Brief for Petitioner — Creek Nation v. United States
Supreme Court brief1962
Ask Donna
What actually matters in this document.
Text
- a Mw
RFIilLbkD
Office S_preme Court
MAR 21 1962
. JOHN F. DAVIS, CLERK
“J
JS.
Supreme Court of the United States
Ocroser Term. 1961
No. 124
Tue Creek Natron or INpbIaNs.
Petitioner
v.
Tue Unrirep Srates,
Respondent
BRIEF FOR THE CREEK NATION, PETITIONER
THE CREEK NATION, Petitioner
Pavi M. Nresen.
Attorney for Petitioner
!
WILSON - EPEs Printine Co - RE 7-6002 - Wasninctron 1 D C
INDEX
SUBJECT INDEX
Pag
Opinions REESE SNS Me GS NE er SE. NETO ]
BREST Ee LAL OEE eg I CE OE 1
Treaties and Statutes Involved 00000000. »
ENN tr UIE cicacalesetk Senescence ctcrsdnccnnectbenis daaoraandb nico Hs)
i et evita ice .
Ciaims Under Treaties of 1802 and 1805 6
Claim Under Article XIII, Treaty of March o4,
RRR a ie Ge PaTI Py ae OO ee Ae 18
Claim Under Treaty I ater 21-22
Claim Under the Treaty of 1856 —220 2... 95)
Summary of Argument ......................... rachcshatcmasiaiined 2 ae
MI peisctentacsttitcnncccnstecerniclablichpnctein aloe ess redtehece deci anipn 2 ies. 41
1. A Fiduciary Relationship Exists Between the
United States and the Indian Tribes, Requir-
ing the United States to Account Strictly to
the Indian Tribes for the Disbursements Made
by It in Fulfillment of Its Treaty Obligation-
with Them ..... SPU Coote Se” Rats ASI FM See EEE
2. Petitioner Was Entitled to Rely Upon the
Admissions Contained in’ the Government's
Accounting Report ......................... Sichisiaataves
The United States as the Fiduciary Has the
Burden of Proving the Credits it Claims |
4. The Majority of the Court of Claims Failed in
Its Duty as an Appellate Court Under Section
20(b) of the Indian Claims Commission Act to
Determine Whether the Findings of the Com
mission Are Supported by Substantial Fvi
dence When the Findings are Challenged on
NE acticin eee Gngicileis Hhene
*-
~~
41
il INDEX—Continued
PAGE
Claim Under Treaties of 1802 and 1805 ........ 64
Claim Under Treaty of 1832-00000... 65
Claim Under Treaty of 1833 _20220.0.....--.- 66
Claim Under Treaty of 1856 20.00.0000... 67
5. A Denial of a Writ of Certiorari by This
Court Does Not Constitute an Affirmance of
the Decision of the Lower Court -....................... 75
CII | acca a ciechiachcc ct echseeittinadeerlaceentntecbinonaticenninansbeaiis 77
TI baila initia caepeieretibii aac anieutiasacnstnenn 78
Text of Seeret Articles of the Treaty of August
Ba I cata eh caintiek bet aaeike hg cena, aca shantcescivceneig 78-82
Articles V, VI, and XXVI, Treaty of August 7,
1856, 11 Stat. 699, 2 Kapp. 756 _..................-... 82-84
Article XI, Treaty of June 14, 1866, 14 Stat. 785,
RN, I ic irri . 84
CITATIONS
Cases:
Akin v. Warner (1945, Mass.), 63 N.E.2d 566,
Atlantic Coast Line R. Co. v. Powe (1931), 285
U.S. 401, 402-404 2000. AES DS Rae ee ...... 40, 76
Benbow v. Benbow (1934, 117 Fla. 37), 157 So.
Bennett v. Weber (1936, 323 TIL. 288), 154 N.E.
Cherokee Nation vy. Georgia (1831), 5 Pet. 1.
OR AD ARRAS rear le ars FS eae ano aE RED 35, 42
Chickasaw Nation v. Tni'ed States (1945), 103
C. Cis. 1 (eert. granted 326 U.S. 217, but limited
to offsets, judgment reversed)... ............... 17, 69,
Chickasaw Nation v. United States (1955), 132
ee ees MG. II we octassicg wh cance bce hcip rund dhe hrs neeinbente 46
INDEX—-Continued 1
PAG
—- Nation v. United States, 21 . Fata no,
2-93, reversed (1886), ae S. 1, 27-28 .:.. 34, 43-44
Peas v. Scott ge (.C.A. 5), 102 F.! 7 (20 .... 39, 61
Colorado Coal Co, Peed aie (1887), 125
U.S. 307, 318-3 o. an Ee . oS, 61
Conners v United States (1898), 33 c. Cs, olf.
325, affirmed (1901) 180 U.S. 271, 275-2760... 40,75
Creck Nation v. United States (1988), 78 C. Cs.
re oe 52
Creek Nation v. United States (1948), 318 US.
KS ARTRIRESRS NR RU IRN AINE SACRO sO APP TN ED RAY Bl cera 36, 46
Creek Nation v. United States (1952), 2 Ind. Cl.
ea BR SI8 ci nid. ieee . 43
Creek Nation v. United States (19: 50). 7 Ind. Cl.
SI 2 rr i a 49,55, 76
Darr v. Buford (1950), 339 ULS. 220, 226-228 .. 40,76
Dick vy. Albers (1910, 248 Ill. 231). 90 NUE. 683.
Ria URES 2 SA in Ek a HR SR ge 37, 50-51
Dillman vy: Hastings (1892), 144 U.S. 126, 140-
ENC SERS RR SSE RES SA bret ee ee BEM, Fe 4
Florida Fruit Canners v. Walker (1927. ie & C A.)
90 F.2d 753, 758 ........... 32 Bi-ae, Oo, oe
Garrett v. First Nat. Sauk a Ted c 0, of Vicks.
burg, Miss. (1946, C.C.A, 5), 1523) F.2d oe).
Gila River Pima Mevicosa Indians Vv. Peaad
Stetes (1956), 135 ae Se Be sce, 46.47
Hamilton-Brown “— Co. v. Wolf Bros, and Co.
(1916), 240 U.S. 251, 958 a a 40.76
Harrison v. Remington eit Co, (1905), 140 .
385, 402 . ees iat ae
House v. Mayo (1945). 304 U. S. Pp. 48. : : Ai 76
Txqram v. Lewis (1930, C.C.A. 10), 37) Fie ,
I ns a I cs is, chain Ghsssitechsonanacecoovones en 2
In re Tretheway’s Estate (1989, Cal.), 89 P.2d
INDEX—Continned
PAGF
Kansas or Kaw Tribe of Indians vy. United States
— (1934), 80 C.Cls. 264, 301-302 (cert. den. 296
AE ia seas tcdbensiiipnb ape incectadpaitaccnseenaiia abcess 47
Kiowa, Comanche and Apache Tribes (1957), 5
Ind. Cl. Comm. 297, affirmed United States v.
Kiowa, Comanche and Apache Tribes (1958),
" ge, SE SF i ee
McComb v. Frink (1893), 149 U.S. 629, 644 ...... 37,54
Nenominee Tribe v. United States (1944), 101
a Ae i MIE heciicoedioctininsiettidaccennstie vesseeeee BO-et. 40-44, 51
Menominee Tribe v. United States (1945), 102
NE XE RAR aR TEE NAR MU ei Stal as Re 46
Menominee Tribe v. United States (1951), 118
5a RR ER ees en 39, 62
Merriam v. Venida Blouse Corgoration (S. D. NY.
1938) 23 F.Supp. 659, 660-661 . oe wee
Montoya v. United States (1897), 32, C. Cl. 349,
361-362, affirmed Montoya v. United States
te: Do ae RR eae ee 40, 74
Omaha Tribe of Nebraska v. United States
(1957), 6 Ind. Cl. Comm. 68, 71-74 .00..0022002 2. 47
Quick Bear v. Leupp (1908), 210 U.S. 50, 80-81... 35-36
45. 47
Rossi v. United States (1933), 289 U.S. 89,
Seminole Nation v. United States (1942), 316
OR Ss yal ate Cena 20, 36-37, 42. 44-46, 51.71
Seminole Nation v. United States (1942), 316
Rea ed 20, 37, 72
Sioux Tribe of Indians v. United States (1946),
BO ES GOD Sick consist rncruns 17, 37-38, 47-49, 52. 76
Snake or Piute Indians v. United States (1953),
135 C. Cle. 245, 255 ~..-.... ..... 20, 39, 66, 72
Smith v. Robinson (1914, 83 NJ. Eq. 384), 9 A.
wee. 1666 ........... me _ 38, 58
Smith v. Tolversen (1934. ‘Wise }, “959 NW. 423.
ERS SRB Shee srcdiens Samer aig Pca Se aR aes tera 38, 58
INDEX -- Continued v
PAGE
Sunal v. Large (1947), 382 U.S. 174. 181... .... 40, 76
Talbot v. Automobile Identification Underwriters,
Inc. (1931, Tenn.), 43 S.W.2d 220, 221 ........ . 38, 08
United States v. Bull Steamship Line (S.D.N.Y.
1956), 146: F.Supp. 220, 218 ............................... 4 39, 61
Onited States v. Carver (1928), 260 U. S. 482,
Nt EU TU DILL RAE EN LIS 7 EN 40, 76
United States v. Creek Nation (1935), 295 U.S.
Ws WERE el sctninccadechacccniPoe edsmeckcanses 35-36, 42. 47
United States v. Denver & R.G.R.R. Co. (1903),
Pe oT EE ics ech acbtaacnedeniuia uae, 38, 61
United States v. Kagama (1886), 118 U.S. 375,
STE TUR PIES DE SIRI rete OU ea AE Pe ERT PO 30, 43
United States v. Payne (1924), 264 U.S. 446,
UIE ececeachistiinenisinigasenuntbloult Hg sckdelieg’ Jadisisniatiay eckaboricicat a 30, 44
United States v. Seminole Nation (1959), 146 ¢
Cl. 171, 181-182, 178 F. Supp. 784,790... 36, 46-47
United States v. Shubert (1955), 348 U.S, 222,
UTR TERRI PA ghee: LACE Ne ented Nr 40), 76
Tilla Site Co. v. Copeland (1920, 91 N.J.Eq. 505),
BAe aie ey Oe DO icine ccc, 52
Statutes:
Act of—
July 7, 1638, ¢. clexevi, 5 Stat. 290 ........................ 2
June 17, 1844, ¢. eviii, 5 Stat. 704, 706 . Soir
May 27, 1902, ¢. 888, 32 Stat, 245, 249-250. ?
May 24, 1994, . 181, 43 Stat. 129 52
August 13, 1946, ¢. 949, 60 Star. 1049, 25 TLS.C,
eet a EMME PEA NMOS BRET Bata Merce Aecuecsins 15,52
INE Se toicsedccak oe ike Pncek inactcdensrees eg Ws ae
En CECE mene Ss Ee
SENSE REN ETERS TF
Resolution of —
February 22, 1862, 12 Stat. (14 33, 67.73
Joint Res. of May 19, 1926, 6. 341. 44 Stat. 56s 52
Joint Res. of Feb. 19, 1929, & 268, 45 Stat. 129. Be
vi INDEX—Continued
PAGE
Treaties:
August 7, 1790, 7 Stat. 35, 2 Kapp. 25 .. 11-13, 31-32,
42, 47, 59-60, 64-65
June 16, 1802, 7 Stat. 68, 2 Kapp. 58. 6-7, 31, 59, 62, 64
November 14, 1805, 7 Stat. 96, 2 Kapp. 85 ..... 9-10.31.
59, 62, 64
March 24, 1832, 7 Stat. 366, 2 Kapp. 341 ...... 18-20, 32,
62, 65-66
February 14, 1833, 7 Stat. 417, 2 Kapp. 388 ...... 21, 32,
62, 66
January 4, 1845, 9 Stat. 821, 2 Kapp. 550... 19
August 7, 1856, 11 Stat. 699, 2 Kapp. 756 .... 22, 25-26,
s 33, 40, 62,67, 72
June 14, 1866, 14 Stat. 785, 2 Kapp. 931 ........... 33, 68
Treaty with Confederate States, July 10, 1861... 33, 68
Miscellaneous:
ke te: | ssid suc naaieiaaoiaibeapimantcaneneian 1,2
Bogert, Trusts and Trustees (1948 nd.), Vol. 4,
Pt. 2, See. 962, pp. 239-242, 244-245... 38, 57
a Trusts and Trustees (1948 Ed.), Vol. 4,
PR, STR Fis Wii wicca cccnneriensennmennsinanrnsiennne 37,52
Bogert, Trusts and Trustees (1948 Ed.), Vol. 4,
Pt. 2, See, S960, np. 207, FOO ..............0......neeenrs 37,53
Bogert, Trusts and Trustees, See, 971, p. 828... 98
Pomeroy’s Equity Juris. (4th Ed.), Vol. 2, See.
> ce ees 38,98
Restatement of Law of Trusts, Amer, Law Inst.,
Vol. 1, See. 172, pp. 445-446 .................-.-.-.. 38,58
Seott on Trusts (2nd Ed.), See. 172, pp. 1287-
BO ccecemes shen. cntengnnstamanesiensnesenniuaeannanannnannmnnsannnnins 37,52
Vattel, Book ITT, Ch. XVITT, pars. s, 292, 293, Chitty
Bid., popr, 424, 427 nnn. see eeececeeeeeesenees ce teneneees 39-40, 73
Words & Phrases (Perm. Ed.), Vol. 8A, p. 103 2. 90
Supreme Court of tie Hnited States
Ocrorer Term, 1961
No. 124
Tae Creek Nation oF INpIANs,
Petitioner
We
Tre Unitep Srates.
Respondent
BRIEF FOR THE CREEK NATION, PETITIONER
OPINIONS BELOW
The opinion of the Indian Claims Commission is re-
ported at 7 Ind. Cl. Comm, 117, 127 (R. 264-283). The
opinion of the Court of Claims of Mareh 1, 1961 js not
yet reported (R. 292-315).
JURISDICTION
The judgment of the Court of Claims was entered on
March 1, 1961 (R. 292). The petition for a writ of certi-
orari was filed on May 29, 1961, and was granted on
October 9, 1961 (R. 315).
The jurisdiction of this Court is invoked under 28
U.S.C. 1255 (1), and Section 20(c) of the Indian Claims
Commission Act (Act of August 13, 1946, ¢. 959, 60 Stat.
1049, 1055; 25 U.S.C. Section 70s).
>
TREATIES AND STATUTES INVOLVED
The Indian Claims Commission Act of August 13, 1946,
e. 959, 60 Stat. 1049 (25 ULS.C. 70-70v), provides in
pertinent part as follows:
“See, 2. The Commission shall hear and determine
the following claims against the United States on
behalf of any Indian tribe, band, or other identifiable
group of American Indians residing within the terri-
torial limits of the United States or Alaska: (1)
claims in law or equity arising under the Constitution,
laws, treaties of the United States, and Executive
orders of the President; (2) all other claims in law
or equity, including those sounding in tort, with re.
spect to which the claimant would have been entitled
to sue in a court of the United States if the United
States was subject to suit; (3) claims which would
result if the treaties, contracts, and agreements be-
tween the claimant and the United States were revised
on the ground of fraud, duress, unconscionable con-
sideration, mutual or unilateral mistake, whether of
law or fact, or any other ground cognizable by a
court of equity; (4) claims arising from the taking by
the United States, whether as the result of a treaty of
cession or otherwise, of lands owned or occupied by
the claimant without the age ag for such lands of
compensation agreed to by the claimant; and (5)
claims based upon fair and honorable dealings that
are not recognized hy any existing rule of law or
equity. No claim accruing after the date of the ap-
proval of this Act shall be considered by the Com
mission.
“All claims hereunder may be heard and deter-
mined by the Commission notwithstanding any statute
of limitations or laches, but all other defenses shall
be available to the United States.
