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Shoshone Tribe v. United States
Supreme Court of the United States
Argued Dec. 17-18, 1936
Decided Jan. 4, 1937
Full case nameShoshone Tribe of Indians of Wind River Reservation in Wyoming v. United States
Citations299 U.S. 476 (more)
57 S.Ct. 244; 81 L.Ed. 360
Case history
Prior82 Ct.Cl. 23 (1935)
Holding
The power to take American Indian property and abrogate Indian treaties is limited by the Fifth Amendment's just-compensation requirement.
Court membership
Chief Justice
Charles E. Hughes
Associate Justices
Willis Van Devanter · James C. McReynolds
Louis Brandeis · George Sutherland
Pierce Butler · Harlan F. Stone
Owen Roberts · Benjamin N. Cardozo
Case opinion
MajorityCardozo
Stone took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. V

Shoshone Tribe v. United States, 299 U.S. 476 (1937), was a United States Supreme Court case in which the Court held that the power to take American Indian property and abrogate Indian treaties is limited by the Fifth Amendment's just-compensation requirement.

Background

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Tribal background

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Main article: Eastern Shoshone

The Eastern Shoshone people are a branch of the Shoshone,[fn 1] a native people of the Great Basin of the United States. They traditionally ranged over the Wyoming basin along the Green, Sweetwater, and Bighorn rivers,[3] and have lived in the Wyoming area from at least the 1500s.[4] In the 1700s,[fn 2] the Comanche tribe split off from the Eastern Shoshone and moved south,[6] but from the 1500s to about 1780, the Eastern Shoshone were militant buffalo-hunters who also raided throughout the Great Plains.[7] During the later part of the period, the tribe was considered to be the dominant tribe of the area.[8]

Starting about 1780,[fn 3] the tribe was pushed back to the west by the Blackfeet Confederacy, which had better access to firearms due to their proximity to white traders and settlers.[10] Smallpox epidemics in 1781 and 1800 further reduced the population and power of the Eastern Shoshone.[11] The tribe began to be revitalized about 1825,[12] especially under the leadership of Washakie starting about 1842 or 1843.[13] The tribe had traded on a regular basis with whites at fur-trading rendezvous since about 1810,[14] and with the Mormons in the 1840s.[15] Under Washakie, the Eastern Shoshone were friendly to the white trappers.[fn 4][17]

Treaties

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Washakie sitting, holding a ceremonial pipe.
Chief Washakie, who signed the 1868 Fort Laramie treaty.

Initial contacts

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The first contact between the United States government and the Eastern Shoshone was in 1849, when John Wilson[fn 5] tried to end the Shoshone raids to capture Ute and Paiute horses.[19] Two years later, in 1851, Washakie, although not invited, attended the treaty conference at Fort Laramie, Wyoming.[20] The government ignored Washakie at the conference,[fn 6] and granted the Crow tribe rights to Eastern Shoshone land.[22] The following year, 1852, Brigham Young hosted a meeting of the Shoshone and Ute leaders to resolve the raids initially addressed in 1849, and Young successfully reached an agreement with those tribes.[23]

Washakie, following the meeting and being impressed with Mormon farming, encouraged the Eastern Shoshone to look at farming and agriculture as a means to adapt a new way of life.[24] When the Utah War began in 1857, Young asked the Shoshone for assistance, but Washakie broke off relations with the Mormons and asked the United States government for a reservation in the Shoshone land occupied by the Crow since the 1851 treaty.[fn 7][26] In 1861, Indian Agent Henry Martin, after meeting with Washakie and other Shoshone leaders, reported that the tribe was willing to accept a reservation and various annuities.[27]

