*1 claim September (b) On at- signed by authorized his refund plain- this torney on behalf filed paid recovery the taxes tiff
as set out above. plaintiff increased (c) While or two charge on one to his customers he during while period occasions out set transportation taxes
paying the ac not above, increases these taxes transportation count of ex increased rather account of period, the fee Throughout penses. trans
charged included customers his undertake he did portation tax and along customers. his
pass tax OKLAHOMA, also OF
MIAMI TRIBE Tribe, al. and et the Miami known as Godfroy, Sylvester al. et Ira
v.
UNITED STATES.
No. 2-58. Court of Claims. 13, 1959.
July
Nos. 67 and 124. This determination stages. was made in three its first decision, (March 2 Ind.Cl.Comm. *3 26, 1954), the Commission held “recognized” Miami Tribe had so-called 4,291,500 title to acres of land located the State Indiana ceded to and Oc United States under the tober be Stat. that 7 and recognition cause of such claimant prove exclu Indians did not have their occupancy sive use cede and of the land 111., Chicago, Morse, for P. Edward below, Government, d.1 The defendant cross-appellees Miami appellants and holding. appealed has In its from this Edwin and others. Oklahoma Tribe of decision, 4 408 second Ind.Cl.Comm. 111., Chicago, Rothschild, Louis and A. (September 17, 1956), the Commission Washington, C., on D. Rochmes, L. found that as the date briefs. fair ceded to had a Maloney N. James and H. Walter per value acre and the market of 75c Washington, C., Beery, filed D. brief Commission held that because the differ cross-appel- appellants and on behalf purchase and ence between that value Godfroy Sylvester others. and Ira lees per paid the land acre for 6.4c Barney Mil- Braxton Ralph and W. A. discrepancy with unconscionable Washington, C., with whom ler, D. meaning 2(3) of section Morton, Perry Atty. W. Gen. Act, Asst. 60 Stat. Indian Claims Commission cross-appellant and 70a(3), the Indian U.S.C.A. § appellee. judgment were entitled to claimants The Government has for the difference. Judge. MADDEN, appealed decision on the from this finding ground that the ultimate 75^ claimants The Indian per for the land market value acre appeals from a cross filed States have primary supported In 1818 is not rendered determination final Commission, findings their Docket Claims Commission dian area, 815,000 ership con there was title acres of the issue On hearing tjiat Commission established Delawares solidated (Miamis), Dock interest 67 and 124 one half Nos. had a Docket amounting acres, (The 3,859,000 Okla Tribe of Peoria No. 314 Miamis et Miamis, 1,929,500. Na and Dela of the Wea behalf Weas al. on The homa et (Absentee agreed of the land tion), value No. Docket wares Map Oklahoma, Boyce’s Indiana (represented Delaware on Delaware Tribe following al.). 99) tribes as of valued The et tract should Nation presented claims: their of October Miami intervened date having 15-D); (Docket (the ceded Citi tribes No. two Pottawatomie (Docket No. and October on of Pottawatomie October zen Band their (Dock Kickapoo 1818) 311); deter of Kansas the Commission’s Tribe 315)'; Miami case et in the Six Nations al. value The mination et No. binding 89) ; (Docket Weas Hannahville No. would be 29-B). (Docket Community and 337. Nos. 314 No. in Docket Delawares present in Dock of the inter issues held that none of certain Because Commission not which were an interest 314 and had established et Nos. venors Commission, petitions ripe of inter and their for consideration ceded area appeal be made the Weas No has could dismissed. no award vention Accordingly, instant dismissal. Delawares. from this taken been (Dock appeal the Miami the Miamis involves held that 124) 124 in ti Nos. 67 had established Docket Nos. 67 et ceded; have 4,291,500 determinations cases final acres of the tle to their own made. had established Weas primary not Government to conciliate these hostile some of the supported bring evidence, peace tribes and to about a state of substantial whole between as a record tribes themselves. To both the basis reasonably the Indians and the could white inhabitants of more the United paramount value States land was a matter of have market reached a fair importance per The Indian claimants and the settle- acre. conflicting disputes concerning appealed on ment of decision from this have also ground continuing claims ulti- thereto was a concern the same Congress. bring market value about mate acre order of 750 tranquil by any supported the more state of affairs between the in 1818 is not *4 findings Commission, primary In- but themselves between and findings except dians In- which the white inhabitants for certain of negoti- urge States, properly United dian claimants findings are not the Government all, peace ated numerous of Indian claimants do treaties at friendship primary of attack the establishment correctness boundaries between occupied ir- the areas contend that lead of resistibly mar- used the tribes and to an ultimate of areas of amount in those ket value the land in an land claimed and used States, United In its third deci- as well as excess acre. the estab- of 750 relating offsets, lishment sion 494, of boundaries 5 Ind.Cl.Comm. between the 30, 1957) (September claimed and used various Com- tribes $280,500 “payment mission allowed themselves. as a claim” has and the Government July Congress On enacted an appealed from decision on the Ordinance for the Government of ground that as matter law it is en- Territories States north-
titled to certain additional deductions. west of the Ohio River known as the question first We turn to wheth- August 7, Northwest Ordinance. On er the Indian Claims Commission erred 1789, this ordinance was reenacted to holding as a matter of law in adapt provisions its to the Constitution claimant Indians’ title to the land ceded of the United 1 Stat. 50. The United to the States under the 1818 printed margin ordinance recognized Treaty had been and acknowl- pp. provided govern- Stat. 50-53 edged by the United States so that the territory ment of a which later became required claimant Indians were not Ohio, Indiana, the states of Illinois and prove aboriginal their exclusive use and Michigan. pro- In Article III it was occupancy of area from time imme- vided : morial down to the time of the 1818 ces- “Religion, morality, and knowl- sion. being edge, necessary good gov- happiness ernment and the We shall review the of man- facts on kind, which the Commission schools based means of edu- its conclu encouraged. sion had, cation shall prior the United States forever be good 1818, recognized always to the The utmost faith shall Indians; perma claimant Indians be observed their towards the enjoyment property nent use and by their land and shall never ceded Following taken from them without their consent; Revolutionary conclusion War, property, their territory rights liberty, they much of the ceded to the United never shall disturbed, Great Britain east be invaded or of the Mis unless in sissippi occupied just River and lawful wars Indian authorized tribes, many Congress; of whom jus- but laws founded in hostile humanity peace States and far from tice and shall from with time to made, preventing wrongs -eachother. It was the time be desire of the new being part them, preserv- western of Ohio where Cleveland is done to ing peace friendship now with located. From the mouth of the river the ran south them.” line about 70 miles Lawrence, Ohio, to Fort thence west policy pursuance ex- across the center the state pressed provision of quoted in the above border of what later became state Ordinance, An- the Northwest thony Wayne General Recovery Indiana at Fort on a branch appointed commis- the Wabash River. The line then went negotiate treaty hos- sioner to slight angle southwest at a Ohio Territory. tile tribes Northwest River on the border between Indiana and em- In phasized instructions it was his Kentucky point ato on that about border bring attempt to he should 25 miles west of the Ohio state line. concerning agreement a divid- about an that same article ing boundary line lands used between tribes, peace in consideration occupied ter- Indian tribes established, goods already received belonged ritory thereafter and to be received instruct- He was also United States. indemnify States, and to *5 boundry between establish the lines ed to injuries expenses United and States separate the lands owned the tribes during war, sustained relinquished their ceded guar- territory. the He was authorized to of to the all their claims right antee to the Indian tribes the to lying the to to east and the south by them as soil lands owned the in the identified that line. This cession is of against any citizens or of the inhabitant Royce’s map on of Indiana and Ohio as During United negotiations the course of the States. Area 11 and the cession included about Wyandots, Dela- the of Ohio south of two-thirds of the state wares, Shawnees, Ottawas, Chippewas, line, a less than one-third the little Pottawatamies, Miamis, River, Weas, Eel state, plus part of the eastern of that Kiekapoos, Piankishaws and the Kaska- triangle of land in eastern Indi- narrow kias, apparent would became large cession, ana. In addition to this possible persuade time at that be to to United the tribes ceded the States agree the tribes to to definite bound- tracts of small land Ohio some separate aries between their areas occupied by various Indiana which were accordingly treaty occupation and his installations, and the Indi- permit him instructions were altered to agreed people to allow the ans single treaty make a with all of the to passage by States free land and United establishing overall bound- tribes the through country lying the Indian water aries of the land owned them along posts chain included in the defining bound- without inter-tribal cessions, and the free use of har- small treaty negotiated aries. The at along mouths of bors and rivers August 3, Greenville and executed on adjoining the lakes Indian territories for purposes 49. The 1795. 