“In determining the quantum of relief the Com-
mission shall make appropriate deductions for all
payments made by the United States on the claim,
and for all other offsets, counterclaims, and demands
that would be allowable in a suit brought in th: Court
of Claims under section 145 of the Judicial Code (36
Stat. 1136; 28 U. S. C. see. 250), as amended; the
3
Commission may also inquire into and consider all
money or property given to or funds expended
gratuitously for the benefit of the claimant and if
it finds that the nature of the claim and the entire
course of dealings and accounts between the United
States and the claimant in good conscience warrants
such action, may set off all or part of such expendi-
tures against any award made to the claimant, * *.”
“See. 20(b). When the final determination of the
Commission has been filed with the clerk of said
Commission the clerk shall give notice of the filing of
such determination to the parties to the proceeding
in manner and form as directed by the Commission.
At any time within three months from the date of
the filing of the determination of the Commission
with the clerk either party may appeal from the de-
termination of the Commission to the Court ef Claims,
which Court shall have exclusive jurisdiction to affirm,
modify, or set aside such final determination. On said
appeal the Court shall determine whether the findings
of fact of the Commission are supported by substan-
tial evidence, in which event they shall be conclusive,
and also whether the conclusions of law, including any
conclusions respecting ‘fair and honorable dealings’,
where applicable, stated by the Commission as a basis
for its final determination, are valid and supported
by the Commission’s findings of fact. In making the
foregoing determinations, the Court shall review the
whole record or such portions thereof as may be
cited by any party, and due account shall be taken
of the rule of prejudicial error. The Court may at
any time remand the cause to the Commission for
such further proceedings as it may direet, not. in-
consistent with the foregoing provisions of this sec-
tion. The Court shall promulgate such rules of prac-
tice as it may find necessary to carry out the fore
going provisions of this section.
“(¢) Determinations of questions of law by the
Court of Claims under this section shall be subject
to review by the Supreme Court of the United States
in the manner prescribed by section 3 of the Act of
February 13, 1925 (48 Stat. 939; 28 U.S. C., see, 288),
as amended.”
4
The pertinent provisions of the treaties and statutes
involved in the claims of petitioner are printed as a part
of the Statement, or are set forth in the Appendix, pp.
QUESTIONS PRESENTED
1. Whether the United States has an obligation to
render a clear and accurate accounting of its dealings and
the fulfillment of its treaty obligations owing to an Indian
tribe in the manner of a fiduciary or of a superior and
learned power dealing with an unlettered and inferior
tribe or race; or whether the United States is merely
in the position of a debtor in its relationship under a
treaty with an Indian tribe.
In other words, whether a fiduciary relationship exists
between the United States and an Indian tribe (in this
ease the Creck Nation of Indians) requiring the United
States to account strictly to the Indian tribe for the
amounts dishursed by the United States in fulfillment of
its treaty obligations; or whether the relationship is
mere'y that of debtor-creditor.
2. Whether an Indian tribe can rely upon admissions
contained in an accounting made by the accounting officers
of the United States showing that the United States had
failed to fulfill its treaty obligations to said tribe, and
that balances are due and owing to the tribe under said
treaty obligations of the United States.
3. Whether the United States has the burden of prov-
ing the credits it claims against amounts showr by its
accounting to be due and owing an Indian tribe under
treaty stipulations between the United States and an
Indian tribe.
4. Whether the Court of Claims has discharged its
duty as an appellate court under Section 20(b) of the
Indian Claims Commission Act, when it, by a mere per
4)
curiam statement, affirms the findings and opinion of the
Indian Claims Commission in a ease wherein appellant
raises serious objections with respect to the failure of
the Commission to find facts essential to the proper dis.
position of the claims presented, or found faets which
were not supported by substantial evidence, or which
were contrary to the record, when the above Act directs
that the Court “shall” review the whole reeord and settle
such questions.
5. Whether a denial of a writ of vertiorari by this
Court constitutes an approval of the decision of the Jower
court.
>
STATEMENT
The petitioner, the Creek Nation of Indians, brought an
action before the Indian Claims Commission under the
Indian Claims Commission Act of August 13, 1946, &. 959,
60 Stat. 1049 (25 U.S.C. §§ 70-70v), to reeover for certain
unfulfilled obligations of the United States under five
treaties between the Creek Nation and the United States.
Petitioner (plaintiff-appellant below) alleged that. the
full amounts which the United States was obligated to pay
to the Creek Nation as considerations due for cessions of
Creek lands under these treaties were not in faet paid
in full, and petitioner claimed the right to recover the
unpaid balances (R. 1-6).
The United States answered denying that any sums
were due, owing and unpaid under the treaties in ques-
tion, “and that all of said funds were paid, administered
and disposed of for the use and benefit of plaintiff. and
in fulfillment of the stipulations of the treaties referred
to by plaintiff’ (R. 7-14). It also presented defenses of
res judicata and release, which the Indian Claims Coi-
mission did not consider in deciding the case, beeause
it held that petitioner had not proved its case (R. 273,
282).
-
6
The Creek Nation relied upon and introduced in evi-
dence before the Indian Claims Commission pertinent
extracts from a report of the Government's own General
Accounting Office setting forth in detail all treaty pay-
ments made by the United States to the Creek Nation
under the treaties in question, shown by the records which
were maintained solely by the Government, and now in
the custody of the General Accounting Office. In other
words, the Creek Nation relied solely upon the accounting
of disbursements under these treaties made by the Gov-
ernment’s own accounting officers, and the admissions
made therein showing that balances were due the Creek
Nation under these treaties. The Government's account-
ing does not specifically show that the entire amounts
due under the treaties in issue were paid to the Creek
Nation in accordance with the stipulations of the United
States in these treaties (R. 15-138, 295).
The claims under the several Creek treaties are set
forth below.
Claims Under Treaties of 1802 and 1805
Petitioner originally presented independent claims under
the Creek Treaties of 1802 and 1805. However, in de-
ciding this case the Indian Claims Commission combined
these claims, and we will follow this course in reviewing
their treatment by the Commission, and Court of Claims.
Article IT of the Treaty of June 16, 1802, between the
Creek Nation and the United States, proclaimed January
11, 1803 (7 Stat. 68. 2 Kapp. 58) provided in part as
follows:
“The commissioners of the United States, for and
in consideration of the foregoing concession on the
part of the Creek Nation, and in full satisfaction for
the same do hereby covenant and agree with the said
nation, in behalf of the United States, that the said
states shall pay to the said nation, annually, and
every year, the sum of three thousand dollars, and
-
one thousand dollars for the term of ten years, to
the chiefs who administer. the government, agreeably
to a certificate under the hands and seals of the eom
missioners of the United States, of this date, and
also twenty-five thousand dollars in the manner and
form following, viz. Ten thousand dollars in goods
and merchandise, the receipt of which is hereby ac
knowledged; ten thousand dollars to satisfy certain
debts due from Indians and white persons of the
Creek country to the faetory of the United States;
the said debts, after the payment aforesaid, to become
the right and property of the Creek Nation, and to
be recovered for their use in such way and manner
as the President of the United States may think
proper to direct; five thousand dollars to. satisfy
claims for property taken by individuals of the said
nation, frem the citizens of the United States, subse-
quent to the treaty of Colerain, which has been or
may be claimed and established agreeably to the
provisions of the act for regulating trade and inter.
course with the Indian tribes, and to preserve peace
on the frontiers. * * *”
Article TV of said treaty provided:
“The contracting parties to these presents, do agree
that this treaty shall become obligatory and of full
effect so soon as the same shall be ratified by the
President of the United States of America, by and
with the advice and consent of the Senate thereof.”
This treaty became effective on January 11. TS802, th
date of its proclamation by the President (R. 266). Ther
under the United States was obligated te pay to the Creek
Nation said perpetual annuity of $23,000.00 per annum
beginning with the vear 1808 through the tiseal vear 1902
(R. 266), when this permanent annuity was funded under
the Act of May 27; 1902 (Ce, SSS. 32 Stat, 245. 249, 250)
a period of 100 vears, less the Civil War period of sis
years (fiscal vears 1862 through 1867).°
* The Creek Nation eliminated from this case ony clam for
annuity payments due from the United States during the Civil
War period, or for the fiscal years 1862-1867. 6 vears. this period
being covered by separate petition (R. 266).
8
The parties agreed that the total obligations of the
United States under said Article Il were as follows (R.
266-267) :
Permanent annuity of $3,000.00 per annum for
94 years .
$282,000.00
Annuity to chiefs, $1,000.00 per annum for 10
years
1
In goods and merchandise, receipt of which was
acknowledged
1
To satisfy certain debts due from Indians ard
white persons of the Creek country to tle
factory of the United States
To satisfy claims for property taken by indh-
viduals of the Creek Nation from citizens cf
the United States coast to the — of
Colerain (1796)...
Total
The report of the Government's
1
0,000.00
0,000.00
0,000.00
5,000.00
_ $317,000.00
General Accounting
Office shows that $254,690.25 only was disbursed by the
United States to the Creek Nation in fulfillment of its
treaty obligations under
said Article
Il,
below (R. 44-49, 119, 266-267, 274, 295-296) :
Depredations
Cash payments to Chiefs
Cash annuity
Cash payments to Creek Treasurer
Support of Creek Children at
Choctaw Academy, with con-
sent of Creek Chiefs
Disbursed for benefi: of Creek
Nation, 4 years at $3,000.00
Goods and merchandise distrib-
uted at treaty council and
receipted for in treaiy
1806-1811
1805, 1811
1819-1836
1837, 1839-1841,
1843, 1846-1861,
1868-1869
1844-1845
1861, 1868-1898
1831
1899-1902
1802
Total disbursed
$55,500.00
66,000.00
6,000.00
as set forth
$ 3,290.25
700.00
127,500.00
99,000.00
2,200.00
12,000.00
10,000.00
$254,690.25
9
The reeerd thus showed that the United States failed
to account to the Creek Nation ‘or the balance due under
said Article Tl. and the Creek Nation limited its claim
to the amount of $62,309.75 which the accounting report
showed was due and owing from the United States to
the Creek Nation under said treaty obligations of the
United States.
On this record the Indian Claims Commission made the
following finding of fact (R. 267):
“Plaintiff admits the payment and disbursement
by the United States to the Creek Nation on said
treaty obligation and in the amount of $254,690.25 (as
itemized in its Req. Find. No. 4) and claims a balance
due under said treaty obligation in the amount of
$62,309.75.”
Petitioner challenged the sufficiency of this finding on
appeal to the Court of Claims (R. 284, 286), because it
merely stated petitioner's claim without determining
whether or not the record supported the claim,
Article IIT of the Treaty of November 14, 1805, between
the Creek Nation and the United States, proclaimed June
2, 1806 (7 Stat. 96, 2 Kapp. 85), provided as follows:
“Tt is hereby stipulated and agreed, on the part
of the United States, as a full consideration for the
land ceded by the Creek nation in the first article
as well as by permission granted for a horse path
through their country, and the occupancy of the
reserved tract, at the old Oemulgee fields, that there
shall be paid annually to the Creek nation, by the
United States for the term of eight vears, twelve
thousand dollars in money or goods, and implements
of husbandry, at the option of the Creek nation, sea-
sonally signified from time to time, though the agent
of the United States, residing with said nation, to the
department of war; and eleven thousand dollars shall
be paid in like manner, annually, for the term of the
ten succeeding years, making in the whole, eighteen
payments in the course of cighteen years, without
interest. The first payment is to be made as soon
10
as practicable after the ratification of this convention
by the government of the United States, and each
payment shall be made at the reserved tract, on the
old Ocmulgee fields.”
Article V of said treaty provided in part:
“e * * and this convention shall be obligatory on
the contracting parties as soon as the same shall have
been ratified by the government of the United States.”
Said treaty became effective on June 2, 1806, when
proclaimed (2 Kapp. 85; R. 269).
The parties agreed that the total obligations of the
United States under said Article III were as follows
(R. 269):
$12,000.00 annually for & years in money, or
goods, and implements of husbandry, at the
option of the Creek Nation ‘ $ 96,000.00
$11,000.00 annually for 10 succeeding years, to
be paid in like manner 110,000.90
SES $206,000.00
The report of the Government's General Accounting
Office shows that $169,452.25 only was disbursed by the
Uniied States to the Creek Nation in fulfillment of its
treaty obligations under said Article TIT, as set forth
below (R. 51-52):
Cash annuities 1811, 1815, 1817-1823 $128,667.45
Annuities in goods 1811, 1815 40,784.80
Total disbursements $169,452.25
The United States thus failed to account to the Creek
Nation for the balance due under said Article ITT, and
the Creek Nation limited its claim to the amount of
$36,547.75, which the Government's accounting report
showed was due and owing from the United States to
the Creek Nation under said treaty obligations of the
United States.
On this record the Indian Claims Commission found
that (R. 269):
11
“The report of the Accounting Office shows annual
appropriations to fulfill the above obligation, but
disbursements definitely allocated to the fulfillment
of the obligations of this treaty are in the amount
of $169,452.25."
Although the Commission did not so find, it is obvious
that the amount due and owing to petitioner under said
Article II] was admittedly the difference between the
total treaty obligation of the United States, or $206,000.00,
and the total disbursements of the United States there-
under, or $169,452.25, leaving the balance of $36,547.75 -
due the Creek Nation under this treaty provision.
The total amount claimed by petitioner under the
Treaties of 1802 and 1805 was $98,857.50 (R. 267, 269,
274-275, 295-296).
In an endeavor to overcome the above balance of $98,-
897.90 shown by its accounting report to be due the Creek
Nation under the Treaties of 1802 and 1805, the United
States took out of context certain unallocated expendi.
tures for the vears 1808 threugh 1809, totaling $77,263.45,
for goods purchased and forwarded from Philadelphia
for Creek Indians, which the Government's own account-
ing report sets up as possible disbursements in fulfillment
of an earlier Treaty of August 7, 1790 (7 Stat. 35, 2
Kapp. 25), between the Creek Nation and the United
States, which was not in issue, and which expenditures
the accounting report did not and could not. specifically
allocate to the Treaties of 1802 and 1895 in issue (Rf.
_ 23-24).
The United States had assumed obligations to the Creek
Nation ‘under the Treaty of August 7, 1790, proclaimed
August 13. 1790 (7 Stat. 35, 2 Kapp. 25), which were as
follows:
“Article II. The undersigned Kings, Chiefs and
Warriors, for themselves and all parts of the Creek
Nation within the limits of the United States. do
12
acknowledge themselves, and the said parts of the
Creek Nation, to be under the protection of the
United States of America, and of no other sovereign
whosoever; * °
“Article IV. * * it is hereby agreed, in addition
to the considerations heretofore made for the said
land, that the United States will cause certain valu-
able Indian goods now in the state of Georgia, to
be delivered to the said Creek nation; and the said
United States will also cause the sum of one thousand
five hundred dollars to be paid annually to the said
Creek nation. * °
“Article XII. That the Creek nation may be led
to a greater degree of civilization, and to become
herdsmen and cultivators, instead of remaining in a
state of hunters, the United States will from time to
time furnish gratuitously the said nation with useful
domestic animals and implements of husbandry. And
further to assist the said nation in so desirable a
pursuit, and at the same time to establish a certain
mode of communication, the United States will send
such, and so many persons to reside in said nation
as they may judge proper, and not exceeding four in
number, who shall qualify themselves to act as inter-
preters. These persons shall have lands assigned
them by the Creeks for cultivation for themselves
and their successors in office; but they shall be pre-
cluded exercising any kind of traffic.
s se s a
“Article XIV. This treaty shall take effect and be
obligatory on the contracting parties, as soon as the
same shall have been ratified by the President of the
United States, with the advice and consent of the
Senate of the United States.”
This treaty became effective when proclaimed on August
13, 1790. (2 Kapp. 26).
Furthermore, the United States assumed other obliga-
tions under Secret Articles of said Treaty of August 7.
1790. and thereunder obligated itself to pay to each of
the 6 medal chiefs of the Creek Nation $100.00 annua!)
and to the Creek Chief. Alexander MeGi|! vray, for bis
Services as the agent of the United States. $1200 00
annually, during their lifetimes ¢ Appendix #22 ).
