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					      1 I n d , C1. Crr. 1
       4             onn  4


                 BEF02E TX.3 INDIAN CLAIMS COMMISSION


    THE CONFEDERATED TRIBES OF THE         1
    UMATILL4 I N D I A N RESERVATIOX       1
                                           1
                     Petitioner ,          1
                                           1
           v.                              )       Docket No. 264
                                           1
    THE UNITED STATES OF AEIERICA,         1
                                           1
                     Defendant.            1

                              Decided: Septenher 28 1964


                                    FINDINGS OF FACT

         The Commission previously entered Findings of Fact in the above

    Docket on June 10, 1960. Thereafter hearing was had upon the petition-
-
    er's motion for a rehearing and upon consideration thereof the Connnis-

    sion finds that the additional evidence offered by the petitioner at said

    hearing is such that, if received, it would not in any way affect the

    final determination in this metter.        Therefore the notion for rehearing   .

    is denied, but the Commission- finds upon reconsideration of the entire

    record that! its previous Findings of Fact, Opinion, and Interlocutory

    Order of June loth, 1960, should be vacated. An order to this effect

    being entered, there is for determination herein the issue of title and

    matters pertinent thereto under Claims One and Four of the Amended

    Petition.

         The Commission now enters the following Findings of Fact:
 14 I n d , C 1 , Cornm. 14



                                               Representation

       1. Following t h e execution of t h e t r e a t y of June 9 , 1855, 12 S t a t .

945, 11 Kappler 694, t h e members of t h e former t r i b e s of Walla Walla,

Cayuse and Umatilla Indians located upon t h e Umetilla Indian Reservation

i n e a s t e r n Oregon.     During November 1949, t h e then r e s i d e n t s on t h a t

r e s e r v a t i o n adopted a C o n s t i t u t i o n and By-Laws and thereby c r e a t e d             the

p e t i t i o n e r organization.       Said C o n s t i t u t i o n and By-Laws were t h e r e a f t e r

duly approved by t h e Secretary of t h e I n t e r i o r .                 Under such C o n s t i t u t i o n

p e t i t i o n e r ' s membership i s divided i n t o two c l a s s e s , t h o s e who have a n

i n t e r e s t i n t r e a t y r i g h t s and those who do n o t .

       P e t i t i o n e r is e n t i t l e d t o prosecute t h i s a c t i o n i n a r e p r e s e n t a t i v e

c a p a c i t y on behalf of t h e t h r e e s e p a r a t e t r e a t y e n t i t i e s of 1855 and t h e

confederation c r e a t e d by t h e t r e a t y of June 9 , 1855, b u t it i s not t h e f u l l

successor i n i n t e r e s t t o s a i d t r e a t y e n t i t i e s o r t h e confederation.

       2.    The a r e a involved h e r e i n l i e s i n n c r t h e a s t e r n Oregon and south-

e a s t e r n Washington.       The t r a c t involved i n Claim One i s t h a t land ceded

by t h e t r e a t y of June 9, 1855, 12 S t a t . 945, which i s i d e n t i f i e d as Area

NO. 362 on Roycefs Maps of Oregon and Washington appearing i n Volume 1 8

of t h e Reports of t h e Bureau of American Ethnology.                           Those t r a c t s in-

volved i n C l a i m Four a r e .smaller t r a c t s adjacent t o t h e s u b j e c t tract

of Claim One.          P e t i t i o n e r claims recognized t i t l e o r , i n t h e a l t e r n a t i v e ,

o r i g i n a l t i t l e t o t h e land described i n C l a i m One and o r i g i n a l t i t l e t o

each of t h e tracts involved i n C l a i m Four.

       Most of t h e l a n d so claimed by p e t i t i o n e r l i e s w i t h i n t h e Blue

Mountains of Washington and Oregon.                      From between Asotin and Dayton,
 14 Ind. C1. Comrn. 14


Washington, t h i s range extends southwest t o near P r i n e v i l l e , Oregon.

A second extension runs south along t h e weit s i d e of Snake River.                     The

Umatilla River, Butter Creek, and Willow Creek each r i s e i n t h e s e moun-
         -
t a i n s along t h e southwestern-northeastern l i n e , and flow northerly through

a h i l l y a r e a and a c r o s s e p l a i n i n t o t h e Columbia River.    The tfik.ee main

branches of t h e John Day River. each r i s e i n e a s t e r n Oregon and run westerly,

south of t h e above streams, where they converge a t t h e western l i m i t s of

t h e claimed a r e a . - Some distance f a r t h e r west t h i s r i v e r t u r n s abruptly

north i n    its course t o t h e Columbia River.
       A spur of t h e Blue Mountains running e a s t a n d w e s t a few miles south

of t h e main branch of t h e John Day River and the Willow Creek of t h e

Malheur River, forms t h e southern boundary of t h e claimed area.                      Another

east and w e s t spur runs north of t h e main 3ohn Day River and south of

Burnt River.        Y e t a n o t h e r spur, known as t h e Wallows Mountains, extends

s o u t h e r l y between t h e Grande Ronde River and i t s t r i b u t a r i e s , t h e Wallow8

and Minam Rivers, and passes north of Powder River.                       The e a s t e r n boundary

of t h e claimed area runs along a s u b s i d i a r y - r a n g e e a s t of and c l o s e l y

p a r a l l e l i n g t h e Minam River.

       It i s ' f r e q u e n t l y impassible because of these several spurs t o de-

termine t h e exact l o c a l i t y being r e f e r r e d t o   in many of      t h e documentary

r e f e r e n c e s i n t h e record wherein t h e Blue Mountains a r e mentioned, par-

t i c u l a r l y those refe r r i n g t o t h e "east" o r %est" s i d e of s a i d mountains.

       E a r l y t r a v e l e r s .along t h e Columbia River r e f e r r e d t o t h e southwest-

n o r t h e a s t range o r spur i n which r i s e t h e Umatilla River and Butter and

W i l l o w Creeks a s t h e Blue Mountains.
 14 Ind. C1. Cow. 14                                                                         17

                              Recognized T i t l e

      3.    B -4rticLe 1 of t h e Treaty of June 9 , 1855, the confederated
             y

t r i b e s and bands of t h e Walls Walla, Cayuse and Umatilla Indians ceded

t o t h e United S t a t e s "all t h e i r r i g h t , t i t l e , aftd claim t o d l and

every p a r t of t h e country claimed by them,"             and bounded a s follows:

      C m e n c i n g a t t h e mouth of t h e Tocannon River, i n Washington
      T e r r i t o r y , running thence up s a i d r i v e r t o i t s source; thence
      e a s t e r l y along t h e s u m m i t of t h e Blue Mountains, and on t h e
      southern boundaries of t h e purchase made of t h e Nez Perces In-
      d i a n s , and e a s t e r l y along t h a t boundary t o t h e western l i m i t s
      of t h e corrntry claimed by t h e Shoshonees o r Snake I n d i a n s ;
      thence sout3erly along t h a t boundary (being t h e waters of Pow-
      d e r River) t o t h e source of Powder River, thence t o t h e head-
      w a t e r s of Willow Creek, thence down Willow Creek t o t h e Col-
      umbia River, thence up t h e channel of t h e Columbia River t o
      t h e lower end of a largd i s l a n d below t h e mouth of U m a t i l l a
      River, thence n o r t h e r l y t o a point on the Pakama River, c a l l e d
      Tomah-luke, thence t o Le Lac, t3ence t o t h e White Banks on
      t h e Columbia below P r i e s t ' s Rapids, thence down t h e Columbia
      River t o t h e junction of t h e Columbie and Snake Rivers, thence
      up t h e Snake River t o t h e place of beginning:              **
A r t i c l e 1 a l s o provided:

       That, s o much of t h e counzry described above as i s contained
       i n t h e following boundaries s h a l l be s e t a p a r t a s a r e s i d e n c e
       f o r s a i d Indians, which t r a c t f o r t h e purposes contemplated
       s h a l l be h e l d and regarded as an Indian r e s e r v a t i o n ; t o w i t :
       Commencing i n t h e middle of t h e channel of Umatilla River
       o p p o s i t e t h e mouth of Wild Horse Creek, thence up t h e middle
       of t h e channel of s a i d creek t o i t s source, thence s o u t h e r l y
       t o a p o i n t i n t h e Blue M o ~ n t a i n s ,known as Lee's Encaapment,
       thence i n a l i n e t o t h e head-waters of Howtome Creek, rhence
       west t o t h e d i v i d e between Howtome and Birch Creeks, thence
       n o r t h e r l y along s a i d divide t o a p o i n t due west of t h e south-
       west corner of William C. McKay ' s land-cl aim, thence e a s t
       along h i s l i n e t o h i s southeast corner, thence i n a l i n e t o
       t h e place of beginning;       **
14 Ind. C 1 .       Coinm. 14


       * * That          t h e exclusive r i g h t of t a k i n g f i s h i n t h e streams
       running through and bodering s z i d r e s e r v a t i o n i s hereby secured
       t o s a i d Indiacs, and a t a l l other u s u a l and accustomed s t a t i o n s
       i n common with c i t i z e n s of t h e United S t a t e s , and of e r e c t i n g
       s u i t a b l e b u i l d i n g s for curing the same; t h e p r i v i l e g e of hunting,
       g z t h e r i n g r o o t s and b e r r i e s end pasEuring t h e i r s t o c k on unclaimed
       lands i n common with c i t i z e n s , i s ~ L S O secured t o them. And pro-
       v i d e d , a l s o , That i f any band or bands of I n d i a n s , r e s i d i n g i n
       and clziming any p o r t i o n o r p o r t i o n s of t h e country described i n
       t h i s a r t i c l e , s h a l l not accede t o t h e terms of t h i s t s e a t y , t h e n
       t h e bands becoming p a r t i e s hereunto agree t b r e s e r v e such p a r t of
       t h e s e v e r a l and o t h e r payments h e r e i n named, as a c o n s i d e r a t i o n
       f o r t h e e n t i r e country described as a f o r e s a i d , a s s h a l l be i n t h e
       p r o p o r t i o n t h a t t h e i r aggregate number may have t o t h e whole
       number o f . Indians r e s i d i n g i n and claiming t h e e n t i r e country
       a f o r e s a i d , as c o n s i d e r a t i o n and payment i n f u l l f o r t h e tracts
       i n s a i d country claimed by them.

        Said t r e a t y was r a t i f i e d March 8, 1859,           It became e f f e c t i v e on

t h a t date.

                                   .
       4. As p a r t of t h e c o n s i d e r a t i o n f o r s a i d c e s s i o n , t h e United S t a t e s

agreed t o spend c e r t a i n sums each year f o r a p e r i o d of twenty y e a r s " f o r

t h e u s e and b e n e f i t of t h e confederated bands h e r e i n named."                   The c h i e f

of t h e Walla Walla t r i b e , Pu-pu-mux-mux,               was given permission t o b u i l d

and o p e r a t e a p o s t near the mouth of Yakima River f o r a l i m i t e d number

of y e a r s .

        5.       On June 9, 1855, t h e Walla Walla, Cayuse and UmatiXLa I n d i a n s

were t h r e e s e p a r a t e independent t r i b e s .      Each were of t h e P l a t e a u c u l t u r e

and of b a s i c Sahaptin l i n g u i s t i c stock.          Each t r i b e p r a c t i c e d t h e P l a t e a u

concept of v i l l a g e autonomy.           Each had adopted many t r a i t s of t h e P l a i n s

c u l t u r e by t h e 1 9 t h century.      Each t r i b e l i v e d i n w i n t e r v i l l a g e s .   Each

v i l l a g e had a l o c a l council composed of heads of f a m i l i e s and noted
14 Ind. C 1 . Comm, 14                                                                             19


warriors.       One man was recognized as a "spokesman" but he h e l d no more

a u t h o r i t y than any other council member.              By 1805 each of t h e t h r e e

t r i b e s possessed a sense of p o l i t i c a l unity under one chief and s e v e r a l

subordinate c h i e f s or sub-chiefs.

       The Walla Walla and Urnatilla t r i b e s could understand each o t h e r ,

but n e i t h e r understood t h e Cayuse language.                The Cayuse d i d not under-

s t a n d t h e Walla Wzlla or t h e Umatilla tongues, b u t they spoke t h e Nez

Perce language which w a s p a r t i a l l y i n t e l l i g i b l e t o both t h e Walla Walla

and t h e Umatilla t r i b e s .        y
                                       B 1850 t h e Cayuse had adopted t h e Nez Perce

language f o r ordinary usage.

       6.    South of t h e Walla Walla, Cayuse and Umatilla Indians during

t h e l a t t e r p a r t of t h e 18th century and t h e f i r s t p a r t of t h e 19th cen-

t3ry were Shoshonean speaking Indians who z r e u s u a l l y r e f e r r e d t o as:

Snakes o r as Digger Snakes, and occasionally a s P a i u t e s .                     For conven-

i e n c e we s h a l l r e f e r t o them a s Snake I n d i a z s , although they seem t o

have been i d e n t i f i e d by e t h n o l o g i s t s as a p a r t of t h a t d i v i s i o n of h e r - '

i c a n I n d i s n s known as Northern Paiute.            E a s t of t h e s e Snakes were o t h e r

Shoshonearz speaking Indians with whom they were f r i e n d l y .                      North of t h e s e

l a t t e r I n d i a n s and e a s t of t h e Walla Walla and Cayuse t r i b e s w e r e Nez

Perce I n d i a n s .   To t h e north of the Nez Perce and t h e Cayuse I n d i a n s

were t h e Palus o r Palouse Indians, and t o t h e northwest of t h e Walla

Walla t r i b e was the Yakima t r i b e .          West of t h e Umatilla t r i b e t h e r e were

bands of Wayampam Indians.                The last four Indian e n t i t i e s spoke Sahaptin

dialects.
14 Ind. C1. Corn. 14                                                                               20


      These v a r i o u s Sahapt i n d i a l e c t spe&.ing         t r i b e s and bands w e r e f r i e n d l y

with each o t h e r , but a t r a d i t i o n a l emnity e x i s t e d between t h e Snake In-

dians of southern Oregon and t h e Sahaptin speaking I n d i a n s t o t h e n o r t h

of them.

       7.   Oregon T e r r i t o r y o r i g i n a l l y   embraced a l l t h e p r e s e n t s t a t e s of

Washington and Oregon, t o g e t h e r w i t h o t h e r l a n d s .         The Organic A c t of

June 5 , 1850, 9 S t a t . 437, which extended t o t h a t t e r r i t o r y a l l a p p l i c a b l e

p r o v i s i o n s of t h e I n d i a n I n t e r c o u r s e Act of June 30, 1834, 4 S t a t . 729

and t h e Law f o r t h e P r o v i s i o n a l Goverment of Oregon adopted J u l y 26,

1854, each preserved t o t h e Indians t h e i r r i g h t s of person and p r o p e r t y .

The r i g h t thus preserved was t h a t of permissive occupancy of t h e l a n d

u t i l i z e d by s a i d Indians.      Neither of t h e s e a c t s nor any act subsequently

adopted by Congress concerning t h e t e r r i t o r y embraced i n t h e o r i g i n a l

T e r r i t o r F e s of Oregon and Washington recognized i n i t s I n d i a n occupants

any i n t e r e s t i n t h e s o i l o t h e r t h a n t h i s r i g h t of permissive occupancy

which i s known as o r i g i n a l I n d i a n t i t l e .

       8.    The extinguishment of I n d i a n t i t l e t o land west of t h e Cascade

Range of Moantains i n Oregon T e r r i t o r y and t h e r e l o c a t i o n of t h e I n d i a n s

i n t h a t r e g i o n among t h o s e r e s i d i n g east of t h e Cascade Mountains was

a u t h o r i z e d by Congress on June 5 , 1850, 9 S t a t . 437, and on September 30,

1850, 9 S t a t . 544, 555.            B t h e Donation Act of September 27, 1850, 9
                                        y

S t a t . 496, Congress authorized t h e survey of t h a t country west of t h e Cas-

cade Mountains and provided f o r g r a n t s of 640 a c r e s of l a n d each t o a c t u a l

s e t t l e r s , s u b j e c t t o c e r t a i n conditions.    When Washington T e r r i t o r y was

carved o u t of n o r t h e r n k e g o n T e r r i t o r y and e s t a b l i s h e d on March 2, 1853,
14 I n d .   C1. Comm. 14                                                                        21


10 S t a t . 1 7 2 , a l l laws e f f e c t i v e i n Oregon T e r r i t o r y were extended over

it.    On J u l y 17, 1854, 10 S t a t . 305, the Pre-emption Act of September 4,

1841, 5 S t a t . 453, was excended t o a l l land not claimed, e n t e r e d , o r r e -

served by t h e Donation A c t of 1850, -which Act had been extended on February

14, 1853, 10 S t a t . 158, t o December of 1855.                  A t t h e same time p r o v i s i o n

was made f o r t h e p u b l i c s a l e of a l l land west of t h e Cascade Mountains

which was not t h e n s e t t l e d o r reserved f o r p u b l i c use.

       The i n c r e a s i n g amount of white t r a f f i c along t h e Columbia River and

the t r a i l s t o t h e c o a s t , a widespread b e l i e f among t h e whites t h a t t h e

Donahion Act of 1850 a p p l i e d t o a l l land i n t h e T e r r i t o r i e s of Oregon

and Washington whether o r i g i n a l t i t l e had been extinguished t o i t o r n o t ,

and t h e developing s e t t l e m e n t a t The Dalles, e a s t of t h e Cascade Range,

and rumors r e a c h i n g t h e Indians r e s i d i n g east of t h a t range t h a t t h e

Government intended t o r e l o c a t e among them t h e Indians from w e s t of

t h e Cascade R a ~ g e , a l l l e d t o increasing d i s s a t i s f a c t i o n among t h e I n d i a n

t r i b e s east of t h e Czscade Range i n these two t e r r i t o r i e s .           To p r e s e r v e .

t h e peace and q u i e t of t h e f r o n t i e r , Congress appropriated funds on J u l y

31, 1854, 10 S t a t . 315, t o finance t h e n e g o t i a t i o n of t r e a t i e s of c e s s i o n

with t h e I n d i a n s east of t h e Cascade Range i n t h e s e t e r r i t o r i e s .

       9.    Upon t h e establishment of t h e T e r r i t o r y of Washington, it had

become necessary f o r t h e r e s p e c t i v e Governors and Superintendents of

I n d i a n A f f a i r s i n t h e T e r r i t o r i e s of Wsshington and Oregon t o a s c e r t a i n

which t r i b e s and bands of Indians resided i n t h e i r r e s p e c t i v e j u r i s d i c t i o n s .

O f f i c i a l correspondence between t h e s e p a r t i e s d i s c l o s e s t h a t p r i o r t o
14 Ind. C1. C m . 14
             o m


t h e t r e a t y dzte of June 9, 1855, i t was understood by them t h a t t h e

Walla W a l k and Czyuse t r i b e s occupied land i n both t e r r i t o r i e s ; t h a t

t h e i r boundaries were not well defined and that a controversy e x i s t e d be-

tween them as t o a considerable t r a c t of lznd, which dispute t h e Govern-

ment might be called upon t o s e t t l e .        T i e t r a c t which the Walla Walla

t r i b e claimed, a s described by members of t h a t t r i b e i n 1848, and t h a t

which t h e Cayuse t r i b e was believed t o occupy were each described by t h e

Governor of Qregon T e r r i t o r y , J o e l Palmer, i n a l e t t e r addressed by him

t o t h e Governor of Washington T e r r i t o r y , Isaac I. Stevens, during January

of 1854.     N mention of t h e Umatilla t r i b e appezrs i n t h a t letter.
              o

       10.   The L'tillz Indian Agency D i s t r i c t encompassed a l l land i n
                                                                                  0
Oregon T e r r i t o r y from the 44'   of l a t i t t l d e north t o t h e 46       and t h e Washington-

Oregon T e r r i t o r i d , l i n e , between t h e Cascade Momtains and Rocky Mountains.

I n h i s znnual r e p o r t f o r 1854 R. R. Tnompson, t h e agent then i n charge of

t h a t D i s t r i c t , wrote t h a t he had n o t y e t v i s i t e d a11 of t h e Indians under

h i s charge, but s o t h a t t h e Superintendent might have an i d e a of t h e i r

generzl l o c a l i t y he enclosed a m2p prepared by one Major G. 0 . H a l l e r ,

one of t h e m i l i t a r y o f f i c i a l s then s t a t i o n e d at The Dalles, Oregon.     Agent

Thompson wrote:

       The accompanying map it i s hoped w i l l enable t h e department
       t o form a c o r r e c t idea of t h e l o c a l i t y of t h e several t r i b e s
       and d i v i s i o n s r e f e r r e d t o i n t h i s r e p o r t . It has been kindly
       furnished by Brevet Major G. 0. H a l l e r , 4 t h infantry U.S.A.,
       wko has taken great pzins i n c o l l e c t i n g accurate information
       a s t o the topography of the c o m t r y , and it may be r e l i e d upon
       a s being i n t h e main correct-,

       'Ihe Haller map was forwarded t o t h e Commissioner of Indian A f f a i r s by

Superintendent J o e l Palmer with h i s annual r e p o r t of September 11, 1854.
14 Ind. C1. Comrn. 14                                                                              23


       11. B l e t t e r dated August 15, 1854, the Commissioner of Ind5an
            y

A f f a i r s i n s t r u c t e d Superintendent J o e l Palmer t o n e g o t i a t e t r e a t i e s of

c e s s i o n with t h e Indians i n h i s s u p e r i n ~ e n d e n c y , t o u n i t e as many a s p c s s i b l e

of t h e v a r i o u s t r i b e s and bands and c r e a t e a s £ex r e s e r v a t i o n s a s p o s s i b l e

f o r them.     Palmer was a l s o i n s t r u c t e d t o f u r n i s h a skeleton map of Oregon

T e r r i t o r y showing thereon t h e l o c a t i o n of t h e s e v e r a l Indian t r i b e s and

t h e e x t e n t of country claimed by each, and t o a s c e r t a i n t h e "nature of

the tenure or c l a i n          * * *."     It w a s s a i d t h e claims of t r i b e s i n Washington

and Oregon T e r r i t o r i e s were based "on occupancy alone, and t h a t occupancy

of a n a t u r e not v e r y f i x e d and w e l l defined by boundaries."

       The Acting Commissioner of Indian A f f a i r s issued similar i n s t r u c t i o n s

t o Superintendent I s a a c I. Stevens of Washington T e r r i t o r y on August 30,

1854, concerning t h e n e g o t i a t i c n of t r e a t i e s with Indians i n t h e T e r r i t o r y

of Washington.             Mr.   Stevens was i n s t r u c t e d t o "furnish t h i s o f f i c e w i t h

a s k e l e t o n map of Wzshington T e r r i t o r y , showing t h e l o c a t i o n of t h e v a r i o u s

t r i b e s and bands, and t h e boundaries of t h e lands r e s p e c t i v e l y claimed                    .

by each,      **    *.Ir



        12.    I n response t o i n s t r u c t i o n s from Superintendent Palmer d a t e d

September 28, 1854, t o v i s i t as many of t h e Indian t r i b e s and bands i n

h i s agency d i s t r i c t as was p o s s i b l e and a s c e r t a i n t h e i r numbers, l o c a t i o n ,

and c o n d i t i o n and means of s u b s i s t e n c e , t o c o n c i l i a t e t h e i r good w i l l and

m a i n t a i n t h e peace, Agent R. R. Thompson of t h e U t i l l a D i s t r i c t r e p o r t e d

on October 11, 1854, t h a t h e had on September 29, 1854, accompanied Major

G . 0 . H a l l e r and a troop of s o l d i e r s up t h e U t i l l a (UmatilLa) R i v e r t o

Wm. McKay ' s p l a c e on How-te-me River which stream entered t h e Utilla
14 Ind. C1. C m . 14
             o m


about 10 miles from t h e Blue Mountains, a t which place the Cayuse camp

was usually found, thence t o t h e Grand Ronde Velley where they had met

the "greater portion" of the Cayuse t r i b e and some 60 Nez Perce Indians,

and thence through Snake country t o F o r t s Boise and Hall i n Idaho.                          Thompson

reported t h a t he had held councils with t h e Bannock Snakes a t Fort Boise,

and he described t h e divisions of Snake o r Shoshone Indians and gave t h e i r

general l o c a l e .    Major Haller a l s o made an o f f i c i a l r e p o r t of t h i s expedition.

       13.    During 1853 and 1854 Governor Stevens was i n charge of a f e d e r a l

exploring and survey party engaged i n seeking a r a i l r o a d r o u t e through

t h i s region and t o t h e P a c i f i c coast.      H i s o f f i c i a l map accompanying h i s

f i n a l r e p o r t was withdrawn about July 19, 1854, because i t r e f l e c t e d

known e r r o r s i n recent maps and compounded a l l of those known t o exist on

maps of 1850.           Thereafter t h e Governor s e n t one James Doty up t h e Columbia

River and i n t o Washington T e r r i t o r y t o contact t h e Indians t h e r e and

arrange f o r t h e i r attendance at a j o i n t council with Indians of Oregon

T e r r i t o r y , and t o s e l e c t a s i t e f o r such a council.     Agent R. R. Thompson

was i n s t r u c t e d by Governor Palmer t o arrange with t h e Oregon Indians

f o r t h e i r attendance at t h i s same council.

       The council convened a t Walla Walla, Washington, on M y 20, 2855.
                                                             a

O June 9 , 1855, t h e t r e a t y commissioners on behalf of t h e United Staees
 n

entered i n t o a t r e a t y with t h e chiefs, headmen and delegates of t h e Walla

Walla, Cayuse and Umatilla Tribes and bands a c t i n g f o r and on behalf

of t h e i r r e s p e c t i v e t r i b e s and bands, which e n t i t i e s were by t h a t t r e a t y

confederated i n t o a s i n g l e e n t i t y or u n i t .     The t r e a t y was transmitted
1.4 fnd. C1. C m . 14
              o m                                                                             25


 t o t h e Secretary of t h e I n t e r i o r on July 9 , 1856, and t o the President

 of t h e United S t a t e s on Jilly 29, 1856.          It wes r a t i f i e d March 8, 1859,

 and became e f f e c t t v e upon t h a t date.

       b r i n g the council of 1855, other t r e a t i e s of cession were negotiated

with other t r i b e s and bands of Indians.

       14.    On June 12, 1855, Governor Stevens prepared a p l a t of t h e a r e a

 ceded by t h e Walla Walls, Cayuse, and Umatilla Indians and of the proposed

reservation.        Neither Governor Stevens nor Governor Palmer had previously

 submitted s k e l e t o n maps of t h e i r r e s p e c t i v e Indian superintendencies

 showing t h e l o c a t i o n of t h e t r i b e s and bands of Indians residing t h e r e i n .

According t o t h e o f f i c i a l minutes of t h e t r e a t y council, t h e only i n v e s t i -

 g a t i o n made during t h a t council i n t o the t e r r i t o r i a l claims of t h e tribes

 and bands represented a t t h a t council was t o request t h e Nez Perce Chief,

 Lawyer, t o prepare amap of t h e country claimed by h i s t r i b e .                    o
                                                                                          N contact

had been had with t h e Sndce Indians t o a s c e r t a i n what t e r r i t o r y i n e a s t e r n

 Oregon was claimed by them.