7 Stat. landing of vessels and the the shelter cargoes. treaty put to be to an end declared warfare, to destructive all con- to settle treaty parties, Treaty troversies between the In Article IV of the of Green- agreed and to restore ville, free intercourse between to relin- signatories Indian tribes and the United States. quish the Indian to to the Treaty In III of lying Article Greenville Indian lands north of the general boundary line between the River, Mississippi River, east of Ohio agreed to be owned the United south of and west and the Great Lakes agreed uniting the lands be owned them, according States to and the waters line, agreed boundary the Indians described. This line on as Greenville Line of Great Britain known United States and in began Cayahoga Treaty 80, reserving the mouth of the at Stat. to point at Lake Erie in the States four tracts United of land in- River eluding post of Fort States to' thé out of at the Indians located one protection in south- River States Wabash United Vincennes on the particular “relinquishment” such a This tribe on Indiana. whose land western might stat- settlement be made could drive the United States punish settler off him manner consideration made in ed peace thought cessions tribe also and of the fit. The article established by provided relinquishments made of lands that because such settlements injurious III was intend- would be in Article to the Indians Indians liberality States, United the United States indicate the the United ed great represent liberty means would be “the settle- States and to to break such strong per- up, rendering peace punish ments set- remove and protect petual.” In for the cessions tlers and return thus guaranteed States, previous the Indians articles. agreed States deliver In Article In- VII Indians certain annual allowances given dians were the they hunt within varying amounts. the land which had ceded long United properly. behaved Green- V Article precisely ville it was what was declared meaning provided intended “re- to be the Article VIII it was linquishment” opened made to the trade would be with the Indian land Article tribes afford tribes would treaty. protection properly IV of the Article V traders. licensed provides of Greenville as follows: orderly provided IX set- Article for an *6 any prevent by superintendent “To misunderstand- tlement the Indian of ing any might disputes about the Indian lands relin- also that arise. It by quished provided planned the United States a tribe make that if to article, against explicitly States, any fourth is now de- war the United tribe clared, meaning learning that the that re- of such intention of should im- linquishment give mediately commanding is thus: The Indian to the notice right troops tribes have a who to those officer the of of the lands, quietly enjoy them, post. return, to at the nearest In the dwelling hunting, planting, agreed give United States notice the long they please, any thereon so with- harm Indians of which it learned any might against out planned molestation from the United the tribes. States; tribes, when or those Although Treaty the of Greenville did any them, disposed of shall be to sell not establish boundaries between the any lands, them, their signatory tribes, lands of various the are to sold to the United treaty representatives tribal to the States; sale, until that the United understood dealing States was protect will all the said independently with tribe each enjoyment quiet Indian tribes in the the others and that boundaries would be against of their lands all citizens of as between established the various tribes against the United negotiations. future The work of de- persons other white who intrude fining preparatory these boundaries upon the same. And said Indian seeking further cessions of the lands de- again acknowledge tribes themselves belong Treaty to the clared Greenville protection be under said Henry Indians was entrusted to William power United States and no other Harrison who became Governor of the whatever.” Territory Superintendent Indiana treaty making pro- In it was Article VI Indian After a Affairs. thor- any ough study problem citizen or that inhabitant of vided inter-tribal might upon boundaries, United States who settle Governor Harrison com- relinquished by by negotiating project the United his menced treaty being Treaty property with the Greenville the sole Dela- tribes on 74. In June Stat. wares. treaty Article I of noted that that August Treaty In of5 Ai'ticle lo- boundaries tract of land stipulated it was Unit- cated Fort in southwestern Vincennes negotiate ed States would with Pian- Indiana, re- which the States had acknowledg- kishaw tribe to secure its served for its in Article IV of use ment of the title to- Delawares Treaty Greenville, had been difficult country the tract of ceded in 1 of Article to determine but the boundaries treaty. August 27, 1804, On agreed upon. had now area This agreed (7 83) Piankishaws Stat. of land known Vincennes Tract as the cession of the Vincennes Tract covered' Royce’s map 26 on Indiana. Area Treaty Greenville, to the cession of land south of tract August 18, 1804, On Governor Harri- Treaty the Delawares in Article of negotiated son with the Dela- August 18, 1804. The ces- Delaware Indians, ware Tribe of 7 Stat. sion of land to the south and east treaty, Article Delaware Royce’s Vincennes Tract is Area 49 on tribe ceded to States all their map of Indiana. right country title tract of River, August 26, 1805, bounded on On the south the Ohio Harri- Governor River, Secretary son west the Wabash wrote stat- of War Indians; ing Treaty of north the tract ceded Miami Tribe of agree (1795) recognize and redefined would not Greenville Dela- (the Wayne (1803) of Fort ware Vin- claims forth set in Article 4 of leading Tract) cennes road and the the Delawares to country Vincennes Falls Ohio. Arti- between the White River and the 4cle of this it was Ohio River stated Tract. east the Vincennes Delaware tribe Governor Harrison had exhibited to Governor stated that he finally proof persuaded Harrison sufficient of its the Miamis country lying all the between the Ohio intended in the 1803 Council at Fort. Wayne recognize right, River White River to concede *7 that, original tribe, Miami who the own- title in the Delaware Tribe to upper part country, proposed ers of the tract and so he to take a cession- acknowledged explicitly disputed had the the title of area the Miamis. letter, In the Delawares at a tribal council held the same Governor Harrison- Wayne Fort at June 1803. The United stated that Pottawatomies final- the had agreed given ly any right up States then it the in- interfere might consider Delaware future the tribe as future sales of land which made- rightful country of all owners the the the on the Wabash Miamis River and stating north, guarantee waters, White River on its bounded the the “The south, general tribes, the boun- those the Ohio lands to the three call' who dary running Miamis, from the line mouth of the themselves could not be avoid- Kentucky (the they ed, River the east on Green- as insisted with the most Line) persevering obstinacy but, and one of northern I boun- conceive- ville get of the tract ceded Article 1 that difficult daries it will be no matter to treaty them, years, and that ceded in the course of a few to- Treaty (the they make a of the of Greenville Vincennes division now Tract) any rate, point, and the At on the west hold in common. southwest. a treaty consequence gained, article thus of much has been This identified getting acknowledge- land in tribes to tract of southern a Indiana through forms southern south The’ Ohio River eastward central Indiana boundary through Riv- of Indiana White the Vincennes Tract to the bor- beginning at the Illinois border runs der of er Ohio. waters, title to and its above the exclusive Vincennes their country [Miamis’] Tract,3 Wabash, Vin- above the and which of the has not ceded States, by any Harrison Tract.” Governor this form- cennes discussing negotiations they engage treaty; er in connection do his farther (near they purchase any part Treaty will Grouseland with the Vincennes, Indiana) August 21, country the said consent of executed without the treaty be- each Article con- Stat. 91. This said tribes.” IV Miamis, proviso nothing tained a treaty United States and tween the River, Pottawatomies, Delawares, Eel would be taken weaken treaty might Kickapoos claim which In I have and Weas. Article of country they occupied fourth ar- was stated that whereas on treaty (northwestern with the Dela- Vermillion ticle of the 1804 River In- agreed diana) Pottawatamies, . V wares the United States Article Miami, River, Eel owners consider the Delawares as the Wea ac- tribes knowledged right White River land bounded Delawares to south, north, already conveyed sell Ohio on the the tract of land Vin- Greenville the east and the I Line on in Article west, treaty (Royce Indiana). and whereas 1804 cennes Tract on the Area 49 in Dela- Miami from whom Tribe September 30, On 1809, Governor Har- insisted their claim wares derived negotiated rison Dela- convey intended to had never wares, Pottawatamies, Miamis, and Eel right occupy Delawares more Wayne, River Indiana, Miamis Fort Delawares, temporarily, 7 Stat. 113. In Article peace, relin- had decided to the sake the four tribes ceded to the United States quish to re- claim to that tract and their a, lying just tract of land north of the guaran- United States from lease the Vincennes tract in western Indiana and treaty. of the 1804 tee made Article Royce’s map indicated on Indiana II of Grouseland Article Area 71. In the same these article tribes Miamis, tribes Eel River and Wea strip also ceded narrow of land ceded the United States the tract edge eastern of Indiana bounded on the I identified on in Article land described east the Greenville Line and Royee’s map of Indiana as Area on the south the Grouseland Line III, in Article in consideration (Royce’s 56). Area In the second arti- cession, the United undertook to treaty the cle edged Miamis acknowl- give perman- the three additional tribes equal of the Delawares Miamis, ent annuities $250 $600 *8 country with themselves “to the watered the each the Eel River and to Weas. stipulat- River” the White and it was Treaty party dispose the Article IV of of Grouse- neither ed that could of Miamis, the land it was stated that since the without the of same consent oth- the treaty Eel and Weas them- River considered In Article IV of er. the it agreed stipulations be selves to one nation that all the in stated dispose Treaty of them respect- that none would of the ing of Greenville of 1795 country common, paying held of in the the the manner of annuities and agreed to consider them United States of the Indians the to hunt country “of all apply owners the Wabash lands should to the the annuities occupied hy 3. The extent of the area intended to he tion tract the the Dela- of provision identifying River, in included on the White wares which was to Miamis, joint property the owned somewhat clari- be considered as the of report fied of Governor Harrison the Miames.” them and From the cor- Secretary 22, respondence of on to the War March and documents in the record 1814, appears he stated of the wa- the White River was at tered the Wabash .that time considered to one be of the sup- “which were to iands declared be of the “waters plied.] Wabash.” [Italics property Miames, ecccep- to the loith the 934 St. Treaty of land between the Miami Mary’s granted in the ceded Indiana Rivers in northeastern noted Wayne. 5 was In Article Fort of map (identified Royce's on Area tribe Wea that the consent Indiana). to the complete title necessary to Indiana western ceded first tract 1818, By Treaty 2, at of October separate 71) (Royce Area 185, Potta- Mary’s, Ohio, St. 7 Stat. into treaty entered would therefore north- watomies a tract of land ceded States. United the Weas and between western on western Indiana Wayne Treaty Fort In Article of identi- River north banks of the Wabash agreed signatory cede tribes Royce’s map Area fied on Indiana as on an the.