So the total definite obligations of the United States te
the Creek Nation under the Treaty of 1790, and the seere
article thereof, amounted te $3,706.00 annually (RO 1%
199); and under Article NIP the United States further
agreed to furnish the Creek Nation with domestic animal:
and implements of husbandry without fimetation as te
the amount for such disbursements.
The General” Accounting Offies report completely over
looked the obligations of the United States under th
secret article of the Treaty of 1790. and accounted only
for the perpetual annuity of $1,500.00. However. ot did
not begin to account regularly for the $1500.06 perma on
annuity until the year I8]] (Ro 25-24, 86). Tp endeave:
ing to explain its failure te account for this permanen
annuity during the period 1790 through ISTO. tie Genera’
Accounting Office: report stated (Ro 2928-24):
“In connection with the annuities duc the Creel
Nation of Indians under the aforesaid Treaty ot
August 7, 1790, it may be stated that while a earefius
search of the records of the General Accounting Offic:
failed to disclose the amounts disbursed in the pur
chase of annuity goods for the Creek Indians during
the years 1790 to 1809, said search did diselose that
some arnuity goods were furnished said Indians dis
ing said period. An examination of the ledgers sand
journals of the office of the Aecountant for the Wa:
Department, the records of the storekeeper at Phils
delphia (now on file in the General Accounting Office:
and various records found with the old museellaneou:
papers on file in the Office of Indian Affairs. mdicate-
that goods valued at $1.500.11 were shipped fron
Philadelphia to the Creek country, on May 20, 1797,
and that goods valued at $1.500 and $1,499.02 were
actually delivered to the Creek Nation of Indinan-
during the years 1798 and 1799, respectively. Said
a
l4
examination also discloses that goods of the following
values were forwarded from Philadelphia for the
Creek Indians during the following vears:
Year Value of goods * Remarks
Lave $1,500.34 Annuity for year 1800
1LROS 3.000.00 Annuity for Creeks
1803 1,008.08 Goods for Creek chiefs
1804 4,150.84 Annuities tor Creeks
1804 1,100.07 Goods for Creek chiefs
1au5 4,000.24 Annuities tor Creeks
1805 500.16 Gooes for Creek chiefs
1805 4,000.00 Annuity for vear 1805
1805 6,000.50 Annuity for vear 1806
1806 6,673.85 Annuity for year 1806
1807 1,000.08 Goods for Upper Creek chiefs
1807 499.05 Goods fur Lower Creek chiefs
1807 6,025.06 + Annuity for Upper Creeks
1807 5,999.39 Annuity for Lower Creeks
1808 7,646.46 Annuity for Upper Creeks
1808 8,250.45 Annuity for Lowe: Creeks
1808 501.38 Goods for Lower Creek chiefs
1808 499 90) Goods for Upper Creek chiefs
1809 500.41 Goods for Unper Creek chiefs
1809 348.98 Goods for Lower Creek chiefs
13809 7,300.40 Annuity for Upper Creeks
1809 7,749.64 Annuity for Lower Creeks
1809 508.51 Annuity for year 1809
Said examination also discloses that moneys were
advanced to disbursing officers for payment of. sal-
aries of interpreters for the Upper and Lower Creeks.
During the vears 1790 to 1809, various amounts were
advanced to disbursing officers for annuities, but due
to the facet that in most instances the names of the
tribes for which the annuities were intended are not
set out, it is impossible to state what portion, if any,
of the amounts set out in the foregoing tabulation
were in fulfillment of the aforesaid Treaty of August
7, 1790. It appears, however, that portions of said
amounts were ‘n fulfillment of treaties with said
Indians subsequent to the aforesaid Treaty of 1790,
as the value of the goods furnished said Indians
during the vears indicated was in excess of the $1,500
annuity due said Indians under said treaty.”
le
In addition toe the above dishursements under the Treaty
of 1790, and in search of further eredits against th
balance of $98.857.50 due the Creek Natien under th
Treaties of 1802 and 1805, the United States alse injected
into the case certain disbursements, totaling $22. 108.00,
Which the General Accounting Office report stated if could
not wdentitu with any specitic Creek treatu. These dis
bursements are set forth as follows (R. 122, 127-128, 206) :
1811 S15 1817 1818
Annuity, goods $3,350.00 $4,300.00
Annuity, cash S0.547 00
Claims (depredations } $2,000.00 5.2801-00
Cash payments to Chiefs — 200.00
The United States, nevertheless claimed these disburse
ments as eredits against the balances shown im the General
Accounting Office report te be due the Creek Nation under
the Treaties of L802 and 1805, without identitying them
with these treaties (R. 122, 246).
The United States contended before the Commission
that beeause the petitioner did not shew that any of the
total amount of the eredits claimed by the Government
(the $77,263.45 of the unallocated expenditures set forth
by the General Accounting Office Report as possible dis
bursements under the Treaty of 1790 not in issue, and
the $22,198.00 unidentitied disbursements), or S40 461.45,
wax not paid in satisfaction of the obligations of the
United States under Treaties of TSO2 and TS05. the Gav
ernment was entitled to eredit the entire amount agains!
its obligations under those treaties. The S09 46145 ox
ceeded the $9S8897.50 claimed by petitioner te he the
balance due under the Treaties of Tse2 and DSQ). seas
to defeat petitiones’s recovery under these two treaties
(R. 296).
The Indian Claims Cominissien adopted the Govern.
ment’s position and determined that nething was due te
petitioner under the Treaties of TS8O2 and 1805 (R267
16
268, 296). In doing so the Commission found that the
Creek Nation was a tribe of American Indians within the
meaning of the Indian Claims Commission Ae, and was
authorized to bring this cause of action under Section 2
of said Act: that the claim was in the nature of an action
of debt, asking payment for sums allegedly owing and
unpaid and obligations unfulfilled, and due petitioner un
der the treaties in question; and that the relation of
guardian and ward as between the plaintiff and the de-
fendant had not been established by competent or rele
vant evidence (R. 264-265). The Commission further
applied the whole amount of $77,263.45 as possible dis
“rsements under the Treaty of 1790 not in issue, without
considering the obligations of the United States te the
Creek Nation under said Treaty of 1790, and the seeret
article thereof, and also the $22,198.00 whieh the Genera!
Accounting Office could not identify with any specific
Creek treaty, against the balance due under the Treaties
of 1802 and 1805, and found and held that petitioner had
not proven that any amounts were due the Creek Nation
oF »f- ”\
under said treaties (R. 267-269, 273, 277, BRR).
“* Let us point out to the Court that in eharging the
entire amount of $77,269.45 disbursed for goods pur
chased at Philadelphia for Creek Indians during the
period TS06.1809, against the balames due the Creek Na
tion under the Treaties of TRO2 and TSO5, the Comission
assumed that these goods were actually received by the
Creek Nation. However, the reeord shows that such
shipments were not made directly to the Creek Ageney,
but were shipped to the United States Faetor at Savan
nah, and held there for transportation overland by wagon
to the Creek Ageney on the Flint River, when requested
by the Indian Agent (R. 215-220, 222). The Govern
ment’s accounting report shows that only “goods valued
at $1.500 and $1,499.02 were actually delivered to. the
Creek Nation of Indians during the vears 1798 and 179°.
respectively.” (R. 23).
7
The Commission in dome so relied largely on a dee
ston of the Court of Claim. supportmg the Government’
position in Chickasau Nation \ United State . (145). TO
C.Cls. 1, certiorar) granted but limited te the question
of specitie designation of offset<. and judgment reversed,
326 USS. 2170 In relving upen this ease rather than
Upon mere recent decisions of the Court of Claums which
overrule it, the Commission stated that “The refusal of
the Supreme Court) to allow eceertiorar: on the matters
°° * specifically ealled te its attention ‘im Chiekasaw |
is evidence that i apnroved the holdings of the Court of
Claims in reference to sueh matters” (7 Ind. Cl. Comm.
at 185: Ro 278.280). The Commission further stated that
the deeision of the Court oof Clamms m Sioux Tribe of
Indians v. United States (1946), 105 Cl Cis. T25. “eould
not overrule the same | Chickasaw ease because the Sroux
ease ds a Court of Claims. opimion only, while the holding:
in the Chiekasaw case were approved by the Supreme
eof Ourt by its refusal te grant a writ ef certiorari” OR
PSI). We assigned this holding a. error because this
Court has made it clear in many instanees that me sueh
inference ds te be drawn from its demiul oof eertiorar
In any case (R200),
The main issues in this ease are thus presented.
Petitioner contended that a fiduciary relations os
isted between the United States and the Creek Natron,
an Indian tribe, and that the Government had the burden
or presenting an aceurat aevounting of ifs pavinent. tr
petitvoner purstlant te the treaties mn question Petitioner
maintained, therefore, that the Governmmient Was met en
titled te @redit for any amount. not specitically allocated
on its books te the fulfillment of these treaties: and that
the Government as the fiduciary had the clear burden of
proving the eredits it claimed against the balance. it
own accounting showed were due and owing petitioner
under said treaties (Ro 277-281).
i8
Petitioner further contended that the many decisions
of this Court have established that the fiduciary relation-
ship existing between the United States and the Indian
tribes is sufficiently similar to the relationship between
a guardian and its ward as to impose upon the United
States the burden of accounting clearly for the disburse-
ments made in fulfillment of its treaty obligations to an
Indian tribe (R. 277-278); that before the respondent
was entitled to credit against the amounts claimed by
petitioner under the Treaties of 1802 and 1805, it must
prove affirmatively that the credits claimed were payments
in fulfillment of the 1802 and 1805 Treaties, and were
not disbursements under the earlier Treaty of 1790, and
the secret article thereof.
Claim Under Article XIII, Treaty of March 24, 1832
Article XIII of the Treaty of March 24, 1332, between
the United States and the Creek Nation, proclaimed April
4, 18382 (7 Stat. 366, 2 Kapp. 341), provided in part as
follows:
“e ¢ * Three thousand dollars, to be expended as
the President may direct, shall be allowed for the
term of twenty years for teaching their children.* * * ”
Article XV of said treaty further provided:
“This treaty shall be obligatory on the contracting
parties, as soon as the same shall be ratified by the
United States.”
This treaty became obligatory upon the parties on April
4, 1832, when proclaimed (2 Kapp. 341; R. 269).
The parties agreed that the total obligation of the
United States to the Creek Nation under said Article
XITI, was $60,000.00 (R. 270).
The Report of the General Accounting Office shows that
the United States disbursed $49,938.99 only in fulfillment
of this treaty obligation to the Creek Nation under said
Articie XTII, as set forth below (R. 59-65) :
19
Education :
Support of Creek Children
at Choctaw Academy 1832-1836, 1838 $10,934.48
IS37-1845, 1845,
1849-1850 16,683.12 $27,617.60
Pay of superintendents
and teachers 1842-1846, 1848,
1850-1851 2,593.37
Furniture and equipment 1842, 1846,
1850-1851 580.54
Pay of miscellaneous
employees 1846-1548,
1850-1851 464.40
Provisions 1846, 1850-1851 2,511.15
Board and tuition 1846-1848,
1850-1851 7,998.48
Medical attention 1846-1848, 1850 105.12
Support of schools 1846-1847 3.40
Transportation of pupils 1848 365.00
Clothing 1850-1851 797.68
Transportation of supplies 1850-1851 1,081.93
Erection and repair of
school buildings 1850-1851 4,336.71
Livestock 1850-1851 541.50
School farm 1850-1851 908.07
Fuel and light 1851 19.24
Feed and care of livestock 1851 ; 15.00
Total disbursements $49,938.99
The United States failed to account to the Creek Na-
tion for the balanee due under said treaty obligation in
the amount of $10,061.01, which petitioner claimed as
being due and owing to it from the United States under
this treaty obligation.
Although petitioner asserted a claim under Article
XIII of the Treaty of March 24, 1832 only (R. 4). and
issue Was joined on this treaty obligation (R. 8), vet, at
the request of respondent the Commission injected into
its Finding 6 facts relating to an obligation cf the United
States incurred under Article 4 of the Treaty of Janu-
ary 4, 1845, between the Creek Nation and the United
States (9 Stat. 821; 2 Kapp. 550), not a part of peti-
20
tioner’s claim, and not material to it (R. 270, 275). We
assigned this action of the Commission as error (R. 286-
287).
The respondent admitted that its total obligation under
this 1832 Treaty provision was $60,000.00, as the Com-
mission found (R. 270), and the Commission further
found that the disbursements under Article XIII of the
Treaty of 1882, which began in 1832 and ended in 1851,
totaled $49,938.99, as shown by the General Accounting
Office Report (R. 59-64). However, the Commission sim-
ply made the following finding with respect to petitioner's
claim under the 1832 Treaty (R. 270):
“The plaintiff approves fulfillment by the defendant
of the obligations of the Treaty of 1832 in the amount
of $49,938.99 as itemized in its Requested Finding 6
and contends that there is a balance due from said
obligation in the amount of $10,061.01. This credit
in the amount of $49,938.99 is for disbursements up
to and including the year 1851 only; however, there
were disbursements for the period 1852 to 1861 in
the amount of $60,673.23 (Dft’s. Ex. 185, 186) in
fulfillment of the treaties of 1832 and 1845 that de-
fendant contends is in full settlement of its obliga-
tion made by the Treaty of 1832 and renewed and
enlarged by the Treaty of 1845.”
The Commission thus completely failed to find whether
or not the obligation of the United States under Article
XIII of the Treaty of 1832 had been fulfilled. Petitioner
assigned this failure as error (R. 286), beeause this was
an essential fact necessary to the proper disposition of
the claim asserted by petitioner; and that a finding merely
stating the contentions of the parties, without finding
which of the contentions was correct, was a failure on
the part of the Commission to make an essential and
material finding, and was error (Seminole Nation v.
United States (1942), 316 U.S. 286, 300; Seminole Nation
v. United States, (1942) 316 U.S. 310, 315-316; Snake or
Piute Indians v. United States (1953), 125 C. Cls. 241,
255).
2l
Claim Under Treaty of 1833
Article V of the Treaty of February 14, 1833, between
the United States and the Creek Nation, proclaimed April
12, 1834 (7 Stat. 417; 2 Kapp. 388), provided in part
as follows:
“As an evidence of the kind feeling of the United
States towards the Muskogee Indians, and as a testi-
monial of the [their] gratification with the present
amicabie and satisfactory adjustment of their diffi
culties with the Cherokees, experienced by the com-
missioners, they agree on behalf of the United State Sy
to furnish to the Creek Indians west of the Missis-
sippi, one blacksmith and one wheelwright or wagon-
maker, as soon as they may be required by the na-
tion, in addition to those already employed—also, to
erect shops and furnish tvols for the same, and supply
the smith shops with one ton of iron and two hun-
dred and fifty pounds of steel each; and allow the
said Creek Indians, annually, for education purposes,
the sum of one thousand dollars, to be e xpended under
the direction of the President of the United States—
the whole of the above grants to be continued so
long as the President may consider them conducive
to the interest and welfare of the Creek Indians:
e®*ee#ps
Article IX of said treaty provided:
“This agreement shall be binding and obligatory
upon the contracting parties, ax soon as the same
shall be ratified and confirmed by the President and
Senate of the United States.”
This treaty became binding upon the parties on April
12, 1834, when proclaimed (2 Kapp. 388; R. 271).