        15.    The o b j e c t of s a i d t r e a t y was t h e extinguishment of any and a l l

 claim by s a i d I n d i a n s i n o r t o t h e land w i t h i n t h e T e r r i t o r i e s of Washing-

 ton and Oregon, t o confederate t h e Indian e n t i t i e s signatory t h e r e t o i n t o

 one permvlent e n t i t y , and t o designate a t r a c t w i t h i n t h e ceded a r e a f o r

 use by t h e confederation a s an Indian Reservation.

        There i s no evidence of record t h a t the United S t a t e s granted

 recognized t i t l e t o t h e Confederated t r i b e s and bands of t h e Walla Walla,

 Cayuse and Zimatilla Indians.
14 Ind, C1. Comm, 14                                                                         26


       16.     During June, 1855, t h e Umatilla t r i b e numbered 200 s o u l s .               A t that

time t h e WaIla WaLla t r i b e numbered 800 souls, and t h e Cayuse t r i b e numbered

500 souls.        In e a r l i e r times these numbers were somewhat Larger.

                                             Indian T i t l e

       17.     I n p r e - h i s t o r i c times the s t a p l e food of the Walla Walla, Cayuse

and Umatilla t r i b e s was salmon, although they obtained many o t h e r s p e c i e s

of f i s h from t h e Columbia River.                After acquiring horses t h e s e t r i b e s

adopted a f i s h i n g , hunting and root-gathering subsistence cycle, and by

t h e e a r l y 19th century t h e Cayuse and t o a l e s s e r degree t h e Walla Walla

and U m a t i l l a Indians were engaging i n hunting a c t i v i t i e s , going east of

t h e Snake River t o buffalo country near Fort H a l l and even f a r t h e r t o

t h e east.       y
                 B t h e 19th century t h e Umatilla and Walla Walla occupied per-

manent wintering v i l l a g e s along t h e Columbia and Umatilla o r Walla Walla

Rivers, with t h e Cayuse wintering not f a r t o t h e east and s o u t h e a s t .                These

v i l l a g e s were a l s o used as more-or less permanent residences when t h e

t r i b e s were not .,t r a v e l i n g on t h e i r ga&eri ng , hunting, and f i s h i n g ex-

peditions.         Such s i t e s were chosen with a view t o             avoiding t h e deep snows

i n t h e mountains and f o r some s h e l t e r from the elements, f o r a v a i l a b l e f u e l

and i n orcter t h a t t h e t r i b e s might conventently take advantage of t h e e a r l y

salmon runs i n t h e spring when t h e chinook, blueback, and s i l v e r salmon

migrate up t h e Columbia River t o spawn i n the headwaters of its t r i b u t a r i e s .

       The annual runs of these several species of salmon c o n t r o l l e d t h e

s u b s i s t e n c e c y c l e of these t r i b e s .   These runs began about t h e f i r s t of May

and a g a i n i n October.           The Indians were familiar with t h e v a r i o u s p l a c e s
14 Ind. C1. Comm. 14                                                                                    27


where t h e salmon could be found i n g r e a t e s t abundance probably beginning

with t h e Columbia River a s far down s t r e a n - e s The Delles and C e l i l o F a l l s

where t h e i r f i s h i n g began, and a s t h e f i s h moved up stream t h e Indians

followed t o t h e headwaters of t h e t r i b u t a r y streams, p r i n c i p a l l y t h e Walla

Walla and U n a t i l l a Rivers *ich            were encompassed i n t h e t e r r i t o r y they

claimed they used by r i g h t of I n d i a n t i t l e .             The men f i s h e d and hunted

game while t h e women dug r o o t s , gathered b e r r i e s and pounded and d r i e d t h e

f i s h and game f o r w i n t e r food.          A s autunn approached they r e t u r n e d t o t h e i r

w i n t e r v i l l a g e s f o r t h e l a t e summer r u n of t h e salmon, t a k i n g w i t h them

t h e food they had accumulated f o r t h e w i n t e r .                Tnere they remained u n t i l

t h e following s p r i n g when t h e c y c l e began again.                 Hunting t r i p s t o t h e

b u f f a l o country t o t h e e a s t were made annually by some members of t h e t r i b e s

t o o b t a i n b u f f a l o m e a t and h i d e s and were of varyipg duratLon.

       Local w i n t e r groups c o n s i s t e d of r e l a t e d f a m i l i e s w i t h i n each t r i b e

dwelling i n lodges of mats and r u s h e s .                  During t h e "sumer" months t h e r e

was an i n t e r m i n g l i n g of t h e f a m i l i e s not only w i t h i n t h e s e p a r a t e t r i b e s

b u t among t h e t h r e e t r i b e s during t h e i r summer m i g r a t i o n s .         The ''summern*

groups w e r e f l u i d i n composition and heterogeneous i n c h a r a c t e r , and t h e

t e r r i t o r y they v i s i t e d was not owned o r claimed by any one t r i b e , b u t was

used i n common by a l l t h r e e t r i b e s and o t h e r f r i e n d l y t r i b e s .

        18.    Claims of v i l l a g e s out on headwaters of streams i n t h e Blue

Mountain and o t h e r a r e a s where t h e summer groups went on t h e i r g a t h e r i n g ,



* S m e r " i n c l u d e s a l s o t h e period i n t h e s p r i n g and f a l l when t h e
 I n d i a n s were away from t h e i r w i n t e r v i l l a g e s on s u b s i s t e n c e a c t i v i t i e s .
    14 Ind. C l . Cow. 14


    hunting, and f i s h i n g a c t i v i t i e s a r e not r e a l i s t i c .   These a r e a s w e r e

    a c t u a l l y camping areas r a t h e r than v i l l a g e s .      ~ e b s t e r ' sdictiongry de-

    f i n e s a v i l l a g e ss "any small aggregation of houses i n t h e country, i n

    general l e s s i n nlmiDer thzn i n a town o r c i t y and more than i n a hamlet."

    Tnere i s no evidence i n t h e record t h a t dwellings of any kind e x i s t e d i n

    any of these areas on anything resembling a permanent b a s i s ; i n f a c t no

    dwellings even i n t h e Indian version of a dwelling a r e mentioned i n t h e

    evidence.        The only places were lodges a r e described are i n t h e a r e a s

    h e r e t h e s e Indians l i v e d throughout t h e winter season which i n one

    sense were t h e i r permanent v i l l a g e s ,          Their l i f e during t h e summer season

    seemed t o be one round of camp spots a f t e r another.

            19.    During t h e e a r l y decades of t h e 19th centusy Walls W a l k Cayuse,

_   and Umatilla t r i b a l members had a l a r g e number of horses owned by individ-

    u a l Indians, which a s a matter of necessity roamed at large.                              Those awned

    by Cayuse Indians were e s p e c i a l l y numerous.                 For example, it is claimed

    t h a t one Indian owned more than 2,000.                    Other Indians had l a r g e bands

    and s i n c e t h e r e were no fences t h e horses ranged over t h e grazing areas
        *
    at will.       This s i t u a t i o n came about n a t u r a l l y as t h e horses increased

    i n numbers, and f i t i n t o t h e common use of areas adjacent t o and south of

    t h e a r e a s i n which t h e Umatillas, t h e Walla Wallas and t h e Cayuse I n d i a n s

    had t h e i r permanent v i l l a g e s , each as a separate and independent':entft$;.

    With t h e a d d i t i o n a l areas being taken from t h e Snakes, there w a s enough

    range f o r a l l , n o t only f o r .the grazing of horses,                   but f o r subsistence

    purposes.        Allied t r i b e s such a s the Nez Perce, Wayampam, and o t h e r s were

    taking p a r t i n t h e drives against t h e Snakes, used the invaded terri-

    t o r y frequently and without leave from anyone.                         Only t h e i r ancient enemy
14 Ind. C 1 , Comm. 14                                                                                     29


t o t h e south, t h e Snakes, were n o t welcome t o use t h e t e r r i t o r y .

       W i t h . r e s p e c t t o t h i s s i t u a t i o n D r . Ray t e s t i f i e d under q u e s t i o n i n g

by p e t i t i o n e r ' s c o m s e l a s follows:

       Q.  Did t h e members o f . t h e s e t h r e e t r i b e s e v e r go upon
       each o t h e r ' s lands?

       A.    Yes, they did.

       Q.  Did t h e members of t h e s e t r i b e s ever go upon lands
       occupied by o t h e r t r i b e s ?

       A.    Yes.      Upon t h e lands of a l l of t h e i r r e i g h b o r s .

       Q. When one of t h e s e t h r e e t r i b e s was on t h e Land of some
       o t h e r t r i b e , were they t h e r e , s o far a s you have been
       a b l e t o f i n d o u t , as a m a t t e r of r i g h t ?

       A. No. They .were t h e r e as a m a t t e r of p r i v i l e g e , the
       p r i v i l e g e being given by t h e t r i b e s upon-whose lands t h e y - w e r e
       going.

       Q.  And when members of o t h e r t r i b e s came xpon t h e l a n d s of
       one of t h e s e t h r e e t r i b e s , have you been a b l e t o d i s c o v e r
       whether they d i d s o as a m a t t e r of r i g h t ?

       A. Y e s , I have been a b l e t o discover, and they d i d s o as a
       m a t t e r of p r i v i l e g e i n t h e same f a s h i o n as t h a t described
       i n reverse.
       (Tr. Vol. 5, p. 631)

       %is s i t u a t i o n i n which D r . Ray is of t h e opinion t h a t t h e s e -numesous

agreements and understandings were a r r i v e d a t between f r i e n d l y t r i b e s of

I n d i a n s w i t h r e s p e c t t o t h e ownership and permissive use of t h e s e l a n d s is

indeed complicated.               To have such a s i t u a t i o n under t h e circumstances

would r e q u i r e a degree of s o p h i s t i c a t i o n on t h e p a r t of t h e s e I n d i a n s which

would seem t o be over and beyond t h e i r known - c a p a c i t y and t h e i r .way of

l i v i n g a t any t i m e p r i o r t o t h e i n f l u x of white s e t t l e r s i n e a s t e r n Oregon

who bronght i n t h e white man's i d e a of land ownership.                               Besides, t h e r e was
  14 Ind. C1. Comm. 14                                                                        30


room f o r a l l friendly t r i b e s without anyone having t o make an i s s u e of

 s p e c i f i c c r i b a l ownership i n t h e areas used i n common.

       That t h i s so c a l l e d "permissive use" Lnvolved subsistence a c t i v i t i e s

 of t h e " v i s i t i n g " Indians is made c l e a r i n t h e l a s t question and answer.

       Q. Have you found any instances i n which t h e Norhtern
       Paiute were given t h e p r i v i l e g e of coming upon t h e Cayuse
       and Walla Walla lands and exploiting the economic resources
       t o be found t h e r e ?

       A. I have never found such an example,
       (Tr. Vol. 5, .p, 631)

       So we f i n d t h a t during t h e c r i t i c a l periods i n t h i s case, t h e s e areas

which were used year a f t e r year by t h e intermingled Umatilla, Walla Walla,

Cayuse, and f r i e n d l y neighboring t r i b e s f o r t h e - e x p l o i t i n g of economic

resources, were not used and occupied exclusively by t h e U m a t i l l a , Walls

.Walls, o r Cayuse t r i b e s , or by any .one of them, s o t h a t Indian t i t l e could

come i n t o being o r be maintained.            o
                                                N l'permissive use" agreements e x i s t e d .

       20.    South of t h e U m a t i l l a s , Walla Walkas, and Cayuse t r i b e s w e r e

 Shoshonean speaking peoples generally r e f e r r e d t o i n t h i s proceeding and

 i n Docket 198 as t h e Saake Indians.            I n t h i s general c l a s s i f i c a t i o n were

 t h e Northern Paiutes, t h e "Digger" Snakes and t h e Shoshones.

       I n Docket 87 we found p a r t of them, a t least, t o be an i d e n t i f i a b l e

 group of American Indians e n t i r l e d t o f i l e claims against t h e United

 S t a t e s under t h e Indian Claims Commission Act as a group because they

w e r e not an organized t r i b e or band.

       I n f a c t t h e r e were thousands of Sndcesor Paiutes s c a t t e r e d over e a s t -

 e r n Oregon, western Idaho, Nevada and a few i n Utah and northern C a l i f o r n i a .

 S c a t t e r e d groups of these Indians occupied and used i n t h e i r wanderings
14 Ind. C1. C m . 14
             o m                                                                               .   .


mxS of e a s t e r n Oregon i n aboriginal times immediately south of t h e

Columbia River.          Their subsistence p r a c t i c e s were governed l a r g e l y by t h e

nature of t h e couctry i n which they were l i v i n g from t h e Cascade mountains

eastward t o t h e near v i c i n i t y of t h e Snake River i n Idaho.                   They were

f i e r c e f i g h t e r s , l a r g e l y of t h e g u e r r i l l a type, movi2g s t e a l t h i l y through

the areas where they were seeking t h e i r subsistence.                         When i n a r e a s where

there w a s an abundance of f i s h such as t h e salmon, and deer, e l k , bear,

and smaller game animals, together with edible r o o t s , n u t s and b e r r i e s ,

t h e i r subsistence was very much l i k e t h a t of t h e i r northern neighbors,

t5e Safiaptins.         They were not along the south bank of t h e Columbia when

Lewis and Clark and other explorers and trappers went up and d m t h a t

r i v e r , but were n o t very f a r away from it.               The explorers, p a r t i c u l a r l y

Lewis and Clark, h e a d of them although they did not seem them.                                      That

they were not f a r away was a t t e s t e d by t h e Sahaptins who i n 1805 and 1806

had t h e i r dwellings on the north bank of t h e Columbia because of t h e i r

f e a r of t h e Snake Indians with whom they were a t war.                        The Snakes were

evidently powerful in t h e i r way, and were feared by t h e Columbia River

Indians.       There was intense enmity between the two groups and as a r e s u l t

they were almost continually a t war.                    The f i g h t i n g between t h e s a h a p i i n

Indians and t h e Snakes over the possession of t h e areas t o t h e south is

r e f e r r e d t o by p r a c t i c a l l y a l l of t h e anthropologists, h i s t o r i a n s , t r a v e l e r s

and writers dealing with t h e h i s t o r y of southeastern Oregon.                          That t h e

Snakes occupied much of t h e a r e a south of and near t h e southern banks of

t h e Columbia River i n aboriginal times i s a t t e s t e d by those who t e l l of

t h e e f f o r t s of the Sahaptins t o expel1 them from these areas.                             They .were
 14 Ind. C l . C m . 14
                o m                                                                       ". ..   32


n e a r t i l y d i s l i k e d by t h e Sahaptins who regarded them a s "savages" l a r g e l y ,

it was s a i d , because of t h e i r wandering way of l i f e and t h e types of food

such a s dried i n s e c t s , which these Indians i n t h e i r need, as they were

deprived of more productive areas, were forced t o e a t a s a matter of

survival.       L i t t l e was learned by e a r l y white explorers and s e t t l e r s about

t h e s e Shoshonean peoples and what was lezrned came largely from t h e i r ancient

enemies who w e r e l i v i n g along t h e t r a d e and t r a v e l r o u t e s t o t h e P a c i f i c

Northwest, such a s t h e Columbia River and t h e l a t e r Oregon T r a i l .

        I n a d d i t i o n t o continuous w a r f v e wer t e r r i t o r y , which w a s l a r g e l y

i n s p i r e d by t h e comparative subsistence values of t h e lands near t h e

Columbia River and those f a r t h e r t o t h e south i n e a s t e r n Oregon, t h e r e

were a t Least two o t h e r r a t h e r minor .reasons f o r t h i s long term h o s t i l i t y

'jetween t h e s e l i n g u i s t i c groups.   F i r s t , t h e Sahaptins considered t h e i r

horses an evidence of wealth, and t h e Snakes, who did not have s o many

h o r s e s , used them f o r food a s w e l l as b e a s t s of burden, and a l s o preyed

upon t h e h e r d s of t h e Sahaptin t r i b e s .      And secondly, a t l e a s t during t h e

e a r l y decades of the 19th century, t h e Sahaptin t r i b e s made s l a v e s of

 any Snakes they .were able t o capture during t h e i r expeditions against

 t h e s e less f o r t u n a t e people.   They a l s o s o l d some of these captured Snakes

 as s l a v e s t o o t h e r Indians.

                    Statements of Ethnologists, ,Anthropologists, etc.

        21.    James M T e i t , a sheepherder who married a Thompson River Indian
                      .

wman and becane i n t e r e s t e d i n Indian h i s t o r y , gathered c e r t a i n d a t a
 14 Ind. Cl. Comm. 14                                                                            33


concerning t h e t r i b e s i n e a s t e r n Washington and Oregon which                was e d i t e d

and published d u r k g 1928 by one ?rofessor Franz Boaz.                        T e i t 's theory

tiat Sboshonean people moved n o r t h w a d through e a s t e r n Oregon about t h e
middle of t h e 18th -century, .driving a SaLish speaking people i n t o n o r t h e r n

Washington and a S&aptin speaking people n o r t h of t h e Columbia R i v e r , was

adopted by Joel V. Berreman and by Dr. L e s l i e S p i e r , each of whom w e r e

attempting t o assemble t h e a v a i l a b l e d a t a concerning t h e I n d i a n s i n this

r e g i o n without b e n e f i t of personal f i e l d work i n t h e area.           N e i t h e r of

them considered i t p o s s i b l e t o f i x def i n i t e t e r r i t o r i a l l i m i t s as of any

period f o r the Indians w i t h i n t h e s u b j e c t a r e a , and D r . S p i e r decided

t h a t it was doubtful whether t h e e a r l y people i n Washington e v e r thought

i n terms of boundaries.           T e i t believed t h a t t h i s n o r t h e r n movement

reached i t s h e i g h t between 1803 and 1820 or 1830; Berreman b e l i e v e d it

did s o between 1800 and 1820; Spier placed i t a t 1800 t o 1830.

       Other s c i e n t i s t s &aim t h a t t h e Sah2ptin people moved s o u t h a g a i n s t

t h e Shoshonean speaking people i n c e n t r a l and e a s t e r n Oregon.                Among

t h o s e advancing t3is claim are Doctors h e r C. Stewart, James Mooney,

John R. Swanton, George P e t e r Murdock, and t h e two p r e s e n t e x p e r t

x i t n e s s e s , D r . Verne F. Ray and Robert Suphan.            With t h e p o s s i b l e e x c e p t i o n

of John R. Swanton, each of t h e s e p a r t i e s d i d some f i e l d work among t h e

Indians concerned i n t h i s movement.              When such movement began, when it

reached i t s h e i g h t , and when s t a b i l i t y was r e s t o r e d among t h e s e v e r a l

t r i b e s i n e a s t e r n Oregon and sorrtfieastern Washington are m a t t e r s of d i s -

agreement among t h e s c i e n t i s t s   .
14 Ind. C 1 . Corn. 14                                                                         34


       D r . J u l i a n H. Steward's f i e l d work among Northern Paiutes and t h e

Shoshones ea& of them was fairly contemporary with D r . Ray's e a r l i e r

research.       D r . Stewvd l i v e d among t h e s e Shoshonean speaking Indizns from

1918 t o 1921.        A r t i c l e s concerning them were published by him during

1938, 1939, and 1940.             His 1939 informants and, i n h i s opinion, e a r l y

e x p l o r e r s , considered    t h e Blae M o ~ a t a i n st h e northern boundary of Snake

or Paiute t e r r i t o r y .    H i s last p u b l i c a t i o n contains a p l a t showing

t h i s boundary a s a l i n e running near t h e Korth Fork of John Day River and

thence e a s t s i m i l a r t o t h e l i n e f i r s t fixed by D r . Stewart.      (Pet. Exs.

51, Dkt. 198; 93 p. 447)

       D r . Omer C. Stewart did f i e l d work among t h e Northern Paiute during

1936 and stlbsequently.             I n h i s 1939 publication he s a i d t h e i r northern

 i m i t s r a n along John Day River and i t s North Fork, thence south along

t h e Blue Mogntains t o t h e i r terminus, and thence e a s t e r l y around t h a t

range t o Snake River.            Later he p l a t t e d t h e l o c a t i o n of t h e s e Indians by

bands, t h e n o r t h e r n l i n e following North Fork of John Day River, then

dropping south t o t h e headwaters of North Fork of Malheur River; thence

s o u t h e a s t t o near t h e 44O of l a t i t u d e , and then s l i g n t l y nor& of east t o

s t r i k e Snake River opposite t h e moutb of Weiser River.                   (Pet. Exs. 94, 9 5 )

       D r . Stewart later a l t e r e d t h i s l i n e , extending it from t h e northern

bend of t h e North Fork of John Day River e a s t t o Snake River, passing

n o r t h of Pine Creek.         See t h e Opinion of t h i s Conrmission rendered March 24,

1959, i n Docket No. 87, Northern Paiute Bands, e t al., v. United S t a t e s ,

7 Ind. C1. Comm. 322, pp. 406, 399.
14 Ind. C1. Comm. 14                                                                ". .:   35


      D r . Beatrice Blythe Wniting has located c e r t a i n bands of P a i u t e

Indians f o r t h e period 1840-1850.             She said a Hunipuitika band around

Canyon City Creek, t h e town of John Day and i n John Day River Valley,

hunted w e s t a s f a r as Dzyvilfe, wintered a s f a r north a s Waterman, and

had camps as far e a s t as Baker, Oregon,             '




       During 1844 Haratio Hale drew a l i n g u i s t i c map based on information

obtained of t r a d e r s a t Fort Walla Walla and Cayuse missionaries.                     During

1885 'and 1931 J. W. Powell and Melville Jacobs p;blished                    l i n g u i s t i c maps.

Hales's Nez Perce western l i n e rEns south along t h e e a s t s i d e of Palouse River

around t h e headwaters of Walls Walls River and across Grande Ronde River

near t h e upper end of Grand Ronde Valley.                H i s Valla Walla-Cayuse d i v i d e

follows Touchet River, crosses t h e Walla Walla, m t i l l a and John Day

Rivers a s h o r t d i s t a c e above t h e i r mouths (Tr , p   . 666) .    Snake o r

Shoshone are i n t h e . e a s t h a l f of Grand Ronde Valley.         Jacobs indicated

t h e Umatilla w e r e e n t i r e l y south-of Columbia River, t h e Cayuse south of

t h e Washington-Oregon l i n e , and t h e Shoshonean north l i n e r a n west i n t h e

v i c i n i t y of t h e Blue Mountain spur north of Powder River, following i t

westward and swinging southwest across John Day River near t h e mbuth

of i t s North Fork.           He located Wanapam north and west of t h e Columbia River

from P r i e s t ' s Rapids t o below Umatilla River, and e a s t of t h e Columbia

River from t h e mouth of Walla Walla River t o White Bluffs; Wauyukma on

Snake River opposite Palouse River; and Walla Walla on b o t h . s i d e s of

Walla Walla and lower Snake Rivers, e a s t of the Columbia River.

       D r . James Mooney did research during 1892,               He and Cora DuBois who

published during 1938, were interested i n r e l i g i o n , but they did r e p o r t

t h e l o c a t i o n of some t r i b e s .   DuBois' Cayuse a r e located between Butter
 L Ind. C l . C m . 14
  4                                                                                    36

:reek and Grand Ronde headwaters; her Umatilla a r e on Lower Umatilla

River, and upper Jokn Day River; her Walla Wzlla a r e on Walla Walla River

and on Columbia River t o above the mouth of Snake River.                   She placed t h e

Wanapam on t h e noreh bank of Columbia River below Snake River, and on both

s i d e s of t h e Columbia shove Snake River, znd also on the lower Yakima-

River.

      Dr. Jzmes Mooney equated some of L e w i s and           lark's Indian names with
those of present day.        He s a i d t h e Wanapam were a l s o Sokulks and ranged

both banks of t h e Columbia River from Crab Creek t o Snake River; t h e i r

Chamnapam occupied t h e bend of t h e Columbia River below Yakima River

and t h e lower Yakima River; t h a t c h e i r Pishquitpah were probably t h e Pisko

band of Yakima; t h e i r Kowwassayee were a Tenino band r e s i d i n g opposite

t h e mouth of U m a t i l l a River which joined i n t h e Yakima t r e a t y of 1855;

                                  Nez Perce, b u t t h a t t h e Yeletpo band of Chopun-
t h a t t h e i r Chopunnish -were.

n i s h was Cayuse, and t h e Cayuse occupied t h e heads of the Walla WaZla,

Zimatilla and Grande Ronde Rivers.           H e l o c a t e d a t r i b e not equated by any-

one with one of t h e s e t h r e e rribes on t h e north s i d e of Snake River i n

t h r e e v i l l a g e s between i t s moath a d t h a t of Palouse River with . a f o u r t h

v i l l a g e on Palouse River, and placed t h e Walla Walla on t h e east bank of

t h e Columbia River b e l a r t h e mouth of Snake River, and on Lower Wdla

Walla River.

      Dr. Edward S. Curtis was i n t h i s r e g i o n during 1907.          H e - p l a c e d the

Cayuse-Nez Perce divide along Tucannon River, located Walla Wallas on t h e
14 Ind. C l . Comrn. 14                                                                    '   .   37


Walla Walla River and t h e adjacent bank of t h e Columbia River south of

Snake River; placed Chamnapam about t h e mouth of Yakima River and included

them with t h e Yakima T r i b e ; Located Umatillas i n Umatilla River v a l l e y and

t h e country about i t s mouth south of t h e Columbia River; and s a i d t h e

Cayuse ranged n e a r t h e Blue Mountains from t h e head of Touchet River t o

t h a t of John Day R i v e r , including t h e Grand Ronde Valley.

       D r . Herbert Spinden worked among t h e Nez Perce during 1907-1908 and

r e p o r t e d & a t t r i b e ranged west t o t h e Blue Mountains between l a t i t u d e s

45 and 47 degrees, t h a t it occupied only p a r t of the a r e a it c o n t r o l l e d ;

t h a t i t s t e r r i t o r y extended along Snake River west t o near t h e mouth of

Tucannon River and it divided t h e G r a d e Ronde Valley w i t h t h e Umatilla

T r i b e , t h a t it m y kave included the Palouse t r i b e which i n h a b i t e d

Palottse River v a l l e y and c o n t r o l l e d +he lower Snake River.

       D r . George Murdock, whose research i n 1935 was among t h e I n d i a n s re-

s i d i n g west of t h e s e t r i b e s h e r e represented, s a i d t h e J o h Day River

Wayampam I n d i a n s adjoined t h e Umatillas near Arlington; t h a t t h e John Day

I n d i a n s s e e m t o have always used the middle reaches of John Day R i v e r t o

some e x t e n t b a t t h a ~
                             they admitted the country belonged t o t h e P a i u t e

(Snake), and by 1855 t h e P a i u t e had been e x p e l l e d almost as far s o u t h a s

t h e g r e a t bend o f t h a t r i v e r ( e a s t of t h e claimed l a n d ) ; t h a t the p r e s s u r e

a g a i n s t t h e Snakes t h e r e was a t its h e i g h t between 1810 o r 1820 and 1855.

       J o e l Berreman considered t h e Snake-Nez Perce d i v i d e ran along the

d i v i d e between P i n e Creek and Powder River on t h e south and t h e Grande Ronde

on t h e n o r t h .   J o h n Swanton, w r i t i n g during 1953, reported t h e P a i u t e had
 14 Ind. C1. C m . 14                                                                             38


been pushed out of Powder River v a l l e y and upper John Day River i n t h e

19th century, but described Cayuse coxntry as including t h e headwaters

of Walla Walls, h a t i l l s and Grande Ronde Rlvers, extending from the Blue

Moiintains t o DesChutes River.              He s a i d t h e Chamnapurn were p a r t of t h e

Palsuse t r i b e and assigned t h e Palouse land on both s i d e s of t 5 e Columbia

River above t h e mouth of Snake River arrd t h e country nort3 of Snake River.