Fort Bridger Treaty of 1863

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Congress acted on Martin's report and the Indian Service authorized Indian Superintendent James D. Doty to negotiate a treaty with the Shoshone.[28] Before Doty could act on it, Colonel Patrick Connor's forced killed 246 Shoshone at the Bear River Massacre.[29] However, by June 1863, the Shoshone were willing to talk, and all but four bands of the Eastern Shoshone met with Doty to sign a treaty.[30] The tribe agreed to peace between the Shoshone and the United States; to grant free passage of white settlers through their land; to allow telegraph lines, mail routes, and a railroad to traverse the Shoshone land; that the Shoshone land was from the Snake River in the north, to the Wind River Mountains and North Platte River to the east, to the Yampa River and Uinta Mountains to the south, and the western boundary was left undefined; $10,000 in annuities to be paid over 20 years; and $6,000 in presents and goods.[31] Although Washakie had tried to get a reservation in the Wind River area, that area (to the Bighorn River) still was considered Crow territory by the United States.[32]

The tribe was able to subsist on the hunting and on the rations provided by the government at Fort Bridger.[33] As time passed, the stress on the game in the Shoshone lands increased, but the increasing number in Washakie's band allowed him to risk incursions into Arapaho and Crow lands to hunt.[34] Then in 1867, gold was discovered in the South Pass area, and prospectors began to flood into the region.[35] At the same time, pressure from settlers forced other tribes to move toward or near traditional Shoshone land.[36] Arapaho, Cheyenne, and Lakota attacks to drive whites out of the Fort Laramie Treaty of 1851 area worried South Pass miners, who felt that a Shoshone Wind River reservation would create a buffer against those attacks.[37]

Fort Bridger Treaty of 1868

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Tracing of the Wind River Reservation
Map of the Wind River Reservation prepared by the Court of Claims in 1935
Main article: Fort Bridger Treaty Council of 1868

In 1867, Congress created the Indian Peace Commission to make peace with the hostile, primarily Plains Indian tribes.[38] On July 3, 1868 at Fort Bridger, the Peace Commission signed a treaty with the Eastern Shoshone tribe, creating the Wind River Reservation[fn 8] for the sole use of the tribe.[42] The treaty had several provisions, one of which was that the United States was responsible for keeping people not authorized by the tribe out of the reservation.[43] Another was that they did not have to move onto the reservation until the government had built the agency building, residences, and shops.[44]

In 1869, the white miners who were encroaching on the reservation and the Shoshone were attacked by Red Cloud's Oglala Lakota tribe, suffering eight whites and twenty-five Shoshone.[45] The settler's asked for Army troops and Washakie asked for the government to build a barracks on the reservation.[46] At the same time, the Northern Arapaho were looking for a location for their reservation.[47] The Arapaho were given temporary permission,[48] but after seven miners were killed, the whites and Shoshone raised a party of 250 men and attacked the Arapaho.[fn 9][50]

Broken treaty

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Washakie with group of Shoshone at Wind River Reservation
Washakie with group of Shoshone at Wind River Reservation

By 1872, concerns about the white settlements in the South Pass area of the reservation prompted another negotiation, headed by Felix Brunot for the government.[51] Brunot first offered to trade acreage in the southern part of the reservation for additional land on the northern side of the reservation.[52] Washakie, refused, noting that the land to the north belonged to the Crow tribe, and instead took $25,000 in order to start a cattle herd.[53] On September 26, 1872, the treaty was signed.[54] During the next few years, Washakie sent warriors to fight with Major General George Crook against the Arapaho, Cheyenne, and Sioux.[55]

James Irwin, the Indian Agent at the Red Cloud Agency in South Dakota took a group of Northern Arapaho leaders to Washington, D.C. in late 1877.[56] Following the meetings in Washington, Irwin went to the Shoshone reservation, where he told Washakie and others that the Arapaho would be on their own reservation near the Sweetwater River.[fn 10][58] In 1878,[fn 11] after strong objections by Washakie, the Army put almost 1,000 Arapaho on the Wind River Reservation on a temporary basis.[60] The Shoshone Agency agent, James I. Patten, reported to the Commissioner of Indian Affairs that “the Shoshones are not all in favor of allowing the Araphoes a portion of this reservation. They claim that they hold this land by right of their treaty made with the Government at Ft. Bridger in 1868, that the Government has no right to abrogate the same without the consent of the Shoshones. . . .”[61]

