of any band thereof, against the United States, arising under or growing out of the original Indian title, claim, or rights of the said Indian tribe or any band thereof, including all title, claim, or rights growing out of treaties of June 11, 1855 (Twelfth Statutes, page 957), and June 9, 1863 (one hundred and forty-eighth Statutes, page 673), and an agreement of May 1, 1893, approved by Act of Congress of August 15, 1894 (Twenty-eighth Statutes, page 286), with the said Nez Perce Tribe or band of Indians, in connection with the Nez Perce Indian Reservation in the States of Idaho and Oregon, *

SEC. 2. Any and all claims against the United States within the purview of this Act shall be forever barred unless suit or suits be instituted or petition, subject to amendment, be filed in the Court of Claims within five years from the date of this Act, and in any such suit or suits said Nez Perce Tribe of Indians, or any band thereof, shall be party or parties plaintiff and the United States shall be the party defendant. The petition of the said Indians shall be verified by the attorney or attorneys employed to prosecute such claim or claims, under contract with the Indians, approved in

1 So in original. Reference is to 14 Stat. 647. 449973-42-CC-vol. 95-3

Reporter's Statement of the Case

95 C. Cls.

accordance with existing law, upon information and belief as to the facts therein alleged and no other verification shall be necessary. Official letters, papers, documents, records, maps, historical works, and affidavits in official files, or certified copies thereof, may be used in evidence and the departments of the Government shall give access to the attorney or attorneys of said Indians to such treaties, papers, maps, correspondence, reports, documents, or affidavits as they may require in the prosecution of any suit or suits instituted under this Act.

*

SEC. 4. Any bands of Indians associated with the Nez Perce Tribe deemed necessary to a final determination of any suit or suits brought hereunder may be joined therein as the court may order: Provided, That upon final determination of the court of any 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 amount recovered, or in the event of any compromise settlement and adjustment of any of the foregoing claims by the Commissioner of Indian Affairs and the Secretary of the Interior, then such officers shall have jurisdiction to fix and determine a reasonable fee not to exceed 10 per centum of the amount secured in such settlement or adjustment, to be paid to the attorney or attorneys employed as herein provided, and such fees shall be paid out of any sum or sums adjudged to be due said tribe or bands, or any of them, and the balance of such sum or sums shall be placed in the Treasury of the United States to the credit of such tribes or bands where it shall draw interest at the rate of 4 per centum per annum. The amount of any judgment shall be placed in the Treasury of the United States to the credit of the Nez Perce Tribe of Indians and shall draw interest at the rate of 4 per centum per annum 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 land and building of homes, and no part of said judgment shall be paid out in per capita payments to said Indians.

2. The Nez Perce Tribe of Indians originally occupied an area in what is now northwestern Idaho, northeastern Oregon, and southeastern Washington, on the lower Snake River and its tributaries, between the Blue Mountains of

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