                                                                                as-
       I n many instances boundaries appear t o have been f i x e d w i t s o ~ t

certainizzg claims of adjoining Indian e n t i t i e s .                Nor can one be c e r t a i n

from a peruszl of t h e s e e x h i b i t s j u s t what d a t e i s intended t o b e re-

f l e c t e d i n each, o r how long exclusive occupancy i f i t e x i s t e d at a l l ,

                                              regions assigned t o t h e s e d i f f e r e n t t r i b e s .
had e x i s t e d w i t h i n the v a r i o ~ s

                 Expert Witzesses          - Dr. Ray and Mr.         Suohan

     . 22.    D r . Verne F. Rzy, ~ e t i t i o n e r ' sexpert witness, holds a Doctor

of Philosophy degree from Yale University.                       He majored i n anthropology and

teaches that s u b j e c t at t h e University of Washington,                    He has p.sbZished a

n u d e r of a r t i c l e s based upon f i e l d work among t h e Indians i n t b e Columbia

River Basin performed between 1928 and 1938.                        b r i n g 1953 and 1954 i n

preparation for h i s testimony i n tbis case, h e did l i t e r a r y r e s e a r c h and

a d d i t i o n a l f i e l d work among t h e Yakima, U m a t i l l a , Walla Walla and

Cayzlse t r i b e s .   He h a s never, except casually, worked with t h e Snake or

Northern Paiute Indians next so;sth.of these Sahaptin t r i b e s .

       D r . Rzy t e s t i f i e d i n h i s opiniori t h a t about 1750 t h e Walla Walla,

Cayuse a d Umatilla and other Sa5aptin speaking Indians began a con-

c e r t e d "drive" a g a i n s t t h e Snake o r Northern P a i ~ t esouth of them; t h a t

bv 1790 t h e Snakes had been expelled from the t e r r i t o r y h e r e involved;

t h a t by 1810 t h e Cayuse and Umti1I.a t r i b e s were i n f i r m possession
14 Ind. C l , Comm. 14                                                                                39


of t h e southern p o r t i o n of t h e claimed a r e a and h e l d i t under o r i g i n a l

t i t l e u n t i l t h e c e s s i o n of June 9 , 1855; t h a t t h e t e r r i t o r i a l boundaries

of t h e s e t h r e e t r i b e s had been q u i t e p r e c i s e and d e f i n i t e .

       (a)     D r . Ray's f i r s t a r t i c l e w a s published during 1936, and based upon

informant m z t e r i a l secured between 1928 and 1934 (Tr                     . pp.       48-50).    It

d e a l t s t r i c t l y w i t h a b o r i g i n a l conditions as they e x i s t e d around 1850.



       -
I n it h e s a i d :

              The g r e a t e r t h e d i s t a n c e from population c e n t e r s , t h e more vague
       t h e l i n e s of demarcation grew. Thus, f u back i n hunting terri-
       t o r y o r f a r o u t i n d e s e r t r o o t digging grounds, boundaries some-
       times completely faded out.                 **    k Eut during t h e gathering of
                                                          '
       t h i s m a t e r i a l every group i n t h e b a s i n was v i s i t e d and t h e maps
       w e r e f i r s t drawn i n t h e presence of informants a s information
       was given, b i t by b i t , including v i l l a g e l o c a t i o n s a s w e l l as
       l i n e s of boundary. This procedure permitted a degree of accur-
       acy and completeness which could not have been achieved through
       r e c o n s t r u c t i o n f r o m notes.    (Pet. Ex. 59, p. 127)

        On t h e accompanying sketch t h e Sahaptin-Shoshonean d i v i d e apparently

follows t h e c o u r s e of John Day River and then r u n s down R d e r River.

The U m a t i l l a t r i b e is l o c a t e d on b o t h . s i d e s of t h e Columbia River, its          .

west boundary extending south from t h e Columbia River between t h e mouths

of John D a y and DesChutes Rivers.                   The Grand Ronde Valley is i n Cayuse

t e r r i t o r y ; t h e Yakima zre along Yakima River and on both banks of the

Columbia River above t h e mouth of Snake River, and t h e Walla Walla occupy

both banks of Snake River up t o w i t h i n a few m i l e s of Palouse River and

both banks of Columbia River opposite Walla Walla River and below t h e

mouth of Snake River.

        D r . Ray w r o t e p r e c i s i o n i n boundary l i n e s should not be t a k e n t o

be more t h a n a r e f l e c t i o n of e t h n i c u n i t y ; t h e hunting t e r r i t o r y of one
14 Ins. CL. C m . 14                                                                 40


                         open t o another even though t h e bounds were highly
grocp might be q - ~ i t e

specific.    He l i s t e d s i x UmatiEla sites, one on BLalock I s l a n d , t h r e e i n

Washington of *ick       one w a s 3 miles above Mottinger, one near Roosevelt,

and one a t t 3 e mouth of Rock Creek.          T i e remaining two were i n Cregon,

one betweea GmatilLa arid Cold Springs, and t h e other a t t h e mouth of

Umatilla River.       e
                     H located seven Cayuse bands:               one on Butter Creek, one

z t P i l o t Rock, one on M a y Creek, one near Cayuse, Oregon, one on t h e

Gibbon-Urnatifla River, one on Cottonwood Creek, and one near t h e Walla

Walla River.     H e l i s t e d no s i t e s f o r t h e Walla Walla.   Those f o r the

Yakima included one a t Pasco, one opposite Richland, and one occupying

both banks of Yakima River where Kioza ncsw stands, each of t h e s e being

w i t h i n t h e a r e a presently claimed on behalf of t h e Walla Walla.         H e placed

   3pam along bot5 banks of t h e Cohmbia River i n t h e White B l u f f s area.

      (b)   A second a r t i c l e , "Tribzl D i s t r i b c t i o n i n Eastern Oregon and

Adjacent Regiozls ,"wzs publis5ed dcring 1938, based upon f i e l d work com-

p l e t e d arouad 1935, and inclading a few weekst work w i t h the Wayampam

Indians l i v i n g next west of t h e t r i b e s h e r e represented.     Dr. Ray wrote:

      "Distrib=rtion .at t h e Middle of the Nineteenth Century.

      The Umatilla     ***         occupied both banks of t h e Columbia River from
      t h e v i c i n i t y of Rock Creek (Washington) t o a point a few m i l e s
      below t h e mouth of t h e Wall= Walla River. North of t h e Columbia
      t h e t e r r i t o r y extended t o t h e Horse. Heaven H i l l s , south boundaZy
      of t h e Yakima. I n Oregon a mvch g r e a t e r a r e a was held, reaching
      south t o t h e John D.ay River. Beyond lay t h e Paiute. The e a s t e r n
      and western b o u n d z i e s were l e s s d e f i n i t e due t o g r e a t e r inter-
      course with neighboring t r i b e s . Rock Creek           *       furnished an approx-
      imate western boundary but Umatilla f a m i l i e s sometimes camped as
      f a r west a s the john Day River; r e c i p r o c a l l y , the Wayampam Or
      Tenino enjoyed f r e e movement eastward t o W i l l o w Creek. Even on
      t h e Col-mbia River, &ere l i n e s of demzrcation were usually very
      definite, s e v e r a l v i l l a g e s were j o i n t l y occupied by Umatilla and
      Tenino LWayampagl,
11; Ind, C l , C m . 14                                                                      41


      On t h e e a s t t 5 e Umatillz-Cayuse d i v i s i o n was equally vague except
      on t h e lower Umatilla River and near Ulciah. Both banks of t h e
      Umatilla River below t h e mouth of Butter Creek, and t h e n o r t h s i d e
      f o r s e v e r a l miles above, belonged t o t h e Umatilla; but a l l of
      Butter Creek was held by t h e Cayuse. I n t h e gathering grounds t o
      t h e south t h e Urnatilla occupied t h e Ukiah region, whereas t h e
      nearby Lehman h o t s p r i n g s belonged t o t h e Cause, V i l l a g e loca-
                                                                        **
      t i o n l a r g e l y determined t h e s e d i s t i n c t i o n s ; *

      The i r r e g u l a r southern boundaries of t h e Umatilla and Cayuse were
      n o t a r b i t r a r y but coaformed t o topographical conditions. The
      Umatilla u t i l i z e d t h e e n t i r e drainage a r e a of t h e North Fork of
      t h e John Day River; t h e Cayuse used t h e slopes draining i n t o t h e
      U m a t i l l a =d Powder Rivers.

                                           7 ter
      Walula /Galla ~ a 1 1 ~*-+;r i t o r y adjoined t h a t of t h e U m a t i l l a
      at t h e xend of t h e Columbia, b u t t h e s e groups did not i n t e r m i n g l e
      f r e e l y . I n consequence, tfie l i n e d i v i d i n g them was q u i t e d e f i n i t e .
              I n a d d i t i o n t o a s h o r t segment of t h e Columbia, t h e Walula
      occupied both s i d e s of t h e Snake River from t h e mouth t o Lyons
      Ferry.

      The h a b i t a t of t h e Cayuse (wayi'letpu) d i d not touch t h e Columbia
      a t any p o i n t and bordered on t h e Snake f o r only a very s h o r t d i s -
      t a n c e at f i e northernmost extreme, near Starbuck.                  *
                                                                             much of
      t h e a r e a l a y w i t h i n t h e B l a e Mountains, A number of drainage
      systems were occupied, including t h o s e of t h e Walla Walla, t h e
      Umatilla, t3e Upper Grtnde Ronde, Pcwder, and Burnt Rivers, and
      t h e Willow Creek branch of t h e Xalhexr River. On t h e n o r t h e a s t
      t h e Tucannon River formed t h e bouadary; on t h e northwest a seg-
      ment of t h e Touchet River served likewise.

      **     I n t e r c o u r s e was e x t e n s i v e with t h e Nez Perce but t h e l i n e
      of demarcation remained w e l l defined. The southern boundary l a y
      i n r e l a t i v e l y unoccupied country. T e r r i t o r y t o t h e south w a s
      h e l d by t h e P a i u t e and Bannock, with w3om. r e l a t i o n s were a t a l l
      times s t r a i n e d . "
                                         *****
      " D i s t r i b u t i o n i n t h e Eighteenth Century

      *+*     TfiToxghout t h e span of t r a d i t i o n a l h i s t o r y t h e UmatilLa
      had been bounded on t h e south by t h e range of h i l l s spreading
      westward from Ukiah, t h e Cayuse by t h e Grande Ronde-Powder R i v e r
      d i v i d e , and t h e Nez Perce by t h e Wallowa and Seven Devils Moun-
      tains.    **           (Pet. Ex. 61, bracketed m a t e r i a l supplied)

      D r . Ray's p l a t shows a Umatilla-Wayampam divide extending s o u t h

from t h e Columbia River between W i l l o w Creek and John Day River, c r o s s i n g

t h e North Fork of John Day River near i t s moutb.                   H e wrote h e had arbi-
14 Znd. C 1 . C m . 14


t r a r i l y divided the land used by these two e n t i t i e s between them.              He

p l a t t e d a Sahaptin-Shoshonean divide along John Day River and thence south-

e a s t t o t h e Malheur River, and down t h a t r i v e r t o Snake River.             An 18th

century Shoshonean-Sahaptin divide runs e a s t and west between the John Day

and Powder River drainage on t h e south and t h a t of W i l l o w Creek and t h e

Gmatilla and Grznde Ronde Rivers on t h e north, extending e a s t across t h e Snake

River i n t h e v i c i n i t y of t h e mouth of Pine Creek.         The Yakima a r e shown along

both banks of t h e Columbia River above the mouth of Snake River.

      I n a footnote zt page 385 of t h i s a r t i c l e , D r . Ray wrote t h a t a complete

catalogue of h a t i l l a , walls Walla, Cayuse and Palouse v i l l a g e s had been

obtained, having reference, he t e s t i f i e d , t o h i s 1936 list, which h e s a i d was

complete f o r t h e s c i e n t i f i c purposes of t h a t paper.     A t t h e t i m e of t r i a l

he presented a much more numerous list of v i l l a g e sites (Tr                . pp.    692-5, 699)    .
The s i t e s on t h i s last list are places t o which t h e Indians r e g u l a r l y - r e t u r n e d .

Lack of permanent occupancy, permanent s t r u c t u r e s and i n addition, -the manner                      -
of use, do not s e e m t o have been elements of consideration.                                               -

      I n t h i s a r t i c l e D r . Ray a l s o said:

            Tribal territories           ***
                                        had p e r s i s t e d without m a t e r i a l change
      i n Washington and northernmost Oregon from time immemorial. But
      not s o i n t h e southern extensions of t h e area: Sahaptin peoples
      had acquired these regions only a f t e r t h e opening of t h e nineteenth
      century. Formerly Shoshonean peoples had occupied a l l of t h e upper
      drainage f o r the John Day River, a l l of t h e Powder River, and a l l
      of t h e Weiser and Payette River basin and t h e t e r r i t o r y t o t h e south                -"
       On h i s map r e f e r r e d t o above, t h e Shoshonean-Sahaptin divide l i n e

running from w e s t t o e a s t was f a r enough north of t h e North Fork of t h e John

Day River t o include i n Snake country a l l t h e upper 6rainage of t h e John

Day River, and the Powder, Weiser and Payette River basin.                        He a l s o -showed

t h e a r e a s t h e Urnatillas and Cayuse had acquired i n t h e 19th century south

of t h e i r 18th century southern boundary.
       D r . Ray a l s o wrote Lewis and C l a r k ' s "Chopunnish" included Nez

Perce, Cziyuse and o t h e r Sahaptin I n d i a n s ; he w a s u n c e r t a i n whether t h e i r

Fish-quit-pzh. were Zinatilla or Cayuse.                    He wrote t h e Walla Walla had both

s i d e s of t h e Columbia River. below t h e mouth of Snake River; t h a t Sahaptin

t r i b e s never questioned t h e r i g h t of t%e Snakes t o t e r r i t o r y occrrpied by

them during t h e 18tI1 century; t h a t n e i t h e r of t h e p a r t i e s attempted t o                    '..,


w r e s t t e r r i t o r y from t h e o t h e r ; t h a t "the Shoshoneans o f t e n pushed as f a r

n o r t h a s t h e Columbia River, forcing t h e Umatilla sometimes t o t a k e tempo-

rary r e f u g e on Blalock I s l a d or t h e n o r t h bank of t h e r i v e r " ;           t h a t they

rrever remained long and never e s t a b l i s h e d permanent homes, and t h a t t h e

balance of power was very even u n t i l a f t e r t h e t u r n of t h e century (18th

i n t o t h e 1 9 t h ) , when i t began t o s h i f t t o t h e Sahaptins; t h a t t h i s was

tzndoubtedly due i n p u t t o a c q u i s i t i o n of t h e h o r s e and i n t r o d u c t i o n of

new weapons by t5e whites.                That motives f o r t e r r i t o r i a l expansion were

i n t r o d u c e d a t t h e same time, i . e . ,   encroachments by t h e w h i t e s and deple-

t i o n of game n e a r t k e r i v e r , and a f t e r s e v e r a l d e c i s i v e b a t t l e s i n Sho-

shor?ean t e r r i t o r y t h e Shoshoneans were pushed f a r t h e r and f a r t h e r south.

T h i s added economic s e c u r i t y but r e s z l t e d i n no v i t a l change i n h a b i t a t 2nd

economy f o r t h e Sa3aptins.             He mentioned Lewis and C l a r k ' s r e p o r t s of

Shoshonean t r i b e s being on t h e So-zth Fork of Snake River and on Weiser,

Powder, P s y e t z e , Malbeur and Boise Rivers.                                       u mr
                                                                   I n s p r i n g and s m e they were

along t h e Clearwater, i n f a l l and w i n t e r on t h e Missouri River.                       He

thought less c r e d i b l e t h e i r l o c z t i o n of t h e "Shoshone ( a r Snake Indians)"

i n f a l l and w i n t e r on the Multnomah and " i n s p r i n g and sunrmer on t h e heads

of t h e To-War-ne-hi-ooks             ( ~ e s ~ h u t e s La Page (John Day), You-ma-td-am
                                                           ),

(Umatilla) and W a l - l z - w a l - l a r      (Watla Walla) r i v e r s ,      -'       He stated the
,ewFs and Clark m a t e r i a l d i s c l o s e d t h e Shoshoneans i n 1805 were a t least

IS   f a r sout5 as t h e e s r l i e r boxndary h e had f i x e d f o r them, except, perhaps

Ln   the region of the Blue Mountains.

        (c)     During 1937 D r . Ray wrote t h e t h e s i s f o r h i s Doctor's degree,

jrhich was publis5ed i n 1939.                H e then wrote Cayuse and Umatilla boundaries

=ere h i g h l y s p e c i f i c .   He f a i l e d t o mention t h e WaLla Walla, and on a p l a t

i l l u s t r a t i n g areas of Language, r e l i g i o n o r l i k e traits, t h e area u s u a l l y

assigned t h e Walla Wal~at r i b e appears t o be divided between t h e U m a t i l l a

and Palouse t r i b e s .

        (d)     During 1936 E r       . Ray   worked on a c u l t u r e element study.               During

1937 t h i s was extended t o t h e G m a t i l l a and Wayampam Indians.                      H i s report

zppears as Chapter XXII of "Culture Element D i s t r i b u t i o n " and d e s c r i b e s

t     Umatillas i " i t e n e r a n t r a i d e r s ; causing war," having a t r i b a l o r g a n i -
                s
z a t i o n under one c h i e f and sub-chiefs, recognizing t r i b a l t e r r i t o r i a l and

i n d i v i d u a l property r i g h t s .

        (e)      Since t h e commencement of &is               s u i t and h i s employment, Dr-

Ray h a s c o ~ d t t c t e df i e l d s t u d i e s znd has done r e s e a r c h work concerning

t h e Czyrrse, Walla Wallz and U r q s t i l l z t r i b e s s p e c i f i c a l l y on f i s h i n g

statiozzs, s-lbsistence a r e a s and o t h e r i s s u e s involved.

         (f)     Dr. Ray wrote i n h i s f i r s t p i ~ b l i c a t i o n(Pet. EX. 59, p. 101):
        JHI-K


        b s t important i s t h e n o t o r i o u s u s r e l i a b i l i t y of n a t i v e v e r b a l
        t r a d i t i o n s when they r e f e r t o h i s t o r y a f e w g e n e r a t i o n s o r more
        removed. Such d a t a , through .weighing, balancing and comparing,
        may prove of v a l u e f o r a t h e o r e t i c a l d i s c u s s i o n o r a h y p o t h e t i c a l
        r e c o n s t r u c t i o n , but i s of l i t t l e worth f o r a purely f a c t u a l paper.
        *
1 ind. C1. C m . 14
 6                                                                                        45

       D r . Ray testified t h a t it is "quite impossible" from h i s t o r i c a l mater-

 i d s t o determine t k e southern l i m i t s of t h e land t h e Cayuse and U n a t i l l a

 held under o r i g i n a l t i t l e ; t h a t one must have informant information; t h a t

 h i s Shoshone=-S&iaptin        d i v i s i o n l i n e on h i s 1938 p u b l i c a t i o n approximates

 h i s 1850 l i n e i n h i s 1936 p u b l i c a t i o n when considered with r e s p e c t t o t h e

 mouth of Weiser River (Trans. pp. 698-9); and t h a t during t h e 19th century

 :he   Snake o r P a h t e Indians were within t h e region north of h i s

 Shoshonean-Sahaptin divide on t h e south r i m of t h e watershed of John Day

 River, b a t t1,at t 5 e economic cycle of t h e Umatilla and Cayuse t r i b e s

         ?m
 caused & e t o winter i n t h e northern p o r t i o n of t h e areas h e now a s s i g n s

 t o them and t h a t :

        The northern P z i a t e , being immediately t o t h e south and engaging
        whenever they c o d d i n small r;ids i n t o Cayuse a d Umatilla
        t e r r i t o r y , sometimes did cross t h e mocntains and get i n t o t h e
        a c t u a l v a l l e y of t h e John Dzy River. I n f a c t , they o f t e n went
        even f u r t h e r t h a n t h a t on t h e i r r a i d s . But i n t h e wintertime,
        when rioze of t h e Cayuse o r Urnatilla were i n t h i s region, they
        someeimes a c t u a l l y camped on t h e John Day River, so t h a t is
        what l e d my informants t o say t h a t t h e Paiute were people who
        w e r e t o be found t>ere, and t h e determination of t h e boundary
        as I have shown it here r e s t s upoa f u r t h e r information t o t h i s
        effect   .
        !l%at Pai=Ite presence on t 3 e J o h Day River, i t s e l f , on t h e course
        t h a t i s show- h e r e , extreme sorrth, was on t h e same b a s i s e x a c t l y
        t3at it W ~ S f - z t h e r t o t h e nortS; t h a t i s , a r a i d a ~ enemy
                                                                                 d
        s t t e n p t s a t a t i l i z ~ t i o .&en tbey could g e t away with it. (Tr
                                                n                                              .
        p. 568)

        H e e x p l a i ~ e d h e s e northern t r i b e s considered t h e Snakes w e r e "savages,"
                             t

 not e n t i t l e d t o t 5 e same treatmeat accorded t o other neighbors, and

 t h a t t h e Snakes provoked t h i s a t t i t u d e because t h e (Trzns. pp. 628-630):
14 Ind. CL. C m . 14                                                                 '. .   46


       C
       *      n a t u r e of t h e Paiute c u l t u r e was such t h a t a wandering
       way of l i f e was c h a r a c t e r i s t i c , and i n t h i s wandering way of
       l i f e t h e small groups of Paiutes penetrated F ~ t o             whatever
       a r e a they could where they thought they would be able t o g e t
       something t o e a t or something t o use i n t h e i r meager c u l t u r e .

       Tney c e r t a i n l y froin time immemorial had attempted t o p e n e t r a t e
       i n t o t h e Czyuse and UrcatilLa lands. Even when the Cayuse and
       U x a t i l l a were f u r t h e r t o t h e north. And, i n turn, then t h e
       Cayuse and Uuiatilla would have t o be on t h e a l e r t and aggressive
       toxard them o r else they would soon f i n d that t h e i r cauntry i n
       t h e south was coming t o be occupied by these people.

       One of t h e reasons t h a t t h e Paiute could be p a r t i a l l y successful
       was t h a t they were i n t h i s region i n t h e wintertime, whereas t h e
       y e a r l y round of a c t i v i t i e s of t h e Cayuse and Umatilla took them
       up f u r t h e r t o t h e north i n t h e wintertime, and t h e r e was less
       danger then f o r t h e Paiute.

       I d a not say t h a t t h i s is t h e whole explanation.               The Cayuse
       w e r e an aggressive people.        * * *
       MI. Luce: W ~ S t h e r e any r e l a t i o n s h i p between these people
       obtaining
       particularly
                      -- --
                    I mean by "these people" t h e Umatilla and Cayuse,
                         obtaining t h e horse ,in t h i s drive t o t h e south?

       Witness: Y e s , t h e r e was. W do not know precisely what t h e
                                                    e
       h i s t o r y of r e l a t i o n s h i p between these two people was p r i o r t o
       t h e a c q u i s i t i o n of t h e horse. But it may be s a f e l y assumed
       t h a t w i t h t h e coming of t h e horse they -were put i n a p o s i t i o n
       t o move aggressively against t h e Northern Paiute because t h e
       Northern P a i u t e did not g e t horses a t least i n anything t o
       compare with t h e number t h a t were possessed by t h e Cayuse and
       secondarily by t h e U m a t i l l a .

       M r . Robert Suphan t e s t i f i e d f o r t h e defendant.        H e specialized i n

 anthropology a t Columbia University, but has not submitted a t h e s i s f o r h i s

 Doctorate,       During 1954 he spent s i x months i n h i s t o r i c a l research foLlowed

 by t h r e e months i n - f i e l d work among t h e r e s i d e n t s of t h e U m a t i l l a Reserva-

 t i o n and t h r e e a d d i t i o n a l months working with r e s i d e n t s on t h e W a r m Springs

 Reservation, a l l preparatory t o t e s t i f y i n g i n these consolidated cases.
14 Ind. C l . Corn. 14                                                                         47


       M r . Suphan placed much r e l i a n c e upon t h e publications of D r . Ray,

t h e Swindell report of 1941 and its accompanying a f f i d a v i t s , and took

i n t o consideration material found i n t h e p r i v a t e f i l e s of M r . Swindell

following h i s demise.            He prepared a r e p o r t of h i s work and conclusions

which appears as Defendant's Exhibit No. 18.                            He t e s t i f i e d he had taken

care t o advise t h e Indians he interviewed t h a t h e represented t h e Depart-

ment of J u s t i c e and t h a t while he had not interviewed Malla Walla I n d i a n s

he had found t h e Walla Walls h i s t o r y common knowledge among t h e Indians

on t h e Umatilla Reservation.                 However, he s t a t e d i n h i s r e p o r t h i s inform-

a n t s had been q u i t e vague concerning usage of t h e lower Snake and Yakima                               -
River v a l l e y s a s w e l l as t h e Wnite Bluffs region along t h e Columbia River,

a r e a s D r . Ray claims were held by t h e Walla Walla under a b o r i g i n a l I n d i a n

title.

       M r . Suphan considered t h e a r e a h e r e involved r e f l e c t e d t h e post-

1730 P l a i n s influence which accompanied t h e introduction of t h e h o r s e                          .


i n Washington &d Oregon.                 He wrote t h e s o c i o - p o l i t i c a l organization of

t h e Cayuse, Walla Walla and Umatilla Indians was t h e same; t h a t they were

each e t h n i c u n i t i e s , composed of members of s e v e r a l v i l l a g e s o r l o c a l groups;

t h a t each l o c a l group was p o l i t i c a l l y autonomous with i t s own chief and

council whose authority was l i m i t e d t o t h a t group, there being nothing t o

u n i t e t h e s e v e r a l groups i n t o a t r i b a l s t r u c t u r e .    e
                                                                                 H wrote h i s informants

had s a i d personal r i g h t s were recognized i n property made by and/or used i n

work by individual Indians but v i l l a g e s i t e s were communal property and t h e

nearby f i s h i n g s i t e s belonged t o thc v i l l a g e s a s a unit, although t h e y

were open t o use by a l l f r i e n d l y people r e g a r d l e s s of e t h n i c a f f i l i a t i o n .
    I4 Ind. C1, C
                .
                -              14                                                                      48


    However, no claim was made t o areas beyond t h e immediate neighborhood of

    the v i l l a g e , h i s informants agreeing these were open t o whatever f r i e n d l y

    people might c a r e t o use them.               By means of d i r e c t statement and through

    the medium of s e o r i e s of the old days he ascertained from h i s informants

    t h a t t h e r e had been no corrcept of boundaries o r t r e s p a s s among them and

    ethnographic m a t e r i a l t o t h e contrary, was a t t r i b u t e d e i t h e r t o misinfor-

    mation or confusion with conditions p r e v a i l i n g during r e s e r v a t i o n times.