United States
area
2,1818,
treaty
98. In
October
another
above
of the Wabash
northwest side
tribe,
Mary’s, Ohio,
Wea
St.
with the
vicinity
Rac
Tract
Vincennes
186,
United
Stat.
ceded to
Weas
agree
Kickapoos should
Creek
coon
owned
States
lands claimed
73 in
(Royce’s Area
a cession
to such
Indiana, Ohio
them the
states of
Indiana).
to themselves
and Illinois and reserved
1809,
26,
Treaty
tract
land which was later
By
of October
6,
gave
on October
consent be within the cession made
116,
their
the Weas
Stat.
map
1809,
1818, by
(Royce’s
30,
Treaty
September
the Miamis
to the
114).
of Octo-
Royce’s
ceded Indiana
Area
In a
Area
connection with
Delawares,
treaty.
Stat.
In the ber
with
latter
Article 1 of the
188,
1809,
9,
claims
all their
Treaty
the Delawares ceded
of December
gave
Indiana,
117,
Kickapoos,
tribe
the state
7 Stat.
Royce’s
agreed
provide
Dela-
cession of
its consent
Mississippi
west
ninth article
wares with land
Area 73 in then
Treaty
September
and also River.
.agreed
States
cede
spring
In the
of 1818 three commis-
just
lying
Area
above
tract
.additional
negotiate
appointed
sioners were
trea-
Royce’s
74 on
Area
73 and identified as
ties with the
Miamis and other
map of Indiana.
tribes in
Indiana for
cession of
Treaty
4, 1816, at Fort
of June
In the
lands watered
the Wabash and the
Indiana,
Harrison,
7 Stat.
the Weas
May 2,
White Rivers.
In the
letter
recognized
Kickapoos
and confirmed
Secretary
from
of War to the
1795 and all
of Greenville of
treaty commissioners it was stated that
subsequent
them.
treaties made
part of
because that
Indiana to which In-
boundary
they confirmed the
Article 3
already
extinguished
dian title had
surveyed
marked
line
was of an “inconvenient form” it
land on the
the two tracts
object
negoti-
prospective
ceded
Rivers
the White
Wabash and
acquire
ations
the tribes such
Wayne
1 of
Fort
Article
being
“as,
additional
cessions
added
(Royce's map
September
present,
will render it more conven-
72).
Kicka-
71 and
Areas
Indiana
compact.”
ient and
In a letter to the
*9
acknowledged
by
poos
the terms of Secretary War,
19, 1818,
of
dated June
they
Treaty
9, 1809,
of December
Cass,
treaty
one
from Governor
of the
iden-
the tract
the United States
ceded to
commissioners, he stated that
because
Royce’smap
on
of Indi-
as Area 74
tified
by
country
the Miamis in Indiana
owned
ana.
by the Government was
and desired
world,”
29,
equal
Treaty
September
1817,
“probably
to
he
of
In
powerful
Senacas,
160, Wyandots,
inducements
Dela-
recommended
Stat.
necessary
persuade
Shawnees, Pottawatomies,
to
wares,
the Mi-
Ot- would
the cession and that the in-
tawas,
Chippewas
make
of
to
ceded
tract
amis
map
be “visible and imme-
(Royce's
should
87 on the
Area
ducements
land in Ohio
“prospective
triangle
and con-
Ohio)
rather than
included a small
diate”
of
which
tribes,
tingent.”
granted
Department
annuities
other
the War
to the
Neither
necessary
this was
Miamis’
records nor the
of
because the
records
proceed-
journal
claim to
more exten-
Office
the lands
much
contain
ings
Mi-
sive.
of the commissioners with
negotiation
amis
with
in connection
1818,
Treaty
6,
In the
of October
Depart-
Treaty
of
the 1818
the War
189,
Stat.
Unit-
to
Miamis
ceded
report
ment
dated
records do contain
ed States the area of land involved in
28, 1818,
by
Jen-
October
made Governor
present
Royce’s
appeal,
e.,
99 on
i. Area
commissioners,
nings,
treaty
one
map of
of this
Indiana.
boundaries
Secretary War,
to
to the
relative
fairly
by
area had been
well established
1818 with
treaties executed
in October
agreements
the cessions and
described
in In-
Miamis and the other Indians
treaties,
e.,
above-mentioned
i.
on
diana.
In
instructions
northeast
boundaries of tract
they
been told that
commissioners had
29,
Treaty
September
ceded in the
grant
might,
absolutely necessary,
1817,
160,
7 Stat.
on the east
the west-
reservations
the use of the tribe
boundary
Royce’s
ern
Area 72 ceded
grants
make
influential
individual
to
September 30, 1809;
on the south
with the
chiefs and half breeds but
boundary
of the northern
qualification,
the lat-
in connection with
Royce’s
Treaty
Area 56
ceded in the
grants,
they
disposed
ter
could be
August
1805;
Grouseland
with the
of the President.
consent
boundary
southwest
the northern
It
even
was the desire of the Government
Royce’s
Treaty
Area
ceded
early
at that
date move
Indians in
to
September 30,1809, and on the northwest
Mississippi
Indiana west of
River
boundary
Royee’s
the southeast
possible
procure
if it were
the consent
Area
ceded on October
of the tribes to such a
At that
move.
the north and
northwest
Wabash
time the Miamis would not even consider
Treaty
River.
In
Article
moving.
Jennings’ report
In Governor
October
certain reservations
he
stated that he
unable to avoid
were carved
out
the area ceded for
giving
large
the Miamis the
reservations
Miamis,
the use of
and Article 3
demanded
had had
he
granted
the United States
certain tracts
grant certain tracts of lands to individ-
simple
principal
land in fee
respect
large
uals. With
reserva-
chiefs of the Miamis
indi-
Miamis,
tions made for the
Governor
vidual Miami Indians.
In
Article 4
Jennings stated:
Kickapoos’
Miamis assented to the
ces-
large
“To the
reservations made
Royce’s
sion
Area 74
villages,
on account of their
the In-
United States in the
of Decem-
higher
dians have no
title
ber
Article
they formerly
held the
agreed
pay
per-
States
to the Miamis a
cession;”
same before the
petual annuity
together
$15,000,
all
grant
treaties,
other annuities under
connection with the
former
individual
paid
Richardville,
principal
in silver.
chief
agreed
tribe,
Jennings
also
the Miami
Governor
build for the Mi-
stat-
gristmill and
amis a
ed that
sawmill
without
wherever
Richardville’s influence
might
might
built,
negoti-
the chiefs
wish them
not have
and to
provide
gunsmith
a blacksmith and a
ated and that on the
occasion of the
give
agricultural
Wayne
implements
the tribe
of Fort
in 1809 it persuaded
annually.