The amount to be disbursed annually for education was
definitely fixed in the treaty at $1,000.00, but the amount
to be disbursed annually for blacksmiths, ete. was not
definitely fixed in the treaty. However, Congress made
annual appropriations definitely uxing the amount of this
treaty provision for blacksmiths. ete, at $1,710.00 over a
, 22
long period of time (R. 135-136). The General Accounting
Office Report shows that payments under these treaty ob-
ligations began in the vear 1834 (R. 75). So the date of
beginning of these treaty obligations is definitely fixed by
the action of the United States. Specific annual appropria-
tions to fulfill these treaty obligations, from 1837 to 1878,
were made by Congress, generally in the amount of $2,-
710.00—$1,710.00 for blacksmiths, ete., and $1,000 for edu-
cation (Act of July 7, 1838, e.clxxxvi, 5 Stat. 299; R. 135-
136). The Act of June 17, 1844 c.eviii, 5 Stat. 704, 706,
provided:
“For blacksmith and assistant, and use of shop and
tools, during the pleasure of the President, stipulated
in the fifth article of the treaty of fourteenth Febru-
ary, eighteen hundred and thirty-three, eight hundred
and forty dollars:
“For iron and steel, two hundred and seventy
dollars;
“For wagonmaker, stipulated in the fifih article of
the treaty of fourteenth February, eighteen hundred
and thirty-three, 66 —" dollars;
“For education, sti nleted i in the fifth article cf the
treaty of fourteenth February, eighteen hundred and
thirty-three, one thousand dollars ;”
And Article V of the Creek Treaty of August 7, 1856
(11 Stat. 699; 2 Kapp. 756), continued these 1833 treaty
obligations in the definite amount of $2,710.00 annually,
in the following language:
“* * * one thousand dollars per annum during the
pleasure of the President for the same object [educa-
tion], under the fifth arcicle of the treaty of February
fourteenth, eighteen hundred anc thirty-three; services
of a wagonmaker, blacksmith and assistant, shop and
tools, iron and steel, during the pleasure of the Presi-
dent, under the same treaty and article, and costing
one thousand seven hundred and ten dollars an-
nually ; eee”
Pay of blacksmith
ys
The General Accounting Office report shows that. the
United States continued this annual treaty obligation
through the year 1878 (R. 136). So the respondent's own
records show th: t the payments on the 1833 Creek treaty
obligations began in 1834 and continued through the fiseal
year 1878 (R. 75-88). The United States thus acknowl-
edged its obligation to the Creek Nation under this treaty
provision in the amount of $2,710.00 annually, or $1,710.00
for blacksmiths, ete., and $1,000 for education, over the
period from 1834 through 1878, or for a period of 45
years, less the Civil War period of six vears (fiseal vears
1862 through 1867), leaving a net obligation of the United
States to pay said annuity to the Creek Nation over a
period of 39 years at $2,710.00 per annum, or a total obli-
gation of $105,690.00.
The report of respondent’s own General Accounting
Office shows that $76,285.45 only was disbursed by the
United States to the Creek Nation to fulfill the obligation
of the United States under this treaty provision, as set
forth below (R. 73):
1834, 1836, 1844-1846
$ 2,234.32
Pay of striker
Pay of blacksmith and striker
Iron, etc., for blacksmith shops
Pay of wagonmaker
Material for mechanical shop
Erection of shops
Cash payments to Creek Treasurer
Education:
Pay of superintendents and
teachers
Support of Creek children
at Choctaw Academy
Furniture and Equipment
1834-1836, 1844-1845
1838-1841, 1843, 1845-1860
1835-1839, 1841, 1843-1845,
1847-1849, 1851-1853,
1855-1860
1834-1837, 1839-1843,
1857, 1859-1860
1836
1839
1861, 1868-1875, 1877-1878
1837-1841, 1843-1846
1850, 1853
1844-1845
1849-1841, 1846. 1850
911.72
17.890 71
7,266.53
4,702.33
6.00
2,000.00
20,466.00
7,278 41
1.658.69
162.28
24
Pay of miscellaneous employees 1850, 1853 237.56
Medical attention 1850 9.24
Provisions 1850 302.13
Clothing 1850, 1853 @ 801.68
Erection and repair of .
school buildings 1844, 1850, 1853, 1868 2,059.26
Board and tuition 1851-1852, 1855-1860 8,171.31
Transportation of supplies 1853 5.36
Fuel and light 1853 12.60
Traveling expenses of school
officials, etc. 1844-1853 81.75
Manual training supplies 1853 33.57
Total disbursements $76,285.45
The United States failed to account to the Creek Nation
for the balance thus shown by its own accounting to be
due under said treaty obligation in the amount of $29,-
404.55, which petitioner claimed as being due and owing
from the United States to the Creek Nation (R. 270 2/1).
The Commission made the following findings relative to
petitioner’s claim (R. 271-272): |
“Petitioner contends that the obligation of the
United States under said treaty was for a period
of 29 years (omitting the Civil War years) at
$2,710.00 per annum or a total obligation of $108,-
690.00; and that the report of the General Accounting
Office showed expenditures in fulfillment of said treaty
obligation by the United States in the amount of
$80 981.45 (items appearing in its Req. Find. No. 7)
and that there is a balance due under said treaty
obligation of $24,708.55 (Pltf. in its reply brief claims
a credit of $4,696.00 was erroneously given defendant
and that the balance due is $29,404.55, Reply Brief
. Se |
“There is no proof in the record as to any pecuni-
ary loss suffered by the petitioner, nor as to the need
of services of blacksmiths or other equipment which
the treaty obligated the defendant to provide, nor is
there any evidence of any demand having been made
by petitioner for services or equipment not supplied.”
25
Petitioner on appeal assigned this portion of the Com
mission’s Finding 7 as error (R. 287). The petitioner
contended on appeal that the finding in the first paragraph
above quoted is wholly incomplete, and therein the Com-
mission failed to find the essential fact—whether or not
the total obligation of the United States to the Creek
Nation under Article V of the Creek Treaty of February
14, 1833 (7 Stat. 417, 2 Kapp. 38%}, had been fulfilled;
that such a finding, which the Commission failed to make,
is essential to the final disposition of this claim; and
that a mere finding of what the petitioner contended, with-
out a further finding of whether petitioner’s contention
was right or wrong meant nothing to the ultimate deci-
sion of the case.
Petitioner further contended that it was unnecessary
for the ward to prove a demand upon its guardian, the
United States, for the service and equipment not supplied,
before it was entitled to recover the amount shown by the
Government’s own accounting report to be due and owing
to petitioner under the above treaty obligation of the
United States; and that the United States was obligated
to fulfill its treaty obligation without a demand from its
ward that it do so.
Claim Under the Treaty of 1856
Article VI of the Treaty of August 7, 1856, between
the United States and the Creek Nation ratified August
16, 1856 and proclaimed August 28, 1896 (11 Stat. 699,
2 Kapp. 756), provided in part as follows:
“In consideration of the foregoing quit-claim, re-
linquishment, release, and discharge, and of the ces-
sion of a country for the Seminole Indians contained
in the first article of this agreement, the United States
do hereby agree and stipulate to allow and pay the
Creek Nation the sum of one million of dollars, which
shall be invested and paid as follows, viz: two hun-
dred thousand dollars to be invested in some safe
26
stocks, paving an interest of at least five per cent
per annum; which interest shall be regularly anid
faithfully applied toe purposes of education among
the Creeks; * °°”
Article XXVI of this treaty provided in part:
“This convention * * * shall take effect and be
obligatory on the contracting parties from the date
hereof, whenever it shall be ratified by the Senate
and President of the United States.”
This treaty thus became effective on August 7, 1856,
when proclaimed by the President on August 28, 1856 (2
Kapp. 756).
The Government's accounting report shows that al-
though Congress annually appropriated the $10,000.00
interest due on said $200,000 fund from the fiseal vears
1857 through 1861, both inclusive, or for five vears, a total
of $50,000.00, vet the United States disbursed $21,000.00
only during said period under this treaty obligation (R.
108, 187). This accounting report thus shows that the
United States faiied to account to petitioner for the bal-
ance due under said treaty obligation in the amount of
$29,006.00, which petitioner claimed as due and owing to
it from the United States.
In its Finding § the Commission stated (R. 272):
“Plaintiff claims an obligation of defendant under
the above provision to pay $10,000 as interest to the
plaintiff for the vears 1857 to 1861, both inelusive—
a total of $50,000 upon which obligation the plaintiff
contends the defendant still owes $29,000. (Pet. Req.
Finding No. 8).”
On appeal petitioner assigned this part of said finding
as error in that the Commission failed to find whether
or not the United States had fulfilled its treaty obligation
to the Creek Nation in the amount claimed by petitioner:
and instead mere!, recited the petitioner’s claim, without
finding whether or not petitioner’s claim for $29,000.00
was right or wrong. (R. 287-288).
/ 27
Petitioner further assigned as error that part of Find.
ing S which stated (R. 272):
“The Confederate States paid the $29,000 and plain
tiff accepted the same. (Dft's Ex. 160, p. 2382; Dft's
Ex. 166-170, 173).
“The United States Congress also approved the
payment of the $29,000 involved in this claim for the
benefit of Indians remaining loval to the United
States during the Civil War, which expenditure the
plaintiff Indians approved and ratified in the Treaty
of June 14, 1866 (14 Stat. 785, 790).”
Petitioner on appeal challenged the above findings on
the ground that they were immaterial and not supported
by substantial evidence (R. 287-288): and contended that
there was no evidence in the reeord showing that the
$29,000 claimed was ever paid to the Creek Nation either
by the Confederate States of America, or by the United
States for the relief of refugee Indians in Kansas during
the Civil Waur; that the record showed that this amount
was due mnd owing by the United States to the Creek
Natiou under this treaty obligation before the Civil War
beg.n; and that the United States had simply failed te
poy it regularly and faithfully for the purposes of educa
ion among the Creeks, as provided by the treaty.
The petitioner further contended that soon after the
beginning of the Civil War the Creek Nation became
divided in its sympathies, and formed two independent
parties, and that from one-half to three-fourths of the
Creeks fled to Kansas where they remained as refugees
during the entire period of the War; and that any pay-
ment made by the Confederate States to the southern
portion of the Creek Nation would not be payment to the
Creek Nation, and would not satisfy the obligation of
the United States to the Creek Nation, under said Treaty
of 1856. And further, that the record did not show that
said $29,000 was actually diverted and paid for the relief
of refugee Indians in Kansas, and released by the previ-
28
sions of Article XI of the Treaty of June 14, 1866 (14
Stat. 785, 2 Kapp. 931; Appendix p. JH.),
Petitioner further challenged on appeal the following
ultimate finding of tne Commission, as not being sup-
ported by the substantial evidence in the reeord (R. 273,
288) :
“There is not sufi © evidence in the record to
show that any of the indebtedness claimed by the
plaintiff has not been discharged.”
Petitioner had contended that the admissions in the
Government's own accounting report showing that the
balances claimed were due the Creek Nation under the
treaties in question, were sufficient proof of the validity
of the claims herein presented; and that the burden was
upon the respondent to prove any credits it claimed
against the balances shown by its accounting to be due
and owing to petitioner under said treaties.
From the findings and holdings of the Commission
dismissing the several claims set forth in petitioner's
petition, the Creek Nation appealed to the Court of
Claims under Section 20(b) of the Indian Claims Com-
mission Act (R. 284-291). After full argument, the ma-
jority of the Court of Claims (3 Judges concurring), on
March 1, 196i, merely by a per curiam statement, affirmed
the findings and holdings of the Commission, without
analyzing and reviewing the issues raised on appeal (R.
292).
Judge Littleton, the Senior Judge of the Court (now
retired), who was joined by Judge Madden, wrote a dis-
senting opinion, the only opinion of the Court of Claims
in this case, analyzing the findings and holdings of the
Commission, and pointing out the errors of fact and
law made by the Commission, and upholding the claims
of petitioner in the instances set forth in the dissenting
opinion (R. 292-315).
29
The dissenting opinion pointed out (R. 292-294):
“This appeal, which the majority has disposed of
summarily in a per curiam statement which merely
affirms the determination of the Commission, concerns
an entirely novel question which has been raised for
the first time under the Indian Claims Commission
Act and goes to the proper administration c* that
Act in the general area of accounting suits, a num-
ber of which are now pending before the Commission.
While the instant suit was not brought strictly as a
suit for an accounting, it is very similar in nature
to the accounting suits now pending before the Com-
mission, and it will inevitably serve as a general
ide to their disposition. In general, the grounds
or this dissent from the position taken by the Com-
mission and affirmed by the majority of this court,
without analyzing the issues, are that the ruling of
the Commission that the Government has no obliga-
tion to render a clear and accurate accounting of
its dealings and the fulfillment of treaty obligations
in the manner of a fiduciary or of a superior and
learned power dealing with an unlettered and _in-
ferior tribe or race, but is merely in a position of a
debtor in its relationship under a treaty with the
Indians, is contrary to the decisions of the Supreme
Court, of this court, and of at least one of the Com-
mission’s own opinions. In the Jowa Tribe of the
Iowa Reservations in Kansas and Nebraska, et cetera
ease, Docket No. 70, decided June 19, 1952, 2 Ind.
Cl. Comm. 167, 176, the Commission stated that:
‘In its dealings with the Tribe the defendant
kept the only records of these transactions as a
self-imposed duty to its illiterate and incompe-
tent wards and thereby became accountable to
them for the manner in which it discharged its
treaty, other assumed and Congressionally im-
posed obligations.’
The Commission has erroneously placed great reliance
on the mistaken view that denial of certiorari by the
Supreme Court constitutes approval of the decision
of the case wherein certiorari is denied. Moreover.
I am of the opinion the Commission has not followed
30
the principles of the decided cases nor the rules of
this court with respect to burden of proof where the
Government sets up and relies on the affirmative de-
fense of payment (Rule 15(b) of the Rules of ihe
Court of Claims). Finally, the per curiam opinion
of this court falls far short of meeting the obligation
of an appellate court to give guidance to the court
below (the Indian Claims Commission) and to the
litigants in an appeal on a novel and important mat-
ter, an obligation which, until this time, the court
has conscientiously fulfilled. The appeal by the In-
dians in this case is in no sense frivolous and I am
of the opinion that the litigants are entitled to an
opinion showing that the court has not disregarded
or overlooked the very serious arguments of counsel
on both sides. Furthermore I believe that the ma-
jority mistakes this court’s function in claims ap-
pealed from the Indian Claims Commission to be like
that of the Circuit Courts of Appeals in appeals from
the District Courts. 28 U.S.C. $1291. Section 20(b)
of the Indian Claims Commission Act is quite ex-
licit with regard to the manner in which this court
is to review final determinations of the Commission.
eee
In the instant case there are serious objections earn-
estly and fully argued by the appellant regarding
the findings of the Commission and lack of findings
by the Commission. For these reasons I am forced
to state my views in some detail.”
“The dissenting opinion then reviewed the decisions of
this Court and those of the Court of Claims holding that
a fiduciary relationship does exist between an Indian
tribe and the United States; that this relationship is
sufficiently similar to the relationship between a guardian
and its ward to impose upon the United States the burden
of accounting clearly for amounts disbursed in fulllment
of its Indian treaties; that the relationship is not one
of debtor-creditor, or of parties on an equal footing deal-
ine at arms’ length with one another; that the United
States has the burden of proving affirmatively the credits
31
its claims against the balances shown by its own aecoun:
ing to be due the Indian tribe: and that the denial of s
writ of certiorari by this Court has no bearing on the
merits of the claim presented in the petition for a writ
of certiorari.
The dissenting opinion then analyzes the issues relating
to the claims of petitioner under the several treaties in
question, applying the law thereto in the light of the
decisions reviewed.
With respect to the petitioner's claim for the unpaid
balance of $98,857.50 under the Treaties of 1802 and 1805,
the dissenting opinion pointed out that some of the un-
allocated amount of $99,461.45, which was credited against
the $98,857.50 claimed, could be attributed to disburse-
ments under the Treaty of 1790, for it is clear from the
face of that treaty that there was an obligation of the
United States of at least $1,500.00 a vear due petitioner;
that for the years 1790 through 1797, and 1800 through
1809, a total of 18 vears, the Government's records do not
specifically show payment of this $1,500 annuity, and that
at least $27,000 of the payments made from 1803 to 1818
were made in fulfillment of the 1790 treaty obligation:
and, therefore, at most $72,461.45 of the unallocated
amount of $99,461.45, could properly be credited to the
Government as fulfillment of its obligations under the
Treaties of 1802 and 1805, leaving $26,396.05 which is
not shown to have been paid under the 1802 and 1805
treaty balances (R. 306-308). The dissenting opinion then
states (R. 307):
“In addition, I think that appellant should be per-
mitted, upon a remand to the Indian Claims Com-
mission, to show any other obligations of the United
States, in addition to the $1,500 under the 1790
Treaty, for which the payments shown for 1803
through 1818 could have been intended, so that the
amounts of such obligations could be subtracted from
the $72,461.45 which I find to be the maximum allow-
~
32
able to the Government against its 1802 and 1805
treaty obligations, given the state of its records.”