           Mr.    Suphan concluded from informant information t h a t i n a b o r i g i n a l

    t i m e s t h e l o c a l groups, composed of extended f a m i l i e s , dwelt during t h e

    winter months i n e a r t h or mat lodges c l u s t e r e d i n v i l l a g e s along t h e

    Columbia, W a l k W ~ l l aand Umatilla Rivers i n s p o t s affording n nearby

    supply of f i s h , r o o t s and wood as w e l l a s same s h e l t e r from t h e elements;

I   t h a t t h e i r composition was f l u i d , but t h e v i l l a g e sites w e r e always w i t h i n

    t h e same general locale.              I n spring and summer family groups mwed out i n

    quest of r o o t s , f i s h , b e r r i e s and game, joining other v i l l a g e groups with-                      -

    i n t h e l a r g e r e t h n i c u n i t , but t h a t t h e r e w e r e a l s o i n t e r - e t h n i c aggrega-

    t i o n s , t h e heterogeneous groups tending t o regroup continually u n t i l t h e

    f a m i l i e s returned t o t h e i r winter v i l l a g e s .

            I n h i s r e p o r t M r . Suphan commented concerning a statement by D r . Ray

    i n h i s 1939 p u b l i c a t i o n t o the e f f e c t t h a t t h e r e was t r i b a l u n i t y and

    t h a t l e a d e r s h i p among these people r e s t e d "more o r l e s s (on) a r b i t r a r y

    p r i n c i p l e s of achievement, with p a r t i c u l a r emphasis upon w a r records,"

    saying h i s Umatilla, Cayuse, and a l s o Nez Perce, informants had emphatically

    and unequivocally denied t h i s .                H e discussed t h e Swindell r e p o r t , saying
14 Ind. C1, Comm. 14                                                                              49


h i s informaats tad confirmed t h a t v i r t u a l l y every a r e a e x p l o i t e d by t h e

Umatilla wzs shared with members of a t l e a s t one o t h e r group, t h a t they

v e r i f i e d t h e s i t e s l i s t e d as being used by t h e Walla Walla and s a i d such

v i s i t s occzrred at l e a s t once yearly.              That t h e Cayuse were divided i n t o

 seven o r e i g k t l o c a l groups, wintering i n a r e a s which correspond t o those

 designated as ba3d l o c a t i o n s by D r . Ray.             He concluded "they d i d n o t

 u t i l i z e a-ry of t 5 e i r accustomed s u b s i s t e n c e a r e a s t o t h e e x c l u s i o n of o t h e r

 peoples; more cormnonly, s e v e r a l other I n d i a n groups e x p l o i t e d each s p o t

 w i t h t h e Cay-ase  ."
        I n r e s p e c t t o t h e Grand Ronde Valley, M r . Suphan t e s t i f i e d it was

 h i s u n d e r s t a d i n g t k a t use of t h a t v a l l e y by t h e Nez Perce was a y e a r l y

 t h i n g " j u s t as the movenent of t h e Cayuse and Walla Walla, and U m a t i l l a

 w a s i n t o t h e mountains, and t h a t t h i s movement of t h e Nez Perce was of t h e

 same n a t u r e   -- t k a t   i s t o say, it was p a r t of t h e summer rounds or a t l e a s t

 p a r t of t h e summer rounds of some of t h e f a n i l i e s among t h e Nez Perce." .

         I n summation, M r . Suphan reported h e found a t l e a s t during t h e e a r l y

 decades of t h e 1 9 t h century t h e Snakes h a r a s s e d t h e Sahaptins from t h e i r

 camps s c a t t e r e d through t h e Blue Mountains and t h e Grande Ronde Valley.

 That by t h e 1830's and 184OZst h e Sahaptins had expanded south i n t o t h e

 Grand Ronde R i v e r v a l l e y , undoubtedly a r e s u l t of having obtained arms and

 ammunition from t r a d i n g p o s t s along t h e Columbia River; t h a t they continued

 t o push y e t f a r t h e r south, but although they used s u b s i s t e n c e a r e a s south

 of t h e Blue Mountains during the l a s t decades p r i o r t o r e s e r v a t i o n l i f e ,

 t h e John Day ( r i v e r ) country was j o i n t l y e x p l o i t e d ;lot only among t h e

 s e v e r a l S a h a p t i n peoples but with t h e Snakes a s w e l l from about 1820-1830 on.
14 End. C1. C m . 14
             o m                                                                        .       50

       From f u r t h e r information obtained a f t e r t h e f i l i n g of t h i s docket

it appears t h a t t h e two expert witnesses have arrived a t e n t i r e l y divergent

views concerning the p o l i t i c a l s t r u c t u r e of t h e s e three t r i b e s , t h e i r con-

cept of boundaries and t r e s p a s s , zhe date t h e Sahaptin people began a

southern expansion of subsistence a r e a s , and whether the Snakes had been

excluded from t h e cLaimed area.

                                      Documentary Data

       23.    H i s t o r i c a l d a t a concerning t h e t r i b e s i n e a s t e r n Oregon begins

with t h e journals of members of t h e f e d e r a l expedition of 1804-1806 l e d

by Captains Meriwether Lewis and W i l l i a m Clark.                 That party t r a v e l e d down

t h e Clearwater, Snake and Columbia Rivers during t h e l a t e f a l l of 1805 and

t h e following spring returned up t h e Columbia River t o t h e mouth of Walla

Walls River, and then went overland t o s t r i k e Snake River near t h e mouth

of Clearwater River.           Lewis and Clark were e s p e c i a l l y t r a i n e d , and i n s t r u c t e d

t o o b t a i n d e t a i l e d d a t a respecting t h e Indian t r i b e s i n t h e country through
                                                                                                                  -
which t h e y passed, and gather other information,                    F i r s t hand r e p o r t s o f t h e
                                                                                                                  -   .
topography, and i d e n t i t y md l o c a t i o n of t h e Indians they saw o r w e r e a b l e

t o l e a r n about, appear i n t h e d a i l y journals of these two men and of

o t h e r s with t h a t expedition.

       The following information h& been e x t r a c t e d from those j o u r n a l s as

p e r t i n e n t t o t h i s action and we adopt it a s f a c t :

       October 16 t o October 18, 1805: From October 16 t o 1:00 P on         M
       October 18, 1805, t h e party camped at t h e mouth of Snake River.
       There w e r e three d i f f e r e n t nations represented among t h e Indians
       they met t h e r e . One " c a l l themselves Sokulk" and t h e Chim-na-pa
       were s a i d t o r e s i d e on the westerly f o r k l1which mouths a fiew m i l e s
       above'' ( t h a t i s , on t h e Yakima River. ) (Pet. EX. 27, Dkt 264;              .
       Def. Ex. 40)
October 19, 1805: Eaving camped overnight a few miles below t h e
mouth of Walla Walla River, and having been v i s i t e d t h a t morning
by t h e "l$t Chief of a l l t h e t r i b e s i n t h i s Quarter," t h e p a r t y
camped t h i s evening below t h e mouth of,Umatilla River and o p p o s i t e
24 lodges of F i s h - q u i t - p a s whose language d i f f e r e d from t h a t spoken
by t h e n a t i o n s a t t h e mouth of Snake River.      (Pet, Ex. 27, Dkt,
264; Def. Ex, 40)

October 21, 1805: After passing t h e mouth of John Day River,
Clark wrote i n h i s journal: (Bracketed m a t e r i a l supplied)

      "The probable reason of t h e Indians r e s i d i c g on t h e S t a r d   ,
      -
      /north-7 Side of t h i s a s w e l l a s t h e waters of Lewis's R i v e r
      i s t h e i r f e a r of t h e Snake Indians who r e s i d e , a s they
      n a t i v s say on a g r e a t r i v e r t o t h e South, and a r e a t war w i t h
      t h o s e t r i b e s , one of t h e Old Ch_iefs who accompanies us p o i n t e d
      o u t a p l a c e on t h e ~ a r $        -
                                           ;/south/ Side where they had a g r e a t
      b a t t l e , n o t rnaney y e a r s ago, i n which maney were k i l l e d o n
      both s i d e s ,  * * *,"       (Def. Ex, 40, p, 145)

October 22, 1805: The p a r t y passed t h e mouth of DesChutes R i v e r ,
which they recorded had "no I n d i a n name t h a t we could f i n d o u t
except ' t h e River on which t h e Snake I n d i a n s live,"' and C l a r k
wrote:

       I
       '*        The p r i n c i p a l Chiefs of t h e bands r e s i d e i n g about t h i s
       P l a c e i s o u t huriring i n t h e mountains t o t h e S.W.            no I n d i a n s
       r e s i d e on the SW s i d e of t h i s r i v e r f o r f e a r ( a s we were
                                . .
       informed) o f t h e Snake Indians, who a r e a t w z r w i t h t h e t r i b e s .
       on t h i s r i v e r , they r e p r e s e n t t h e Snake I n d i a n s a s being
       v e r r y noumerous, azd r e s i d e g g i n a g r e a t number of v i l l a g e s
       on Towornehiooks /DesChutes/ River which f a l l s i n six m i l e s .
       above on t h e ~ a r T ( s o u t h )Tide and it reaches a g r e a t ways,
        .Ick3t they inform t h a t .K.Jr* they go t o w a r t o t h e i r f i r s t
       v i l l a g e s i n 12 days, thi Course they pointed i s SE            .. o r t o
        t h e S, o f S,E, *It            (Def. Ex, 40, p 149)
                                                           .

October 25, 1805:          Having a r r i v e d below The I . a l l e s , Clark wrote:
                                                                       !

       " JrJb'c h e r e we m e t w i t h our two o l d c h i e f s who had been t o a
       v i l l a g e below t o smoke a f r i e n d l y p i p e and a t t h i s p l a c e t h e y
       met t h e Chief & p a r t y from t h e v i l l a g e above on h i s r e t u r n ' f r o m
       hunting a l l of whome were then c r o s s i n g over t h e i r h o r s e s .kk*
       h e Lthe Chief/ gave u s some meat of which h e had but l i t t l e
       and informedus he i n h i s r o u t e met with a war p a r t y o f Snake
       I n d i a n s from t h e g r e a t r i v e r of t h e S.E. which f a l l s i n a
       few m i l e s above and had a f i g h t ,       *"        (Pet, Ex. 29, Dkt,
       198, p. 158)

October 26, 1806:           While encamped on M i l l Creek, Clark wrote:
14 Ind. C1, C m , i 4
             o m                                                                                     52


      "* * *  The Indians had l a t e l y l i v e d i n Lodges on t h e ~ a r i
      Side a t t h e f a l l s  * * *,"
      It* *     J: Tnose Indians a r e a t war with the Snake Indians on

      t h e r i v e r which f a l l s i n a few miles above t h i s and have
      l a t e l y had a b a t t l e with them, t h e i r loss I cannot lern."
      ( % t o EX, 29, ~ k t .198, p, 161)

I n a second d r a f t , he wrote i n more d e t a i l :

      "The nations i n t h e v i c i n i t y of t h i s place i s a t War with t h e
      Snake Indiaos who they Say a r e noumerous and l i v e on t h e r i v e r                     w&
      passed above t h e f a l l s on t h e Same Side on which we have
      encamped, and, t h e nearest town i s about four days march
      they pointed n e a r l y S.E. and informed t h a t they had a b a t t l e
      with those IndH l a t e r l y , t h e i r l o s s I could not a s s e r t a i n , "
      ( P e t , Ex, 29, Dkt. 198, p. 163)

October 29, 1805: When near t h e m o ~ t hof the K l i c k i t a t River, Clark
wrote i n h i s jotrrnal i n a f i r s t d r a f t :

       "* * * The Indians       a r e a f r a i d t o hunt o r to be on t h e Lar.d Side
      of t h i s Columbia r i v e r f o r f e a r of t h e Snake 1nds who r e s i d e
      on a f o r k of t h i s r i v e r which f a l l s i n above t h e f a l l s ,     * * *"
A few miles f u r t h e r downstream he commented on seeing f o u r houses in
a timbered bottom on t h e south s i d e of t h e River. I n h i s second and
more d e t a i l e d d r a f t , Clark mentioned a r r i v i n g a t t h e home of a chief
he had m e t a t t h e l'long narrowst' and v i s i t e d with him:

      "* * *    The Chief      ***   Showed us 14 f i n g e r s ( d i f f e r e n t f i n g e r s
      not l i t t l e o r middle fingers) which he s a i d was t h e f i n g e r s
      of h i s enemies which he had taken i n war, and pointed t o S. E                        ,
      from which d i r e c t i o n I concluded they were Snake Indians,                    * * *"
When about six miles below Sepulchar Island, and about the mouth of
Hood River, Clark mentioned passing four houses on the Lar,d (south)
s i d e o f t h e Columbia River, saying:

       "* * *    those a r e the f i r s t houses which we have seen on t h e South
      S i d e of t h e Columbia River, (and t h e axess t o those d i f i c u e l t )
      f o r f e a r of t h e approach of t h e i r common enemies t h e Snake
      Indians,     * * *"     (Pet, Ex, 29, Dkt, 198, pp. 169-171)

Confirmation appears i n the Joseph Whitehouse jouinal under t h i s same
date:
14 Ind. Cl. Comm. 14


     * * * Saw        2 o r 3 Camps on t h e ~ a r d
                                                   /South7 Side, which was
      t h e f i r s t we Saw on t h a t Side of th; ~ o l ?R.
      29C, Dkt, 198, p. 182)

During t h e r e t u r n t r i p up the Columbia River, and on April 14,
1806, when near t h e mouth of White Salmon River, Lewis wrote:

      "***
                                                                           +
                                                                   (Pet. Ex.   **



                some of them informed us t h a t they had l a t e l y r e t u r n e d from
      a w a r e x c u r t i o n a g a i n s t the snake i n d i a n s who i n h a b i t t h e
      upper p a r t of t h e Multnomah r i v e r t o t h e S.E. of them, chey
      c a l l them To-wan-nah-hi-ooks.               t h a t they had been f o r t u n a t e i n
      t h e i r expedition and had taken from t h e i r enimies most of t h e
      h o r s e s which we saw i n t h e i r possession,
      p. 280)

On t h e same d a t e Clark wrote:

      "*  **
                                                                     * *"      (Def. Ex. 41'




                  Some of them informed us t h a t t h e y had l a t t e r l y r e t u r n e d
      from t h e war excurtion a g a i n s t t h e Snake 1ndians who i n h a b i t
      t h e upper p a r t of the Multnomah r i v e r t o t h e S E  . . of them they
      c a l l them To wan nah h i ooks. t h a t t h e y had been f o r t u n a t e
      i n t h e e x p e d i t i o n and had taken from t h e i r enimies most o f t h e
      h o r s e s which w e saw i n t h e i r possession.            * * *"
                                                                        (Def, Ex. 41, p, 282)

On A p r i l 20, 1806, when near C e l i l o F a l l s , Clark wrote:

      "* *    *    The p r i n c i p s l v i l l a g e of t h e Enesher n a t i o n i s i m e d i a t e l y
      below t h e f a l l s of t h e N. Side. one o t h e r v i l l a g e of t h e same
      n a t i o n above t h e f a l l s on t h e opposit s i d e and one o t h e r a few
      m i l e s above on t h e North Side.            ***       I precured a sketch of t h e
      C o l m b i a and i t s branches of those people i n which they made
      t h e r i v e r which f a l l s i n t g t h e Colgnbia imediarely a b w e t h e
      f a l l s on t h e South Side LDesChutesl t o branch o u t i n t o 3 braqches
      one of which t h e y mal('ee head i n MG-~efferson, one i n mount. Hood
      and t h e o t h e r i n t h e S. W, range of mountains, and does -not
      w a t e r t h a t extensive country we have h e r e t o f o r e caLculated on.
      a g r e a t p o r t i o n of t h e Columbia and Lewis's /Snake/ r i v e r and
      betwen t h e same and t h e waters of ~ a l l i f o r n i a         must be watered
      by t h e Hultnomah r i v e r        **       *11  (Def. Ex, 41, pp. 307-308)

On A p r i l 23, 1806, t h e p a r t y camped near t h e mouth of Rock Creek
(Washington) a t a v i l l a g e of Wah-how-pun Indians, On t h e 24th they
found 5 Met-cow-we lodges 12 miles above t h e Wah-how-pum v i l l a g e ,
and passed o t h e r s downstream. A "Chopunnish" (Nez Perce) family
                                                       1
accompanied t h e expedition. O t h e 25th, 1 miles above t h e Met-
                                        n
cow-we v i l l a g e t h e y reached a Pish-qriit-pah v i l l a g e of 52 mat lodges
c o n t a i n i n g about 700 souls. Four miles above they passed 5 lodges
14 Ind. C1, C m . 14
             o m



of Walla Walla Indiacs, The following evening t h e p a r t y encamped
about 1 mile below t h r e e Walla Walla lodges and about 7 miles above
Cheir encampment of October 19th, 1805, The morning of A p r i l 27th
they passed the mouth of Umatilla River, and t h a t n i g h t camped with                :
t h e Walla Walla Chief, Yellept, 12 miles below t h e mouth of Snake
River, % i s chief had v i s i t e d them t h e previous October 19th- The
party conversed with t h e Walla Wallas with the a i d o f a Sho-sho-ne
woman prisoner of t h a t t r i b e ,

April 29, 1806: The p a r t y crossed t h e Columbia River and camped on
Walla Walla River. Lewis wrote i n h i s journal:

      ***                                                                      a
                 the indians inform us t h a t i t /The Q a l l a ~ h l ~ i v e r 7
      has i t s s ( o ) m c e s i n t h e range of m o z t a i n s i~view o f u s t o
      t h e 3. and S, E
              3               . t h e s e moun-tains commence a l i t t l e t o t h e south
           M
      of : Hood and extending themselves i n a N. E a s t g r l y d i r e c t i o n
      terminate near a Souther(r)n b r a x h of Lewis's LSnakd r i v e r
      s h o r t of t h e rocky mountains. The Towannahiooks r i v e r , r i v e r
      LaPage (You m l o 1 a R) and t h e Wollah-wollah r i v e r s a l l t a k e
                           a         m
      t h e i r r i s e on t h e N s i d e of t h e s e mouztains; two p r i n c i p a l
      branches of t h e f i r s t of these take t h e i r rise i n Mouatains
      Jefferson and hood. t h e s e moultains a r e covered with snow a t
      present t h o ' do not appear high; they s e p a r a t e t h e waters of
      t h e Mc1t;lomah from those of t h e Colwbia r i v e r . they appear
      t o be aboet 65 o r 70 miles d i s t a n t from hence. The Snake
      indian prisoner informed us t h a t a t some d i s t a n c e i n t h e l a r g e
      p l a i n s t o t h e South of those momtains t h e r e was a l a r g e r i v e r
                                ..
      ruming t o t h e N W which was as wide a s t h e Columbia a t t h i s
      place    * * *,        t h i s account i s no doubt somewhat exagerated but
      it serves t o evince t h e c e r t a i n t y of the Multnomah being a
      very +ge r i v e r and t h a t i t ' s waters a r e seperated from t h e
      Columbia by those mountains and t h a t with t h e a i d of a south-
      wardly branch of Lewis's r i v e r which passes arrond t h e e a s t e r n
      extremity of those mountains, it must water t h a t v a s t t r a c t
      of country extending from those mountains t o t h e waters of
      t h e gulph of C a l i f o r n i a , &" (Def. Ex, 41, p. 336)


      24.     P l a t s included i n the Lewis and Clark Journals show t h e I n d i a n

v i l l a g e s along t h e Columbia River w i t h i n t h e a r e a h e r e involved were each

s i t u a t e d north of t h e Columbia River,      (Def,   Exs, 40, pp. 130-31; 41, pp,

308-9)      I n an "Estimate of t h e    ati ions   and Tribes west of t h e Rocky

Mountains" these explorers l i s t e d and located t h e following t r i b e s
14 Ind. C1. Comm. 14



and bands (Pet. Ex, 29, Dkt. 198, p. 115):



        Y-E-LET Po Band of Choponish r e s i d e under t k e So-W. Mountains
        on a small r i v e r which f a l l s i n t o Lewis's L ~ n a k e / r i v e r
        above t h e entrance of t h e Kooskooske which they c a l l We-War-Con.



         CHO?mSI.I  of Lewis's /FnakeT r i v e r below t h e enterance:jof
         Kooskooske / C l e a r l a t e r 7 on e i t h e r Side of t h a t r i v e r t o i t s
         junceion with t h e ~ o l > i i a .

         SOKULK NaLion r e s i d e on t h e Columbia above t h e enterance o f
                    -      -
         Lewis's /Snake/ r i v e r as high u? a s t h e enterance of Clarks r i v e r ,

         CKIM-NAH Pun on t h e N.W. s i d e of t h e Columbia both above a n d
         below t h e enterance of Levis ' s r i v e r and on t h e T a p t e e l / ~ a k i n a T -
         R, which f a l l s i n t o t h e Columbia 15 M. above Lewis's R,

         WAL-LOW-WALLOW Nation on both s i d e s of t h e Columbia from t h e
         ente-ranc.e of Lewis's r i v e r as low a s t h e Muscle s h e l l r a ~ i d    and
                                                                                        -
         i n w i n t e r p a s s over t o t h e waters of t h e Tapteel L ~ a k i m a lRiver,

         PLSY-QSLT-PAH's Nation r e s i d e from t h a Muscle r a p i d & on t h e N,                    .
         s i d e of t h e Co1-mbia t o t h e Commencement of t h e high Country
         t h i s N. w i ~ t e r t h e waters of t h e Tapteel r i v e r ,
                              on



         SHO-SHO-NE (or Snake indians) r e s i d i n g i n Winter and f a l l on the
         Multnomah r i v e r , Southerly of t h e S. W. Mountains, and i n g r i n g
         and s-me2 on the-heads of t h e To-war-ne-hilooks LDesChuted,
         I Page /John &y/, Yowl-ma-tol-am / ~ n ~ a t i l l a / , W a l - lar-wal- l a r
           +                                                              and
         -
         /Walla ~ Z l l a T i v e r s , and more abuf;dant ly a t t h e f a l l s of t h e
                               r
                                 fo
         ~ o w a r a e h i o o ~ s , r t h e p q o s e of f i s h i n g .

         SHO-S90-NE'S 0.11 t h e Multnomah and i t s waters, t h e r e s i d e n c e of
         them i s not w e l l known t o us, o r inds,-of-the Columbia s a y ab.         t            ,
         SHO-BAR-BOO-BE-ER Band of Shoshones r e s i d e on t h e S, W. s i d e
         of t h e k l t n o m a h r i v e r , high up t h e Said r i v e r .

         SHO-SHO-NE'S r e s i d e i n g on t h e S. f o r k of Lewis's /ZnakeT-river             -
         and on t h e Nemc? /weiserT, Walshlemo ~FowderT, ~ h a i l e t t - ~ t~ /a ~ ~ t      -
                                                                                               e     ,
         S-sh-pellanimmo - -      EozthFork,         Payet tg/ , ~hecomskinkL a l h g u ~ f ,
                                                                               M
                                     ~
         T i m m ~ o e ~ m l a r w a/s w k e r / , and t h e Cop cop pahark / B o i s d r i v e r s ,
         branches of t h e ~ & t h f&k of Lewis 's r i v e r ,
14 Ind. C 1 , C m . 14
               om


       25,   Based upon t h e maps and j o u r n a l s of members of the Lewis and

Clark Expedition, and other evidence including t h e topography of t h e

country through which flow the Co1mbl;a and lower Snake Rivers, of which

we take j u d i c i a l notice, our f a c t u a l i n t e r p r e t a t i o n of t h e Lewis and Clark

journals i s a s follows:
                                                                                               i

      Between October LO and 16, 1805, t h e expedition t r a v e l e d from
      t h e mouth of Clearwater River down Snake River t o t h e Columbia
      River. Bands of the "Chopunnish" n a t i o n were observed r e s i d i n g
      along t h e Snake River.

       From October 16 t o October 18, 1805, t h e expedition camped
       a t t h e mouth of Snake River where they were v i s i t e d by Sokulk
       f r o n a v i l l a g e "a l i t t l e above," and by Chim-na-pum Indians,
       A t h i r d unidentified t r i b e w z s represented among t h e Indians
       gathered a t t h i s point.

       October 18, 1805. The expedition passed t h e mouth of Walla
       Walla River and encamped near t h e Washington-Oregon S t a t e
       l i n e , a short distance below t h e camp of t h e Walla Walla c h i e f ,
       Yel-lept,

       October 19, 1805. Having f a i l e d t o observe t h e m u t h o f t h e
       Umatilla River, t h e expedition passed it and encamped about
       e i g h t miles below where about 100 Indians of t h e Pish-quit-pah
       Nation v i s i t e d them, They were unable t o understand t h e language
       of t h e Pish-quit-pah,

       October 20, 1805.        The expedition passed t h e mouth of Willow Creek.

       October 21, 1805, The expedition passed t h e mouth of John Day
       River. A l l the Indians along t h e Snake River and t h i s f a r down
       t h e Columbia River were observed t o have t h e i r homes on t h e
       n o r t h side of t h e rivers, This, t h e expedition members were
       told, was due t o t h e i r f e a r of a t t a c k by t h e Snake I n d i a n s tJho
       l i v e d t o the south and with whom t h e s e Indians w e r e a t war.

       October 29, 1805, When near t h e mouth of Hood River, t h e ex-
       p e d i t i o n members f o r t h e f i r s t time observed permanent I n d i a n
       homes located on the south s i d e of t h e Columbia River, These
       were homes of Wasco Indians, (Emphasis supplied)
14 Ind, C1, Cornrn, 14                                                                        57

       The e x ~ e d i t i o ncontinued down t h e Columbia River and wintered on

t h e P a c i f i c Coast.   During A p r i l , 1806, they returned up the Columbia

River.

       A p r i l 21, 1806. The p a r t y t r a v e l e d along t h e north bank of t h e
       Columbia River with 10 h o r s e s and two canoes.

       A p r i l 22, 1806. A t a d i s t a n c e o f 8 t o 12 miles up t h e Columbia
       River above t h e mouth of DesChutes River, t h e expedition found
       v i l l a g e s o f t h e Eneshyr I n d i a n E a t i o n l o c a t e d on t h e n o r t h bank
       of t h e Columbia River,

       A p r i l 23, 1806. Near Rock Creek, a t "'Rock Rapids," t h e e x p e d i t i o n -
       reached a Wah-how-pum I n d i a n v i l l a g e , having passed a few
       Wah-how-pum lodges a few m i l e s belou.

       A p r i l 24, 1806. . A t d i s t a n c e s of 4 t o 6 m i l e s above t h e Wah-how-pum
       v i l l a g e , t h e . e x p e d i t i o n passed lodges of t h e Met-cow-we I n d i a n s ,
       and a t 12 m i l e s a r r i v e d a t a Met-cow-we v i l l a g e . The p a r t y t h e n
       disposed o f i t s canoes and proceeded overland along t h e n o r t h bank
       o f t h e C o l m b i a River. (The Met-cow-we band was a p a r t of t h e
       Wah-how-pm Nation. P e t , Ex. 29, p. 115, Dkt, 198)

       A p r i l 25, 1806. A t 1 miles above the Met-cowiwe v i l l a g e t h e
                                       1
       p a r t y a r r i v e d a t a Pish-quit-pah v i l l a g e of 5 1 mat lodges,
       c o n t a i n i n g about 700 people, Four m i l e s f a r t h e r upstream t h e y
       a r r i v e d a t a Walla Walla camp, Both v i l l a g e s a r e along t h e
       n o r t h bank of t h e Colrrmbia River.

