95 C. Cls.

INDIAN CLAIMS-Continued.

(3) That plaintiff was 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.

(4) That plaintiff was not entitled to recover the
value of any gold removed from its reservation.
Nez Perce Tribe, 1.

II. Where there is no allegation that white people went
upon plaintiff's lands at the direction of the
defendant, or even at defendant's instigation; and
where liability is predicated solely on the defend-
ant's failure to keep out said white persons; it is
held that from the language of the treaty of 1855 it
cannot be inferred that the defendant intended to
guarantee that no white men should reside on said
reservation and that defendant should respond in
damages if they did. Id.

III. Independent of treaty, the defendant as the sov-
ereign power was under the duty of protecting the
plaintiff in the peaceful occupation and possession
of its property but this duty goes no further than
to use its forces to endeavor to prevent a threat-
ened wrong and to afford plaintiff redress in its
courts against the wrongdoer if such wrong is
committed. Id.

IV. Where, on June 11, 1855, a treaty was concluded
between the defendant and the Nez Perce 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 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 Perce tribe
by said treaty. Joseph's Band, 11.

V. The conduct of the then chief of the plaintiff band,
the elder Joseph, in participating in the negotia-
tions and signing the treaty of 1855 shows that

95 C. Cls.

INDIAN CLAIMS-Continued.

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. Id.

VI. 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 exclu-
sive possession of said Wallowa area. Id.

VII. 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 reserva-
tion, 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 as 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.
Id.

VIII. 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, how-
ever, the nontreaty Nez Perce Indians continued
to roam and made no attempt to establish per-
manent 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.

Id.

IX. Plaintiff's alternative claim for relief, the right to a
pro rata share of the Nez Perce income and prop-
erty 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. Id.

X. Under the jurisdictional act of December 23, 1930
(46 Stat. 1033), authorizing the Court of Claims
to hear, determine, adjudicate, and render judg-
ment on all legal and equitable claims of whatso-
ever nature of the Warm Springs Tribe of Indians
or of any band thereof against the United States,

95 C. Cls.

INDIAN CLAIMS-Continued.

arising under or growing out of or incident to the
treaties of June 25, 1855 (12 Stat. 963), and of
November 15, 1865 (14 Stat. 751), or either of
them, notwithstanding the lapse of time and
notwithstanding the provisions of the Act of June
6, 1894 (28 Stat. 86), it is held:

1. That the northern boundary of the reservation
set aside for the Warm Springs Tribe of Indians
by the said treaty of 1855 runs from McQuinn's
30-mile post at Little Dark Butte southeast-
wardly along the line established by McQuinn
to McQuinn's 72-mile post, and thence in a
straight line to the starting point on the De
Chutes River established by Handley;

2. That the western boundary of said reservation is
the western boundary established by McQuinn;
3. That the plaintiff is entitled to recover the value
of the lands between these boundaries and the
northern and western boundaries established by
Handley and Campbell;

4. That the plaintiff is not entitled to recover on its
claims involving amounts agreed to be spent by
defendant for the benefit of the Indians and for
the erection of certain buildings and for other pur-
poses, where it is shown by the proofs that far
more money had been spent than was called for
by the treaty:

5. That there is no proof that the bands named in
the proviso to the treaty of 1855 met in council
and expressed a desire that some other reserva-
tion should be selected for them, as required by
said proviso. Warm Springs Tribe, 23.

XI. The jurisdictional act (41 Stat. 738) under which this
suit, and others, were brought provides that all
claims of whatsoever nature which the Sioux
Tribe of Indians may have against the United
States "which have not heretofore been deter-
mined by the Court of Claims, may be submitted
to the Court of Claims," and the sole question
in the instant case is whether under the terms of
said act the plaintiffs are entitled to recover
$1,903,023.22 heretofore paid to said plaintiffs by
the defendant under the treaty of 1868 (15 Stat.
635) and subsequently charged as an offset against
other claims of the plaintiffs litigated under the
jurisdictional act of March 4, 1917 (39 Stat. 1195)
and decided in the case of Medawakanton Indians
et al. v. United States, 57 C. Cls. 357.