Richardville who
*10
160
of salt
Miamis
and
bushels
This
agree
joint tenancy
6, 1818,
Royce’s
to
to
with the
cession
Dela- October
Area
by
large
wares to the land watered
the
White
was the last
cession in Indiana
Jennings
pointed
by
River. Governor
relinquished
also
of land
the United States
annuity
signatory
out that while the
Treaty
to the Miamis
to the
tribes of
the
disproportionately larger
than the of Greenville.
the
Indiana ceded to
United States
facts
the
above
the basis of the
On
1818.
concluded
Indian Claims Commission
(1795)
Treaty
that in
of Greenville
the
by
held
Where Indian lands are
and did
to
the
intended
aboriginal
title,
e.,
use
so-called Indian
i.
recognize
right
the
of all
title
and
the
right
occupancy title,
occupy
and
their
Miamis,
including
signatory tribes,
the
permissive
the land and
temporary
use
is
and
Delawares, in the
the
the
Weas and
right
may
this
title
and
within
relinquished
the United States
extinguished
the United States
IV that
the
Article
area described
time,
with or without the consent
treaties,
subsequent
treaty,
Indians,
by any
means which the
Treaty
including
particularly the
sovereign may
appropriate.
deem
Treaty of
(1805) and
Grouseland
conferring
legislation
special
absence of
upon
Wayne (1809),
owned
Fort
the areas
jurisdic
some court or commission
including
tribes,
separate
the claim-
adjudicate
tion
relative to
matters
herein,
located
identified and
ants
right
permissive
occupancy,
again acknowledged by
right
disposition
Government’s
such
property of the
be the exclusive
States to
political
judicial
is a
not a
matter.
respective
also
tribes. The
Northwestern Band of Shoshone
2, 1818, Weas
on October
found that
States,
642,
v. United
affirmed
Ct.Cl.
815,000 acres
to the United States
ceded
335,
690,
65 S.Ct.
wished,
result in
by substantial evidence.
simple title.
less than fee
The extent
rights
urges
additional
new-and
those
that the Com-
obligations
accompanying
75(£
of the sover-
mission’s ultimate
acre
Berthold case the court held
case the court held
In the Fort
siniboine
recognized
recognized
title to
the Indians
tribe had
title to over
13,000,000
land;
6,000,000
acres of
As-
acres of land.
some
fact,
value of the land
1818 is
and whether
as the
the' Commission has
given
primary
adequate
supported
the Commission’s
and valid reasons for its
findings
findings;
primary find-
some
conclusion on the issue of
ings
conflicts value.
contain uncertainties and
the ease
be remanded
and that
should
question
On the
whether
or not
correction both as
Commission for
case should be
remanded
the Commis-
findings
primary
find-
and the ultimate
sion for correction and modification of
findings
ing
respect
value. With
parties
both
have cited this
through 31
€
Indian claimants
court’s decision in Snake or Piute In-
supported by
contend are
dence,
evi-
substantial
dians
Former Malheur Reservation in
the Government contends that
Or. v. United
F.Supp. 543,
*15
findings
generalities
these
are
mere
for may States, be found v. It of Tillamooks United evidence. duced Band 938, 463; Department F.Supp. 1950, War at 115 Ct.Cl. records of the 87 Furthermore, in Rogue v. Archives. of Indians United National River Tribe Treaty supra; Lewis States, and Missouria Commissioner Otoe letter from 19, 1818, 1955, Cass, to the June Secre- Indians v. United dated of Tribe 593; War, F.Supp. tary was stated that because 131 Ct.Cl. 131 country purchased Kiowa, Comanche, Apache from the v. States probably equal Indians, F.Supp. 603, D.C., “is Indiana 163 Indians in Tribes any powerful 16, 1958, Osage, supra. July induce- in the world” decided tract, to be Another have cession would known as ments for the the “Harrison Purchase”, comprising 2,230,816 Miamis. acres of offered land was ceded the United States on 9 and 10 the September 30, 1809, (Royce’s 7 Stat. 113 development areas discussed 71). Area It was located in west central bordering cession here of land question, apparently Indiana, opened for settlement purpose for one-fourth it had adjacent comparing areas disposed been of. quantity quality and New Purchase as settlement, A 558,149 tract of made available acres land in lands, the rate eastern demand for such Indiana known as the “Twelve adjacent Strip” disposal. (Royce’s dis- 72) All Mile Area was ceded September 30, cussed had been ceded to the United States on prior owners 7 Stat. opened 113. The tract was disposed to for nearly and much of it had been settlement in 1811and prior percent to that date. settlers of this tract had been dis- posed of. 3,150,299 known as Some acres of land had been Commission found the “Greenville lands” ceded that none the tracts described were the United States under the above on the good August Greenville, 3, 1795, whole as as the 7 Stat. land included in the New Purchase opened Cession settlement and were good October 681,298 Approximately acres of lands in ad- these jacent lay only by areas pur- border available Greenville eastern prior chase from of Indiana in small tract known “The settlers rather triangu- Gore”, Government, apparently very because high prices. good shape All lar of the area. rest of land in the parts lay more country distant in western Ohio. Greenville east By and south approximately percent of Indiana had 73.3 been settled good lands, per- little of the Greenville and 86.3 remained. of the lands in the Gore cent 11 the Commission found disposed of. that the settlement of the whole North- 1,202,262 Territory of land west There acres pattern followed set known Tract area as the Vincennes wherein the settlers followed the most Indiana ced- up located in southwestern accessible routes and took the most ed to the United States under the desirable accessible lands first. (Royce’s 26). Area Greenville The first settlements in new area in- opened desirability This tract was not settlement creased bility and the accessi- disposition adjacent until 1807 and settlement of all Although areas. *19 this area retarded of ex- was because the Commission drew no conclusion from isting finding, French settlements. Further- it is obvious from the facts more, opinion earlier, as noted in this found earlier that the settlement of the findings Commission, and in the Greenville lands Strip, the Twelve Mile the Vincennes Tract Purchase, boundaries of the Harrison the Grouseland definitely Cession, settled until were not prior and the Vincennes Tract of June 74. to sibility desirability, 7 Stat. increased the acces- consequently and the market val- 1,557,833 An area of acres of land in acquired by ue of the New Purchase southeastern Indiana was ceded to the opened United States in 1818 and for set- of Grouse- tlement in 1820. August 21, 1805, 7 Stat. land of 91. This subsequent tract, In known as the “Grouseland Ces- Commission ways sion”, opened various pub- in discussed the in was for settlement which disposed lands lic were of from 1818 one-half of this had area 1787 to prices disposed at which of. been lands were disposed at made type held highest which sales were to disposed of land of and auctions, private how- in bidder. Those of.both the Government finding ever, periods In short were held for sales settlers. between lands 1787 one to weeks after which that between three the Commission noted open entry large public private the mini- at tracts 1795 several price per speculators at mum Com- acre. The $2.00 to land land had been sold competition steadily mini- prices mission was noted increased from among buyers in acre mized an combinations an acre in 1787 40$i 9^ already land who had inaccessible settled land was 1795. of this Much purchase; of dis- or had desired chosen the locations because at the time spe- purchase, existing settlements, mar- and also reason tance from rights priorities preemption cial such as developed. Be- ket had not been for it granted military boun- in the district and poor of lands choice cause granted ties in southern which were improper speculators, and because Indiana had served to Canadians who mismanagement, financing most of American forces. re- companies there failed and the land price found that minimum against $2.00 land popular revulsion sulted a speculators. per public acre for thus tended to land involved of the land None become maximum. speculation close land era years many and for Purchase New finding In its found the Commission activity no prior had been 1818 there comparable most size, quality the New land Although the Commission kind. of this Purchase in and accessibil- ap- express a conclusion does not ity was land ceded to Greenville pears the Commission opened States in for set- paid prices opinion tlement in and the Twelve Mile century eighteenth for companies in the Strip in eastern ceded Indiana from the New Purchase land far distant opened States in 1809 bearing have lands would no settlement in 1811. The Commission of those found that when the Greenville opened for settlement policy to that permit it was the Government’s prospect rapid less settlement was Ter- in the Northwest prospect favorable than settle- ritory the Unit- their lands to sell ment the New Purchase in be- that the United States ed States northern cause their and western borders directly to the settlers turn sold the pursuant frontiers, popula- were still Indian statutory procedures at tion western Ohio was less than three persons prices. prescribed 1800 and Between per square mile, Indiana was not statutory price for minimum 1820 the all, at settled neither Ohio Indi- nor public in this area was organized $2.00 ana state. equal acre, payable four installments Strip 1811 when the Mile Twelve in east- years, period four and the Gov- over a opened Indiana settlement ern setting purpose ernment’s western its and northern borders were most was not secure the acre yet $2.00 Indian frontiers. Indiana was public be obtained that could population state and Indiana was *20 lands, the lands available make but to only persons per square 1.3 mile. On the what quick at consid- settlement was hand, when the other New was Purchase price. After 1804 a nominal ered acquired the United States in buy less than 160 acres not could settlers east, area was surrounded on time, no and there was discount for at a and southwest areas south which had larger