       A p r i l 26, 1806, The expedition t r a v e l e d 28 m i l e s and camped
       oz t h e n o r t h bank of t h e Cof-mbia River below t h e mouth of
       TJmatilla River, a m i l e beiow a Walla Walla I n d i a n v i l l a g e and
       seven m i l e s above t h e i r camp o f October 19$ 1805, on t h e
       o p p o s i t e bank o f t h e Columbia River, (The October 19th, 1805,
       campsite had been opposite a Pish-quit-pah Indian village.)

       A p r i l 27, 1806, The e x p e d i t i o n t r a v e l e d ' 3 1 miles and camped
       a t t h e v i l l a g e of t h e Walla Walla Chief, Yel-lept, who had
       v i s i t e d them th-e morning of October 18th, 1805. This C h i e f ' s
       v i l l a g e was l o c a t e d approximately opposite t h e m~uf;hri6ftEhe-..
       Walla Walla R i v e r on t h e n o r t h s i d e o f t h e Columbia.

       A p r i l 28, 1806,       The p a r t y remained a t t h e c h i e f ' s v i l l a g e .

       A p r i l 29, 1806. The expedition crossed t h e Columbia River and
       camped about one mile up t h e Walla Walla River near twelve lodges
       of Walla Walla Indians, Other lodges of Walla Walla I n d i a n s
       were observed on t h e opposite bank of t h e small stream.
14 Ind. c$. Comm. 14


      26,   Traders and trappers next approached the claimed area.                The

British came by way of the Columbia River and those connected with John

Jacob Astor's Pacific Fur Company and other American companies traveled

what l a t e r became known a s the Oregon Trail,          This t r a i l crossed Snake

River near the mouth of Burnt River and turned north through the Blua

Mountains, crossing Powder River, passing through Grand Ronde Valley and

running along the Uma t il l a River to the Colmbia River,

      During the 18401.sthe United States sent three exploring p a r t i e s

through t h i s region under the respective leadership of Commander Charles

Wilkes, Captain Charles C. Fremont and Governor Isaac I, Stevens.                  The

private explorations of Captain Benjamin Bonneville led him through t h e

region during 1832. *Beginning about 1835 a number of missionaries arrived,

After 1850 correspondence concerning these three t r i b e s originated with

the Department of Indian Affairs and the United States Army,                 Letters,

journals and l i k e instruments originating with these p a r t i e s a s well as

with emigradts and s e t t l e r;.   , contain pertinent     information respecting

the Indian t r i b e s i n t h i s region.     Some a r e a s follows:

                                     Traders ard Trappers

      David Thompson, 1811-1812;              r
                                             M . Thompson, a partner of the Britfsh
Northwest Fur Company, passed down the Cohmbia River during July, 1811,

and returned upstream during August, 18lZ.                e
                                                         H met the Walla Walla chief,

Yellepit, f i v e miles below the muth of Snake River during 1811 and found

the Walla Wallas without "weapons of war, r a r e l y a B w and arrows,"
                                                         o                              Yelle-

p i t stated that h i s t r i b e had not v i s i t e d i t s land i n the buffalo conntry

for three years "on account of the h o s t i l i t y of the Snake Indians of t h e
14 Ind. C1. C m . 14
             o m


Straw Tent Tribe."             It i s agreed by the p a r t i e s hereto the buffalo

country r e f e r r e d t o l i e s i n Idaho, e a s t of the area here involved.

       Thompson i d e n t i f i e d Yellepit a s the "Chief of a l l the Shawpatin

Tribes."       Approximately 32 miles f a r t h e r down the Columbia River he found

Indians of another t r i b e .             On h i s r e t u r n t r i p he s a i d there were 200 lodges

of Sahaptin Indians i n " t h e i r principal v i l l a g e " a t the mouth of Saake

River.      I n the f i r s t 56 miles up Snake River he noted passing 5 unidenti-

f i e d Indlan v i l l a g e s .       O August 8, 1811, he wrote' i n his journal:
                                        n                                                      ***
Beginning of cotrrse now t o see the Blue Mountains between the Shawpatin

and t h e Srrake Indians."              ***     (Def. Ex. 68; Pet. Exs. 100, 533 #2)
                                                                                                               .

       Ross Cox, 1811-1817.                Ross Cox, with t h e Northwest Company, journeyed

up and down t h e Columbia River a number of times during and a f t e r 1811.

13 h i s 1811 j o c m a l he described t h a t r i v e r and commented an t h e country
                                   4




along i t above t h e mouth of DesChutes River:                    "The natives r e s i d e s o l e l y            -
on t h e northern side; they have plenty of horses, and a r e generally                                    .       -   A




friendly."          e
                   H reported a Walla Walla v i l l a g e was located a t t h e mouth of

Walla Walla River and he met a number of Nez Perce Indians a t the mouth

of Snake River,            He s a i d below the Islands near t h e mouth of W a l k Walla

River (Pet. Ex, 9):

         ***        a range of high h i l l s a r e seen on each side of t h e (Walla
        Walla) r i v e r , .running nearly from S . . t o N.E., and uncovered
                                                        W
        by any timber: but a t an immense distance, i n a southeasterly
        d i r e c t i o n a chain of high craggy mountains a r e v i s i b l e , from
        which i t i s supposed the Walla Walla takes i t s r i s e . From t h e i r
        c o l o r t h e Canadians c a l l t h i s chain "Les Montagnes Bleaus,"

         During 1815 Mr.           Cox was attacked by Chimnapum, Yackaman, Sokulk and

Walla Walla Indians when he was about halfway between the mouths of Snake

and Walls WalLa Rivers on the Columbia; t h e Walla Walla chief, ~ o r n i S t~ r
                                                                           i a

came t o h i s a s s i s t a n c e , saying the Shoshones had i n summer s t o l e n t h e horses
14 Ind. C l , Comrn. 14

  f t h e Walla Wallas and driven them from the r i v e r , i n winter burnt t h e i r

lodges and k i l i e d t h e i r people u n t i l t h e whites exchanged guns and arnmuni-

t i o n with them f o r t h e i r furs, and t h a t they had then "driven t h e Shoshones

from our hunting grounds            f:** and   have regained possession of t h e lands of

our f a t h e r s   **."   COX commented t h a t t h e Walla Wallzs had banished " t h e

eneiny from t h e banks of the Columbia,"                 e
                                                         H reported t h e Nez Perce and

Walla Walla t r i b e s were "constantly a t war with t h e Shoshones, o r Snake

Indians, who inhabit t h e g r e a t plains t o t h e southward," t h a t :

        The only cause assigned by t h e Wallah Wallahs f o r t h i s war
        i s t h a t the Snakes i n t e r d i c t them from hunting the black-
        t a i l e d deer, which a r e numerous i z r t h e i r lands, and i n re-
        t a l i a t i o n they oppose t h e l a t t e r i n t h e i r endeavors t o c a t c h
        salmon i n t h e Columbia, They a l l e g e t h a t t h i s opposition
        would cease i f t h e Shoshones abandoned t h e i r claim t o the
        exclusive r i g h t t o hunt the b l a c k - t a i l e d deer, A s t h i s i s
        a p r i v i l e g e , however, which t h e l a t t e r a r e not w i l l i n g t o
        concede, t h e i r warfare may be interminable.

during 1817 Cox's journal records t r a v e l i n g with "Shyatogoesr' and

Walla Wallas along t h e Columbia River a day's journey above t h e mouth of

John Day ~ i v e r , Cox described the Yackamans (Yakimas) a s a numerous t r i b e

inhabiting,

        "the lands on t h e northern banks o f t h e Columbia, from
        i t s junction above Lewis River u n t i l some distance above
        a r i v e r which flows from the northward, and i s c a l l e d
        a f t e r t h e name of t h e tribe,'' (Pet, Ex, 9)

        Alexander Ross, 1811-1824,             Alexander Ross, an employee of the

P a c i f i c Fur Company, journeyed up t h e Columbia -River during August of

1811,      When camped near the mouth of t h e ITmatilla River he wrote i n h i s

journal:

        This r i v e r takes i t s r i s e i n a long range o f . blue mountains,
        which runs n e a r l y e a s t and west, and forms t h e northern
        boundary of t h e great Snake nation.
14 Ind, C1, Corn. 14

A t t h e mouth of Walla Walla River he found assembled some 1,500 Walla

Walla, Shaw Hapten (Nez Perce) and Cajouses (Cayuse) Indians, t h e Cayuse,

Nez Perce and p a r t of t h e Walla Walla having guns, and the p l a i n s being

" l i t e r a l l y covered with horses,"    During 1818 Ross established F o r t Nez

Perces, l a t e r Fort Walla Walla,. a t t h e mouth of Walla Walla River f o r t h e

Northwest Company.        -He described t h e plains:: around t h e f o r t a s covered

with wild horses, t h a t t h e view t o t h e south was:

       a b r u p t l y checked by JW;Jc wild and *rugged b l u f f s on e i t h e r s i d e
       of t h e (Walla Walla) water and rendered p a r t i c u l a r l y so by two
       s i n g u l a r towering rocks .kirk s i t u a t e d on t h e e a s t side, and they
       a r e s k i r t e d i n the distance by a chain of t h e Blue Mountains,
       lying i n t h e d i r e c t i o n of easc and west 3;JWc,

       Ross enumerated t h e Indian t r i b e s attached t o t h e f o r t , l i s t i n g

t r i b e s o t h e r than t h e t h r e e here represented a s r e s i d i n g on t h e Columbia

River above Snake River, t h e Nez Perce and Palouse a s residing on Snake

River, and t h e "You-ma-tallat1 bands a s r e s i d i n g on t h e Columbia River be-

low t h e f o r t , and

       about t h e establishment, t h e Cayouse and Walla Walla t r i b e s ,
       It i s t o t h e two l a t t e r t h a t appertain t h e spot on which t h e
       f o r t i s erected, and who a r e consequently r e s i d e n t i n t h e
       immediate neighborhood,

H described Snake country a s extending from t h e Rocky Mountains t o a
 e

l i n e extending south from t h e west end o r spur of the Blue Mountains be-

hind t h e f o r t and p a r a l l e l i n g t h e P a c i f i c Ocean, with i t s northern bound-

ary,

       another l i n e running due e a s t from t h e s a i d spur of t h e Blue
       Mountains, and crossing t h e g r e a t south branch, or Lewis
       (Snake) River, a t t h e Dalles, till i t s t r i k e s t h e Rocky Moun-

                                                            .
       t a i n s 200 m i l e s north of t h e t h r e e p i l o t knobs, o r the place
       h e r e a f t e r named the "Valley of Iroub l e s "

       Ross wrote of war expeditions conducted a g a i n s t the Snakes by

Walla Walla, Cayuse and Nez Perce Indians during 1811 and l a t e r , d e s p i t e
14 Ind. CL. Comrn, 14                                                                        62


e f f o r t s of the whites to maintain a peace t h a t they might t r a d e with

the Snakes; and reported during 1819 the Snakes attacked the Walla Wslla

party witihin three miles of the f o r t , following a Nez Perce expedition

t o t h e i r country.

      Subsequently, Ross indicated the Blue Mountains on a map of t h i s

region a s running northeastward south of the Columbia River a d i s t a n c e of

about 60 miles a t the mouth of John Day River and around 35 miles south-

e a s t a t t h e mouth of Umatilla River;    thence e a s t a short distance and

then south along the west'side of Snake River, with a spur c m s s i n g t h a t

r i v e r rpidway between what appears t o be the mouths of Imnaha and Powder

Rivers a t a point designated "The Narrows."           South of t h i s point- and

west of Snake River Ross indicated there w e r e Banatee ~ a n d s Snakes.
                                                                 of

The country south of the northeast-southwest mountain range i s not repre-

sented on t h i s map.    (1)ef. Exs. 56, 57; Pet, Exs, 65, 66)

       S i r George Simpson, 1824-1825.      k i n g November, 1824, Simpson

t r a v e l e d up the Columbia River t o inspect the Hudson's Bay Company's p o s t s

a s Governor of t h a t Company.     During March, 1825, &>went upstream again,

stoppLng a while a t Fort Walla Walla where he reported t h e r e w e r e Nez

Perce, Cayuse, Walla Walla and other Indian bands,              Some d i s t a n c e above

t h a t f o r t , several hours t r a v e l time, he was v i s i t e d by a band of about

60 Nez Perce Indians.       Subsequently he s a i d t h e i r country bordered t h a t

of t h e Snake on the south and i n a report by Samuel Black, then i n charge

of t h e f o r t , i t i s said they inhhbited "part of lower Nez Perces River

( o r South    ranch) Louis Branch" of the river.         Simpson s a i d t h e Yakima

were opposite P r i e s t ' s Rapids; and were the only Indians north of t h e
14 Ind. C1, Comm. 14                                                                               63


Columbia River, with a branch of t h e Walla Walla c a l l e d Samnepams below

them; t h a t Palouse were on t h e Snake River below t h e Nez Perce; t h a t
-
lskayouse country extended from DesCbutes River t o t h e Grand Ronde, two

days' journey e a s t of t h e f o r t .     I n l i s t i n g the t r i b e s i n t h i s region he

l o c a t e d some a s follows:

                       Y oumata 1lomi   South s i d e Small River
                       Walla Wallas     South s i d e Walla Walla R.
                       Eya Kimu         n o r t h s i d e a t .Small River
                       Cayouse          Betweer, Walla R a l l a & Blue M t s .
                       Paloosh          Lewis and Clarkes River
                       (Pet, Exs, 73, 74; Dkt, 198, Pet. Ex. 46)

      Wilson P r i c e Hunt, 1811-1812,           During December, 1811, M r , Hunt l e d

a p a r t y of P a c i f i c Fur Company employees along what l a t e r became t h e

Oregon T r a i l ,   According t o those who have t r a c e d h i s r o u t e from h i s

journal, h e was on Weiser River when h e found a number of h u t s o f Chochoni

I n d i a n s , and engaged t h r e e of them t o guide h i s p a r t y t o t h e S c i a t o g a s

who t h e y s a i d l i v e d "on t h e westerly s i d e of t h e mountains and had many

horses."      His p a r t y crossed Snake River near t h e mouth of t h e Weiser

River, t u r n e d north, and on reaching Grand Ronde Valley M r , Hunt r e c o r d e d

i n h i s d a i l y journal:

       W e f o r t u n a t e l y found t h e r e six h u t s of Chochonis, who had many
       horses,       ***         they t o l d m t h a t we had y e t t o s l e e p t h r e e
                                                  e
       n i g h t s b e f o r e a r r i v i n g among t h e Sciatogas, and pointed o u t t o
       me t h e gap i n t h e mountains by which w e must pass.

A f t e r six days t r a v e l f I u n t l s p a r t y found a camp of 34 mat lodges o f

"Sc i a t o g a s and Toustchipas" Indians a t t h e j unc t i o n of McKay Creek and

Umatilla River,         The previous day t h e y had passed a Snake lodge.                   The
S c i a t o g a s a few days l a t e r moved t h e i r lodged down t h e Umatilla River,

On t h e lower Umatilla River Bunt's p a r t y saw mat lodges of A k a i t c h i

I n d i a n s who he r e p o r t e d l i v e d near t h e mouth of t h e Umatilla River on

t h e a d j a c e n t bank o f t h e Columbia River and w e r e " b e t t e r provided w i t h
                          o m
             14 Ind, C1. C m . 14


             food than a r e t h e Snakes,

                    A t a i t t h i i s a Bannock word meazling "Salmon Eater."           Ethnologists

             have i d e n t i f i e d t h e Sciatogas a s Ca-yse.    I d e n t i f i c a t i o n of Toustchipas

             i s not c e r t a i n ,   ( P e t , Ex, 96; Def. Ex. 55)

                    Robert S t w r t , 1812.      Dtiing J d y , 1812, Robert Strrart, a p a r t n e r

             of P a c i f i c Fkr Company, t r a v e l e d up the Columbia River t o t h e mouth of

             Walla Walla River, thence overland - t o the Big F l a t o r Grand Ronde Valley

             and across Powder River t o t h e mouth of B m n t River,                His jorsrnal r e c o r d s

             a n a t t a c k by Snake Indians on Colrrmbia River Indians i n a canoe on t h a t

             river.      He s a i d such animals a s elk, deer, beaver and a n t e l o p e were t o be
-        .


             found.      A n Indian f i s h i n g s i t e was located 5 m i l e s up B u r n t River but

             t h e r e i s no mention of seeing Indians between t h e Umatilla and Snake

             Rivers,       He s a i d t h e Umatilla and Walla Walla Rivers took t h e i r rise i n

             the mountains bozrrding t h e Columbia plaizls on the s o u t h e a s t , and t h a t t h e
    --       Walls Walla Nation, some 200 in number, resided near t h e mouth of Walla

             Walla River,          He described Sciatoga (Cayuse) couatry as being:

                     bounded on t h e Southeast by t h e Big f l a t (Grand Ronde Valley)
                     on t h e North by Lewis (Swke) River, 03 t h e w e s t by t h e Calm-
                                                                                   ,
                     bia, and 03 t h e south by t h e Waiamat, (Willarnette) * (Pet. Ex, 96.)

                     P e t e r Skene Ogden, 1824-1826,       Mr.    Ogden led a number of trapping

             expeditions through e a s t e r n Oregon,        IIis journals r e p o r t on t h e morning

             of November 26, 1825, he was v i s i t e d near Blalock I s l a n d on t h e Columbia

             River by two Cayuse c h i e f s .       Going up the maia John Day River, eastward,

             he saw Snake h u t s on January 14th, 1826, not long abandoned,                      On t h e 15th

             17th and 19th of January he saw Snake Indians; on January 20th he commented

             h i s p a r t y was lccky t o f i n d any beaver considering t h e number of Snake
14 Ind. C1. Cornrn, 14                                                                     65


i n d i a n s i n t h a t quarter.    Bear l n g l e and Beach Creeks on t h e 23rd he com-

plained h i s p a r t y was near s t a r v a t i o n and t h a t   "2   poorer country does n o t

 e x i s t i n any p a r t of t h e World," although he thought i t appeared w e l l i n -

h a b i t e d by I n d i a n s i n t h e summer.    His p a r t y reached Burnt River February

 l s t , i n a s t a r v i n g condition,    Ogden described t h e country as " l o f t y

mountains on a l l s i d e s w e l l covered with Snow indeed a more Gloomy Barren

 looking Country I never y e t seen."

       The following jrrly Ogden's jorrrnal records he was again on t h e head-

w a t e r s of John Day River, agair, complaining of t h e r e being l i t t l e food and

 few game animals i n t h e country.               This time he saw Indian t r a c k s b u t d i d

 not i d e n t i f y t h e Indians.     In h i s O f f i c i a l Report prepared about t h i s .

 time Mr. Ogden bounded Snake country "on t h e North by t h e Columbia Waters."

 ( P e t , Ex. 33, Dkt, 198)

                  .
        Nathaniel J Wyeth, 1832-4,                                        z
                                                   Between 1832 and 1836 F . Wyeth r e p r e -          .


 s e n t e d t h e Hzdson's Bay Company, f o r which he constrccted F o r t H a l l on

 t h e headwaters of Snake.River i n Idaho.       On one of h i s t r i p s through t h i s
                                                  members of
 country h e mentioned i n h i s d a i l y journal that/two Cayuse lodges v i s i t e d

 h i s camp on Powder River.            He a l s o recorded meeting o t h e r Cayuse i n Grand

 Ronde Valley, a t which time h e ' f o u n d Captain Bonneville camped t h e r e ,                In

 a r e p o r t concerning t h e Indians i n h a b i t i n g t h i s region, Mr. Wyeth s a i d

 t h e v a l l e y between'the Blue and Cascade Mountains, between t h e Columbia

and t h e .heads of t h e small streams flowing i n t o i t from t h e south was in-

 h a b i t e d by Digger Snake Indians near t h e heads of those s m a l l streams; t h a t

 Nez Perce, Cayuse and Walla Wallas a l s o v i s i t e d t h a t country.             Again, i n

 t h i s r e p o r t , he r e f e r r e d t o Cayuse and Walla Walla Indians as l i v i n g below
     14 Ind. C1. C m . 14                                                                   66


     t h e Blue Mountains, saying t h e l i n e s of wandering bands have c o n t i n u a l l y
                   .
     interlocked i n t h e country between t h e Cascade and Blue Mountains.                      (Pet.

     Ex. 109 ; Def. Ex. 104, pp. 221, 224)               "Below" i s down stream t o t h e north.

            John Work, 1832.          On July 8 t h , 1832, Work's t r a p p e r s crossed from

     Burnt River t o the heaciwaters of e i t h e r Middle o r North Fork of John Day

     River, another branch being n o t f a r t o t h e south.                            1
                                                                           (See J u l y 1 e n t r y )

     They s a w a Snake family spearing salmon on t h e 9th and on t h e 10th passed

     t h r e e other Indian f a m i l i e s .   Twenty-seven miles downstream t h e Snakes had

     barred t h e r i v e r t o catch salmon.        On t h e 16th two Snakes v i s i t e d h i s camp

     and t h e men h e had s e n t t o "South Fork" observed t h e r e a Snake f i s h wier.

     Two days later Work's party reached Pendleton, Oregon, and t h e following

     day a r r i v e d at Fort Walla Walla.         That f a l l , during a subsequent t r i p , Work

     m e t Cayuse arrd Walla Walla I n d i a n s on South Fork of John Day River and w a s

     t o l d by Cayuse on John Day's River t h e Snakes had k i l l e d a t r a p p e r on
.-
     Burnt River t h e previous July:             (Pet. Ex. 519 ; Def    .   Exs. 29, 4 6 , 47)

            Captain Benjamin Bonneville, 1832.               Captain Bonneville's travels a r e

     r e p o r t e d by one Washington Irving.         A t F o r t Walla Walla he m e t Nez Perce,

     Walla Walla and Cayuse Indians.               The Cayuse he s a i d r e s o r t e d t o t h e head-

     waters of Grande Ronde River t o p i s t u r e horses and t o feed upon salmon.

     A band Tn t h e Wallows River v a l l e y were s a i d t o t r a d e with t h e Hudson's

     Bay Company, generally exchanging horses bzt a l s o beaver s k i n s which were:

            n o t procured by trapping but by a course of i n t e r n a l t r a f f i c
            with t h e shy and ignorant Skoskokoes and Too-el-icans, who
            keep i n d i s t a n t and unfrequented p a r t s of t h e country, and
            w i l l not venture near t h e t r a d i n g houses.

     On October 20th he f wand Shoshone               Indians "absolutely thronged" along

     t h e banks of. Snake River opposite t h e headwaters of John Day River.                           (pet.

     Ex. 3 6 )
14 Ind. C l . Corn. 14                                                              . ..   67


       D r . Gairdner, 1835,       During 1835 D r . Gairdner journeyed down t h e

Oregon T r a i l .    Going west across t h e north end of Grznd Ronde Valley he

met a c a p of Cayuse and WalLa Walls Indians "who had come h i t h e r t o

t r a d e i n horses with the Snake Indians         ."    (Def   . Ex,   30)

       John Townsend, 1834.          While t r a v e l i n g west on the Oregon T r a i l during

1834 Townsend m e t 10 lodges of Snake and Bannock Indians on Snake River

above t h e mouth of ?lalheur River, a Snake family on Burnt River, Cayuse

Indians between Powder River and Grand R o d e Valley, and Cayuse, Nez Perce

and other Indians i n t h a t valley.           A t Fort Walla Walla he saw Cayuse and

Walla Walla Indians.          On a r e t u r n t r i p when between Fort Walla Walla and

t h e Blue Mountains, he met two Walla Walla Indians driving a l a r g e band of

horses who s a i d "the Snakes have crossed t h e mountains t o commence t h e i r

armual thieving of horses, and they a r e taking them away t o have t h e m

secure."      (Pet, Ex. 102)

       X..om~s . 3. Farnham, 1839-1846.            Traveling toward Fort Walla Walla

when northwest of tSe Blue Mountains Mr. Farnham met a Cayuse family r e t u r n -

ing f r o m a buff a10 hunt near Fort Hall, Idaho.                 He s a i d before F o r t s H a l l

arrd Boise were e s t a b l i s h e d i n Idaho t h e Cayuse had rendezvoused a t "La

Grande Rounde" w i t 2 1 Shoshones and "other Indians from t h e Saptin," t o t r a d e

horses f o r f u r s , b u f f a l o robes, s k i n t e n t s , e t c ; t h a t Cayuse occupied t h e

Bltre Mourrtains a b w e the southwest branches of Walla WaLla River, and i n

wintertime a band usually descended t o Ehe Dalles of t h e Columbia; t h a t

Walla Wallas l i v e d on both sides the Columbia from the Blue Mountains t o

The Dalles.          (Pet, Ex. 22)
14 Ind, C1. Comm. 14                                                                            68


      D.   Lee and J. H. Frost, 1840.              I n t h e i r p u b l i c a t i o n "Ten Y e a r s

i n Oregon," these p a r t i e s located t h e Nez Perce on t h e headwaters of

Walla Walla River znd thence eastward a c r o s s Snake River.                          Tney s a i d t h e

Cayuse formerly collected annual t r i b u t e from t h e Indians at The Dalles

on t h e Colzmbia River but now set & e i r own p r i c e f o r f i s h they bought

there.     (Dkt. 198, Pet. Ex. 28, p. 177; Def. Ex. 45)

      Major Osborne Cross, 1849.              W i n g September, 1849, Major Cross ac-

companied a t r ~ u p r m F o r t Boise t o me Dzlles i n Oregon.
                    f                                                                    He recorded

f r i e n d l y Indians would not a s s i s t i n i n v e s t i g a t i n g t h e rumor t h a t gold

was a v a i l a b l e on t h e headwaters of Powder River "as they would come i n

c o n t a c t with h o s t i l e Indians who r e s i d e i n t h e mountains and immediately

i n t h a t neighborhood"; that u n i d e n t i f i e d Indians v i s i t e d him i n Grand

Ronde Valley wanting t o trade h o r s e s f o r blankets, e t c , ; on t h e headwaters

of U m a t i l l a River he reported " A t n i n e of clock i n t h e morning we came t o

where t h e Cayuse Indians w e r e located.              Their town, which is temporary,

c o n s i s t e d of a number of lodges made of mats and bushes, much l a r g e r

than t h o s e made of buffalo skins"; on s t a r t i n g down t h e CoLumbia River

h e "passed on t h e r i g h t bank some t h i r t y lodges of t h e Walla Walla t r i b e

who had come down t o f i s h .        Their lodges i n small numbers could be seen

during t h e day."        (Pet. Ex. 11)

       J o e l Palmer, 1845-1855,         M r . Palmer, who w a s d e s t i n e d t o become

Governor of Oregon T e r r i t o r y and as Superintendent of Indian A f f a i r s and

a t r e a t y commissioner t o n e g o t i a t e t h e June 9, 1855, t r e a t y of cession,

a r r i v e d i n Oregon during September, 1845, v i a t h e Oregon Trail.                        H i s diary
14 Ind. C1, Corn, 14                                                       .
                                                                           .   .   69


records a v i s i t by a Czyuse Chief on the middle fork of Powder River;

that some Cayuse =d       a few Nez Perce Indians were i n Grand Ronde Valley;

and Walla Walla I-ndi=s who were much i n f e r i o r t o the Cayuse were on the

Umatilla River a d on the Coluinbia River below the mouth of t h e Umatilla.