Washakie complained to Wyoming territorial governor John W. Hoyt, reminding the governor that the United States had promised to keep whites and other Indians off Shoshone land, "[b]ut it has not kept its word!"[62] Hoyt tried to intervene on the Eastern Shoshone's behalf, but without success.[63] The Arapaho settled on the eastern part of the reservation, taking two-thirds of the best land.[64] By 1885 the Shoshone good fortune failed, and the tribe was becoming destitute.[fn 12][66] After thirteen years, the Commission of Indian Affairs determined that the Arapahos had equal authority on the reservation in 1891.[67] The Shoshones still insisted that the entire reservation was theirs, and that the Arapaho had no land on the reservation.[68] In 1896, the Shoshone tribe ceded another portion of their reservation to the government, the Big Horn hot spring area.[69] Finally, in 1904, the two tribes ceded another portion of the reservation to the United States, this being 1,480,000 acres (600,000 ha; 6,000 km2).[fn 13][71]

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About 1913, the tribe hired George Tunnison to take the issue of the breach of the treaty by the federal government to the courts.[72] In 1927, Congress passed a law which allowed the Shoshones to bring an action against the United States in the United States Court of Claims.[73]

United States Court of Claims

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In 1935, the Eastern Shoshone's claim against the United States for the loss of a part of their reservation without their consent was decided by the Court of Claims.[74] The claim included $968,863.90 diverted to the Arapaho from funds due the Shoshone; $15,049,340.50 for Shoshone lands occupied and used by the Arapaho; $3,706,482 for use and occupation of Shoshone lands by the Arapaho during allotment; $1,690,619 for lands allotted to the Arapaho; $9,531,704.50 for the half of the reservation taken from the Shoshone by the government and given to the Arapaho; $1,106,750 for gold removed by whites; $540,000 for grazing damage by whites; $4,455,000 for the destruction of wild game; and $101,520 for hay and timber removed; for a total claim of $37,150,279.90.[75]

Judge Benjamin Littleton delivered the opinion of the court that the evidence was clear that the Shoshone had not consented to the placement of the Northern Arapaho on the reservation.[76] Littleton noted that the Shoshones repeatedly protested the presence of the Arapaho and the almost complete ignoring of those protests by the Indian Office in Washington.[77]

Notes

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  1. ^ The other branches are the Northern Shoshone and the Western Shoshone.[1] Shoshone were also known as the Snake Indians.[2]
  2. ^ The Comanche may have broken off as early as the 1600s.[5]
  3. ^ Perhaps as early as the 1750s, according to Stamm.[9]
  4. ^ Washakie and Jim Bridger were lasting friends, and Bridger's third wife, Mary, was Washakie's daughter.[16]
  5. ^ Indian Agent for Salt Lake Indian Agency.[18]
  6. ^ In an account by Vine Deloria, Jr., Washakie left due to Sioux opposition to Shoshone presence.[21]
  7. ^ Washakie also offered to provide the U.S. Army with 1,200 warriors to join the 2,500 troops that were being sent from Fort Leavenworth to Utah. The Army turned his offer down.[25]
  8. ^ The initial reservation was 3,047,730 acres (1,233,370 ha; 12,333.7 km2).[39] Another source places the initial reservation at 2,774,400 acres (1,122,800 ha; 11,228 km2).[40] The Supreme Court opinion states that the tribe ceded 44,672,000 acres (18,078,000 ha; 180,780 km2) and reserved 3,054,182 acres (1,235,984 ha; 12,359.84 km2) for their own use.[41]
  9. ^ This raid killed eight to fourteen Arapahos, including one of their leaders, Black Bear, and led to the Arapaho leaving the reservation.[49]
  10. ^ Irwin told the Shoshone that the Arapaho would not be placed on the Shoshone reservation, but would be on a separate one, and Washakie said there could be peace, but that the Shoshone would not agree to allow the Arapaho to live on their reservation.[57]
  11. ^ This had been the plan for at least a year, as the Arapahos were reported to be ready to move to the Shoshone reservation by Gen. Crook in 1877.[59]
  12. ^ The number of buffalo killed had dropped to ten, income from hides dropped from $15,000 to $4,000, and only 100 head of cattle remained in the Shoshone herd.[65]
  13. ^ The Shoshones again protested the presence of the Arapaho on the reservation, and James McLaughlin inserted a provision protecting their rights from earlier treaties.[70]