purchases tracts. previously opened to settlement and largely settled, only and were north to sales to individual set- In addition northwest statutory and borders New Pur- minimum at tlers per $2.00, public were chase still bounded auctions lands. acre disposition of had of the New Purchase could Furthermore, Ohio and Indiana both density reasonably predicted in 1818 population have been and the become states making proper after had allow- Purchase New on the borders averaged ances, reasonably pre- it could have been 1820 Ohio so increased that percent mile, at that square the dicted time that persons per 14.7 disposed New Purchase lands would be eastern border Greenville lands finding years. averaged persons of In within 20 23 the 27.7 New Purchase the per square years that in also found mile. The Commission peak subsequent year to 1820 when the lands in marked a noted that the opened settlement, Migration” suit were the North- 91.7 into the “Great percent Territory public of the land was sold to settlers. that more west year in lands were sold in that finding In 16 the Commission described prior year. The Commission type of settler moved who into North- anyone attempting predict what Territory general west in and Indiana development of the New Purchase particular during years prior in time of the cession largely English, 1818. The settlers were given would have history -consideration Quakers, Seotch-Irish and and were development of the Green- farmers of money middle class who had Strip, Twelve Mile ville lands and the pay required with them $80 of similar character which included lands payment as a down on the 160-aere comparable size. involved area brought farms. These settlers with them findings 9 The other tracts described in hogs, cattle, tools, implements their Purchase, is, the Harrison goods most household of them were and the Vin- Grouseland Purchase year additional able to raise the $80 appropriate Tract, less furnished cennes guides hogs, sale of their cattle and Harrison Purchase since produce pay subsequent three in- opened until for settlement stallments. The settlers were self-suffi- 56) (Royce Area cession the Grouseland ability pay cient and their exposed were more which had frontiers general not affected finan- Greenville frontiers of the than the depressions conditions and cial adversely which Strip, lands, Mile and the Twelve and the people who affected en- im- had been settlement Tract Vincennes gaged They in business. cleared presence French settle- peded portion of their 160-acre tracts finding 21 the Commission In ments. they needed to which establish self- percent of the than 70 more noted that sustaining remaining farm and the acre- Greenville area lands contained original age usually left its wood- Strip had been dis- Mile Twelve disposed ed and was state prior posed and that consider- a later time. farmers at disposed inof had been able land found that the Commission the settlers areas desirable described less other pay- in Indiana seldom defaulted in their said above. principal ments, and that defaults inaccurately appraiser had defendant’s gave which rise criticism of the cred- of sale the Vin- the rate determined engaged system Government Tract, Harrison Purchase and cennes public of its sale lands occurred because he Cession had the Grouseland in Alabama and not Territory. the Northwest as available for the lands included reserved for which had been sale finding 18 the Commission found grants, private claims school year unprecedented was a with- optimism fluctuations of market. from the drawn cycle did not affect business trend *21 finding 22 conclud- In Territory in the Northwest of settlement shortages currency rate sales because since ed credit easily adjacent lands,, solved in that area comparable the rate were barter. 948 consequence were finding the reserved sections described In 19 the Commission public quality unreserved as the steady the same in sales of increase surrounding Territory immediately them. sections from in land Northwest through The Commissiontherefore concluded sec- the substantial sales of reserved again finding In 24 the Commission place if tions would never have taken any
noted that since almost public price a fair minimum had been $2.00 prior was available domain of market in the Green- measure regardless qual- per 1820 at acre $2.00 lands. It also ville concluded ity location, no incentive to or there was priced at been Greenville price purchaser pay than the more pur- acre if the an $8.00 $4.00 including authorities, those which all permitted 80- chasers had to take by defendant, nom- considered to be cited tracts, acre tracts instead of 160-acre inal. Commission concluded that The prob- disposition rate of the lands Government sales therefore little ably substantially would have been in- determining mar- assistance in the actual creased. adjacent ket value of lands to the New Pur- Purchase or of lands the New finding 26 the Commission described but that addition the nominal chase selling procedure public at price land, the record Territory. auction in the Northwest It types contained of two evidence the auctions noted that were for short gave which of sale the Government lasting periods weeks; from one to three value of better idea the actual the land. activity public prob- at auctions was types These of sale described ably people retarded because knew that and were substantially comparable land would sales so-called reserved sections and shortly be at the minimum available public sales auction. made at price of an acre. The Commission $2.00 squatters also noted that (finding 25) Commission found together prevent competitive banded that in the Greenville area the Govern- bidding the Government did little to possibility ment demonstrated the of ob- asserting prevent squatters from taining average substantially an rate preemptive rights their claimed per excess of the acre minimum $2.00 ultimately recognized Congres- statutory price public By land. stat- enactments, despite sional but that these provided 1796 it was ute in that the cen- deterrents, the record showed a substan- might township tral sections of each public tial number of sales at auctions disposition by reserved for future Con- prices above the minimum. $2.00 Those gress. Congress In 1805 authorized ranged an acre. $2.00 $8.00 sale of these reserved sections at a mini- acre, price mum $8.00 and between Commission turned 2,972 1805 and 1808 acres of reserved free sales between of so-called evidence sections in Greenville lands were sold adjacent to the New areas settlers price. for that prior 1818 cession. This Purchase Congress form deed records reduced the mini- In 1808 evidence acreage usually in showed price the reserved sections to which mum although during paid, the next an acre volved $4.00 improvements, if 116,085 of such reserved sec- and extent years acres nature always sold, was per any, at or above the sold $4.00 tions were During The record indi price. deeds. same shown minimum acre that land time, the Commission land was sell- unreserved cated period of Strip prior was re Mile The Commission ing an acre. Twelve at $2.00 tracts of acres settlers in reserved the selection sold noted averaging arbitrarily prices acre. $5.87 section more setions period average quality maximum between reference without number entry original tract and its resale that as a reserved and sections
949 years. years The Commis New Purchase found to be between the was 7% prices ranged most of the tracts found that from a sion substantially pe high low of in shorter an $2.50 resold acre to been $150.00 following original entry an and that acre. riods average could not have farm resold finding In 31 the Commission found subject improvement much for been average cost to the Government years purchase, five more than after surveying selling public land at average since settler did clear the time of the 6.2¡S cession 40 acres of his a. total of than more per acre. improve main 160-acre tract finding Commission found ments on the cleared section consisted following that the ratification log primarily of a a small cabin and 1818 under which October fencing. estimating amount After acquired the Government the lands in type improvement, this cost Congress suit, to sell intended these average (cid:127)Commission concluded that pub- same which other terms price net resale of lands Twelve marketed, is, lic been lands had Strip per Mile was about acre for $4.46 statutory per price the minimum of $2.00 ^unimproved land. just acre, but that the lands were before Congress passed the Commission opened stated for sale legislation between 1815 and 1818 reducing first rate un new minimum improved land southern Indiana and price public for lands from $2.00 $1.25 western Ohio sold for from per payable $4.00 $8.00 acre cash. The reduction per villages acre even when price public remote from in the minimum for land was higher prices and towns political much than eco- result of rather were obtained when the tracts (finding 15) were near nomic considerations settlements. The Commission found that continuation was a Government’s expected finding 13, policy, Government officials sales in the described in earlier (Royce’s 71) selling Area Harrison Purchase the land to settlers at a nominal opened securing for settlement in 1816 and imme price the Gov- rather for adjacent diately to the New Purchase on ernment the that could been most have southwest would be from $6.00 obtained for land. The Commission high (finding 14) an acre. Prices as $8.00 $30.00 new $1.25 actually during per price public acre were realized land minimum quent for subse- public period in "the sales pre- Harrison to 1820 tended become vailing price public Purchase. market lands as minimum earlier had the $2.00 adjacent Lands the New Purchase in New Pur- most selling western Ohio were in 1818 for although for acre chase sold $1.25 from an acre in areas re $4.00 $8.00 high- prices many were recorded at sales villages; unimproved mote fertile minimum, particularly er than ing dur- lands near settlements sold an aver early sales age acre; unimproved an $8.00 The benefits of Graduation villages principal close sold from $20. August 4, 1854, 574, per- Act Stat. acre; -00 to an land within 12 $40.00 mitting the land which had sale miles of Cincinnati sold from $12.00 years for more than ten on the market and, occasion, an acre sales $30.00 prices, at reduced to be sold by purchasers invoked were made for an acre within $150.00 suit in con- three miles of Cincinnati. The Commis percent less than one nection during sion noted the time these the New Purchase. being prices paid, Government- selling (finding 29) owned land acre. Commission found $2.00 Finding showing highest 28 contains a table and best use prices unimproved development by obtained for suit was for land in set- slightly improved homesteads, lands in near of which areas fact tlers *23 very good what the idea of well Miamis had a the land of