Palmer reporzed the v i l l a g e of the principal chief of ttre Walla Wallas

was 314 of a m i l e u;, t h e Walla Walla River during 1846.          Traveling e a s t

the following day he was joined by a party of Nez Perce.

      On J u l y 18, 1853, he o f f i c i a l l y reported the Nez Perce boundaries

weren't well knm; t h a t the Walla Walla and Cayuse disputed ownership

of a c m s i d e r a b l e t r a c t ; and during January, 1854, he s a i d t h e Walla Walla

l i n e s as described t o him by t r i b a l members during 1848, and t h e Cayuse

boundaries ard Nez Perce-Cayuse divide as understood by him were as

follows (Pet, Exs. 53; 198; 199; Def. Exs. 48; 8 6 ) :

      Walla Walla boundaries:

            C m e n c i n g on the south s i d e of t h e Colmbia River a s h o r t
            d i s t a i x e above the mout5 of the Utilla, it runs Easterly
            s o as t o cross the Walla Walla abozt t e n or twelve m i l e s
            Aove F o r t W a l k Walla, thence northeasterly t o the Snake
            River about twenty o r twezlty-five miles from i t s mouth;
            theace down s a i d r i v e r a d across the Columbia t o a
            point about twenty miles v e s t of the 1 s t n a e d r i v e r ;
            thence southwesterly t o tke mouth of t h e f i r s t stream
            emptying i n t o the Columbia on the NortZl Side, a l i t t l e
            above &e mouth of John Day ' s River.

      The Nez Perce-Walla Walla divide:

             **        Their (Xez Perce) bou2daries as I have understood
             them commence oa the Sout5 side of Snake r i v e r a t t h e
             boundery of the Walla Walla; thence westerly with t h a t
             boturdary t o the Tooshi or Toocannon River, I am not cer-
             t a i n which; thence by the stream t o t5e mountains; thence
             crossing s a i d mountains diagonally, t o Snake r i v e r about
             f o r t y miles above the mo.sth of Salmon r i v e r   ***t o the
             bo-=dery of the Paloosies wlso inhabit the cotintry i n t h e
14 Ind. C1. C m , 14                                                        1
                                                                            .   70


            fork of Snake and Columbia r i v e r s ; thence on t h e b a n d e r y
            02 t h a t l a s t named t r i b e westerly t o Snake r i v e r ten o r
            tidelve miles below the Red Wolf' s ground which i s about
            two m i l e s below t h e* * *,      *
                                                 9:   * It is understood t h a t
            the Nez Perces and Cayuse claim j o i n t l y t h e Grand Ronde,
            but nei'Lher t r i b e has,             recently, made any permanent
            settlements there.       ***
      The Cayuse bounclaries:

            ***        Commencing on t h e l e f t bank of t h e Columbia River
            near t h e mouth of W i l l o w Creek, thence up t h e r i v e r t o
            the boundery of t h e Wdla Wallas near t h e mouth of t h e
            U t i l l a r i v e r ; thence e a s t e r l y t o the Tooshi o r Toocannon
            (not c e r t a i n which) t h e western boundery of t h e Nez Perces;
            thence e a s t e r l y with the boundery of t h a t L-ibe t o t h e Summit
            of the Blue Mountains; thence southerly along s a i d range t o
            t h e headwaters of t h e northern branch of John Day ' s r i v e r
            and thence i n a d i r e c t l i n e t o the mouth of W i l l o w Creek,
            ***
      John McBride, 1846,        I n h i s book, "SOU&   Pass, 1846," M r . McBride

said when traveling d o n g Powder River a .Cayuse Indian from the Whitman

Mission had v i s i t e d him,   Between Powder River and Grand Ron& Valley

he was passed by -several p a r t i e s of Whitman Mission Cayuse w e l l mounted

on f a t horses, on t h e i r way home t o t h e Umatilla River v a l l e y ,   (pet.

Ex, 47)

      L B, Bastings, 1847.
      .                            During 1847, when t r a v e l i n g along the Oregon

T r a i l and i n Grand Ronde Valley, M r , Hastings .was v i s i t e d by f o u r Cayuse

Indians,    He met other Cayuse along t h e Umatilla River wfio o f f e r e d t o

trade potatoes, peas, corn, e t c , ,     for clothing.      (Pet. Ex- 33)

      R e n r y 3, Coke, 1850.    M r , Cake met two Cayuse Indians in .the Grand

Ronde Valley during 1850.         H e saw a Cayuse lodge and a n m b e r of Cayuse

horses on upper Umatilla River.          Above t h e mouth of John Day River as
he was t r z v e l i n g down t h e Columbia River he observed a g r e a t many Caycse

and o t h e r Indians going t o or r e t u r n i n g from The Dalles.          A p a r t y of

Cayuse Indians a n d one Snake I n d i m t r a v e l e d w i t h him from Snake River,

going t o F o r t G a l l a Walla.    (Pet, Ex. 8)

      M r . Newell, 1849.       After r e s i d i n g i n Oregon f o r 2 l y e a r s , Mr, Sewell

wrote during 1849 that t h e Snake o r Shoshone inhabited t h e country west

of t h e Rocky Mountains t o t h e Lewis o r Snake River; t h a t Digger I n d i a n s

were s c a t t e r e d fzm t h e headwaters of Snake River t o t h e Gra-ird Round

(Grand Ronde Valley) ; t h a t Cayuse country extended from the f o o t of t h e

Blue Mountains t o w i t h i n 25 m i l e s of F o r t Walla Walla, and t h e Walla Walla

t r i b e possessed the country on t h e Cdumbia River near F o r t Walla Walla.

(Pet. Ex. 143; Def. Ex. 10)

      A. D. Pambrrm, 1832-1855.            M r . Pambrun e n t e r e d Oregon during 1832.

H i s faCher 'was   ii
                     i   charge of F o r t Walla Walla u n t i l Pambrun succeeded

him t h e r e during 1852.       i h e n he r e t i r e d i n 1855, h e obtained p e m i s s i o n

of t h e Cayuse t r i b e t o s e t t l e a t Walla Walla, Wzshington,           In h i s remi-

a i s c e n c e s he comented when he first e n t e r e d t h i s country "'The Grande

Rozlde v a l l e y a d the adjzcent country, then occupied by t h e Snakes, w a s

a l s o densely p ~ ~ u l & e d . ' He recorded numerous instances of s t r i f e between
                                    ~

t h e Saha2tilz and Shos'nozzean speaking t r i b e s occurring during h i s p e r i o d

of residence.        (Pet, Ex. 54)

       Oliver Jennings, 1851.           Mr. 3ennings k e p t a journal of a t r i p f r m

Oregon C i t y e a s t to S a l t Lake made i n t h e s p r i n g of 1851.       H e camped

w i t h 3 I n d i a n s on U m a t i l l a River who were on t h e i r way t o t h e The D a l l e s

on t h e Columbia River; met Cayuse Indians on Grande Ronde River, artd
14 Ind. CZ, Comm. 14


a f t e r crossing Burnt River he wrote:         "We saw s e v e r a l r e a l wild Indians

of the B m a c k s t r i b e called Diggers."       On FaLheur River he commented

about t h e number of wretched, f i l t h y "Digger" Indians about h i s camp.

(Pet. Ex. 38)

      H m e y W.      Scott, 1852.     Near present LaGrande, Oregon, emigrant

Scott during 1852 saw large herds of N e z Perce horses.                 (Pet. Ex. 71)

                                     Missionaries

      Samuel Parker, 1835.           During 1835 Parker journeyed from Idaho down

t h e Walla Walla and Columbia Rivers,           A e saw 3 N e z Perce I n d i a n lodges

on October 3rd on t h e upper branch of Walla Walla River, t h e men hunting

deer and t h e women gathering camas,           October 6 t h he a r r i v e d at Fort     . .


Walla Walla.          October 8th on h i s way down t h e Columbia River h e s a w

about 12 lodges of Cayuse Indians at two o'clock and camped on t h e n o r t h

bank w i t h a l a r g e number of Nez Perce Indians,        The following n i g h t h e

camped with some Walla Wallas, and on t h e 10th h e camped with Walla Walla

Indians about LO miles abwe t h e mouth of DesChutes River.                    On a r e t u r n

t r i p h e saw   2   herd of Walla Walla horses at t h e mouth of Snake River.

I n a suuxuary he s a i d t h e Walla WaLla inhabited t h e country along Walla

WaLla River and down the Columbia; the Palouse t r i b e r e s i d e d along

Snake River; Cayuse country included t h e Grand Ronde Valley; and about

700 Yookoomans (Yakima) were about t h e confluence of t h e Columbia and

Sn&e Rivers.           (Pet. Ex. 56)

      Marcus Whitman and H. H. Spalding, 1835-1847.                Whitman e s t a b l i s h e d

a mission among the Cayuse Indians on Walla Walla River 25 m i l e s east
14 Ind. C1. Corn. 14                                                                          .      73


of F o r t Walla Walla.            PI. Spalding s t a t e d one on Clearwater R i v e r

among t h e Nez Perce.             Correspondence by t h e s e men c o n t a i n an account

of Captain Stewarc describing Grand Ronde Valley as "a c e l t r a l 1oca.tion

f o r t h e Napiersas (Nez Perce) and Kuses (Csyuse)                      ."     I n 1836, Mr. Spzlding

s 2 i d t h i s v a l l e y w a s " i n t h e Chuyoos country."           During 1840, M r . Wnitman

r e p o r t e d Mr. Pam'Drun had b u i l t a house f o r t h e C2yuse c h i e f , Young Chief,                  02


t h e U m a t i l l a River about 30 m i l e s from t h e Walla Walla mission.                        (Pet.Ex.104)

      F. h Blanchet,
         '.                        I n r e p o r t i n g h i s missionary t r a v e l s throughout

Washingto2 a d Oregon, M r . Blanchet s a i d t h e Cayuse l i v e d i n two baads, one

on Walla Walle River and one on t h e U m a t i l l a River. (Pet .Ex.                            5; 2-D, Dkt. 198)

       F a t h e r DeSmet.       (1)                                               s '
                                        On a p l a t a t t a c h e d t o ~ e ~ r n e t a r t i c l e , t h e

Csyuse and Bez Perce are located between t h e U m a t i l l a and Walla Walla

R?vers.      (2) On P l e a s a n t o n ' s map, based upon ~ e S m e t ' sj o a m a l s , the

Cayuse are l o c a t e d m t h e upper ,southern branch of Walla Walla River,

t h e Palouse are n o r t h of lower Snake River and t h e Walla kTall~sare on

lower Walla Walla River.                A Nez Perce p l a i n i s n o r t h of Walla Wdla River.

(Pet. Ex. l.5, 18; Pet. Ex. 68, Dkt. 198)


     E x ~ l o r a C i o n si n Oregon Conducted by t h e F e d e r a l Gwernment

       Cumnandsr Charles Wilkes, 1841-1842.                        During 1841, Commvlder Wilkes

l e d an e x p l o r i n g party     along t h e Coluinbia and Snake Rivers.                      At the

Cayuse Mission OE upper Walla Walla River a M r . Dayton found a l l b u t 14

of t h e Cayuse t r i b e were away t r a d i n g at t h e Grand Ronde Valley where

t h e "Cayuse, Nez P e r c e and Walla Walla meet t o t r a d e w i t h t h e Snakes or

Shoshones, f o r r o o t s , s k i n lodges, e l k and b u f f a l o meat, i n exchange f o r

salmon a n d h o r s e s .   "
14 Ind. C l . Conun. 14                                                  . .   74


      Wilkes said they usually returned home dtrring July and t h r e e or

four months la=er went north aad e a s t t o hunt buffalo which could not

then be "found west of the Port Neuf river."            H reported t h e Cayuse re-
                                                         e

sided on WaSla Wzlla River " i n close connexion" with a Nez Perce band.

      Wilkes' o f f i c i a l p l a t shows the Nez Perce' western boundary as a

l i n e extending south along the eastern drainzge of Palotrse River, across

t h e extreme headwaters of Walla Walla River, across Grande Roilde River

j u s t north of Grande Ronde Valley, znd then sontheastward.            Walla Wallas

a r e located i n t h e lower v a l l e y s of DesChutes, John Day, W t i l l a , ~ a i l a

Walla and Snake Rivers; Cayuse a t e on t h e main John Day River and head-

waters of h t i l l a and W a l k Walla Rivers, extending through Grand Ronde

Valley southwestwzrd toward Klamzth - h
                                     s.              A l l Powder, B u r n t and Malheur

Riversr drainage and t h e h e ~ d w a t e r sof I d a and Wallowa Rivers, a r e i n

Snake o r Shoshone country.       %e pazties hereto agree t h i s map is l i n g u i s -

t i c i n nature, and only Lizlguistic b w ~ d a r i e su e applicable.        A map

prepared during 1830 by Jedidiah SmiZ3 formed the b a s i s for WiLkes' map.

 (Pet, Exs. 105, 106, 107, Def. Ex. 75)

      Horatio Hale, 1839- 1842.       me   ethnologist w i t h t h e Wilkes Expedi-

t i o n w a s Horatio Hale.    e
                              H o f f i c i a l l y reported several independent

t r i b e s inhabited the country around the mouth of Snake River; t h e Walla

Wallas were on Walla Walla River; t h e Yakima were on a l a r g e stream

nearly opposite them; the C ~ y u s e
                          '          were on upper Walla Walla River " i n

                                                            ~
 close connexion with a band of Xez Perce I n d i a n ~ , ' and t h e Cayuse made

 long excursions t o the south and east.         His p l a t shows t h e Shoshone o r

 Snake Indians i n the eastern h a l f of Grand Ronde Valley, and t h e Touchet
14 Ind. C1. Corn. 14


River as a divide between the W d l a Walla and Cayuse t r i b e s , t h e Czyuse

being given only tSe extreme l i m i t s of Walla Walla drainage.          (Pet. Exs.

18, 7 2 , Dkt. 198; D e f , Exs. 3 2 , 74; P e t . Ex. 32)

     Brevet Captain Charles C. Fremont, 1843.            Captain Fremont's expedi-

t i o n traveled from Fort Boise west i n t o t h i s region, and passed north

through Grand Rozde Valley and thence down the Walla Walla River.                It

stopped a t Whi-'s          Mission and a t Fort Walla Wzlla and then went down

t5e Calmbia Rive.;.         H i s j o m a l records meeting Cayuse Indians n e u the

nouth of BcnL River.          They were then returning from a buff a10 hunt,

 e
H a l s o n e t s e v e r a l mou~tedIndians south of Powder River "who belong

t o t h e t r i b e s on the C o l a b i a " and T'a swll t o ~ m Nez Perce Indians"
                                                                 of

when near Whitman's mission on the Walla Walla River.              Fremont's 1846

na? shows the Blue Mollrrtains -tending         from south of t h e DesChutes River

northeast t o the 46th degree of l a t i t u d e , at a p o i n t southeast of Whit-

nan's missioz.       (Pet. Ex. 25; Def, EX, 108)

      C a z l e s Preuss.    A topographical map prepazed by C h z l e s freuss

frm Fremoat's p e r s a a e l jo-zrnals, and notes of t h i s expeditioz, l o c a t e s

the Nez Perce I n d i m s between t h e Walla Walla and the Snake River, Snzke
                                     and
                              ~
I n d i a soci5-1 of 3 ~ 7 2 t i v e r ; / t h eBlue Mountains extecding across Smke

River m r t h of Gr,=d      Ronde Valley,   (Pet. Exs. 23, 24, 25, 26; ~ e ,fEx, 78)

      I s a a c I, SZeyens, 1853-1855 and l a t e r .   During 1853 and 1854 t h e

Governor of Washington Territory, Isaac I. Stevens, was i n & a g e of an

expedition seeking a r a i l r o a d route west from Minnesota t o t h e P a c i f i c

Ocean,    Included amoag h i s pzrty were h i s son, Hazard Stevens,
        14 Ind. C 1 . Comm, 14                                                        :.:..:. 76




                     .   .
        John Hullan.         Thereafter Hazard Stevens wrote a h i s t o r y of h i s f a t h e r ' s

        l i f e wherein he s t a t e d the Nez Perce, Cayuse, Walla Walls and Umatilla

        each had definite wzLL known boundaries; t h a t t h e Nez Perce country i n -

        cluded "both banks of the Snake a d i t s t r i b u t a r i e s , t h e Kooskooskia o r

        Clearwater, Salmon, Grand Ronde, Tucannon, etc."                t h a t t h e Walla Wallas

        inhabited t h e banks of Walla Walla r i v e r , t h e U m a t i l l a t h e banks of

        U m a t i l l a River and a Yakima band c a l l e d t h e Palouse were on Palouse

        River and t h e north s i d e of Snake River; t h a t t h e s e t r i b e s a l l hunted

-   .   t h e buffalo,

              Lieutenant Saxton reported finding Nez Perce Indians.on Walla Walla

        River.      John Mullan reported t h e Tucannon River formed the southern Nez

        Perce and Cayuse boundaries,             H e established Cantonment Stevens along

        t h e Walla Walla River where some Flathead and Nez Perce I n d i a n s were t h e n

        wintering    .
              Governor Stevens reported the Palouse l i v e d i n t h r e e bands, each

        n o r t h of Snake River, one at t h e mouth of falouse River, one 30 m i l e s

        downstream and one at the mouth of Snake River.                 He s a i d Pu-pu-mux-mux,

        t h e Walla Walla c h i e f , sppke of planting "my three lodges on t h e borders

         of my own country, a t t h e mouth of t h e Touchet,"            H e s a i d t h e Walla Walla

         1Tved south of t h e Columbia and on Snake River t o a l i t t l e east of t h e

         Palouse.

               Ethnologist George Gibbs reported meeting u n i d e n t i f i e d I n d i a n s i n

         t h e Grande Ronde Valley who had come t h e r e t o t r a d e , and of observing a

         "temporary1' Cayuse town on upper Umatilla River.                In h i s official report

         of March 4, 1854, he said t h e Walla Walla bands were on both s i d e s of
 1& IE~.C l . C m . 14                                                                     77


 t h e Coluuibia River and on Sn&e River a l i t t l e e a s t of t h e Palouse; t h a t

 t h e Cayuse owned the colmtry on upper Walla Walla River and from DesChutes

 Rive? t o t h e e a s t s i d e of tLe Blue Mountains, with o d y a small p u t of

 *eir      country on upper Walla Walla River being i n Washington T e r r i t o r y ;

 t h a t t h e V a l l a WalLa and Nez Perce owned l a r g e bands of h o r s e s which

 r o a e d over ^;ne h i l l s south of t h e Columbia.

         Steveas vas r e s p o z s i b l e f o r a number of maps of t h i s c o w t r y .       About

 July 19, 1854, a n 2 p w a s withdratn~nf r m h i s r e p o r t because of i n a c c u r a c i e s .

 TI?. h i s o f f i c i a l r q o r t =he Topographical Engineer G. K. W=en               s a i d most

 of t h e s e maps "hare been mostly made from reconnaissances, and b u t few

 possess v e r y g r e a t accuracy;" t h a t he had scanned every a v a i l a b l e p l a t

 or sketch of t h i s couatry and s e l e c t e d t h a t which seemed most a c c u r a t e

 i n preparing > i s own map of 1858.              On it t h e Palouse a r e l o c a t e d n o r t h

 of Snke River; the Cayuse a r e between Snake a d Touchet Rivers and

                           Rit-ez; t h e Walla Wallas are on Willow Creek, and
 below upper U ~ a t i l l a

" S c ~ t t e r e dB &
                    ='     of Iztdiar~sa r e sorrth of them.       Thsre are a l s o Walla

 Wallas     03   Wall2 Wdla River u d i n t h e Blue K o u n t a h s t o t h e east.

         Steveas' Qril 14, 1854, m ; of Washingtor; bezrs Gibbs' names and
                                  a!

 balzridaries of Indian t r i b e s .      The Csyuse and Pzlouse divide wiZh f h e Nez

 Perce r u n s soctfr *a Pelouse River across Snake River e a s t of Tucam~cm

 d r a i n ~ e ,thence southwad from 10 t o 20 m i l e s west of Snake River.                     A

 Pelouse-Yalcima d i v i d e b i s e c t s the Columbia-Snake River counZry n o r t h of

 t h e i r corrEluence, =d        follows t h e south draiaage l i n e of Snake River t o

 t h e east.       m Palouse are thus assigned t h e v a l l e y s of Tucannon and
                    e

 Sn&e River.             A l i n e north and south from t h e mouth of Touchet R i v e r

 d i v i d e s t h e Wzlla Walla =d      Cayuse.
    14 Ind. C1. Comm, 14                                                   j   78


          Stevens' June 12, 1855, sketch accompanying the report of the

    May-June, L855 t r e a t y council, has the Nez Perce boundary running south

    across Grande Ronde River midway between the mouth of Wallowa River and

    Grand Ronde Valley.     The northern Cayuse-VaLla Walla divide runs down the

    north fork of Tucmnon River.        The l i n e continues down Snake River and up

    t h e Columbia River t o P r i e s t ' s Rapids, and thence south t o the Yakima

    River and southwest t o the Columbia River midway between the Umatilla

    River and Willow Creek.      It follows up Willow Creek, along the s%uth

    boundary of the Umatilla Reserpation and goes down a northern branch of

    fowder River.

          Stevens' March 21, L856, sketch shows similar bounds, except t h e l i n e

    up the Columbia River stops some distance south of P r i e s t ' s Rapids.        Both

    maps show the Nez Perce cession extending along Tucannon River and a

     l i n e drawn from i t s mouth north t o the fork of Palouse River.
-
          Stevens' April 30, 1857, map extends the l i n e up the Columbia again

     t o Priest's Rapids and from t h e r e turns west t o the Yakima River, thence

     south t o the Coltrmbia River about 5 m i l e s below the Umatilla River's

     mouth.   It foLLaws t h e south branch of W i l l o w Creek, runs some distance

     south of the Umatilla Reservatiqn, and swings northeasterly t o go down

     t h e main branch of Powder River,

          A t one time Stevens described the Blue Mountains as bordering t h e

     Walla Walla valley and extending westward, the source of t h e 'Ifmatilla,

     John Day and DesChutes Rivers.

          The Emory and Humphreys map of 1854 i l l u s t r a t i n g the Expedition.' s

     Report, shows Palouse Indians north of lower Snake River, Walla Walla
                                                                                 . .
14 I n d . C1. C m . 14                                                           -    79


I n d i m s along the Walla WaLla River, and Cayuse Indians between Torrchet

a i d Snake Rivezs.       (Pet. Exs. 81, H a z v d Stevens; 82, Stevens' Report;

                       1
219, StevensrRepor"L; 1 ar?d 28, Gibbs' Report; 82, Sixton a d M ~ l l u l .Re-

ports; 208, Withdraxal of Stevens'map; 84, Warren's Report; 127, W a r e n ' s

Map; 87, Stever,sr 1854 Map; 88, Stevens' 1855 Hap; 90, Stevens' 1856 Map;

91, Stevens' 1857 e p ; 84 1 2 , p
                                 .            257, Stevens' Blue Mountains; 85, Emory

and Hump'nreys' Map,)


                          E a l v Histories and Accounts

      George Wilkest "History of Oregon."                Tnis volume contains t h e journal

of an emigrant traveling the Oregon T r a i l during 1843,                 The writer saw

Czyuse v i l l a g e s , one four days' t r a v e l south of Grand Ronde Valley and

=other      on upper k a t i ' l l a River,    A t the l a t t e r , the Indians had potatoes,

peas, corn and horses f o r sale.             H i s party met a number of Indians i n t h e

G r a d Ronde Valley on October 1st.              (Pet. Ex. 108)

      Amstrong's "Oregcn," 1857.               The Walla Wallas a r e s a i d t o i r h z b i t   -

 t h e country south of the Columbia River from 20 miles below F c t Walla

Wdla t o soine d i s t a r x e & m e the mouth of Snake River, and sme of t h e i r

hunters a r e s a i d t o go t o the buffalo country.            TSe Yakima a r e s a i d to

 be along the north bak          of the Columbia f o r 300 miles with the C-se

 south of Walla Walla River, t h e i r most prominent locatio-a being on i t s

headwaters where "they l i v e i n close connection with a band of the Nez-

 Perces."      (Pet. Ex. 2)

         J, Quim Thornton's "Oregon and C a l i f o r n i a i n 1848."           It is s a i d

 of t h e Grand Ronde Valley:         "Here, also, t h e Cayuse, Nez Perces, and
     14 Ind. C1. Comm. 14                                                                   80


     Walla-wdla Indians, m e e t t o t r a d e with t h e Snakes, o r Shoshones, f o r

     r o o t s , s k i n Lodges, e l k and b u f f a l o meat, i n exchange f o r salmon and

     horses."      (Pet. Ex.    101)

           Henry Schoolcraft.          I n h i s " i n d i & Tribes of t h e United S t a t e s " pub-

     l i s h e d drrring 1851, i t is s a i d Shoshonevz speaking people axe spread

     from t h e Sweetwater Mountains t o and down Snake River t o l a t i t u d e about

     44'   30'   - t h e d i v i d e between Bmnt and Powder Rivers.            (Def. Ex. 104)

            Correspondence and r e p o r t s of M i l i t a r y Personnel and Rep-
            r e s e n t a t i v e s of t h e Indian Bureau, and other O f f i c i a l s

            Gwernor Joseph Lane, Oct. 1849.              M r . Lane described t h e country

     f r o m t h e f o o t of the Blue Mountains t o w i t h i n 25 miles of F o r t Walla Walla

     a s being inhabited by Cayuse, t h e country along the Columbia River near

     F o r t W a L l a Walla as being possessed by t h e Walla wallas,              (Pet. Ex. 143)

            Superintendent Anson D a r t , 1851.         Mr. Dart s a i d t h e Walla Wallas
--
     were p r i n c i p a l l y along Walla Walla River, the Cayuse being south and east

     of t h e m ; t h a t t h e Yakima t r i b e included a band of Indians l o c a t e d at

     Priest's Rapids rn t h e Columbia River.             He e s t a b l i s h e d the U t i L l a Agency

     at t h e present s i t e of Echo, Oregon,,within but near t h e western l i m i t s

     of Cayuse country,         (Pet. Exs. 156, 158)

            Brevet Major Alvord, 1853-9,            Major Alvord s a i d Palouse country

     extended between t h e mouths of Salmon and Palouse Rivers; t h a t Cayuse

     claimed from W i l l o w creek on t h e southwest t o t h e Blue Mountains, includ-

     ing Grand Ronde Valley and north t o w i t h i n 15 miles of F o r t Walla Walla;

     t h e Walla Wallas bordered t h e Cayuse and occupied land about F o r t Walla

     Walla south of t h e Columbia River; Bonacks' country extended from t h e

     Snake country near F o r t E a l l down ~ A a k eRiver t o t h e Grand Ronde and
14 Ind. C1. C m . 14


westwardly toward Klamath Lake.         (Pet. Ex. 165)

      Mrjor G. J. RaFns, 1854.       While stationed a t The Dalles, on

A p r i l 14, 1854, Major Rains reported t o the Adjutant General of t h e Army

the Nez Perce occupied the country between the mouths of Palouse and

Salmon Rivers a d thence easterly; t h a t Cayuse claimed from k-illow Creek

t o the Blue Moueains and northward t o the v i c i n i t y of Wdla Walla.