References

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  1. ^ 11 Handbook of North American Indians: Great Basin 11-12 (William C. Sturtevant ed. 1986).
  2. ^ Robert H. Ruby, John A. Brown, & Cary C Collins, A Guide to the Indian Tribes of the Pacific Northwest 275 (2013).
  3. ^ Sturtevant, at 12.
  4. ^ Barry M. Pritzker, 1 Native Americans:An Encyclopedia of History, Culture, and People 326 (1998); Demitri B. Shimkin, Eastern Shoshone, in 11 Handbook of North American Indians: Great Basin 308 (William C. Sturtevant ed. 1986).
  5. ^ Henry Edwin Stamm, People of the Wind River: The Eastern Shoshones, 1825-1900 4 (1999)
  6. ^ Pritzker, at 326; Sturtevant, at 12.
  7. ^ Stamm, at 6; Shimkin, at 309.
  8. ^ Stamm, at 7.
  9. ^ Stamm, at 7.
  10. ^ Pritzker, at 326; Ruby, at 275; Shimkin, at 309; Peter M. Wright, Washakie, in American Indian Leaders: Studies in Diversity 131, 135 (Russell David Edmunds ed. 1980).
  11. ^ Ruby, at 275; Stamm, at 7; Shimkin, at 309.
  12. ^ Stamm, at 11; Shimkin, at 309.
  13. ^ Grace Raymond Hebard, Washakie: Chief of the Shoshones 46 (1930); Shimkin, at 310.
  14. ^ Pritzker, at 326; Stamm, at 11 (stating the trading was from about 1825).
  15. ^ Stamm, at 21.
  16. ^ Mary Lawlor, Public Native America: Tribal Self-representations in Casinos, Museums, and Powwows n.29 214 (2006)Stamm, at 26.
  17. ^ Stamm, at 26.
  18. ^ Stamm, at 27.
  19. ^ Native America: A State-by-State Historical Encyclopedia 711 (Daniel S. Murphee ed. 2012); Stamm, at 26.
  20. ^ Stamm, at 29; Treaties with American Indians: An Encyclopedia of Rights, Conflicts, and Sovereignty: An Encyclopedia of Rights, Conflicts, and Sovereignty 908 (Donald L. Fixico ed. 2007).
  21. ^ David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice 138-39 (2010).
  22. ^ Fixico, at 908; Murphee, at 1289-90; Wright, at 140.
  23. ^ Stamm, at 29-30.
  24. ^ Fixico, at 908; Wright, at 140.
  25. ^ Stamm, at 34.
  26. ^ Fixico, at 908; Wright, at 141.
  27. ^ Stamm, at 37.
  28. ^ Stamm, at 38; Wilkins, at 140.
  29. ^ Stamm, at 38-39; Wilkins, at 141 (reporting Shoshone dead at 224); Wright, at 142.
  30. ^ Murphee, at 711; Stamm, at 39.
  31. ^ Treaty with the Eastern Shoshone, 1863, 18 Stat. 685; Shoshone Tribe of Indians of Wind River Reservation in Wyoming, 82 Ct. Cl. 23, 26 (1935), rev'd and remanded, 299 U.S. 476 (1937) (hereinafter cited as Shoshone Ct. Cl.); 2 Indian Affairs: Laws and Treaties 848 (Charles J. Kappler ed. 1904) (hereinafter cited as 2 Kappler); Stamm, at 40; Rowland L. Young, Where the Deer and the Antelope Play, 57 A.B.A.J. 577, 579 (June 1971); Wright, at 142.
  32. ^ Stamm, at 40.
  33. ^ Stamm, at 44-45.
  34. ^ Stamm, at 41-43.
  35. ^ Stamm, at 46-47.
  36. ^ Stamm, at 47-48.
  37. ^ Stamm, at 48-50.
  38. ^ Stamm, at 50; Fixico, at 372.