Indian owners actually the found their from land was worth further Commission aware. The treaty vicinity that it negotiations white settlers in the the for that in the impossible had had secure 1809, to 30, Miamis therefore been September the of requested huge terms better Government land cession permission treaty. directly He white in the to that included to sell their lands necessary re- make noted that to Government it had but that the settlers grants simple influential to in fee do so. to allow them to fused individuals, that individuals those findings not make did exception Richardville, with could concerning settlers private between sales dispose lands without their although Purchase New in the permission of the He then President. such evidence contains the record although stated that the consideration make did the sales. Neither given including land, Miamis for the Unit- findings fact to reflect the might large annuities, in com- seem of such States considered ed given parison with consideration (reluctantly) it authorized value adjacent lands, he other tribes felt special treaty to offer its commissioners good bargain that a had been made for members of influential inducements the United States since the land ceded grants by way of individual the tribe equal- type the Miamis of a was “not instructions, dat- letter of in fee. In the by any led in the state.” Cass, 1818, 29, Lewis ed June respect make was told With commissioner mentioned above resort, grants simple grants only the in- last fee half- as a to influential saying: breeds, the Commission failed to make structions findings pursuant to the effect indispensable be “Should 7 of Article of October treaty, on sat- formation to the isfactory conditions, 6,720 7 Stat. some acres of some repurchased those lands were few fee to some be ceded should ranging prices Government at from $3.84 half-breeds, tribe, persons in the per only eight to years acre. This $6.90 may great influence, it others grant- the same land after had been guarding done, man- the sales ed to the individual Indians the ad- however, This, above stated. ner purpose inducing mitted those indi- avoided, possible, as should viduals to exert their influence on the interest of to sacrifice the would be large tribe to secure cession desired accommodation tribe to the by the United States in 1818. The total perhaps innocent individuals— expended reacquire amount that land ignorant the artful and un- $25,780.00. in 1826 was principled.” anaylze proceed to the re- Before we a num- Article findings maining Commis- granted in land were fee tracts ber of of the value of matter sion and trib- simple to influential half-breeds we wish ceded the pro- in Article it was al members have we examined the record state granted except tracts vided findings already dis- Richardville, Baptiste the tracts to Jean based, cussed granted not be could transferred so fully supported Why the evidence. grantees their heirs without “the to make an failed ulti- the Commission approbation Unit- President grant drawing the obvious con- mate to Richardville ed States.” carefully prepared find- clusions respects. In his in all re- absolute through ings do 31 we not know. following 28, port of October Finding merely summary Treaty, 32 is the 1818 Governor execution plain- Jennings, conclusions reached commission- one certain prob- respect Secretary appraiser ers, tiffs’ War advised in the but rather, the lands able public acre as a matter of *24 6, policy, setting New October 1818. price Purchase as of public for such appear had It lands at that the what was considered to be a very figure form its get to before it evidence nominal sufficient in order to more opinion probable own value of lands into the hands of the settlers. The in without record supports lands the New Purchase as a whole the conclu- appraiser, plaintiffs’ al- sion assistance reached the Commission in the though findings. relied earlier much of the evidence The conclusion reached findings making finding its the Commissionin supported by 36 is not sub- through 6 evidence used stantial contrary 31 was the same evidence and is to eárli- arriving findings plaintiffs’ appraiser. In er supported by which are sub- per acre the Commis- stantial at a value of evidence based on the record as 75<¡< ignore appears to its to have chosen whole. sion through findings 31, as well as the own 6 Finding 37 notes that in 1820 the appraiser opinion plaintiffs’ sum- system credit public used the sale of finding marized in 32. lands was abolished and the minimum price for finding such lands was the Commission summa- reduced In 33 to $1.25 permitted acre with sales found in certain Sen- whole, material rized the half, quarter respect pur- half-quarter documents with ate sections. general throughout Under the Relinquish- Relief from Indians chased ment prior Act March States Stat. settlers relinquish land that been dis- were authorized amount of such had part of posed their lands The Commission that date. satisfaction of the debt on from material the remainder. In drew no conclusion view of the findings appear 15, 16, Commission’s summarized it would and 17 to relevancy typical effect that has no that material settlers in the surrounding area instant case. issue of the New value Purchase had money pay few, their land and finding In Commission sum- any, meeting defaulted pay- Treasury report of marized a November ments, appear it would passage including fact Relinquishment Relief and Act was paying United States was percent six and seven the benefit of these settlers greater portion interest advantage was not taken them. relevancy of its national debt. The Accordingly, the circumstances relative material issues this involved in parts defaults in other of the United apparent. may is not case The same States which passage occasioned the finding 35 in which said the Com- bearing this Act would have no on Treasury report mission summarized a of the land in value the New Purchase in April 23, 1832. Finding 37 of the Commission Finding 36 contains most curious does not indicate that it was the Com- that from to the effect the be- statement ginning opinion mission’s that this Act did have public sale of bearing on the value of the New thereafter, to 1818 and United States Finding Purchase lands. 38 discusses attempting ob- price the market obtained for lands in “high from the tain the dollar” sale of Kentucky prior but the Commis- public This lands. statement its is di- finding sion states in the that Kentucky rectly contrary statements made in comparable lands were not to lands in- previous that, noted above volved in the instant lawsuit. setting public minimum prior Finding an acre lands at 1820 and $2 39 is large concerned with' acre speculators the $1.25 sales made between attempting was not to secure for itself 1795 but the Commission states “high dollar” or even the true period that neither nor the in- public disposing comparable lands it was of volved are with the land and finding present law- Commission states period involved appraiser that the defendant’s evaluated suit. the New as worth in 1818 Purchase finding Commission recites 40 the percent an acre and that total that as show certain statistics acreage was not saleable at all. In view country land than more whole the had finding by of an earlier the Commission pages money. quotes percent that over 90 area of the entire Studies relative Economic Harvard *25 actually by was the sold it- Government prior depressions to 1820. financial for self no less than an acre in the $1.25 findings 16- In Commission’s view the years finding subsequent 20 Indiana 18 that settlers who appears merely to be a statement of what by finan- were not affected farmers appraiser’s opinion the Government’s prior period cial crisis finding and not a of fact on the saleabil- finding relevancy ap- the parent. is not of this ity of the in the land New Purchase. Finding finding 46 is ultimate finding quoted In value, objected by Commission on by appraiser a statement the defendant’s parties ground both to the suit on the finding independent but no as makes nothing previous findings in the can sigificance which, statement be found to indicate clue as to the vague general indeed, 75^- is a rather by acre found the Commission as finding again one. In 42 the Commission the value of the New Purchase' statements made summarizes certain on October appraiser respect the defendant’s with prior in Indiana available opinion In its on the issue of valuation actually disposed and land of. In find- and unconscionable consideration, ing pointed 21 the Commission had out Commission stated what the evidence of figures respect that the defendant’s parties consisted of and reviewed the disposed to land of in available earli- findings contents of sizing briefly, its empha- er Indiana and Ohio cessions were inac- adjacent the fact that the lands in curate because of failure to eliminate areas to the land in suit had been dis- land reserved the Government from posed prices of at a rate at sufficient public pur- sale for schools and other indicate the Government poses. The Commission also found in anticipated ready should have sale of four earlier of the tracts the land in New Purchase for the appraiser selected the defendant’s for price public then minimum for comparison with the New Purchase were acre, being an$2 such land more desira- quali- dissimilar to New Purchase in adjacent ble and accessible ty soil, and that two of the tracts already largely disposed the Gov- (the selected Vincennes Tract and the ernment. The Commissionalso discussed Tract) relatively Ohio River dis- reports expert ap- of the claimant’s Appar- tant from the New Purchase. praiser appraiser. and the Government's finding ently is inaccurate rejected It the conclusions on value of any particular signifi- without tract in suit reached the claimant cance. appraiser giving any Indians’ without rejected reason. It also 43 the conclusions *26 conditions country clusion public that the amount of land involved, during period it throughout available the United States Pur in the New land concluded and the economic country condition per on acre cents worth 75 chase was seriously had a bearing adverse bn the give these to 6, If we October market value of in the land the New they would which reasons content Purchase in 1818. support given the conclu to .have to be sion, by supported findings those are not view of reasons fact dis- by evidence, Commission’s above which nor cussed we have found to be by findings. supported evidence, has substantial we opinion were Indiana in 1818 are the settlers land; given pay adequate proper for their cash has not able to well reasons buy ability un the land was for its conclusion that the their land ceded in per acre, conditions worth economic 1818 was 75 cents adverse affected as it thereafter, country required 1818 and to do is Section 19 of :in In- val a wholesale which fair mine the market in 1818. 