(Pet. Ex, 205)

      Agent R, R, Thonpsoa, 1854,        While i n charge of t h e U t i l l a Agency

D i s t r i c t , Ttrompson s 2 i d about LOO Snakes lived along the south border of

h i s d i s t r i c t ; t h a t Cayuse lived on the west s i d e of the Blue Mountains

and sout5 of t h e Columbia River.        e
                                         W found the g r e a t e r portion of t h e Cay-

c s e a d abortt 60 Nez Perce Indians i n Grand Ronde Valley during August,

1854, =d Bznn2cks o r Snakes were near Bmnt River,               Two months a f t e r t h e

                        he
June, 1855, c e s s i o ~ wrote Superintendent Palmer the Walla Walla Chief

clzimed he had not sold k i s country north of the "Tushz, East of t h e Walla

Walla, and South a-3 West of the Columbia and S d e Rivers."                        August

he s a i d a band or' Shoshone or S d e I a d i a s resided i n the Blce Ycmtains,

southwest of the G r a d Ronde,       (Pet, Exs, 2l5, 218, 219, 216, 249, 273;

Def. Ex. 50)

                  l
      C o l o ~ e Lawzeace Rip, 1855.     Colonel Kip attended the 1855 tzezty

council.    H e s a i d t h e Walla Wallas ranged 30 miles up WaLla W d l a River

and on t h e l e f t Sank of the Columbia River.        (Def, Ex. 2)

      Czptain G, 0. E a l l e r , July 31, 1855.     Having drafted the Kaller map

during 1854, on J u l y 31, 1855, the Captain reported Snake couotry reached
 14 Ind. C1. C m .      14                                                           82


 f r o m Grand Ronde i n the north t o Humboldt's River i n C a l i f o r n i a and from

 the S i e r r a Nevada and Cascade Range t o the buffalo country; t h a t one band

 lived on the headwaters of Burnt a n d Powder Rivers.                (Pet. Ex. 520)

         Special Indian Agent Nathan Olney, 1855,            Agent Olney reported Snake

 country extended from the G r a d Ronde t o the warm springs on DesChutes

 River; t h a t Digger Snakes resided about t h e mouths of Payette and Boise

 Rivers e a s t of Snake River, and about t h e Owyhee, Malheur and B u r n t Rivers

 west of Snake River.        He Located Palouse I n d i u l s at t h e mouth of Snake

 River.     (Def. Ex. 91)

         Agent A. P. Dennison, 1857, 1859.          O f f i c i a l r e p o r t s of Agent Dennison

 during 1857 and 1859, inclusive, contain t h e following statement:                      X857:
 The Walla Wallas possess t h e country on both s i d e s t h e Columbia River

-.jetween Snake River and Fort Walla Walla; t h e Urnatillas l i v e on Umatilla

 River; t h e Cayuse occupy a p o r t i o n of Walla Walla valley.            ~ h o s h o n eor

 Snakes occupy t h e country from Burnt River on the - e a s t t o the DesChutes

 River on t h e west, east of t h e Blue Mountains and south t o California.

 1858:     The Cayuse have been badly defeated i n b a t t l e by t h e Snake; fhe

 Cayuse, Walla Walla and U m a t i l l a t r i b e s occupy t h e Walla Walla v a l l e y .

 1859:     A Snake band Live on the western slope of t h e Blue Mountains op-

 p o s i t e Warm Springs Reservation and e a s t of DesChutes River; t h a t they

 l i v e "in t h e headwaters of John Day's River;" on t h e west slope of the

 Blue Mountains, a d t h a t Indians from t h e Warm Springs Reservation k i l l e d

 two lodges of Snake Indians on John Day River.                (Pet. Exs. 339, 357 8 3 ,

 361; Def. Exs. 123, 124; Dkt. 198, Pet, Ex. 282)
14 Ind. C1. Comm. 14                                                            83


      Agent Crzig, 1857.       Agent Craig s t a t e d the Nez Perce were bounded

on the west by t h e Palouse and Tucannon Rivers.            On another occasion he

bounded them on t>e west by the Palouse and Snake Rivers.                H e placed the

Walla Walla on both s i d e s of the Columbia River below Snake River; t h e

Umatilla along Umatilla River and said t h a t *he Snake country extended

from Burnt River t o the DesChutes River.           (Pet. Ex. 344; Def, Ex. 15)

      Agent A. J. Cain, 1859.        According t o Agent Cainrs r e p o r t of 1859,

the W d l a Wallas were upon Columbia River near Fort Walla Wdla and t h e

Cayuse t r i b e lived i n Walla Walla valley.       (Pet. Ex, 366)

              .
      Captain H D. Wallen, December 10, 1859,             Captain Wallen's o f f i c i a l

r e p o r t of t h i s d a t e s t a t e s t h e Snakes inhabit the valley of Crooked River

and adjacent v a l l e y s ; t h a t t h e i r camps a r e sometimes extended north t o

t h e headwaters of John Day' s River.        (Pet. Ex. 364)

      Agent Kirkpatrick, 1862,        I n an o f f i c i a l report concerning t h e

country and Indims i n eastern Oregon, Kirkpatrick s a i d only a l i t t l e of

t h e Snake country cutside of the valleys of Powder, Burnt, Malheur, John

Dayr s and Owyhee Rivers, i s a g r i c u l t u r z l ; t h a t the Barmack Indians who

were generally classed as Snakes, were t o the south and that similar In-

dians were along Sn&e River,          H e mentioned having n o t i f i e d the Snakes

t o s t a y away from t h e emigrant rozds and the mines, and that t h e Snakes

usually appeared during the moaths of June and July along Powder River

f o r fishing.    (Pet. Ex. 389)

                                                .
      Superintendent of Indian Affairs, J , W. P Huntington, 1863.                     On

May 3rd, 1863, Huntington said Palmer's reference t o the 1855 cession a s

extending south t o the northern boundary of Snake country, meant t h a t

boundary l i n e "is prob&ly about 47%' North" Latitude.              (Pet. Ex. 392)
14 Ind. C1. Comm. 14                                                          84

      Agent Barnhart, 1865.        During 1865 Agent Barnhart reported a p a r t y
                                                                                   *

or' Umatilla Resenation Indims was attacked by h o s t i l e Snake Indians

within 30 miles of that reservation; t h a ~ party of W a r m Spring Reserva-
                                           a

t i o n Indians had been robbed by Snakes when on one of the norc&ern t r i b u -

t a r i e s of John Day River,     (Pet. Exs, 404, 407)

      Special. Indian Agent Turner, 1878,         During 1878 Agent TIIJXEZ r e f e r r e d

t o Bear Creek, a northern tributary of t h e main John Day River, as &an-

doned Paiute country.       (Def   . Ex.   107, p. 183)

      A. R. Robie, 1857.         Agent Robie reported on July 31, 1857, that the

Lower Yakima resided along the Colrmibia River from t h e mouth of-&               Yak- -
i m a River down t o within 3 miles below The Dalles, and i d e n t i f i e d them
as Wish-ham,    Skein and Click-a-hut,         (Pet, Ex. 248, Dkt, 198)

      27.   On t h e cession date white settlement within fherclaimed area-

w a s confined t o its northern sector,        F o r t Walla Walla wbich had been

established during 1818 as Fort Nez Perce, was a trading post at present

Walula, Washington.       Near the present s i t e of Wafla Walla, Washington,

was a trading post established during 1850 by ~rooks-Mumford, and the

mission St. Rose of Lima, established by the Catholics during 1852 to

replace the 1836 Presbyterian mission of Waiilatpu which t h e Caywe de-

stroyed during 1849,       Wm, M c R a y had conducted a trading post at; present
South Pendleton since 1849, and the U m a t i l l a Agency at Echo, Oregon, had

existed s i n c e 1851,   A few former t r a d e r s were located near t h e posts.

      Arior t o 1835 only the Lewis and Clark expedition, traders and

trappers are reported within t h e claimed area.           After 1843 there appears
14 Ind. C1. Comm. 14                                                                 85


t o have been an increasing amount of t r a f f i c by emigrants going on t o

t h e west.    I n 1855 the Oregon or Emigrant T r a i l crossed Snake River near

the mouth of Eirch Creek, ran north across Burnt, Powder and Grande Ronde

Rivers t o Grand Ronde Valley where i t divided with one branch extending

north by two separate routes past S t . Rose of Lima t o the Coeur d1A1ene

Mission and t h e trading post Spokane House.              The other branch r a n north-

west t o t h e Umatilla Agency where it divided with one t r a i l going west

t o The Dalles and t h e other southwest t o t h e Sherar's Bridge crossing

t h e DesChutes River.       From F o r t Walla Walla a t r a i l r a n up both banks of

the Colrrmbia River; another went e a s t t o Walla Walla and another south

t o t h e Umatilla Agency.       The Lapwai Mission and Craig's Place on t h e

Clearwater River i n Idaho were connected with Fort Walla Walla by a

t r a i l running along Clearwater and Touchet River valleys,

       As l a t e as 1855 there were n e i t h e r white t r a i l s nor settlements

south of t h e immediate v i c i n i t y of t h e Umatilla River, except f o r t h e

Oregon T r a i l .   (Pet. Ex, 529)

       28.    The few ethnologists who have worked with Shoshonean speaking

Indians i n e a s t e r n Oregon place t h e e a r l y l i m i t s of Snake occupancy far-

t h e r north than does D r . Ray,       Reports by some of the f i r s t wbite persons

t r a v e l i n g through t h e region a l s o tend t o place those l i m i t s f a r t h e r north.

From a l l t h e evidence before us we find from time immemorial and at t h e

period of t h e i r e a r l i e s t recoverable h i s t o r y t h a t the Snake Indians inhab-

i t e d and used southeastern Oregon as f a r north as the northern drainage

l i m i t s of t h e North Fork of the John Day River and t h a t they disputed

with t h e S&aptin t r i b e s the r i g h t t o use t h a t country lying north of t h e
North Fork drainage.         A s explained by the Walla Walla Indians t o Ross Cox

during 1812, the Sn&e L-ildians claimed the exclusive r i g h t t o hunt t h e

black t a i l e d deer (which were t o be found i n t h e Blue Mountzins) and the

Walla Walla t r i b e i n r e t a l i a t i o n attempted t o prevent t h e Snakes obtain-

ing salmon i n the Columbia River.

       29,     The evidence does not disclose how many Snake Indians were involved

i n t h e i r war w i t h the Sahaptins.     Whatever t h e i r numbers they were s t e z l t h y ,

s l y , courageous, and feared by t h e i r opponents.            Their appearances along t h e

Columbia River during 1805-1806 and 1811 i n s t i l l e d such f e a r among t h e                ha-
t i l l a and Walla Walla I n d i a ' s and t h e i r a l l i e s , t h e Wayampams that t h e s e

t r i b e s maintained t h e i r homes north of t h a t r i v e r a w have previously
                                                                   s e
found,       During 1818-1819 Snake w a r p a r t i e s were reported as far north as

Fort WalLa W d l a (then Fort Nez Perces) at the mouth of t h e Walla WaLla

River,       B t h i s time the Sahaptin Indians were acquiring a few guns, and
              y

i n t h e .1820ts were making a united, common, j o i n t e f f o r t on their p a r t t o

prevent the Snakes making my use of t h e Columbie River o r t h e country t h a t
         -
f a r nor&,      These Sahaptin t r i b e s a l s o began t o send t h e i r w a r and s u b s i s t -

ence p a r t i e s f a r e and f a r t h e r south i n t o Snake country i n order t o in-

crease t h e areas for t h e i r cormnun use and benefit,             Their p e n e t r a t i o n i n t o

t h i s southern country was retarded by t h e determined and continuous r e s i s t -

ance of the Snakes and t h e i r persistence i n u t i l i z i n g t h e resources of t h e s e

areas whenever possible even under the war conditions then prevailing,                               Even

a f t e r t h e Walla Walla, Cayuse and Umatilla t r i b e s mwed on t o t h e k a t i l l a

Reservation a f t e r t h e i r 1855 t r e a t y of cession, h o s t i l i t i e s continued be-

tween these two groups,           A s l a t e as 1858 b a t t l e s between t h e Cayuse and
1G Ind. C 1 . C m . 14                                                           87


Snake Indians were reported by the k e n t on t h a t reservation (Pet. Ex.

357, p. 2 6 4 ) .   A t no time did they abandon or discontinue t h e i r e f f o r t s

t o use t h e i r aboriginal t e r r i t o r y described above.

        30.   The Sahaptin t r i b e s were gradually able t o penetrate deeper

and deeper i n t o t h e country u t i l i z e d by these Snake Indians, and t o

gradually reduce t h e extent t o which t h e Snakes were a b l e t o use t h i s

disputed country.       The progress of the Sahaptin penetration cannot be

s c e m a t e l y s s e s s e d because whites did not enter the greater p o r t i o n of

t h a t country u n t i l about 1830, and then i n s o few numbers t h a t t h e r e i s

l i t t l e documentation of Indian occupancy.        More information e x i s t s with

respect t o t h e e a s t e r n s e c t o r because the Oregon T r a i l was opened dur-

i-ng 1811 by t h e Wilson Price Hunt party, and t h i s t r a i l r a n n o r t h from

Che mouth of Burnt River alcng t h e western s i d e of Snake River and along

t b e Wallow-Grande Ronde River divide t o Grand Ronde Valley.               There i t

turned northwest t o f o l l o x dm% the Urnatill2 River and then down the

Columbia River.       I n t h i s southeastern corner of the claimed a r e a t h e

B h e Mountains were extrercely d i f f i c u l t t o cross, and t r a v e l e r s stayed

c l o s e t o t h e trail, not venturing m y distance i n t o t h e country t o t h e

west.
14 Ind. CL. COUEXL. 14                                                                ... 88
                                                                                      --.

                                            h
       The journals of only three trappers W o d i d venture i n t o t h e d r a h -

age of 3ohn Dzy River, t h e memoirs of a former manager of t h e t r a d i n g

p o s t a t Fort kTa1La WalLa, u r d o c c a s i o n d references by t r a v e l e r s along

t h e Oregon T r a i l i d e n t i f y t h e Indians i n t h i s s e c t o r ,   Such documents

d i s c l o s e t h a t t h e Snake Indians were seen in t h i s area but by 1832 t h e

Cayuse were appearing along Powder River, and both t h e Cayuse and Walla

Walla t r i b e s w e r e passing south of t h e claimed area t o hunt along t h e

South Fork of John Day River or i n t h e drainage of S i l v i e s River.                     Since

the e a r l y whites coming i n t o t h i s country classed the Umatilla i n most

instances among e i t h e r t h e Walla Walla or the Cayuse, it i s v e r y probable

t h e Indians seen in these southern regions were sometimes Urnatillas.

Other documentary evidence d i s c l o s e s these t r i b e s w e r e a l s o appearing

i n t h e country t o t h e west of t h e claimed area.

       31.    This documentary evidence discloses, and Dr. Ray acknowledged

&en t e s t i f y i n g before t h i s Commission, t h a t the Snakes w e r e n o t completely

excluded from t h e country drained by the John Day River, b u t t h a t they

continued t o appear within it in small family groups, f i s h i n g t h e streams

and foraging for subsistence; t h a t they could do s o during the w i n t e r

months without danger of encountering these Sahaptin t r i b e s from t h e n o r t h ,

f o r t h e regular -subsistence cycle of t h e Sahaptin t r i b e s w a s such that

they spent t h i s period of t h e year i n t h e i r winter v i l l a g e s n o r t h of t h e

John Day River drainage.

        C o n t r q t o D r . Ray' s conclusion t h a t the Umatilla and Cayuse had ac-

quired firm possession of t h i s a r e a by 1810 and t h a t t h e Snakes recognized
14 Ind. C1. C m . 14                                                                      . ..   89


t h i s f a c t and e n t e r e d t h e country only t o r a i d and make such u s e of

enemy t e r r i t o r y a s was p o s s i b l e , t h e i r continuing presence i n d i c a t e s

t h a t t h e Snakes never conceded t o t h e n o r t h e r n invaders t h e r i g h z t o

e x c l u s i v e l y u s e and occupy t h i s region.

       32.    However, t h e Snake usage of t h i s country was not e n t i r e l y

l i m i t e d t o t h e w i n t e r season, a s appears f r o m t h e j o u r n a l s of John Work

who observed Snake Indians along John Day River and who had two members

of h i s t r a ? p i n g p a r t y rcrrrdered by Snake I n d i a n s on t h e headwaters of

Burnt River during t h e month of J u l y , 1832, a d from t h e r e p o r t of Major

Osborne t h a t during September, 1849, f r i e n d l y I n d i a n s would n o t v e n t u r e

i n t o t h e headwaters of Powder River because of t h e " h o s t i l e I n d i a n s who

r e s i d e i n t h e mountaics and immediately i n t h a t neighborhood,"                       and from

      Walleo's stazement during 1859 t h z t t h e Snzke I n d i a n s sometimes
Cap~zin

canped as f a r n o r t h as t h e headwaters of John Day's River, and from

Agent 3. M. K i z k p a t r i c k ' s o f f i c i a l r e p o r t during 1862 t h a t t h e Snakes

cane i n t o t h e v a l l e y of Powder River each June and J u l y t o f i s h .                     r
                                                                                                      M.

Pzinbrun d i d n o t l i m i t &eir presence t o any season of tSe year when h e

s t a t e d t h a t in 1832 t h e headwaters of Grande Ronde River w e r e d e ~ s e l y

occupied by t h e Snakes.

      . While   t h e S A a p t i n t r i b e s from t h e n o r t h p e n e t r a t e d s o u t h as far as

Burnt River, and went beyond t h e claimed a r e a i n t o t h e d r a i n a g e of S i l v i e s

River and t h e South Fork of John Dzy River p r i o r t o t h e c e s s i o n d a t e , i t

appears t h a t t h e Snake I i l d i m s u t i l i z e d t h i s country i n common with them.
        14 Ind. C l . Cormn. 14                                                                90


        Without having excluded the Snakes from the claimed area, it can not be

        s a i d t n a t these northern invaders enjoyed the exclusive use and occupancy

        of the country, and t h z t o r i g i n a l Indian t i t l e could have developed t n

        e i t h e r one of them,

               33,    During 1811 "Chochoni" Indians resided along t h e Weiser River

        e a s t of Snake River,        Other "Chonchoni" Indians with "many horses" were in
                                         ., .   ,


        t h e Grand Ronde V d l e y when Wilson P r i c e Efrmt's party passed through t h e r e

        during December of t h a t year.            I n t h e Blue Mocntains north of t h a t v a l l e y

        t h e r e w e r e one o r more Snake lodges,          Across t h e main r i d g e of t h e Blue

        Mountains, on t h e headwaters of U m a t i l L a River, t h e r e were Sciatoga and

        other Indians.         According t o t h e I n d i a s it was t h r e e o r f o u r days' t r a v e l

        time between t h e Chochoni i n Grand Ronde Valley t o the Sciatoga on the

.   -   U m a t i l l a ; Hunt's p a r t y used 6 days f o r t h e t r i p .

               The S c i a t o g a are i d e n t i f i e d as Cayuse by most people writing of

        t h e s e e a r l y people,   The possession of many horses, when horses were a

        s c a r c e commodity among t h e Snake Indians of southeastern Oregon, i d e n t i -

        f i e d t h e Chochoni or Shoshone Indians i n Grand Ronde Valley during 1811

        as r e l a t e d t o t h e Snake o r Shoshone Indians i n t h e country cast of t h e

        claimed area,         L a t e r docments . r e f k i n g t o s k i n lodges and buff d o

        s k i n s as i t e m s obtained i n trade with t h e Snake Indians i n Grand Ronde

        Valley a l s o i d e n t i f y those Indians as r e l a t e d to the Snakes east of t h i s

        area, f o r b u f f a l o were not found i n Oregon a f t e r t h e 18th century, ac-

        cording t o Commander Charles Wilkes who passed through t h i s corntry dur-

        ing 1841, and Brevet Major Alvord who was i n charge of t h e m i l i t a r y f o r c e s

        a t The Dalles, Oregon, during t h e 1850s.                  (Pet. Ex. 69)
1& Ind. Cl. Corn. 14


       Other documentary evidence o r i g i n a t i n g between 1811 azzd 1855 d i s -

c l o s e s t h a t t h e Csyuse Indians were met i n t h e Grand Ronde Valley more

f r e q u e n t l y and i n g r e a t e r numbers t h a n any o t h e r t r i b e .   They were n o t

che only u s e r s of t h e v a l l e y throughout t h i s period however, and t h e r e

u e r e p o r t s t h a not only t h e Cayuse t r i b e b u t o t h e r t r i b e s as w e l l

claimed t h a t v a l l e y .    Both salmon and camas r o o t , important a r t i c l e s i n

t h e d i e t of t h e s e Indians, w e r e found i n t h e Grand Ronde Valley.                     These

foods were of some a t t r a c t i o n t o t h e I n d i a n s , b u t t h e v a r i o u s r e f e r e n c e s

t o t h e Cayuse and o t h e r Sahaptin t r i b e s m e t w i t h i n t h a t Valley i n d i c a t e

they w e r e t h e r e primarily t o t r a d e w i t h t h e Snake o r Shoshone and d u r i n g

t h e 1840's and 1850's t o t r a d e w i t h t h e emigrants,                 There w e r e no permanent

I n d i a n v i l l a g e s w i t h i n t h e Graad Ronde Valley as late as 1854, (?et,Ex, 199)

       34,     Depredations by zhe Snake I n d i v l s of s o u t h e a s t e r n Oregon a g a i n s t

t r a v e l e r s along t h e emigrant trails and upon miners and settlers who

e n t e r e d t h i s r e g i o n t h e l a t t e r p a r t of t h e 18401s, a g a i n s t the W-

Springs I n d i a n Reservation a f t e r i t s e s t a b l i s h m e n t i n central Oregon, and

gerteral h o s t i l i t i e s c a r r i e d on from t i m e t o t i m e between t h e Snakes a c d

me    OX   anather of t h e Sd-mpti-n t r i b e s , which are recorded as late as 1858,

l e d t o a series of r c i l i t a r y excursions by t h e United S t a t e s d i r e c t e d a g a i n s t

the S m k e o r r e l a t e d Indians i n s o u t h e r n Oregon, 2nd Idaho, u l d n o r z h e r n

Nevada.       The f i r s t of t h e s e s a w one coamand l e a v e Sacramento V a l l e y and

one l e a v e . 0 r e g o n C i t y during 1849, both going t o F o r t H a l l i n Idaho,

During 1855 & j o r H a l l e r l e d a troop through t h i s country t o meet w i t h

Shoshone o r Snake I n l i a n s near F o r t Boise; during 1858 a detachment pene-

t r a t e d t o S a l t Lake, Utah, and r e t u r n e d t o F o r t Vancouver.              I n 1860 a
       14 Ind, C1. C m .        14                                                         .:.   92


       similar expedition penetrated i n t o southeastern Oregon and returned t o

       Fort Vancouver.        During 1862 and 1863 several detachments of t h e Oregon

       volunteers entered t h i s country, a d established m i l i t a r y pcsts.                  During

       1864 Colonel John Drake, spent some time i n the v i c i n i t y of Malheur Lake,

       seeking t o f i n d and destroy Snake Indians.

              India     Agent J. M1,Rirkpatrick          during 1862 sent word t o t h e Snakes

                                             River, but i n an o f f i c i a l r e p o r t t o t h e
       t o cease t h e i r use of t h e Pw~~der

       Superintendent of Indian Affairs i n Oregon made by him t h a t year, Agent

       Kirkpatrick described t h e "country belonging t o and inhabited by t h e

       Snake Indianstt as including "the Powder, Burnt, Blheur, John Day's and

       Owyhee River valley,"             (Pet, Exs, 419, 389; Docket 198, Pet. Ex. 310)

              35.     These continuing depredations and the continuing danger of

     - Snake a t t a c k s upon whites within e a s t e r n Oregon led various o f f i c i a l s of
--

       t h e Indian Department i n 'Oregon t o r e c m e n d the neggtiation of treaties

       of peace or cession with t h e Snakes inhabiting t h a t region,                     On March 25,

       1864, Congress appropriated $20,000 t o defray expenses of n e o g i t i a t i n g

       such t r e a t i e s , and under i n s t r u c t i o n s dated June 22, 1864, Superintendent

       3, W. P Huntington on August 12, 1865, negotiated a t r e a t y w i t h the
             .
       Woll-pah-pe T r i b e of Snake Indians which t r i b e he described as a p o r t i o n

        of t h e h o s t i l e Snakes,    The area ceded by s a i d Indians as described i n

       t h a t t r e a t y lies p a r t i a l l y within t h e a r e a claimed by p e t i t i o n e r on behalf

        of t h e Cayuse and Umatilla t r i b e s , being a t r a c t south of the North Fork

        of John Day River, bounded by the John Day River above i t s North Fork on

        t h e west and the heads of Malheur and Burnt Rivers on t h e east,
      The e x t e n t of country actually held by s a i d Indians has never been

t h e subject of j u d i c i a l determination, b u t the existence of such Snake

Indians as an aboriginal land-holding e n t i t y wzs determined by t h i s C m -

mission i n i t s Docket No. 87, Northern Paiute Nation k t a l s . v. United

S t a t e s , decided March 24, 1959,. 7 Ind, C I , Comm. 322, 399.                        The land h e l d

by s a i d e n t i t y m d e r o r i g i n a l Indian t i t l e was n o t determined a t t h a t

t i n e because only a non-treaty taking was presented by t h e pleadings,

nor was it affirmatively shown t h a t t h e p e t i t i o n e r s were e n t i t l e d t o rep-

r e s e n t s a i d aboriginal band known a s the Woll-pah-pe Tribe of Snake

Indians.

       36.    During 1941 and 1942 a M r . Swindell, an attorney with t h e

Bureau of Indian Affairs, Department of t h e I n t e r i o r , and t h e membership

                 t
of t h e t h ~ e e r i b e s here represented, becme i n t e r e s t e d i n recording f o r

p o s t e r i t y t h e usual and accustomed subsistence sites u t i l i z e d by t h e s e

t r i b e s p r i o r t o going upon the Umatilla Inciian Reservation.,                      Each t r i b e

s e l e c t e d important, aged members t o represent it,                     These i n d i v i d u a l s

w e r e driven t o places indicated by them and a t such places i d e n t i f i e d

t h e 3 a s sites formerly used by c e r t a i n t r i b e s .           This information was

then l i s t e d on c e r t a i n cards.       Later a f f i d a v i t s were prepared v e r i f y i n g

t h e carded information'arid t h e cards and a f f i d a v i t s a r e p r e s e n t l y i n t h e

f i l e s of t h e Umatilla Indian Agency and a r e considered p a r t of what i s

known as t h e Swindell Report.