The dissent did not take into consideration the further
amounts paid by the United States under the secret article
of the Treaty of 1790, which petitioner also believes
should have been considered.
With respect to the balance of $10,061.01 claimed to be
due petitioner under Article XIII of the Treaty of March
24, 1832, the dissenting opinion pointed out that the
Indian Claims Commission did not find any additional
credits due the Government on this obligation, and that
the Commission failed to make any finding as to whether
or not the Government’s obligation undé@r the 1832 Treaty
was fulfilled (R. 308); and further stated (R. 308):
“I think that the Commission’s failure to find
whether the 1832 Treaty obligation was fulfilled re-
ee us to remand this portion of the case to the
ommission for such a finding. On its fact, the Com-
mission’s ‘finding’ is merely a restatement of the
Government’s contention, and not a finding at all.
“The Commission’s ‘ultimate’ finding that there was
not sufficient evidence in the record to show that any
of the indebtedness claimed by appellant had not
been discharged does not remedy its failure to make
a material finding of fact. Where required findings
are not made by the Commission, the court will set
aside the Commission’s final determination and re-
mand the case so that such findings may be made.
Snake or Piute Indians v. United States, 125 Ct. C1.
241, 255.”
With respect to the balance of $29,404.55 claimed to be
due petitioner under Article V of the Treaty of 1833 the
dissenting opinion pointed out that the United States did
not claim credit for more than the $76,285.45 which its
records show it had paid on this treaty obligation ($2,710
per year for 39 years, or a total of $105,690.00), but took
the position that the size of the obligation under the 1833
33
__ treaty was_not-adequately established; and further stated
Sey (R. 309-310) :
“The Indian Claims Commission concluded that it
was unnecessary for it to determine whether the basis
for establishing the treaty liability as contended for
by a was correct, in view of its holding that
appellant had ‘not proven the alleged failures of the
appellee tdé& fulfill its obligations * * **’. 7 Ind. Cl.
omm., 138. Since I would conclude that appellant
has laid sufficient basis for a conclusion that appellee
failed to fulfill its obhgations, I think that it was
necessary for the Indian Claims Commission to de-
termine the amount of the Government's obligetion
under the 1833 Treaty. [| would therefore remand
this portion of the case to the Commission for such
determination.”
With respect to the balance of $29,000 admittedly due
petitioner as interest at 5 per cent per annum on the
$260,000 trust, fund, during the period of the fiscal vears
1857 through 1861, which the Treaty of 1856 required the
United States to apply annually for education of the
Creeks, the Government before the Commission and Court
of Claims had contended (1) that under Article XLI of
its Treaty of 1861 with the Creek Nation the Confederate
States agreed to pay the $29,000.00 and did so on or about
January 28, 1862, and that such payment discharged the
obligation of the United States to the Creek Nation in
this amount; and (2) that under the Civil War Resolution
of February 22, 1862, 12 Stat. 614, authorizing the use
of Creek annuities which had not been disbursed, for the
benefit of refugee Indians in Kansas, that the $29,000 in
question was so used, and that this diversion of annuities
was ratified and confirmed by petitioner by Article XI
of the Treaty of June 14, 1866, 14 Stat. 785, 789-790;
2 Kapp. 931.
The dissenting opinion of Judge Littleton reviewed the
——== °
record, and answered the first contention of the Govern-
ment pointing out that there was no evidence in the record
34
te show that this balance was paid to the Creek Nation
as such (R. 311, 313); that the evidenee showed that soon
after the Civil War began the Creek Nation was about
evenly divided in its sympathies, and divided into two
independent and opposite factions—those in sympathy
with the North, and those in sympathy with the South;
that the Northern faction, under the leadership of Chief
Opoeth-le-yo-ho-la, met in convention on August 5, 1861
in the Creek Nation, and declared that the Creek chiefs
who had signed a treaty with the Confederate States had
done so without action of the Creek Council, the governing
body of the Creek Nation, and had thus forfeited their
administrative rank; that the Union-minded Creeks, esti-
mated to number 6,000, or from one-half to three-fourths
of the Creeks, fought several battles with the Confederate
forces composed partly of the Southern Creeks. along
the shores of the Arkansas and Verdegris Rivers through-
out November and December of 1861, and had withdrawn
farther north toward the southern border of Kansas, and
were then treating with United States agents for relief
for their refugees, and arranging for rendering military
assistanere by the Creeks to the United States (R. 139-
151, 157, 161-185); that in view of the fact that the Creek
Nation thus became divided into two independent entities
it cannot be said that the portion which remained in the
South constituted after November 1861, the Creck Na-
tion; and any payment by the Confederate States near
Little Rock, Arkansas, after January 28, 1862, to the
Southern portion encamped there “cannot be said to have
been payment of the obligation which was owed to the
Creek Nation”. (R. 310-313).
Judge Littleton analyzed the Government's second claim
of credit for the payment of $29,000.00 (R. 313-315), and
pointed out that there was no substantial evidence in the
record of this case to support a finding that “the $29,000
im issue was in fact paid to refugee Indians”: that the
Commission did not so ‘find. but found only “that the
35
United States Congress had approved such payment for
the benefit of refugee Indians, ‘which expenditure the
plaintiff Indians approved and ratified in the Treaty of
June 14, 1866 (14 Stat. 785, 790)"; that the Treaty of
1866 approved and confirmed only “erpenditures made”
by the United States for that purpose; and that. there
was no evidence to show that this particular $29,000.00
was ever so disbursed. The dissenting opinion then eon-
cluded (R. 314):
“Unless, upon remand to the Indian Claims Com-
mission, appellee could show that the $29,000 due
under the 1856 Treaty was among the sums disbursed
in 1862-1867, cither by pointing to an explicit account-
ing for that obligation, or by showing that the total
of the treaty obligations payable to the Creeks was
not greater than the amount of 1862-1867 expendi-
tures in excess of current obligations, or otherwise,
I think that appellant is entitled to recover the
$29,000.”
SUMMARY OF ARGUMENT
1. _The holding of the Indian Claims Commission, af-
firmed by the per curiam statement of the majority of
the Court of Claims—that the relationship between the
United States and the Indian tribes, in this case the
Creek Nation, is that of debtor and creditor, or one in
which the parties were dealing as equals and at arms
length—is contrary to the many decisions of this Court
and of the Court of Claims.
This Court has held in a long line of decisions that
a fiduciary relationship exists between the United States
and the Indian tribes, and that this relationship resem-
bles that of guardian and ward. Cherokee Nation vy.
Georgia (1831), 5 Pet. 1, 16-17; United States v. Kagama
(1886), 118 U.S. 375, 383: Choctaw Nation v. United
States (1886), 119 U.S. 1, 27-28; United States v. Payne
(1924), 264 U.S. 446, 448: Quick Bear v. Leupp (1908),
910 U.S. 59, 80-81: United States v. Creek Nation (1935),
36
295 U. S. 103, 109-110; Seminole Nation v. United States
(1942), 316 U. S. 286, 296-297; Creek Nation vy. United
States (1943), 318 U. S. 629, 642.
In Seminole Nation v. United States (1942), 316 U.S.
286, 296-297, this Court held that in carrying out its treaty
obligations with the Indian tribes the United States is
“something more than a mere contracting party,” and that
its dealings with the Indians should therefore be “judged
by the most exacting fiduciary standards”.
In United States v. Creek Nation (1935), 295 U.S. 103,
109-110, this Court held that the Creek Nation was under
the guardianship of the United States, that it was in a
state of tutelage and entitled to rely on the United States,
its guardian, for needed protection of its interests.
In Quick Bear-v. Leupp (1908), 210 U.S. 50, 80-81.
this Court held that treaty annuities due an Indian tribe
had “exactly the same characteristics” as a “trust fund.”
and that “they are monevs belonging really to the
Indians”.
The Court of Claims has held in Menominee Tribe v.
United States (1944), 101 C. Cl. 10, 19-20, that the United
States is “a debtor who stands in the position of a trustee
or fiduciary toward his creditor’, when the creditor is an
Tndian tribe, and that it would “test the conduct of the
Government, in its handling of the funds of the plaintiff
Indians, by the standards applicable to a trustee”.
In United States vz Seminole Nation (1959), 146 C. C1.
171, 181-182, the Court held that the relationship hetween
the United States and the Indian tribes in general is that
of “a fiduciary relationship”.
The Indian Claims Commission and the Court of Claims
should have taken judicial notice of the decisions of this
Court holding that a fiduciary relationship exists between
the United States and the Indian tribes. and that this
37
relationship need not be proven in litigation under the
Indian Claims Commission Act, which permits only Indian
tribes, bands or other identifiable groups of American
Indians to present their claims against the United States
for final determination.
Whether a general fiduciary relationship or a_tech-
nica] and formal guardian and ward relationship exists
between the parties, the remedies available to the injured
party are the same. Dick v. Albers (1910, 243 IIl..231),
90 N.E. 683, 684-685; Memonime Tribe v. United States
(1944), 101 C. Cls. 10, 19-20; Seminole Nation v. United
States (1942), 316 U. S. 286, 296-297.
Under the well settled principles governing the fiduciary
relationship the United States, as the fiduciary, has the
burden of accounting strictly to an Indian tribe for the
amounts disbursed by it in the fulfillment of its treaty
obligations to the tribe. Dillman vy. Hastings (1892),
144 U.S. 136, 140-142; Villa Site Co. v. Copeland (1920,
N. J. Eq.), 111 A. 39, 43; Ingram v. Lewis (1930, C.C.A.
10), 37 F.2d 259, 260; Akin v. Warner (1945, Mass.), 63
N.E.2d 566, 569-570; Garrett v. First Nat. Bank & Trust
Co..of Vicksburg, Miss. (1946, C.C.A. 5), 153 F.2d 289,
292; Stour Tribe v. United States (1946), 105 C. Cl. 725,
802; Bogert, Trusts and Trustees (1948 Ed.), Vol. 4, Pt. 2,
Sec. 963, p. 243; Scott on Trusts (2nd Ed.). See. 172, pp.
1287-1288. 5
2. The burden of proof of petitioner with respect. to
the claims herein presented was satisfied when the Creek
Nation proved the total amount of the treaty obligations
due it from the United States, and that the admissions in
the Government’s own accounting showed that it had not
disbursed the full amonnts due under said treaty obliga-
tions, and that the balances elaimed by petitioner were
due and owing to it. Bogert on Trusts and Trustees,
(1948 Ed.) Vol. 4, Sec. 969, pp. 297, 299; McComb v. Frink
(1893), 149 U.S. 629, 644; In re Tretheway’s Estate (1939,
Cal.), 89 P.2d 679, 682; Florida Fruit Canners v. Walker
38
(1937, 5 C.C.A.), 90 F.2d 753, 758; Harrison v. Remington
Paper Co. (1905), 140 F. 385, 402.
3. The United States as the fiduciary has the burden
of proving the credits it claims on the unpaid balances
shown to be due petitioner, the United States alone having
kept the records of these transactions; and if the accounts
are not clearly kept, or the records are lost or missing,
all presumptions are resolved against the fiduciary, and
it must stand the resulting loss. Smith v. Robinson (1914,
83 N.J. Eq. 384). 90 A. 1063, 1065; Bennett v. Weber
(1926, 323 Ill. 283), 154 N. E. 105, 110; Talbot v. Auto-
mobile Identification Underwriters, Inc. (1931, Tenn.) 43
S.W.2d 220, 221; Smith v. Tolversen (1934 Minn.) 252
N. W. 423, 425; Benbow v. Benbow (1934, 117 Fla. 37).
157 So. 512, 519; Florida Fruit Canners v. Walker (1937),
90 F.2d 753, 758; Sioux Tribe v. United States (1946),
105 C. Cl. 725, 802; Bogert, Trusts and Trustees (1948
Ed.), Vol. 4, Pt. 2, Sec. 962, pp. 239-242, 244-245 (foot-
note), Sec. 971, p. 328; Restatement of Law of Trusts.
Amer. Law Inst., Vol. 1, Sec. 172, pp. 445-446; Pomeroy’s
Equity Juris. (4th Ed.), Vol. 2, See. 956, pp. 2038-2042.
Wholly apart from the principles governing the fidu-
ciary relationship, it is a general rule of evidence that
when the subject matter of a negative averment lies pecu-
liarly within the knowledge of the other party, the aver-
ment is taken as true, unless disproved by that party;
-and when petitioner’s case depends upon the establish-
ment of a negative, as it does here, and the means of
proving the facts are within the sole possession of the
opposite party, the latter party must produce such proof;
and upon his failure to do so, the presumption arises
that it does not exist, which of itself establishes a nega-
tive. United States v. Denver & R.G.R.R. Co. (1903),
191 U.S. 82, 92; Colorado Coal Co. v. United States
(1887), 123 U.S. 307, 318-320; Rossi v. United States
(1933), 289 U.S. 89, 91-92. This rule has been held to
39
a
apply to accounting cases. Cliett v. Seott (CCA. Sth.
1939), 102 F.2d 725; Merriam v. Venida Blouse Corpora-
tion (S.D.N.Y., 1938), 23 F. Supp. 659, 660-661; United
States v. Bull Steamship Line, S.D.N.Y., 1956), 146 F.
Supp. 210, 213.
Furthermore, the United States has the burden of prov-
ing the credits it asserts as payments made by the United
States on the claims of petitioner, under Section 2 of the
Indian Claiins Commission Act. Menominee Tribe v.
United States (1951), 118 C. Cls. 290, 326; Kiowa, Co-
manche and Apache Tribes, 5 Ind. Cl. Comm. 297, affirined
United States v. Kiowa, Comanche and Apache Tribes
(1958), 143 C.Cls. 534, 543.
4. The failure of the Indian Claims Commission to
make essential findings of fact necessary to the proper
disposition of the claims asserted by petitioner under
the 1802, 1805, 1832, 1833, and 1856 Treaties in question,
and also the payments made under the 1790 Treaty and
the secret article thereof, and making findings not sup-
ported by the substantial evidence in the record, are re-
versible errors. Seminole Nation v. United States (1942),
316 U.S. 310, 316; Snake or Piute Indians v. United States
(1953), 125 C. Cls. 241, 255.
The failure of the Court of Claims to review the record
when the findings of fact of the Commission are chal-
lenged upon appea! as not being supported by substantial
evidence, falls far short of its duty as an appellate eourt
under the provisions of Section 20(b) of the Indian Claims
Commission Act.
When a nation is divided into two independent factions.
who consider each other as enemies, and acknowledge no -
common judge, the nation is dissolved, and neither one
represents the nation, and the party in amity with the
United States cannot be held responsible for the acts of
the other adversary party. Vattel, Book IIT, Ch. XVIII,
|
40
pars. 292, 293, Chitty Ed., pp. 424, 427; Conners v. United
States (1898), 33 C. Cls. 317, 325, affirmed Conners v.
United States (1901), 180 U.S. 271, 275-276; Montoya v.
United States (1897), 32 C. Cls. 349, 361-362, affirmed
Montoya v. United States (1901), 180 U.S. 261, 268. The
majority of the Creek Nation as an ally of the United
States during the Civil War cannot be held responsible
for the action of that part of the Creek Nation that joined
with the South, and waged war against the United States
and the majority of the Creek Nation.
The Creek Nation being thus divided into two independ-
ent parties, payment of annuities by the Southern Con-
federacy to that portion of the Creek Nation that joined
the South, would not discharge the obligation of the
United States to pay the balance of $29,000 due the Creek
Nation under Article VI of the Treaty of August 7, 1856,
11 Stat. 699, here in issue.
The ratification by the Creek Nation of the diversion
of Creek annuities for the relief of refugee Indians during
the Civil War period in Article XI of the Treaty of June
14, 1866, 14 Stat. 785, applied to amounts actually paid
for such purpose, and would not apply to any Creek an-
nuities that had not been proven by the respondent to
have been paid for that purpose.