95 C. Cls.

INDIAN CLAIMS-Continued.

Held:

1. The obligations of the treaty of 1868 have been
complied with, and the amounts due there-
under have been paid, both in fact and in
effect.

2. The instant suit is based on the treaty of 1868,
which has been fully complied with, and is
not based on non-payment of obligations of
other treaties.

3. Conceding that in the Medawakanton case,
supra, the court did not pass upon the merits
of the offset in question but merely followed
the mandatory direction of Congress in the
jurisdictional act of 1917, and thus treating
the question of said offset as before the court
anew in the instant case, and considering all
the equities under the jurisdictional act of
1920, the plaintiffs are not legally nor equi-
tably entitled to recover. Sioux Tribe, 72.
XII. In the instant suit, authorized by the enabling act
of June 7, 1924, as amended, the Chickasaw
Nation, plaintiff, claims compensation for its one-
fourth interest in the lands allotted to the freed-
men of the Choctaw Nation from the tribal lands
held in common by the Chickasaw Nation and
the Choctaw Nation; and it is held by the court
that the arrangement of the "Atoka agreement,"
whereby the Choctaw freedmen were to be fur-
nished their allotments at the expense of the
Choctaw Nation, and not of the plaintiff, was in-
corporated into the "supplemental agreement" of
1902 as an obligation of the Choctaw Nation; and
accordingly the plaintiff is entitled to recover from
the Choctaw Nation, defendant. Chickasaw
Nation, 192.

XIII. It is shown by the evidence adduced that the Chicka-
saws never adopted their freedmen, as provided
under the treaty of 1866 and subsequent acts of
Congress, and no allotments were made to said
Chickasaw freedmen from tribal lands as therein
provided; that said Chickasaw freedmen did,
however, receive allotments under the "supple-
mental agreement" of 1902, which allotments
were paid for by the United States and hence cost
neither the Chickasaws nor the Choctaws any-
thing; that the allotments to the Choctaw freed-
men were made from the tribal lands owned in

95 C. Cls.

INDIAN CLAIMS-Continued.

common by the two nations, and hence the
Chickasaws contributed to said allotments their
proportion, which was one-fourth, as recognized
by treaties, statutes, and practice; that the
Chickasaws have consistently claimed that neither
set of freedmen should be provided with land at
the expense of the Chickasaws, which claim was
assented to by the Choctaws in the "Atoka agree-
ment," first, and again in the application to the
Court of Claims in 1909 for a modification of the
decree in the Chickasaw Freedmen case (38 C. Cls.

XIV. The rights of the freedmen of the two nations were
not regarded as settled, and were not settled, by

XV. The "supplemental agreement" of 1902, which is
the determining document, provided for per-
manent and unqualified allotments to both Choc-
taw and Chickasaw freedmen, but omitted the
provision of the "Atoka agreement" for deduction
of said allotments from allotments to members of
the respective nations; and as to the Chickasaw
freedmen said "supplemental agreement" pro-
vided for determination in the Court of Claims
as to whether said Chickasaw freedmen were
entitled to allotments from tribal lands or whether
the United States should supply at its expense
said allotments to said Chickasaw freedmen. Id.
XVI. Where under the provisions of the treaty of May 12,
1854, the defendant gave to the plaintiff Indians
for a home a tract of land upon Wolf River in the
State of Wisconsin, definitely described by metes
and bounds, and containing 12 specific town-
ships; and where prior to the signing of said
treaty the Congress had passed what is known as
the "Swamp Land Act of 1850," by the terms of
which the swamp and overflowed lands of Arkan-
sas and all other States, including Wisconsin,
were granted to the several States; and where it is
shown that there are swamp lands located within
the boundaries of the reservation given to the
Menominees by the treaty of 1854; it is held that
the plaintiff is entitled to recover the acquisition
costs of such lands which were within the bound-
aries of the cession to the plaintiff by the treaty of
1854 but which had been theretofore given to the