6. The basis value Un- might ease, be estimated was land der the ue of the circumstances of this such speculating paid by theory prices com land century, seems untenable. Miamis prior long permission panies the 18th asked in 1809 to sell directly As found the Com land the 1818 cession. their when settlers companies mismanaged mission, Government’s minimum $2 they bankrupt. The and went methods acre. Permission was In 1809 refused. and including employed, fraud, caused them thereafter settlers in Indiana wanted this great money pay disfavor be held in Gover land had the and it. public any application Furthermore, paid and nment and the the Miamis were not of their standards to the Government the actual fair market value their purchase any of Indian is unthink at future time so that Furthermore, they, 1818, able. there the owners of the land in nev- large group willing any got respresenting in Indiana a and er amount the fair purchasers responsible they able who were market which could have in- percent. Discounting farmers. buy settlers could did These vested at percent tracts 80-acre made available to fair market value in 1818 at period them in dispose 1820. While it is true that for the it took to large effect, is, charging tract could ceded not have been the Indians in- purchasers once, sold to individual all at terest on fair market value did giving was the Government which decided not receive and the Government acquire large money part this tract at one time interest on it did not with disposed got. to hold it until of in small tracts for land which it In 1818 the In- parted to settlers. got dians with their land and no acquired money. got Because the land in 1818 was The Government the land disposed parted money. not all of for more than 20 no If the In- years acquisition, keep after its there some is dians had been allowed to the land notion themselves, fair market value in 1818 sell it would not have percent should be at 6 anything discounted them cost hold it. period held before sale in order deter- Further- Act. land ceded Claims Commission tribe dian findings, pursuant more, those same we hold October through support findings do not the measure of the tribe’s recovery of value. is the ultimate difference between the Commission’s herein, cer- addition, true market earlier value of the land ceded at as noted findings follow- time of tain cession and of the Commission’s consideration findings paid all, ing finding Government, are not evidence, gratuities merely less any recitations offsets for less are bearing payments findings is- may have no the United States have decision, still others are made “on the sues for claim”. first blush At appears simple enough supported but, not substantial evidence formula findings contradictory unfortunately, always earlier are is not although supported example, evi- For easily which substantial case. Finally, may some dence. the record contains determinable consideration be stated treaty, may not been material evidence which has the Government ac- findings. tually subject pay For less made the amount and it actually paid repre- the amount these reasons the Commission’s determination, sents the issue of the Furthermore, consideration. payments suit as October value of the land in made in fulfillment of obligations may payments the Commis- will remanded to *27 of and fur- payments sion for further consideration consideration and not proceedings, necessary, “on ther the claim”. consistent opinion. with this Treaty case the In the instant 6, 1818, provided con that in of October Payments and Offsets Deductions for by the tribe the cession sideration of the on the Claim pay to should a United States the tribe proceeding to determine separate In a annuity perpetual $15,000 in of so-called de- and offsets allowable of the amount grist silver; a construct that made ductions, the Commission sawmill; provide it would mill a and that there should concluded of fact and gunsmith (later a a blacksmith repre- $7,257.33 an offset as allowed be senting gratuitous changed miller); pro that would to a expenditures made agriculture implements vide for the benefit of the annually 160 furnish bushels of it would tribe, and that there should be claimant proceedings Early this salt. payment award as from deducted litigation parties stipulated that 7 $280,500 repre- sum of on the claim capitalized considerations had a or these capitalized senting val- the commuted $280,500 up made funded value obligations to of the Government’s ue capitalized $250,000 which was value 6, of October under the the tribe annuity annuity $15,000, such of the appealed has 1818. The being $250,000, $30,500 percent of 6 determination rel- Commission’s from the representing the funded value of the sum latter the deduction ative to goods actually render services ground such sum does not treaty. under Pur ed to tribe actually paid amounts additional include parties stipulation suant this treaty. terms of the under the the tribe $280,500 as used the consideration agreed actually purchase sued on herein is The claim one or alleged paid consideration tribe for land ceded for unconscionable paid the United States on basis this amount it was have 4,291,500 tribe for acres to the claimant the Commission quantum determining the 2 the Indian Claims Commis- “In of relief Section appropriate provides respect to deduc- shall make Act sion payments final award for all made from a Com- deductions tions * * on claim : mission paid approximately treaty purchase price States had 6.4 cents consideration capitalized annuity then de- of that acre for land ceded and that, comparison with the payments termined but all annuity actual of such payments market value of the land in on the claim and are deduc- per consideration of 6.4 acre was tible award, citing cents Quapaw the final unconscionably In an an- low. amended Tribe Staes, of Indians v. Ind. making years swer filed some four after Cls. part Comm. affirmed in regard- stipulation part, the ing mentioned F.Supp. 283, above reversed in treaty value of the consid- Ct.Cl. 45. In that case the Commission eration, and after the Commission had annuity this court allowed a limited ($1,000 year determination rendered its on value and years) for 11 to the extent that, had actually concluded therein basis paid ($7,450) it was as a stipulated treaty payments consideration of deduction for on the claim aris- ing treaty under 6.4 cents had the 1824 acre re- of cession. We senting consideration, note repre- ceived an unconscionable that case sum actually paid filed an defendant amended answer annuities also treaty treated in which it stated that the consideration consid- $280,500 stipulated eration not intend- the ceded land in the deter- represent ed the United States mination the Commissionthat the con- paid the amount the United States sideration was unconscionable. The paid parties agreed Quapaw “on the claim” and that it was claim- case had ing payment actually $7,450 paid by as a deduction for the Gov- treaty annuity provision claims not consideration ernment under the $280,500 stipulation represented part referred to in the payments but also all the annual consideration and was deductible $15,000 payment was, between on the claim and there when, accordingly, under the no June discussion in the briefs *28 annuity (and concerning opinions 10 Stat. the 1818 or the the all nature of others) payments. opinion, terminated such and We commuted are the paid however, payments and the tribe was the such funded value on that account annuity. annuity probably The total amount of a limited of such now in- payment purchase price as a claimed the defendant stallments of a stated on and such, $841,820.89. actually paid, rep- the claim is as to the Commis- extent opinion sion was of the stipulated that the resented the consideration for sum the cession parties payments the and as on the claim. the considera- actually paid land, e., $280,- for the tion 500, i. In the instant case dowe not have a only payment was also the made provision annuity for a limited but rath- which fell States within the United meaning the provision perpetual annuity. er a for a “payment phrase the on the situation, payments a such made 2 in section of the Indian claim” Claims pay- thereunder are to be considered as Act, and that the additional annuity claim ments on the and the ac- payments which the Government now tually perpetuity, continues in no claim deducted to have seeks the final for unconscionable consideration could something pay- award were treaty ever such arise under since ulti- opin- on claim. We are of ments the the mately tribe the would receive far more Commission has ion the reached the than the fair market value of the land result. correct although payments ceded agreed the annual might the United appears States be posi- It be the Government’s entirely treaty so small that would be in- pay- tion that consideration adequate to meet the annual needs claim treaty on under the ments the same involved. tribe necessarily be will not the same amount that where consideration for a ces- from the Aside fact the record annuity, is in terms of stated sion herein indicates the United States 956 annuity provided to' be a which consid- named did not intend the opinion annuity,8 perpetual we eration for a cession should be held only the trust or the in- invested in securities and considered rep- annuity capitalized paid terest or dividends thereon value having price purchase or considera- with resent tribe the Government money principal acquired under use tion for until the land it payments situations, treaty paid. was annual amount only As such $15,000 payments principal of in- con- were treated amount is the capitalized sideration on value and that consideration is not terest such pay paid any payment should is nor on until the United States there producing given in- principal principal such claim until amount sum is terest Soon after no to the tribe. Indians. the instant case
treaty annuity proclaimed, represented by the United consideration Treasury up paid sum of payment its books set no was made $250,000 rate of which interest at the claim consideration until' percent paid annuity Miamis to be 1854 when was commuted' obligation paid fulfillment commuted value was to the year. pay $15,000 That tribe. principal on its sum States considered purchase price conclude We purchase ($250,000) books capi- in 1818 was the land ceded cession, or consideration for the 1818 an- funded talized or merely $15,000 payments of the annual goods nuity plus value of the funded principal amount on the interest actually paid services, tribe' only retained, evidenced not treaty, in the total' as a result of procedure entries, also book that, $280,500.00 and that amount in an earlier followed the Government judg- from the final is deductible amount in this certain other tribes “payment on claim”. Ac- ment as September area. In the Commission’s, cordingly, affirm we Wyandots with the Stat. ques- on the and determination Indians, six the Govern- other tribes pay- deductions for tion offsets agreed that, in ment in Article 4 consid- claim. ments cessions made the trea- eration ty, pay to three of the tribes CONCLUSION “annually forever” certain stated *29 summary hold the Com- we Report Com- In a of Senate amounts. determining that in mission was correct Lands, December mittee on Public dated land ceded Indians held the claimant 29, reported 1817, the con- it was 1818, 6, on October to the United paid for sideration these tribes recognized by Indian title did not 1817 was cents 8 land ceded in mills aboriginal prove use therefore have per was arrived acre and this amount ceded, occupancy area of the so using computation “pres- by in determination on this Commission’s e., princi- annuity”, worth