5. The denial of a writ of certiorari by this Court
does not constitute an affirmance of the decision of the
lower tribunal. United States v. Shubert (1955), 348
U.S, 222, 228-229; Sunal v. Large (1947), 332 U.S. 174,
181; Ffouse v. Mayo (1945), 324 U.S. 42, 48; Atlantic
Coast Line R. Co. v. Powe (1931), 283 U.S. 401, 403-404;
United States v. Carver (1923), 260 U.S. 482, 490; Hamil-
ton-Brown Shoe Co. v. Wolf Bros. and Co. (1916), 240
U.S. 251, 258; Darr v. Burford (1950), 339 U.S. 200, 226-
228.
41
ARGUMENT
The majority of the Court of Claims merely affirmed
the findings and opinion of the Indian Claims Commission
by a per curiam statement, and wrote no opinion analyz-
ing the issues raised upon appeal to that Court. So we
must review the dissenting opinion of Judge Littleton
(Senior Judge now retired), joined in by Judge Madden
(now also retired) which carefully, and we believe correct-
ly, analyzed the issues raised upon the appeal in this
case.
A Fidcuiary Relationship Exists Between the United
States and the Indian Tribes, Requiring the United
States to Account Strictly to the Indian Tribes for
the Disbursements Made by It in Fulfillment of Its
Treaty Obligations With Them
It is well settled by the many decisions of this Court
and the Court of Claims that a fiduciary relationship does
in fact exist between the United States and the Indian
tribes, the Creek Nation in this case, and that this rela-
tionship resembles that of guardian and ward.
The dissenting opinion of Judge Littleton clearly re-
views the settled law on this issue as follows (R. 297-301):
“T think that the decisions of the Supreme Court
of the United States, and the prior decisions of this
court, establish that the relationship between the
United States and an Indian tribe is sufficiently simi-
lar to the relationship between a guardian and its
ward to impose upon the United States the burden
of clearly accounting for its fulfillment of its Indian
treaties. .
> . > .
“The Supreme Court has on numerous occasions
made clear that the duties owed by the Government
of the United States to the Indian tribes with which
it deals are of the most exacting nature, to ‘be judged
42
by the most exacting fiduciary standards.’ Seminolc
Nation v. United States, 316 U.S. 286, 297. The basis
for the high obligations owed by the Government was
established as early as 1831, in Cherokee Nation v.
Georgia, 5 Pet. 1, 16-17, where the Court, speaking
through Chief Justice Marshall, stated:
[The Indians} are in a state of pupilage. Their
relation to the United States resembles that of a
ward to his guardian.®
“With respect to the relationship between the Creek
Nation and the United States, the Supreme Court has
said, in Creek Nation v. United States, 295 U.S. 103,
109-110:
*In Cherokee Nation v. Georgia, supra, this Court stated the
reasons for its conclusion as follows:
“* * The condition of the Indians in relation to the United
States is unlike that of any other two people in existence.
In the general, nations not owing a common allegiance are
foreign to each other. The term foreign nation is, with
strict propriety, applicable by either to the cther. But the
relation of the Indians to the United States is marked by
peculiar and cardinal distinctions which exist nowhere else.
“* * They acknowledge themselves in their treaties to
be under the protection of the United States; they admit that
the United States shall have the sole and exclusive right of
regulating the trade with them, and managing their affairs as
they think proper; * * *
“* * They may. more correctly, perhaps, be denominated
domestic dependent nations. They occupy a territory to
which we assert a title independent of their will, which must
take effect in point of possession when their right of posses-
sion ceases. Meanwhile they are in a state of pupilage. Their
relation to the United States resembles that of a ward to
his guardian.
“They look to our government for protection; rely upon
its kindness and its power; appeal to it for relief to their
wants; and address the President as their great father. * *”
The Creek Nation, like the erokee Nation, acknowledged
itself “to be under the protection @ #he United States of America”
in Article II of the Treaty of August 7, 1790, 7 Stat. 35, the first
treaty between the Creek Nation and the United States (stpra,
pr. 11-12).
43
* * * the tribe was a dependent Indian commu-
_— under the guardianship of the United States,
and therefore its property and affairs were sub-
ject to the control and management of that gov-
ernment.
* * * It was in a state of tutelage and entitled
to rely on the United States, its guardian, for
needed protection of its interests.
“The Indian Claims Commission itself has recog-
nized that a ‘fiduciary relationship’ exists between the
Creek Nation and the United States. The Creek
Nation vy. United States, 2 Ind. Cl. Comm. 66, 114.
“The Supreme Court further defined and estab-
lished the nature of the relationship between the
Government and the Indian tribes as simitar to that
of guardian and-ward in United States v. Kagama,
118 U.S. 375, where the Court said, ‘These Indian
tribes are the wards of the Nation.’ 118 U.S. at 383.
“Appellee places great reliance upon an 1886 deci-
sion of this court, Choctaw Nation v. United States,
21 Ct. Cl. 59, where it was said that the cases ‘fall
far short of holding that the rules of law as ap-
“plicable to controversies between guardian and ward
are to prevail in suits between the United States
and the Indian tribes.’ 21 Ct. Cl. at 92-93. Appellee
has overloeked the fact that the decision wa§ reversed
by the Supreme Court, in Choctaw Nation v. United
States, 119 U.S. 1, and that the Supreme Court said:
As was said by this court recently in the case
of the United States v. Kagama, 118 U.S. 375,
383: ‘These Indian Tribes are the wards of the
Nation; they are communities dependent on the
United States; °° °’
e . . . f
The recognized relation between the parties to
this controversy, therefore, is that between a
superior and an inferior, whereby the latter is
placed under the care and control of the former,
and which, while it authorizes the adoption on the
part of the United States of such policy as their
H
own public interests may dictate, recognizes, on
the other hand, such an interpretation of their
acts and promises as justice and reason demand
in all cases where power is exerted by the strong
over those to whom they owe care and protection.
The parties are not on an equal footing, and that
inequality is to be made good by the superior
justice which looks only to the substance of the
right, without regard to technical rules framed
under a system of municipal jurisprudence, for-
mulating the rights and obligations of private
persons, equally subject to the same laws. 119
U.S. at 27-28.
“The Court repeated, in United States v. Payne,
264 U.S. 446, that, with regard to the Indians,
* * * the United States occupies the position and
assumes the responsibilities of virtual guardian-
ship, ° * *. 264 U.S. at 448.
“Of particular importance is the Supreme Court's
ruling in Seminole Nation v. United States, 316 U.S.
286, which involved the question of the handling of
annuity payments to lediane. It is true that the
treaty had set up a ‘trust fund’ out of the interest
from which the annuities were to-be paid. But the
Supreme Court did not base its conclusion upon the
‘trust nature’ of the particular fund involved. The
Court stated:
“<e * * this Court has recognized the distinctive
obligation of trust incumbent upon the Govern-
ment in its dealings with these dependent and
sometimes exploited people. [Citations omitted. ]
In carrying out its treaty obligations with the
Indian tribes, the Government is something more
than a mere contracting party. Under a humane
and self imposed policy which has found expres-
sion in many acts of Congress and numerous
decisions of this Court, it has charged itself with.
moral obligations of the highest responsibility
and trust. Its conduct, as disclosed in the acts
of those who represent it in dealings with the
Indians, should therefore be judged by the most
45
exacting fiduciary standards. 316 U.S. at 296-
“The Court made clear that the Government's
fiduciary responsibilities derive from the status of
the ‘dependent and sometinies exploited’ Indians, and
that the Government bears these responsibilities ‘in
its dealings’ with the Indians, not, as defendant would
have it, merely in connection with those particular
dealings which, when occurring between two equal
parties, would give rise to fiduciary duties.
eo os s e
“The Government strenuously urges that the fact
that appellant and the Government stand in a eredi-
tor-debtor relation precludes the conclusion that it
owes appellant the duties of a trustee. The Govern.
ment’s contention is expressly negatived by the lan-
guage of this court in Menominee Tribe v. United
States, 101 Ct. Cl. 10, 20, where the court stated that
the Government is ‘a debtor who stands in the position
of a trustee or fiduciary toward his creditor, when
the creditor is an Indian tribe. The Supreme Court,
in Quick Bear v. Leupp, 210 U.S. 50, 80, said that
the amounts there in question, a ‘Treaty Fund’ of
annual appropriations for payment of treaty stipu-
lations, i.e., for payment of a debt to the Indians,
had ‘exactly the same characteristies’ as a ‘Trust
Fund’ applied to the education of the Indians. The.
Court said, ‘They are moneys belonging really to
the Indians.” 210 U.S. at 81. That case clearly shows
that the treatment of payments of a debt may be
governed by fiduciary obligations when the debt is
one owed by the United States to an Indian tribe.
As the Supreme Court said in Seminole Nation v.
United States, supra, 316 U.S. at 297, ‘In carrving
out its treaty obligations with the Indian tribes, the
Government is something more than a mere contract-
ing party.’”
The dissenting opinion, in footnote 5, further pointed
out that ¢R. 302):
“The Government, in its brief in this case, acknow)]-
edges that the ‘treaty stipulations made the basis of
46
claim herein, and the allegations of the petition re-
specting them fall into’ the category which the Su-
reme Court in Quick Bear v. Leupp described 2. ‘the
ndians’ money’.”
The dissenting opinion continues (R. 302):
“This court has recognized that it is ‘settled doc-
trine that the United States, as regards its dealings
with the Property of the Indians, is a trustee.’ Me-
nominee Tribe v. United States, 101 Ct. Cl. 10,19. In
that case, the Government was merely a debtor, yet
the court held that it would ‘test the conduct of the
Government, in its handling of the funds of the plain-
tiff indians, by the standards applicable to a trustee.’
101 & Cl at 19. The duty there imposed on the
Government was that of seeing to it that the Indians’
roperty—claims against the Government—was pro-
uctive of an income. This is certainly more than
the duty of an ordinary debtor, and no less rigorous
than the duty of keeping a clear account of the In-
dians’ claims. The court characterized the Govern-
ment’s position as that of ‘debtor-with-the-duties-of-a-
trustee’, 101 Ct. Cl. at 19 (and has recently charac-
terized the Indians as ‘quasi wards’, Chickasaw Nation
v. United States, 132 Ct. Cl. 359, 362).”
In footnote 6 Judge Littleton further pointed out (R.
302-303) :
“This court’s language in Gila River Pima-Maricopa
Indians v. United States, 135 Ct. Cl. 180, 189, relied
on by the Government, is not to the contrary. All
that was said in that case was that the precise, formal
guardian-ward relationship between the United States
and an Indian tribe is created by treaty or other
specific provision, while in the absence of such ex-
ress provision, the relationship is one which is simi-
ar to or resembles the technical guardian-ward re-
lationship, as was held in Creek Nation v. United
States, 318 U.S. 629, 642; Seminole Nation v. United
States, 316 U.S. 286; and Menominee Tribe of In-
dians v. United States, 102 Ct. Cl. 555.
“This court’s opinion in the recent case of United
States v. The Seminole Nation, Appeal No. 3-58, de-
47
cided June 3, 1959, —— Ct. Cl. ——, 173 F. Supp.
784, 790, makes clear that all the Gila River case said
was that while ‘preciseness’ in the relationship is
found in the particular treaty provision, the nature
of the relationship between the United States and
Indian tribes in general is that of ‘a fiduciary rela
tionship’. The court said (173 F. Supp. at 790):
‘Whatever the expression or term used, the rele
tionship is one founded upon a distinctive obligation
of trust. The obligation owed by the government
basically grows out of the dependent status of its
Indian “wards”.’
“IT am also aware of what was said in Kansas or
Kaw Tribe of Indians vy. United States, 80 Ct. Cl
264, 301-302, cert. denied, 296 U.S. 577, to the effect
that a treaty provision similar to that of Article II
of the 1790 Creek Treaty did not create a guardian-
ward relationship. That case was decided on Decem
ber 3, 1934, prior to the Supreme Court's deeision in
Creek Nation v. United States, supra, announced on
April 29, 1935. I think that the Creek ease vitiates
any broad force of this language in the Kansas case,
which can-mean only that o fechnical guardian-ward
relationship does not exist. See United States v.
Seminole Nation, supra, 173 i. Supp. 784,790. For
the same reason the languayse in Omuha Tribe of
Nebraska vy. United States, 6 Ind. Cl, Comm. 68, 71-74,
is of doubtful validity, and is based primarily on the
Kansas case and a misinterpretation of the Gila River
case.”
The dissenting opinion further stated (R. 308-305) -
“I think that the above discussion indicates that
the debt owed to an Indian tribe pursuant to a treaty
must be ‘dealt with by the Government as if it be-
longed to [the Indians], as morally it does’, Quick
Bear v. Leupp, 210 U.S. 50, 80, supra, and that the
Government is bound by duties of a trustee in dealing
with this money. Menominee Tribe v. United States,
101 Ct. Cl. 10, 19, supra. The decision of this court
in Stour Tribe v. United States, 105 Ct. Cl. 725
(certiorari granted, judgment vacated, and case re-
manded to Court of Claims for determination as to
whether plaintiff-petitioner could assert any addi-
tional claims, 329 U.S. 685; supplemental petition
dismissed, 112 Ct. Cl. 50; cert. dented, 337 U.S. 908).
is, therefore, directly applicable here.
‘The defendant is the trustee; it kept and has
all the records and evidence, and it has the burden
-. making a proper accounting. 105 Ct. Cl. at
“In the-Siour case, the Indians sought to recover
certain amounts disbursed by the Government from
trust funds which had arisen from the sale of land
belonging to the Indians. The disbursements had
been made by the Government for certain Indian
agency and educational expenses. The Indians
claimed that the disbursements were for obligations
of the Government, so that they should not bave been
paid out of the Indians’ funds. The Government
maintained that the expenditures were proper charges
against the Indians’ funds since they were expendi-
tures for the benefit of the Indians, and argued that
the Indians had the burden of showing what portion
of the disbursements were for obligations of the
Government. It said that in the voluminous account-
ing as to the claims presented it could not be expected
to detail with exactness the purposes and amounts
of the many disbursements, of that the burden rested
on the Indians to prove such details. The court held,
however, that the ‘primary duty to so classify and
report as to the nature and the amount of disburse.
ments rested on defendant.’ 105 Ct. Cl. at 802.
“The court said:
‘Since the Government obligated itself in the
treaty and the agreements of 1868, 1877, and 1889
to provide agencies, aid and assistance, schools,
and instruction, the burden is on defendant to
show what portion, if any, of such expenses has
not been assumed by it and should be charged
to the Indians. The Government cannot escape
its primary obligations by including, among im-
proper charges against the Indians, expenditures
which it now says, without proof, may have been
to some unknown and unascertainable extent prop-
49
er charges agamst the Indians. The defendant is
the trustee; it kept and has all the records and
evidence, and it has the burden of making a
proper accounting. 105 Ct. Cl. at 802.’ [| Empha-
Sis supplied. |
“The Indian Claims Coi:mission attempted to dis-
tinguish the Siour case on the grounds that it involved
a ‘trust fund’ whose handling was ‘governed by the
rules applying to trustee and guardian,’ while the
present case ‘only involves the relationship of * * *
ordinary debtor and creditor... 7 Ind. Cl. Comm. at
135-136. Since, as has heen demonstrated above, an
Indian tribe and the Government are not ‘ordinary
debtor and creditor’, and the Government's handling
of its debts to the Indians is in fact ‘governed by the
rules applying to trustee and guardian’, the Siour
case is Very much in point here.
“The relationship between the United States and
appellant is not precisely that of guardian and ward,
but their relationship is sufficiently similar thereto
to impose upon the United States the duty of main-
taining a clear and unambiguous account of its pav-
ments to appellant under its various treaty commit-
ments.
“The conclusion that the United States owes to an
Indian tribe the duty of maintaining a clear account
is in accord not only with the authoritatively estab-
lished nature of the relationship between the Govern-
ment and the Indian tribes, but also with a practical
understanding of the problems involved in this par-
ticular aspect of the dealings between these parties.