  39. ^ Fixico, at 909; Wilkins, at 143; Wright, at 144.
  40. ^ Wyoming State Historic Preservation Office, Wind River Indian Reservation Interpretive Plan for the Eastern Shoshone and Northern Arapaho, 12 (2014) (hereinafter cited as Interpretive Plan).
  41. ^ Shoshone Tribe, at 486.
  42. ^ Treaty with the Eastern Band Shoshoni and Bannock, 1868, 15 Stat. 673; Shoshone Ct. Cl., at 26-30; 2 Kappler, at 1020; Murphee, at 711; Ruby, at 275; Stamm, at 50; Fixico, at 909.
  43. ^ Shoshone Ct. Cl., at 27-28; Lawlor, at 122; Stamm, at 50-51.
  44. ^ Shoshone Ct. Cl., at 27-28; Stamm, at 50-51.
  45. ^ Stamm, at 55.
  46. ^ Murphee, at 1274; Stamm, at 55; Wright, at 145.
  47. ^ Stamm, at 55-57.
  48. ^ Shoshone Ct. Cl., at 37.
  49. ^ Shoshone Ct. Cl., at 37; Stamm, at 57.
  50. ^ Lawlor, at 118; Stamm, at 57.
  51. ^ Lawlor, at 119; Wright, at 145.
  52. ^ Wright, at 145.
  53. ^ Wright, at 145; Interpretive Plan, at 12.
  54. ^ Wright, at 145.
  55. ^ Shoshone Ct. Cl., at 32; Wright, at 146; Demetri B. Shimkin, Dynamics of Recent Wind River Shoshone History, 44 Am. Anthropologist 451, 453-54 (Jul.-Sept. 1942) (hereinafter cited as Dynamics).
  56. ^ Shoshone Ct. Cl., at 38-39.
  57. ^ Shoshone Ct. Cl., at 39-40.
  58. ^ Shoshone Ct. Cl., at 39-40.
  59. ^ Arrangements for the Removal of the Sioux to the Missouri River, N.Y. Herald, Oct. 25, 1877.
  60. ^ Shoshone Ct. Cl., at 31-32; Debora A. Person, Wyoming Pre-Statehood Legal Materials: An Annotated Bibliography—Part II, 7 Wyo. L. Rev. 333, 395 (2007); Wright, at 147-48; Interpretive Plan, at 12.
  61. ^ Shoshone Ct. Cl., at 44.
  62. ^ Wright, at 148.
  63. ^ Wright, at 148.
  64. ^ Dynamics, at 454; Person, at 395.
  65. ^ Dynamics, at 454; see generally Shoshone Ct. Cl., at 34-35.
  66. ^ Dynamics, at 454.
  67. ^ Shoshone Ct. Cl., at 45.
  68. ^ May Lead to War: Shoshone Indians Refuse to Recognize the Claims of Arapahoes, San Francisco Chronicle, Dec. 31, 1892, at 1 (via Newspapers.com).Open access icon
  69. ^ Agreement with the Shoshone and Arapahoe Tribes of Indians in Wyoming, Apr. 21, 1896, 30 Stat. 62; Shoshone Ct. Cl., at 30; 1 Indian Affairs: Laws and Treaties 624-25 (Charles J. Kappler ed. 1904) (hereinafter cited as 1 Kappler).
  70. ^ Shoshone Ct. Cl., at 48.
  71. ^ Shoshone Ct. Cl., at 49.
  72. ^ Indian Case Lawyer Gets Half Million, The News Letter-Journal (Newcastle, Wyo.), Dec. 22, 1938, at 4.
  73. ^ Shoshone Ct. Cl., at 64; Jurisdictional Act, Mar. 3, 1927, 44 Stat. 1349; 4 Indian Affairs: Laws and Treaties 937-38 (Charles J. Kappler ed. 1904) (hereinafter cited as 4 Kappler).
  74. ^ Shoshone Ct. Cl., at 23.
  75. ^ Shoshone Ct. Cl., at 24-25.
  76. ^ Shoshone Ct. Cl., at 65.
  77. ^ Shoshone Ct. Cl., at 68.
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