       The a f f i d a v i t s r e c i t e t h a t a f f i a n t s a r e members of a p a r t i c u l a r

t r i b e , t h a t when t h a t t r i b e entered t h e Reservation it was accustomed t o

using t h e designated s i t e s , t h a t a f f i a n t knew t h i s by reason of having
    14 Ind. 21. C m .         14                                                            :     94


    been a t the named s i t e or s i t e s during h i s childhood or by reason of

    having been t o l d by h i s p v e n t s or other aged t r i b a l members t h a t they

    had used such s i t e or s i t e s before going upon the Reservation,

           Many srrch s i t e s a r e outside of the area presently claimed on behalf

    of t h e t h r e e t r i b e s here represented, and alsooutside of t h e a r e a claimed

    by p e t i t i o n e r ' s witness, D r . Ray, as o r i g i n a l t i t l e t e r r i t o r i a l lands of

    one or another of s a i d t r i b e s ,        Only a few of the s i t e s which a r e removed

    from the v i c i n i t y of t h e Columbia River o r t h e lower Walla Walla River

    a r e s a i d t o h m e been exclusively used by one t r i b e .               (Pet, Exs. 98, 99)

           37.    Tne ;rffi d a v i t s attached t o the Swindell Report contain no alle-

    gation by members of some one of these t h r e e t r i b e s t h a t a f f i a n t ' s p a r t i -

    c u l a r t r i b e had t h e exclusive r i g h t t o use any one of the sites r e p o r t e d

-   formerly used by it,            Nor do they contain any a l l e g a t i o n that t h e site

    belonged t o any other t r i b e and t h a t members of a f f i a n t ' s t r i b e used it

    by permission of t h e owner t r i b e .           P r a c t i-c a l l y all of the sites within

    t h e claimed area and away from t h e v'ici.nity of the C o l d i a River o r t h e

    lower Walla Walla River, were customarily used by more than one of these

    t h r e e t r i b e s , o r used by one -or more of them i n conjunction w i t h o t h e r

    Sahaptin Indians who were involved with these three t r i b e s i n the u n i t e d

    movement southward against t h e Snake Indians of southeastern Oregon which

    began, according t o Dr. Ray, about 1750, but which we f i n d t o have begun

    much l a t e r ,

           Documentation originating during t h e f i r s t h a l f of the 19th century

    frequently contain references t o p a r t i e s of Indians composed of i n d i v i d u a l s

    from more *an          one of these t h r e e t r i b e s being encountered i n t h e south-
14 Ind. CI. C m . 14                                                                     .:.   95


e a s t corner of the claimed area along or near t h e Oregon T r a i l .                      The

record as a whole s u b s t a n t i a t e s D r . Ray's expressed opinion t h a t t h e

Sahaptin t r i b e s along t h e Columbia River moved south i n a concerted ac-

t i o n against the Snake Indians of southeastern Oregon.                         There i s no i n -

d i c a t i o n t h a t any one t r i b e moved south i n t o a d e f i n i t e p a r t of t h i s

region and subsequently occupied t h a t sector t o t h e exclusion of a l l

other Indians f o r along time p r i o r t o 1846, so t h a t it acquired o r i g i n a l

t i t l e t o such area, and could t h e r e a f t e r as the owner grant permission t o

other f r i e n d l y t r i b e s t o e n t e r upon and use i t s t e r r i t o r y under a guest-

host o r permissive use r e l a t i o n s h i p f o r proper and allowable purposes.

       38.    The Commission takes j u d i c i a l notice of a s u i t which w a s

b r o u g k i n the C o u r t of Claims by Ambrose Whitefoot and Minnie Whitefoot

.=gainst the United S t a t e s t o recover compensation for t h e t a k i n g by de-

st r u c t i o n through inundation of c e r t a i n f i s h i n g r i g h t s , and o t h e r r i g h t s ,

claimed as t h e individual property of t h e p i a i n t i f f s i n t h e ColzrmSia

River near CeLilo F a l l s i n t h e S t a t e s of Washington and Oregon, by t h e

construction by the defendant of The Dalles D w , , completed in 1956 (&-

brose Wnitefoot and Minnie Whitefoot v. United S t a t e s , 255 C o u r t of

Claims, p. 127, 1961).             The p l a i n t i f f s a r e Indians enrolled in t h e Yakima

Nation, a confederation created and granted a reservation by a t r e a t y

with t h e United S t a t e s entered i n t o June 9, 1855 (12 Stat. 951).

       I n t h i s t r e a t y c e r t a i n t r i b e s and bands of Indians ceded t o the

United SZ;?tes lands which they claimed they held by Indian t i t l e and t h e

United S t a t e s granted t o them, or recognized, a c e r t a i n a r e a a s a r e s e r v a -

t i o n f o r t h e coafederated Yakima Nation.
14 Ind. C l . C m . 14                                                                  96


       I n A r t i c l e 111 of t h e t r e a t y i s a provision r e l a t i n g t o f i s h i n g .

rights:

                 "The =elusive r i g h t of taking f i s h i n a l l t h e streams,
       where running through or borderi-tlo, s a i d r e s e r v a t i o n , i s
       f u r t h e r seccred t o said confederated t r i b e s a n d bands of
       I n d i a n s , a s a l s o the r i g h t of t a k i n g f i s h at a l l u s u a l and
       accustomed p l a c e s , i n common with c i t i z e n s of t h e T e r r i -
       t o r y , and of e r e c t i n g temporzy buildings f o r curing them;
       together with t h e p r i v i l e g e of hunting, gathering r o o t s and
       b e r r i e s , and pasturing t h e i r horses and c a t t l e upon open
       and unclaimed land."               (12 S t a t . 953)

       A t about the same t h e other t r e a t i e s of c e s s i o n c o n e i n i n g sub-
                                                                                    I


s t a n t i a l l y t h e same provision as A r t i c l e I11 w e r e entered i n t o with t h e

Nez Perce, the Confederated t r i b e s of t h e Umatilla Reservation, and the

Tribes of Middle Oregon, commonly r e f e r r e d t o as t h e Warm Springs Indians,

and o t h e r t r i b e s ,

       The p r i n c i p a l m a t t e r determined by t h e Court of Claims was that

i n d i v i d u a l members of a t r i b e may have t h e use of t h e t r i b a l Lands and

property b u t t i t l e t o such property i s i n t h e t r i b e and the individual

r i g h t s t o use t h e property depends upon t r i b a l law or custom.

        The c o u r t c a l l e d a t t e n t i o n t o t h e f a c t t h a t Congress had passed an

a p p r o p r i a t i o n act (67 S t a t , 197) for t h e c i v i l functions of the Army in

which it authorized compensation for t h e l o s s of the f i s h i n g rights i n

question i n t h a t case.

        Pursuant t o t h i s authority an agreement was reached between the

United S t a t e s and t h e Yakima Tribe or Nation, on December 17th, 1954,

f o r the payment to the Tribe of some 15 m i l l i o n d o l l a r s f o r a l l of its

f i s h i n g p r i v i l e g e s as fuL1 consideration f o r t h e destruction, or
14 Ind. C1. C m . 14                                                                               97


inundation,      .    of t h e s e usual and accustomed f i s h i n g s t a t ions.            Paynents

were made t o the t r i b e under t h e c o n t r a c t .

       The claim of the p e t i t i o n e r s were denied                     the petition w a s dis-

missed.      I n connection w i t h . t h i s m a t t e r t h e Court e n t e r e d Findings 19

and 20 which we b e l i e v e a r e r e l e v a n t and p e r t i n e n t t o some degree i n t h e

i n s t a n t case:

                 19. I n t5e course of t h e i r e f f o r t s t o reach some satis-
       f a c t o r y adjustment with t h e v a r i o u s I n d i a n groups, t h e (Corps
       o f ) Engineers determined t h a t t h e t o t a l v a l u e of Indian f i s h -
       i n g r i g h t s t 5 a t would be l o s t by c o n s t r u c t i o n of t h e dam,
       covering a s t r e t c h of about t e n m i l e s upstream from The Dalles,
       Oregon, was t h e sum of $23,274,000, which w a s based upon a
       c a p i t a l i z a t i o n a t t h r e e percent of t h e t o t a l value of t h e
       f i s h caught by t h e Indians i n an average y e a r urd s o l d com-
       m e r c i a l l y o r t o t o u r i s t s or used f o r s u b s i s t e n c e . Later t h i s
       f i g u r e was increased t o $26,888,395.32.                            It was decided t o
       s p l i t t h i s s m a o n g t h e v a r i o u s t r i b e s and t h e u r r a f f i l i a t e d
                               u
       I n d i a n s at C e l i l o F a l l s 02 t h e b a s i s of t h e i r o f f i c i a l I n d i a n
       populatiorts enjoying f i s h i n g r i g h t s t h e r e e i t h e r urrder t h e
       1855 trealj o r by h i s t o r i c a l usage, Reducing t h e t o t a l v a l u e
       t o a u n i t b z s i s of $3,754.91 per Indian, it was determined that
       t h e Yakima Natiox should r e c e i v e $15,019,640, the U n a t i l l a s ,
       $4,606,971.06, the llarm Springs, $4,451,784.26, t h e Nez Perce,
       $2,800,000, and $3,754.91 each f o r some 15 o r 16 India= f i s h e r -
       men a t C e l i l o F a l l s who (1) were u n z f f i l i a 2 e d w i t h any reser-
       v a t i o n , (2) depended on t h e f i s h e r i e s f o r a l i v e l i h o o d , (3)
       had e s t a 5 1 i s h e d t r a d i t i o l l a l f i s h i a g r i g h t s wer a peziod of
                                                               of
       many y e z s t o t h e s a t i s f a c t i o ~ t h e C e l i l o F i s h Comittee,
       and (4) had no determinable r i g h t s under t h e 1855 t r e a t y . The
       Acts of 1953 (67 S t a t . -197) azd 1954 (68 S t a t . 331) authorized
       paymerrt n o t =ly t o t r i b e s b u t a l s o t o t h e u n a f f i l i a t e d In-
       d i a n s at C e l i l o F a l l s who met t h e tests described abwe.

                 20. On December 17, 1954, an agreement was entered i n t o
       between t h e United S t a t e s and t h e Yakima Nation whereby t h e
       latter agreed t o subordinate i t s f i s h i n g r i g h t s i n t h e C e l i l o
       F a l l s f i s h e r i e s i n r e t u r n f o r payment of t h e sum of $15,019,640.
       T h i s agreement was approved by both t h e General Council a ~ td e              h
       T r i b a l Co-mcil of t h e Yakima Nation. S i m i l a r agreements w e r e
       e n t e r e d i n t o w i t h t h e Nez Perce, t h e Urnatillas and t h e Warm
       S p r i n g s I n d i a n s . (Findings of Fact 19 and 20, s l i p opinion,
       pp. 23, 24, Whitefoot v. United S t a t e s )
      14 ind. CL. Conm. 14                                                                 98


      Under our general and i n v e s t i g a t i v e powers a s a j u d i c i a l t r i b u n a l

w hzve secured a c e r t i f i e d copy of t h e contract entered i n t o between
 e

the United S t a t e s e n d t h e Confedezazed Tribes of t h e Umatilla Indian

Reservation, dated t h e 10th day of -ch,                  1953, and mvlced i t Com-

mission's Exhibit I, Dkt, 264.               Since zhe c o n t r a c t was entered i n t o

between a l l t h e ? = t i e s   t o t h i s case and since each p v t y was given

an o r i g i n a l o r a copy of t h a t o r i g i n a l contract, we have n o t sent

copies of     omm mission's Exhibit I t o s a i d p a r t i e s because          it was deemed

unnecessary under t h e circumstances.

      The whereas clauses of s a i d contract a r e as follows:

               WHEREAS,. under and :by v i r t u e of t h e Flood Control A c t of
       1950, T i t l e 11, PuSlic Law No. 516, 81st Congress, 2d Session,
       apprwed May 17, 1950, t h e Corps of Eagineers, Department of
       t h e lirmy, h a s been authorized t o construct The Dalles Dam,
;
       Columbia River, Washington and Oregon ( h e r e i n a f t e r c a l l e d "the
       Project") ,..'and

                 WBEREAS, t h e Confederated Tribes have been taking f i s h
       s i n c e time immemorial a t t h e usual and accustomed f i s h i n g
       s t a t i o n s located within and adjacent t o t h e P r o j e c t , p a r t i c u l a r l y
       i n t h e v i c i n i t y of C e l i l o F a l l s , Columbia River, and s i n c e t h e
       ceding of t h e i r lands along t h e Columbia t o t h e United S t a t e s
       t h e Confederated Tribes have been and now a r e taking f i s h a t
       those usual and accustomed s t a t i o n s , i n accordance with t h e
       r e s e r v a t i o n contained i n Article I, Treaty.of June 9 , 1855,
       1 2 S t a t . 945, and

            WHEREAS, s a i d usual and accustomed f i s h i n g s t a t i o n s w i l l
       be destroyed and inundated by construction of t h e P r o j e c t , and

              WEREAS, it is t h e i n t e n t of t h e Gwernment t o compensate
       t h e Confederated Tribes f o r t h e destrlrction and inundation .of
       those usual a d accustomed s t a t i o n s by t h e construction, operation,
       and maintenance of t h e Project, and t o avoid l i t i g a t i o n ; and t h e
       amounts set f o r t h h e r e i n are considered j u s t compensation for
       such d e s t r u c t i o n o r inundation;
14 Ind. C l . C m . i 4                                                                99


      39.    I n our d e t e r m i r ~ r t i o nof Docket 198, we found i n Fiadings 50

and 5 1 t h e folloiiir,g:

      50.       For a l m g t i m s p r i o r t o the 1855 Treaty of c e s s i o n , t h e
      Cascade, 2ood River, =d 3alLes Wasco Indim-s , t h e Teaino, 'lygh,
      Myam, and John Day River I n d i a n s , wsre seven separaEe land us-
      i n g e n t i t i e s Lhat z e r e fo m a l l y confederated urrder t h e 1855
      t r e a t y i n t o t5.e "CoisFederated T r i b e s or Bands of Middle Oregon."
                                                           of
      On Mvch 8, 1859, t h e e f f e c t i v e d ~ t e t h e 1855 t r e a t y of ces-
      s i o n , t h e smea hazids or t r i b e s of India% h e l d i d i a n t i t l e t o
      seven sesar&e b u t coxtiguous t r a c t s of land on t b e s o u t h s i d e
      of t h e Columbia River                below, whish l u - d s are i n c l c d e d i n an
      area t h a t can be circumscribed by a l i z e drawn rs follows:

             Comie'i:ci~~ t h e j x x t i o n of t h e Multromah-Hood River
                                a2
             cormty li=.,esoa t h e Col-ia              River, t h e z c e s o u t 3 e r l y
             alorrg t k e Multrrom&--Hood River c a w t y l h e t o t h e
             sout5ezrst c o r a e r of Mdtnom& County; thence s o u t h e a s t
             on a l i n e t o t h e town of Maupin i n Wasco Coucty; thence
             n o r t h e a s t on a Erie a c r o s s t h e J o h Day River t o t h e
             sorrtheast c o m e r of To7wmhip 3 Sozth, Range 20 E a s t i n
             G i l l i a m Coxaty; thence n o r t h 03 a range l i n s between ranges
             20 aad 2 1 E z s t t~ i t s i n t e r e e c t i o ~with t h e Willamette
             Base Line; tfience z o r t h e a s t on a l i n e t o the Columbia
             River p z s s i z g -;hrougS t h e town of Blalock i n G i l l i a m
             county.

      51. The =acts o-m.ed iodivid-sglly by L2e seve9 ba,zds oz t r i b e s
      of I n d i m may 3e separated w i t h i n t h e area circzsnscribed a b w e
      i n the followkg mamer:

             Mwing frm w s t t o east the C m i s s i o n f i n d s t h a t :

                    I
                    .    Tze lazzds of t h e Cascade Wasco a r e s e p a r a t e d
             frm         Ho~d River Wasco lands t o t h e east by a l i n e
             t h 2 t ccnmences a t t h e i n z e r e s e c t i o n of t h e Wazcoaa
             Ridge a d Cascade Range, and from t h i s p o i z t rrrrns north-
             east along the sumnit of tfie W~=ucmuzRidge =d along
             the d r a i o z g e d i v i d e between Gorton and Hermzn Creeks as
             far as the Columbia River,

                      2. me Hood River Wasco l m d s z e s e p z 2 t e d frm
             t h e Dalles Wasco 1znds t o t h e east by a l i n e t5at begins
             where tlat p a r t of t b e l i a e described i n Fincling 50 as
             runnixg s o u t k e z s t from t h e south e a s t corner of Mult-
             nomah Comty t o t 5 e town of Mau?in ( h e r e i n a f t e r r e f e r r e d
             t o as the "%-upin line"), i n t e r s e c t s t h e t o m s h i p l i n e
             between T m s h i p s 2 and 3 Souch, Rmge 10 E a s t ; thence
             n o r t h e a s t on a Pine t o t h e n o r t h e a s t corner of Hood River
             Couzty on t h e Columbia R i v e r ,
             o m
14 Ind. C1. C m . 14                                                                      100

                 3. The Dalles Wasco lands a r e separated from the
            Tenino lands on the e a s t by a l i n e which begins a t t h e
            same point o f i n t e r s e c t i o n on t h e "Mzupin line" a s de-
            scribed above and runs n o r t h e a s t t o Eig Eddy on the
            Columbia River.

                    4. The Tenino lands are separated from the Tygh
                                                      ym
            lands to the south and t h e W a lands t o t h e e e s t by a
            l i n e t h a t begins a t t h e i n t e r s e c t i o n of t h e "Maupin:line"
            with the township l i n e betxeen townships 3 and 4 south,
            Range 12 East, thence n o r t h e a s t to t h e northeast corner
            of Tomship 3 South, Range 14 East, thence north along
            t h e range l i n e between ranges 14 and 15 t o t h e Columbia
            River,

                     5 The Wyam lands a r e separated from the Tygh lands
                      .
            t o t h e south and t h e lands pf t h e John Day River Indians
            t o t h e e a s t by a l i n e t h a t commences a t t h e northeast
            corner of Township 3 Souch, Range 14 East, thence south-
            e a s t across t h e DesChutes River t o t h e i n t e r s e c t i o n of
            t h e DesiChutes meridian with t h a t p a r t of t h e l i n e des-
            c r i b e d i n Finding 50 a s running n o r t h e a s t from t h e town
            of Maupin t o t h e south e a s t corner of Township 3 South,
            Range 20 East i n Gilliam County, thence north along t h e
            Deschutes meridian t o i t s i n t e r s e c t i o n with the Willamette
            Base lh, thence northwest passing t h r u t h e town of Rufus
            i n Sherman County t o t h e Columbia River.

                  6, The lands of t h e Tygh band of Indians form a
             diamond shaped t r a c t located on both s i d e s of t h e Des-
             Chutes River i n Wasco and Sherman counties between t h e
             Tenino and W a l a n - s and t h e town of Maupin.
                         ym

And i n Finding 52 we held:

              The Commission has found t h a t w i t h i n t h e a r e a awarded i n
      Finding 50, the seven bands o r t r i b e s of Indians, who w e r e p a r t i e s
      t o t h e 1855 t r e a t y of cession; occasionally, and for s h o r t p e r i o d s
      of time, allowed other f r i e n d l y bands o r t r i b e s t o use t h e i r f i s h -
      ing s i t e s and nearby areas on t h e Columbia River for such things
      a s t r a d i n g , gambling, horse racing, and o t h e r r e l a t e d a c t i v i t i e s ,
      Under such circumstances t h e Commission f i n d s t h a t t h i s temporary
      "guesttt use of these areas was not adverse t o o r incompatible
      w i t h t h e Indian t i t l e a s s e r t e d by t h e o r i g i n a l owners.

      The a r e a so described, included p a r t of t h e a r e a where The Dalles

 a
D m was constructed on t h e Columbia River by t h e Army Engineers a s an

 gency o f t h e United S t a t e s and which was t h e s u b j e c t in i t s c o n t r a c t
14 Ind. C1, C m . 14
             o m                                                                           101


with t h e Umatilla Confederated Tribes which claimed t h a t they had been

from time immemorial taking f i s h a t t h e usual and accustomed fishFng

s t a t i o n s locaced within and adjacent t o T h e Dalles Dm project, p a r t i c u -
                                                              a

l a r l y i n t h e v i c i n i t y of Cel2lo F a l l s , on t h e Columbia River.    (Corn. Ex, I)

       40,    02 June 15, 1846, when sovereignty of t h e United S t a t e s a t t a c h e d

t o t h e land i n the t e r r i t o r i e s of Washington and Oregon, the maximum

l i m i t s of any t e r r i t o r y heXd by the Walla Walla, Cayuse o r Umatilla

t r i b e s of Indians became fixed and could not t h e r e a f t e r be increased

i n derogation of t h e i n t e r e s t s of t h e Baited S t a t e s .

       41,    On March 8, 1859, t h e Umatilla t r i b e of Indians, t h e Walla

Walla t r i b e o f Iadians, and t h e Cayuse t r i b e of Indians each h e l d           original
t i t l e t o a t r a c t s f y l a n d which t h e United S t a t e s acquired on t h a t date

and which t r a c t i n each instance i s described a s s e t f o r t h following

t h e i r r e s p e c t i v e names, to-wit:

       The Umatilla Tribe: A t r a c t of land located i n t h e S t a t e s of
       Washingtort and Oregon described a s follows, to-wit:            Commencing
       on t b e Columbia River a t t h e mouth of J m i p e r Canyon i n Oregon;
       therrce up s a i d Canyon and i t s south f o r k t o t h e source thereof;
       thencesouthwest t o a poiot on t h e Umatilla River two m i l e s be-
       low t h e townsite of Echo, Oregon; thence down t h e TJmatilla River
       t o t h e rnorrth o f Butter Creek; thence westerly t o t h e drainage
       d i v i d e between &tter Creek and Willow Creek and thence southerly
       alorig s a i d drainage divide t o t h e souther3 extreme of t h e drain-
       age o f Butter Creek; thence westerly t o the southernmost p o i n t
       on t h e watershed of Rhea Creek; thence dom Rhea Creek t o i t s
       mouth and down Willow Creek t o i t s mouth; thence up the Columbia
       River t o the lower edge of Blalock Island; thence north a c r o s s
       t h e Columbia River t o a point t e n miles d i r e c t l y north of s a i d
       River; thence n o r t h e a s t e r l y t o a point north of Umatilla, O r e -
       gon, and 10 miles north of t h e north bank of the Columbia River;
       thence southeast t o t h e Columbia River opposite t h e mouth of
       Juniper Canyon; and thence across s a i d r i v e r t o t h e place o f
       beginning,
14 Ind. C1.    Cornrn. 14


       The Walla Walla Tribe: A t r a c t of land located i n the S t a t e s
       of Oregon and Washington and described a s follows, to-wit:
       Commencing on the Columbia River a t the mou~hof Juniper Canyon
       and running thence up said Canyon and i t s south fork t o the
       source t h e r e o f ; thence northeast t o t h e Walla Walla River oppo-
       s i t e t h e mouth of Touchet River; thence up Touchet River t o t h e
       mouth o f Winnett Canyon near Lamar, Washington; thence northwest
       t o a p o i n t on Snake River which i s twenty-five miles above i t s
       mouth; thence down Snake River t o i t s mouth and southwest a c r o s s
       Columbia River and along a s t r a i g h t l i n e drawn from t h e mouth of
       Snake River t o a point which i s north of t h e town of Umatilla,
       Oregon, and t e n miles north of t h e north bank of the Columbia
       River; thence southeast t o t h e Columbia River opposite t h e mouth
       of Juniper Canyon and thence across t h e Columbia River t o t h e
       place of beginning.

       The Cayuse Tribe: A t r a c t of land located i n t h e S t a t e s of Oregon
       and Washington, described a s follows, to-wit: Commencing on t h e
       Drainage divide between t h e Touchet and Snake Rivers a t a p o i n t
       where s a i d divide i s intersected by a l i n e drawn from t h e mouth
       of Winnett Canyon on the Touchet River t o a point on Snake River
       twenty-five miles above i t s mouth; thence n o r t h e r l y and then e a s t .
                                            i
       and south along t h e outer rm of t h e watershed of the Touchet
       River, t h e Walla Walla River and t h e Zimatilla River, and thence
       westerly along t h e outer edge of t h e watershed of the Umatilla
       River t o and around t h e watershed of Butter Creek; thence north-
       e r l y along t h e divide between the watershed of Butter Creek and
       t h a t of Willow Creek to a point on s a i d divide which i s w e s t of
       t h e mouth of Butter Creek; thence e a s t t o t h e mouth o f Butter Creek;
       thence up t h e Umatillz River t o a point two miles below t h e town-
       s i t e o f Echo, Oregon; thence along a s t r a i g h t l i n e t o t h e source
       of t h e south f o r k of Juniper Canyon; thence by a s t r a i g h t l i n e t o
       t h e Walla Walla River opposite t h e mouth of Touchet River; thence
       up Touchet River t o the mouth of Winnett Canyon; thence along a
       s t r a i g h t l i n e drawn from t h e mouth of Winnett Canyon t o a p o i n t
       on Snake River which i s twenty-five miles above i t s mouth t o a - -                 '


       p o i n t on s a i d l i n e which i s the place of beginning,

       42,    With r e s p e c t t o the remainder of the o y e r a l l a r e a s claimed by

 p e t i t i o n e r and n o t included i n Finding 41, the Commission f i n d s t h a t t h e

 evidence i s i n s u f f i c i e n t t o e s t a b l i s h exclusive use and possession f o r a

 long time, o r from time immemorial, i n any of t h e three t r i b e s comprising t h e

 Confederated Tribes of the Urnatilla Indian Reservation a t the c r i t i c a l times

 i n t h i s proceeding.     There i s s u b s t a n t i a l evidence t o t h e contrary t h a t

 -he t h r e e Umatilla t r i b e s , the Wayampam bands,      the Nez Perce t r i b e , t h e
14 Ixd. C1. Comm. 14                                                                                      103


Scake I n z i a n s , sometimes r e f e r r e d t o a s - t h e Northern P a i u t e s    -   an i d e n t i f i -

a b l e group of I n d i a n s   -   o r t h e Shoshonean peoples, and ocher miscellaneous

I n d l a a s have t r a v e l l e d , gathered, and hunted over s a i d a r e a and have taken

f i s h from i z s streams; s a i d x s e w 2 s i n common with s a i d t r i b e s and bands.

The Umatilla t r i b e s and t h e i r a l l i e s j o i n t l y began a campaign of conquest

i n t h e 1820's a g a i n s t t h e Snake Indians, a s above described; t o a c q u i r e

t h e d i s p u t e d a r e a s , which a t s a i d times and f o r a long period p r i o r t h e r e t o

were i n t h e p o s s e s s i o 2 acd use of s a i d Snake Indians.

       W e a l s o f i n d t h a t t h e t r i b e s attempting t h e s a i d conquest and use m e t

w i t h determined r e s i s t a n c e ; t h a t t h e y did p e n e t r a t e some p a r t s of t h e s a i d

a r e a s b u t t h e i r p r o g r e s s was very slow, and t h e war between t h e r i v a l groups

continued unresolved a t t h e d a t e of t h e Umatilla Treaty w i t h t h e United

S t a t e s and f o r a c o n s i d e r a b l e period beyond s a i d date.        A t no t i m e w i t h i n

t 5 e p e r i o d were t h e s a i d Snake Indians e n t i r e l y excluded from t h e claimed

areas,

       It i s o u r judgment t h a t t h e f a c t s found i n t h e i n s t a n t c a s e a r e similar

t o t h o s e found i n t h e case of Sac and Fox T r i b e of I n d i a a s , e t ax,,               v. United

S t a t e s , supra, and t h e c o u r t ' s holdings i n t h a t c a s e should a p p l y h e r e ,



                                                             A r t h c r V. Watkins
                                                             Chief Commissioner


                                                             Wm, M. Holt
                                                             Chief Commissioner

Commissioner S c o t t d i d n o t p a r t i c i p a t e
i n t h e case,

				
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