Throughout the time during which the treaty pay-
ments here in issue were due, the Indians were large.
ly illiterate and unskilled in the wavs of the men who
had arrived from Europe. Particularly unfamiliar
must have heen the wavs of bookkeening and account-
ing. To compare the facilities and capacity for main-
taining financial records possessed bv the United
States Government with those possessed by the Tn-
dians, whose life was oriented so differently, is to
reveal the reasonableness of the conclusion that the
United States is charged with keeping a clear account
30
of the payments-it-makes pursuant to its obligations
to the Indians.”
The cases reviewed in the dissenting opinion of Judge
Littleton support the view that a general fiduciary rela-
tionship does exist between the Indian tribes and the
United States, and that this relationship developed from
the great disparity of the parties, the complete dependence
of the Indian tribes upon the United States in the deal-
ings between them, and under the provisions of treaties
under which these tribes agreed to come under the pro-
tection of the United States.
In Words and Phrases (Perm. Ed.), Vol. 8A, p. 103,
it is stated:
“‘Confidential relationship’ exists when circum-
stances make it certain that parties do not deal on
equal terms, but on one side there is an overmaster-
ing influence, or, on the other, weakness, dependence
or trust, justifiably reposed and does not exist where
parties deal on terms of equality. In re Stroming’s
Will, 79 A.2d 492, 495, 12 N. J. Super. 217.”
Given a general fiduciary relationship, or a technical
formal guardian and ward relationship, the remedies
applicable to both are the same. In the ease of Dick v.
Albers (1910, 243 Ill. 231), 90 N. E. 683, 684-685, the Court
states:
“* © The terms ‘fiduciary relation’ and ‘confidential
relation’ have frequently been used interchangeably
by courts and law writers. In general, the relation-
ship is one in which if a wrong arise the same remedy
exists on behalf of the injured party as would exist
. against a trustee on behalf of the cestui que trust,
Central Nat. Bank v Connecticut Mutual Life Ins.
Co., 104 U.S. 54, 26 L. Ed. 693. A person is said
to stand in a fiduciary relation to another when he
has rights and duties which he is bound to exercise
for the benefit of that other person. In such case he
is not allowed to derive any profit or advantage from
the relation between them, except upon proof of full
knowledge and consent of the other person. The rela-
tions of attorney and client, principal and agent,
Jl
guardian and ward, are familiar illustrations of fidu-
ciary relations. The relation exists in all cases
where there has been 2 special confidence reposed in
One who in equity and good -econscience is bound to
act in good faith and with due regard to the interests
of the one reposing the confidence. The rule em-
braces both technical and fiduciary relations, and
those informal relations which exist wherever one man
trusts in and relies on another. fChe origin of the
confidence reposed is immaterial. Vhomas vy. Whitney,
186 Ill. 225, 57 N. EF. 808.”
See also Menominee Trihe v. United States (1944), 101
C.Cls. 10, 19-20. ;
This Court applied the above principle in Seminole
Nation v. United States, 316 U.S. 286, 296-297. and stated
that in carrying out its treaty obligations with the Indian
tribes, the Government is more than a mere contracting
party, and that its dealings with the Indians should “be
judged by the most exacting fiduciary standards.”
The Commission properly found that the petitioner
was an Indian tribe, and that it had authority te present
this claim under the Indian Claims Commission Act (R.
264). As this act applies solely to tribes, bands and
identifiable groups of American Indians, we submit that
the Commission erred in finding that the petitioner must
further prove affirmatively that a general fiduciary rela-
tionship existed between the Creek Nation and the United
States; and suggests that the Commission and the ma-
jority of the Court of Claims should have taken judicial
notice of the decisions of this Court, and their own deci
sions, holding that a fiduciary relationship does in fact
exist between the Indian tribes and the United States,
Clearly the dissenting opinion of Judge Littleton, con
eurred in by Judge Madden, correctly reflects the many
holdings of this Court that a fiduciary relationship doe-
exist between the Indian tribes and the United States,
and that the United States, as the fiduciary, has the bur-
ov
den of making a clear and precise accounting to petitioner
for the payments it made under its treaty obligations here .
brought into question. Diliman v. Hastings (1892), 144
U.S. 136, 140-142; Villa Site Co. v. Copeland (1920, 91
N.J. Eq. 503), 111 A. 39, 43, 13 A. L. R. 356; Ingram vy.
Lewis (1930, C.C.A. 10), 37 F.2d 259, 260, 70 A.L.R. 702;
Akin v. Warner (1945, Mass.) 63 N.E.2d 566, 569-570;
Garrett v. First Nat. Bank @ Trust Co. of Vickshury,
Miss. (1946, C.C.A. 5), 153 F.2d 289, 292; Stour Tribe v.
United States (1946), 105 C. Cls. 725, 802; Bogert, Trusts
and Trustees (1948 Ed.), Vol. 4, Pt. 2, See. 963, p. 243;
Scott on Trusts (2nd Ed.) Sec. 172, pp. 1287-1288.
2. —_—
Petitioner Was Entitled to Rely upon the Admissions
Contained in the Government’s Accounting Report
In 1932 the United States accounted to the Creek Nation
for the first time for the manner in which it performed its
treaty obligations to that tribe, and filed its accounting
report in Case H-510, Creek Nation v. United States, 78
C. Cls. 474, involving disbursements of Creek funds for
the period beginning July 1, 1898 (R. 15-16); This suit
was filed under the jurisdictional act of May 24, 1924
ce. 181, 48 Stat. 139, as amended by Joint Resolution
of May 19, 1926, ¢. 341, 44 Stat. 568, and by Joint Resolu
tion of February 19, 1929, ¢. 268, 45 Stat. 1229, limiting
the time for filing claims thereunder to June 30, 1930 (R.
16-17). As the accounting report was not filed in that
proceeding until August 10, 1932 (R. 15-16), after the
date for filing claims had expired, the claims now pre-
sented were not litigated in Case H-510, but petitioner
was required to wait until the passage of the Indian
Claims Commission Act of August 13, 1946, ¢. 959, 60
Stat. 1049, to do so.
The admissions in the accounting report of the Govern.
ment clearly show that the balances herein claimed to be
23
due the Creek Nation had not been disbursed by th:
United States in fulfillment of its treaty obligations te
tue Creek Nation in question. As the dissenting Opinion
of Judge Littleton, states (R. 295):
“Appellant introduced in evidenee before the Indian
Claims Commission the reeords of treaty payments to
appellant which were maintained by the Government
and are now in the custody of the General Account
ing Office. These records do not specifically show that
‘he entire amounts due under the various ‘reaties
In issue were paid to appellant.
“The amounts claimed by appellant are $62,309.75
under the Treaty of 1802, $36,547.75 under the Treaty
of 1805, $10,061.01 under the Treaty of 1832, $20).
404.55 under the Treaty of 1833, and $29,000 under
the Treaty of 1856. The total claimed is $167,323.06."
Petitioner has set forth above the balances shown hy
the Government’s accounting to be due and owing to
petitioner under the several treaties in’ issue.
Bogert on Trusts and Trustevs (1948 Ed.), Vol. 4. Pt.
2, Sec. 969, pp. 297, 299, states:
“It is elementary that the cestuis and other inter
ested parties should be given an opportunity to ex
amine the account and object to any item. * *
“The issues are framed by the account and the
objections thereto.”
See also In re Trethewan'’s Estate (1989, Cal.), 80 Pd
679, 682; Florida Fruit Canners vy. Walker (1987. 4
C.C.A.), 90 F.2d 753, 758; Harrison vy. Reminaton Pape
Co. (1905), 140 F. 385, 402. As was stated in Florida
Fruit Canners vy. Walker, supra, at p. 758:
“* * A trustee has the burden of establishing the
correctness of his account because either the charges
in that account are a matter of record, are adimitted
in the account, or are solely within the knowledge of
the trustee; and the trustee is undertaking to satisfy
those charges against him by proof of allowable ered
54
its in his favor. When it is established that a certain
value has come into his possession by virtue of the
trust relation, he has the burden of showing that that
value .s offset by a proper credit in his account. * * ”
See also McComb v. Frink (1893), 145 U.S. 629, 644.
The parties agreed, except with respect to the claim un-
der the 1833 Treaty, on the total amount of the obligations
of the United States to the Creek Nation under each of
the treaty provisions in question, and the Government's
accounting report clearly sets forth the total disburse-
ments made by the United States under these total treaty
obligations. The balances herein claimed constitute the
differences between the total treaty obligations owing to
the Creek Nation, and the total amounts actually disbursed
by the United States in fulfillment thereof, as disclosed
in the Government's accounting report. The petitioner
thus supported the claims herein presented, by the Govern
ment's own accounting report.
3.
The United States as the Fiduciary Has the Burden
of Proving the Credits It Claims
Petitioner contended before the Commission, and on
appeal in the Court of Claims, that the United States,
as the fiduciary, had the burden of proving the credits
it claimed against the specific balances shown by its own
accounting report to be due the Creek Nation under the
treaty obligations in issue.
The Indian Claims Commission stated in its opinion
(7 Ind. Cl. Comm. at p, 132; R. 277):
“°° * we think the disposition of the case, without
going into many of the contentions and controversies
as to items, is determined by where the burden of
oof lies—that is whether the burden is on the part
of the plaintiff to prove a failure to discharge the
obiigations undertaken by the defendant, or whether
vo
the burden is on the defendant to prove that it dis-
charged these obligations and is liabie to the plaintiff
upon its failure to do so. This question is determina-
ble by whether the defendant stands in relation to
the plaintiff as guardian or as trustee of funds be-
longing to the plaintiff, or whether the relationship
is that of debtor and ereditor.”
The dissenting opinion of Judge Littleton defined the
issue, as it relates to petitioner's claims under the Treaties
of 1802 and 1805, as follows (R. 296):
“Appellee’s contention is that, because appellant did
not show that any of this $99,461.45 was nof paid in
satisfaction of the obligations of the 1802 and 1805
Treaties, tle Government is entitled to credit the
entire amount against its obligations under those
treaties. The $99,461.45 exceeds the $98,857.50 claimed
by appellant to be due, so appellee's theory would
defeat recovery under these two treaties. The Indian
Claims Commission adopted the Government's posi-
tion and determined that nothing was due to appel-
lant. 7 Ind. Cl. Comm. 117.
“Appellant argues that the relationship between
the United States and an Indian tribe is such that the
Government has the burden of presenting an accuri te
accounting of its payments to appellants pursuant
to the treaties in question. Appe'lant maintains,
therefore, that the Government is not entitled to credit
for any amounts not specifically allocated on its books
to fulfillment of these treaties.”
The fallaey of the Commission's holding, affirmed by the
majority of the Court of Claims, is quite apparent: (1)
it denies the general fiduciary relationship existing be-
tween the parties which the decisions of this Court hold
arises out of the great disparity of the parties; (2) it
places upon petitioner the burden of proving the credits
claimed by the fiduciary, whereas the law places upon
the fiduciary the burden of proving its own claimed
credits; and (3) it charges petitioner with the entire
amount of disbursements made under the Treaty of 1790
56
against the Treaties of 1802 and 1805, without taking
into account the obligations of the United States under
the 1790 Treaty, and the Seeret Article thereof; and (4)
it requires the pecitioner to prove a negative, when the
proof of such facts is solely within the knowledge and
control of the respondent, and not within the knowledge
of petitioner.
The holding of the Indian Claims Commission, as af-
firmed, would impose upon the Indian tribe the burden of
proving a negative--that the tribe did not receive the
balances claimed to be due under the treaties in question,
when the Government’s own accounting report shows that
the United States failed to disburse said balances in ful-
fillment of the obligations it assumed under these treaties.
In other words, the iribe would be charged with explaining
the government’s accounting, and with endeavoring to
allocate the disbursements shown therein, which the Gov-
ernment’s own accounting officers cannot definitely allocate
to any particular Creek treaty obligation. It ean well be
wondered how an Indian tribe, unfamiliar with the ac-
counting methods of the United States, and ignorant of the
English language, could explain the ambiguities contained
in the Government's own accounting report, which defend-
ant’s own accounting officers state they are unable to do
themselves.
As Judge Littleton’s dissenting opinion pointed out, the
Sioux Case, supra, clearly settled the question of whether
the United States or an Indian tribe, has the burden of
proof in such accounting matters, Judge Littleton, also
wrote the decision of the Court of Claims in the Sioux
Case, and_in_hic <lissentinecpinien_in_the instant case,
Gase in which the Court of Claims clearly held that:
“* * The defendant is the trustee; it kept and has
all the reeords and evidence, and it has the burden
of making a proper accounting.” 105 C. Cl. at p. 802.
57
The views of Judge Littleton are consistent with the
well settled principles governing an accounting by the
guardian to his ward. In Bogert, Trusts and Trustees
(1948 Ed.), Vol. 4, Part 2, See. 962, pp. 239-242, it is
stated:
“*To keep an accurate account is one of the pri-
mary duties of a trustee. The general rule of law
applicable to a trustee burdens him with the duty of
showing that the account which he renders and the
expenditures which he claims to have mado were cor-
rect, just and necessary. * * * He is bound to keep
clear and accurate accounts, and if he does not the
presumptions are all against him, obscurities and
doubts being resolved adversely to him.’ ”
“The principal penalty usually stated to apply to
a trustee who fails to keep proper records of his trust
is that ‘all presumptions are against him’ on his ae-
counting, or that ‘all doubts on the accounting are
resolved against him.’ * * *
“* * * If he claims that he made payments to
creditors or cestuis, these disbursements are disputed,
and the trustee has no written evidence to substantiate
his position due to a faulty record system, the court
will tend to disallow the item. Had the trustee per-
formed his duty by taking receipts of vouchers, he
could have made a clear case for the disbursements.
His failure to present such evidence casts suspicion
on the claim and renders the court unwilling to hold
that he has borne the burden of proving the payment
by a preponderance of the evidence,
“If the trustee claims that he kept an account book
but that he has lost it, it has been held that he must
bear the burden of proving the payments which he
alleges were shown by the book, and that doubts will
be resolved against him. * *”
In the footnote at pages 244-245 it is further stated:
“It is well settled that when a fiduciary relation is
shown to exist, and property or property interests
38
have been intrusted to an agent or trustee, the burden
is thrown upon such agent intrusted to render an ac-
count and to show that all his trust duties have been
fully performed, and the manner in which they have
veen performed. It is assumed that the agent or
trustee has means of knowing and does know what the
Ss or cestui que trust cannot know, and is
und to reveal the entire truth. * * * It is not nec-
essary in such a case as this that the plaintiff should
show that there will be something found due to her
on the accounting. That fact can never be known
with certzinty until the account has been taken. The
right to this accounting results from the facts that the
fiduciary relation has been created and assumed by
the agent or trustee and that the principal or cestui
que trust is not informed and does not know what
has been done with reference to the property or prop-
erty interests confided to the agent or trustee. Frethey
v. Durant, 48 N. Y. S. 839, 24 App. Div. 58, 61, 62.”
And Section 971, p. 328, states:
“The burden is on the accounting trustee to prove
to the satisfaction of the court the merit of all claims
for credit which he makes. * * *”
See also the Restatement of the Law of Trusts, Amer-
ican Law Institute, Vol. 1, See. 172, pp. 445-446; Pom-
eroy’s Equity Juris, (4th Ed.) Vol. 2, See. 956, pp. 2038-
9
~_e
It is well settled that the trustee has the burden of
proving the credits claimed by him. Talbot v. Automobile
Identification Underwriters, Inc. (1931, Tenn.) 43 S.W. 2d
220, 221; Smith v. Tolversen, (1934 Minn.) 252 N.W. 423,
425; Florida Fruit Canners v. Walker (1937), 90 F. 2d 753,
758; Smith v. Robinson, (1914, 83 N. J. Eq. 384), 90 A.
1063, 1065.
It is also well settled that if the trustee loses his ae-
counts he must bear any resulting damage, Benbow v.
Benbow, (1934, 117 Fla. 37), 157 So. 512, 519; and the diffi-
eulty in making proot of expenses and disbursements by
ov
the trustee is no reason why the rule of striet account-
ability should be relaxed. Bennet v. Weber (1926, 323 TI.