i. ent On is affirmed. issue of issue the. percent produce pal sum which at land ceded in 1818 of the value treaty. in the annual sum stated opinion Miamis, we are supported opinion is because of value We are of ultimate findings primary which the manner in discharge obligation pay must its and that the case chose annuity permanent Commission for further the so-called remanded to obligation tribe, pri- proceedings viewed and correction of both claimant findings mary ques- that created in identical with treaties ultimate 1826, concerning 23, the modification of October 7 Stat. 1826 annuity provisions 8. See report of earlier in- treaties Article commissioner, cluding dated October October subject On of offsets the fair project tion of value. the matter market value of the opinion are of the that the Commis- as of October 1818. we result and has reached the sion correct thorough Mr. Starrett made a exami- affirmed. its determination thereon is nation of the which is the records judgment final is vacated and way years values as existed 140 for cause remanded ago may be determined. He examined question of value reconsideration Geology pub- Handbook of Indiana opinion. with this accordance Department lished of Conserva- tion. publica- One of the authors MILLER, Judge, WILBUR K. Circuit published tion had a book on the economic sitting by designation, LARAMORE, geography of Indiana. This book was Judge, concur. published by Appleton Company prepared Visher, Steven A. professor who was a geography Judge for JONES, (dissenting). Chief University. Indiana think I there is substantial evidence The records which he examined show- support of the Indian Congress ed that was disturbed Claims Commission lands in- large fact that undeveloped tracts in the volved in this case had fair market country sections of the had been sold value per October of 75 cents per a few cents speculative Some acre. amply supported acre. This is purchased concerns had and resold west- the record made before the Commis- - huge profits. ern lands for sion. The summation made the Com- concluding findings mission in its large A Terri- Northwest respect value, great while not in tory beginning developed. detail to be In- fully support sufficient that deter- diana was admitted to the Union as a mination. 1818; 1816; Illinois in State Ohio in Michigan 1803, and 1837. In con- The witness Paul Starrett is the one troversy as to the best method of dis- thorough witness who study had made a posing properties vast subject of by these and mani- this entire of values as shown festly avoiding purpose specu- particular the records in this area and Congress lation, price minimum fixed a areas which he served. He acre, spent many later years which was reduced $2 appraisal has many parts lands, $1.25. of the northwest sale of and since 1934 has had his price headquarters area for sales in small business tracts Indianapolis, approximately Indiana. double Before that he had done a great larger could be obtained when tracts deal of work in connection with appraisals large were sold. Sales small tracts would projects business surveyed, kept, have to many appraisals records had made properties given many corporations details attention. in the Middle West. hasHe *30 had headquarters his business thorough Starrett, analysis in Mr. after a Indianapolis continuously records, since the be- of the found that a considerable ginning of 1935. appraisal He question has portion done tract of the in had to be work for the American Company, drained, present Can and while at the time it Chrysler Corporation, Oil, Shell productive parts oth- of the is one most large er concerns. He is a country, member of at that time much itof was the American Institute of Real Estate not then suitable for immediate settle- Appraisers, and at the testimony time his There was little ment. means of trans- president was taken he was supply portation, of the Indi- few stations and much chapter organization. ana of that He was fact, of the area inaccessible. was a witness cross-appellant, quotes he from the 14th Census of appellee. who is also He a search United States made in 1820 and cites of the records appraisal and made an report analytical from census tables position designate “Approximate Location takes the the Commission finding Drainage proper not on this Operating Enter- did make a and Area of prises, Findings Again disagree. report issue. I The Indiana.” State finding and 46 conditions in constitute clear on this as to other data had much subject. findings support Evidentiary parts of the Nation. the different findings. these ultimate Commis- early Hamilton Alexander As as sion had evidence of the various wit- pressure in- had conflict told finding in nesses decided before it and pub- secure desire to terests between the per 46 the acre as the date of value providing problem of lic revenue and the transfer and cession. unde- then homes for settlers by ap- experienced country. offered As witness veloped the new areas of pellant as specu- date early fixed value as problem the as 1795 the per comparing sought the con- $1.87 when acre. eliminated lator to be was flicting offered evidence of value public various unde- parties, per Indian Claims Commission veloped acre. raised to $2 areas was pressure concluded that the involved interests as conflicts of These on October case had fair market value in- revenue and between maximum 6, 1818, per was acre. There $0.75 as of 1818 terest of the settlers were certainly support substantial evidence a number still undetermined. While finding the Commission’s of value. more, the sales tracts were sold at $2 had were less in 1818 than Since the case is to be returned years during next few majority opinion Commission, di- as the difficulty had in col- considerable rects, I think case should the entire lections were numerous for- and there gone including again, question into high- Many sales at the feitures. of the of title as well as entire of value. The prices tracts. er were of selected reopened case should be so that na- appellant’s ture of beneficial interest considering the numerous rec- After in, books, as of the use of all histories well the extent maps,
ords, question explored could be reports, the land Mr. Starrett census 7,000,000 the reexamination of of the the value the value the land. October was as a whole taken acres acre. 20 cents only 1,000 There were Miami of the groups Tribe of Indians scattered permitted to reverse a arewe Since 4,291,500 ques- There this area in 1818. of the supported There is only acres of land involved. ing no show- is not of value tion evidence, how the Indians to me as to used the it seems often by substantial great They testimony light of this area. vast stretches very experienced only occupied portion ap- small it. only who witness thoroughly examin- praiser who Supreme The later cases both escape record, have no we ed this court are to Court and effect Commission’s conclusion the finding grant by treaty is a where there supported sub- Congress a or act definite definable evidence. stantial may for exclusive use tract or tracts “Recognized majority opinion what is In- does there be termed Apparently the proof of there without use oc- question fact that was sub- dian title” *31 support cupancy. I have been the Com- unable find evidence stantial corners of four value. Rather within the mission’s (1957), light 253), (No. especially 5 Ind.Cls.Comm. true in the 9. This is which construction same trea Commission’s subse- a Claims the quent ain later case of the Mi- was involved. decision ties of Indians v. ami Tribe anything approaches The Indian Claims Commission heard language description, by express a evidence, either extensive examined numerous any or documents, reference to or many exhibits, and examined act that meet that test. Such conflicting. some of which were I think vague tragic terms as lands “watered it would major be to affirm the “by Wabash” or White River” are disputed case, most issue in the wholly insufficient. question recognized is the title to this area, vast when there is little evidence The maze of earlier treaties refer the use of the area or substan- also to other tribes furnish infor- little part tial thereof and at the time mation as to same definite boundaries tracts granted question reverse action on Miami Tribe question which given or latter there to areas them for exclusive certainly use; substantial evidence. no information whatever as occupancy the extent of actual use or As the case is to be returned to by such tribes. Indian Claims I Commission trust go fully will absence of such definite bound- into both use, of may proof complete aries and these issues exclusive so that must a record occupancy. made of use made before final action is taken important questions. these “Recognized This court should not find slightest I Indian title” have not the where the tract is not doubt apart or Indians are defined entitled to definable area that is set recover on the Congress basis of or act the actual value of their occupy occupancy 4,291,500' and question, exclusive use use the claim- they actually ant acres in tribe tribes. There is no sufficient proof “Recognized occupied. used and Indian title” The extent of that bearing there is no evidence in use the record should have ac- on the value Indians, occupancy by tual beneficial exclusive use and interest of the question. little, claimants of area in any, the area and proof frequency amount and great portions the use of WHITAKER, Judge, joins area in the fore- question. going dissenting opinion. notes appraiser appraiser of the defendant’s stated that it. the defendant’s because support population felt the evidence did not as- white of Indiana in 1818 indulged sumptions in, particular southern third the- centered in assumption land would In view fact that not sell' state. minimum an- state Indi- $1.25 two-thirds northern percent occupied average, and that owned land' still ana Although tribes, scarcely was unsalable. this statement is the Commis- on sion did not comment surprising. two theories. iurged e., Government, practically whole and that i. there were no de- necessity faults provisions sale or resorts to value of the land relief discounting Act; despite market value Graduation large length public time amount available 6% sale hands generally, remained unsold in the land States there Government, ap lively was a the Commission demand for the land avail- rejected pears Indiana, large able comparable both theories.6 have and that tracts of disposed land had been stated conclusion, the Commission by the pub- acre $2 fact, findings of that, of its on the basis sale, lic for more at auctions and on sales large (1) amount -and in view of sections, reserve even more Unit .public for sale land available private sales between settlers. We Unit population of (2) ed accordingly at a loss to understand whole, (3) the economic ed as a why the Commission states in its con- throughout prevailing