283), 154 N.E. 105, 110,
We submit that the petitioner has amply proven its
case by alleging and proving the total extent of the
Government's treaty obligations, and further showing by
the Government's own accounting records, that the total
obligations of the Government have not been fulfilled.
Clearly the Government must be held to be responsible
for the ambiguities in its own accounting, in view of its
duty as the fiduciary to render clear and aecurate accounts
of the amounts disbursed in fulfillment of its treaty obliga-
tions to an Indian tribe.
The dissenting opinion of Judge Littleton pointed out
that the obligation of the United States under the Treaty
of 1790 was at least $1,500 per year, and for the years
1790 through 1797, and 1800 through 1809, a total of
eighteen years, the Government's records do not specifical-
ly show payment of this $1,500 annuity, and that at least
$27,000 of the payments made from 1803 to 1818 were
made in fulfillment of the 1790 Treaty obligation; and
that of the $99,461.45 shown by the Government’s accounts
to have been paid to the Creeks, but not allocated to
specific treaties, at most $72,461.45 can be credited to the
Government as fulfillment of its obligations under the
Treaties of 1802 and 1805, leaving a balanee of $26,396.05
which is not shown to have been paid, (R, 307). llowever,
the dissenting opinion concludes (R. 307) :
“*° ° * In addition, IT think that appellant should
be permitted, upon a remand to the Indian Claims
Commission, to show any other obligations of the
United States, in addition to the $1,500 under the 1790
Treaty, for which the payments shown for 1803
through 1818 could have been intended, so that the
amounts of such obligations could be subtracted from
the $72,461.45 which I find to be the maximum allow-
able to the Government against its 1802 and 1805
treaty obligations, giver the state of its records.”
60
We believe that even this burden petitioner should not
bear, and in this instance petitioner differs from the dis-
senting opinion. It must be remembered that the respond-
ent injected into the case the disbursements under the
Treaty of 1790, in order to show credits due it on the
balances shown to be due petitioner under the Govern-
ment’s obligations under the Treaties of 1802 and 1805.
However, the Government had assumed obligations under
the 1790 Treaty, other than the $1,500 annual payment.
Under Article XII it obligated itself to furnish “from time
to time gratuitiously the said nation with useful domestic
animals and implements of husbandry”; and under the
secret article agreed to pay the Creek chiefs an annual
stipend for life, in the amount of $1,200 to Alexander
McGillivray, and to each of 6 other Chiefs $100 a year
for life, or $600.00 annually (R. 197). We submit that if
the respondent is entitled to credit in any amount shown
by its accounting as disbursements under the 1790 Treaty,
it must prove that it is entitled to further credits against
the Government's obligations under Treaties of 1802 and
1805 out of the net balance of $72,461.45. Certainly it is
better able to explain it own accounting records, and what
these disbursements were for than petitioner, and if it
cannot prove that it is entitled to further credits from
this amount of $72,461.45 the presumptions are against
the fiduciary, and it would be entitled to no further credits
against the 1802 and 1805 Treaty obligations.
As the statute of limitations is waived by the Indian
Claims Commission Act the claims are to be considered as
if they developed today.
Quite apart from:the duty of the United States as the
fiduciary to account as such, an independent. principle
places the burden upon the United States here. It is
established that the funds in question came into the Gov-
ernment’s hands; that it alone has the books of account
to explain what happened to the funds; and if the negative
61
averment of non-payment be not true, it is peculiarly with
in the Government's hands to ostablish the fact. As au
result, the burden is squarely on the United States for
se * * It is a general rule of evidence, noticed hy
the elementary writers upon that subject, 1 Greeni,
Ev. sec, 79, ‘that where the subject matter of a nega.
tive averment lies peculiarly within the knowledge of
the other party, the averment is taken as true, unless
disproved by that party.’ When a negative is averred
in pleading, or plaintiff's ease depends upon the estab-
lishment of a negative, and the means of proving the
fact are equally within the control of each party, then
the burden of proof is upon the party aver*ing the
negative; but we the opposite party must, from the
nature of the case, himself be in possession of full
and plenary proof to disprove the negative averment,
and the other party is not in possession of such proof,
then it is manifestly just and reasonable that the
party which is in possession of the proof should be
required to adduce it; or, upon his failure to do so,
we must presume it does not exist, which of itself
establishes a negative. * °°” United States v. Denver
& R.G.R.R. Co. (1903), 191 U.S. 84, 92.
To the same effect is Colorado Coal and Iron Co. vy.
United States (1887), 123 U.S. 307, 318-320. Rossi v.
United States (1933), 289 U.S. 89, 91-92.
As shown by the foregoing citations, the United States
is subject to this rule of evidence. And the rule has been
flatly held to apply in accounting cases, as where a sur-
Viving partner, with the books of account, has it peculiarly
within his knowledge or means to make the accounting.
Clieit v. Scott (CLCLA. Sth, 1939), 102 F.2d 725. See also,
Merriam v. Venida Blouse Corporation (S.D.N.Y., 1988),
23 F.Supp. 659, 660-661; United States v. Bull Steamship
Line, (S.D.N.Y., 1956), 146 F.Supp. 210, 213.
The dissenting opinion also pointed out (R. 293):
“° * * Moreover, I am of the opinion the Commis-
sion has not followed the principles of the decided
cases nor the rules of this court with respect to bur-
62
den of proof where the Government sets up and relies
on the affirmative defense of payment (Rule 15(b) of
the Rules of the Court of Claims, ”
Furthermore, Section 2 of the Indian Claims Commis-
sion Act, provides in part that “the Commission shall
make appropriate deductions for all payments made by the
United States on the claim”. It is now well settled that
under this provision of the Act the United States has the
burden of proving the credits it asserts against the claims
presented by the petitioner. Menominee Tribe v. United
States (1951), 118 C. Cls. 290, 326; Kiowa, Comanche and
Apache Tribes, 5 Ind. Cls. Comm. 297, affirmed United
States v. Kiowa, Comanche and Apache Tribes (1958) 143
C. Cls. 534, 543.
4.
The Majority of the Court of Claims Failed in Its Duty
as an Appellate Court under Section 20(b) of the
Indian Claims Commission Act to Determine Whether
the Findings of the Commission Are Supported by
Substantial Evidence When the Findings Are Chal-
lenged on Appeal
Petitioner assigned as error and contended before the
Court of Claims on appeal that the Indian Claims Com-
mission failed to make proper findings of fact essential to
the proper disposition of the claims under the Treaties
of 1802 and 1805, 1832, 1833, and 1856, and made findings
not supported by the substantial evidence in the record
with respect to petitioners claim under the 1856 Treaty
(R. 284-291).
The majority of the Court of Claims failed completely
to review the record and decide whether the findings of
the Commission were supported by substantial evidence,
or whether the Commission made findings essential to the
proper disposition of the claims herein presented, as it
was in duty bound to do under Section 20(b) of the Indian
Claims Commission Act.
63
The dissenting opinion states (R. 293-294) :
“* * Finally, the per curiam opinion of this
court falls far short of meeting the obligation of an
appellate court to give guidance to the court below
(the Indian Claims Commission) and to the litigants
in an appeal on a novel and important matter, an
obligation which, until this time, the court has con-
scientiously fulfilled. The appeat by the Indians in
this case is in no sense frivolous and I am of the
opinion that the litigants are entitled to an opinion
showing that the court has not disregarded or over-
looked the very serious arguments of counsel on both
sides. Furthermore I believe that the majority mis-
takes this court’s appellate function in claims ap-
pealed from the Indian Claims Commission to be like
that of the Circuit Court of Appeals in appeals from
the District Courts, 28 U.S.C. § 1291. Section 20())
of the Indian Claims Commission Act is quite explicit
with regard to the manner in which this court is to
review final determinations of the Commission. It
provides:
“On said appeal the Court shall determine
whether the findings of fact of the Commission
are supported by substantial evidence, in which
event they shall be conclusive, and also whether
the conclusions of law, including any conclusions
respecting ‘fair and honorable dealings’, where
applicable, stated by the Commission as a_ basis
for its final determination, are valid and support-
ed by the Coinmission’s findings of fact. In
making the foregoing determinations, the Court
shall review the whole record or such portions
thereof as may be cited by any party, and due
account shall be taken of the rule of prejudicial
error. © * © [Emphasis supplied.| 25 U.S.C. ‘
70s(b).
In the instant case there are serious objections earn-
estly and fully argued by the appellant regarding the
findings of the Commission and lack of findings by
the Commission. For these reasons I am foreed to
state my views in some detail.”
64
However, the dissenting opinion of Judge Littleton.
joined in by Judge Madden, did review the whole record
and pointed out the shortcomings of the findings of the
Commission with respect to each of the claims in question
(R. 307-315). We review the facts disclosed by the reeord
that should have been considered by the Commission in
determining this case.
Claim Under Treaties of 1802 and 1805
As pointed out by Judge Littleton, the Commission
charged against the balance of $98,857.50, shown by the
Government's accounting report to be due petitioner under -
the 1802 and 1805 Treaties, the total of the unallocated
items which could not be identified with these treaties,
or $99,461.45, and thus offset the amount due petitioner
under them; but in doing so failed to find facts relating to
the obligations under the Treaty of 1790, which were
shown not to have been fulfilled during the period 1790
through 1810 (R. 307). The dissenting opinion pointed
out that at least $26,396.05 was due petitioner under the
provision of the 1790 treaty requiring the Government
to pay $1,500.00 per annum as a permanent annuity over
this period (R. 307), leaving a balance of $72,461.45, of
the unallocated items, which possibly could be charged
against the balance of $98,857.50 due under the 1802 and
1805 Treaty obligations of the United States (R. 307-
308). Judge Littleton further suggested that the case
should be remanded to the Indian Claims Commission to
permit appellant to show any other obligations of the
United States, in addition to the $1,500 annuity under
the 1790 Treaty, for which the payments shown for the
years 1803 through 1818 could have been intended, so that
the amounts of such obligations could be subtracted from
the $72,461.45 which he found to be the maximum allow-
able to the Government against its 1802 and 1805 Treaty
obligations (R. 307-308).
bo
The dissenting opinion, therefore, recognizes that there
were other obligations of the United States under the
Article NIL of the 1790 Treaty requiring it to furnish
the Creek Nation with useful domestic animals and im-
plements of husbandry, and to supply interpreters; and
also the obligation under the secret article of this treaty
to pay yearly stipends to Creek Chiefs during the period
of their lives, which could make up considerable of the
$72,461.45 balance. (R. 197, 215). For instance, the record
shows that three of the medal chiefs were still living in
1811, and that the United States estimated payments due
them of $300.00 for that year (R. 219-220, 226, 230-231).
Also the letter of Benjamin Hawkins, United States Agent
for the Creek Nation, to the Secretary of War, dated July
9, 1807, states in part, “I have heard nothing of the goods
or articles deemed necessary for the plan of civilization
for the present vear. The agricultural part is retarded
for want of the hoes, however the supply will be equally
useful the ensuing year” (R. 215), indicating clearly that
such items were forwarded or expected to be forwarded
under Article XII of this treaty.
We submit that in view of the fact that the respondent
injected the 1790 Treaty payments into the case in order
to show credits due it, that it, as the fiduciary, has the
burden of showing that any of the $72,461.45, or the bal-
ance of the unallocated items, was due as a credit on the
halance of $98,857.50 shown to be due petitioner on the
Government's 1802 and 1805 Treaty obligations.
As the Commission made no findings with respect. to
the unfulfilled obligations of the United States under the
Treaty of 1790 and the secret article thereof, we submit
that the Court of Claims should have remanded the case
to the Commission for such essential findings,
Claim Under Treaty of 1832
Judge Littleton further pointed out that the Commission
failed to make essential findings of whether or not the
66
Government's obligation under Article XILI] of this treaty
had been fulfilled, and stated (R. 308) :
“1 think that the Commission’s failure to find wheth-
er the 1832 Treaty obligation was fulfilled requires us
to remand this portion of the case to the Commission
for such a finding. On its face, the Commission's
‘finding’ is merely a restatement of the Government's
contention, and not a finding at all.
“The Commission’s ‘ultimate’ finding that there was
not sufficient evidence in the record to show that any
of the indebtedness claimed by appellant had not
been discharged does not remedy its failure to make
a material finding of fact. Where required findings
are not made by the Commission, the court will set
aside the Commission’s final determination and _ re-
mand the case so that such findings may be made.
Snake or, Piute Indians v. United States, 125 Ct. Cl.
241, 255.”
Claim Under Treaty of 1833
With respect to the claim under the Treaty of 1835,
Judge Littleton stated (R. 309-310):
“The Indian Claims Commission concluded that it
was unnecessary for it to determine whether the basis
for establishing the treaty liability as contended for
by appellant was correct, in view of its holding that
appellant had ‘not proven the alleged failures of the
appellee to fulfill its obligations * * °°. 7 Ind. CL.
Comm., 138. Since | would conclude that appellant
has laid sufficient basis for a conclusion that appellee
failed to fulfill its obligations,-I] think that it was
necessary fur the Indian Claims Commission to deter-
mine the amount of the Government's obligation under
the 1833 Treaty. 1 wouid therefore remand this por-
tion of the case to the Commission for such deter-
mination.” ,
'
We submit that this is a correct conclusion to be reached
with respect to the Commission's failure to make essential
findings necessary to the proper disposition of this claim.
67
Claim Under Treaty of 1856
Judge Littleton pointed out in the dissent that wotl
respect to petitioner's claim under the Treaty of sae,
the Commission's finding—that the $20,000 balance due the
Creek Nation as interest on the $200,000 trust fund, pre
vided for in Article VI of the Treaty of August 7, 1856,
1] Stat. 699, was paid to the Creek Nation—was not supp
ported by substantial evidence, and that the evidenee in
the record does not support the finding that this payment
was made to the Creek Nation.
The respondent claimed credit for two separate pay
ments of the $29,000 due: (1) the payment made by the
Confederate States, and (2) payment of said) amount
to refugee Indians, not necessarily Creek refugee Indians
(R. 33-34), under the Civil War Resolution of February
22, 1862, 12 Stat. 614, and ratified by the Creek Nation
by Article XI of the Treaty of June 14. 1866, 14 Stat. 7&5.
789-790. (R. 310, 313).
Judge Littleton reviewed the entire record, compared it
with the findings of the Commission, and set forth the
facts as follows (R. 310-315):
Appellant claims that the stipulated interest
for the vears 1857 through 1861, inclusive, a total of
$90,000, was appropriated by Congress but that ap:
pellee’s records show distributions of only $21,000
pursuant to this obligation. Appellant claims the
balance of $29,000. Appelee claims credit for twe
separate payments of the $29,000,
“(1) First, appellee claims that the $29,000 was paid
to the Creek Nation by the Confederate States of
America, pursuant to the treaty, dated July 10, 1861,
between the Confederate States and the Creek Nation.
Appellee asserts that the Creek Nation's acceptance
of the payment bv the Confederate States of the
payment by the Confederate States of the United
States’ obligation discharged the United States lia-
bility.
6s
“Appellant does not contest appellee's proposition
of law, but denies that there was proper payment or,
if there was, that it was validly accepted by the Creek
Nation,
“The Indian Claims Commission found:
‘In a treaty dated July 10, 1861, between the
plaintiff and the Confederate States of America,
it was agreed that the Confederate States of
America would pay said sum of $29,000 due and
owing by the United States.
‘The Confederate States paid the $29,000 and
plaintiff accepted the same.
‘The United States Congress also approved the
payment of the $29,000 involved in this claim for
the benefit of Indians remaining loyal to the
United States during the Civil War, which ex-
penditure the plaintiff Indians approved and
ratified in the Treaty of June 14, 1866.
“Appellant argues that the Treaty of July 10, 1861,
between the Creek Nation and the Confederate States,
conciuded at North Fork Village on the North Fork of
the Canadian River, west of Arkansas, which provided
for the payment of the $29,000 by the Confederate
States, was only approved by some of the Creek chiefs
.ithout the action of the Creek Council, the governing
body of the Creek Nation, and that the Creek Nation
was about evenly divided in sympathies between the
Union and the Confederacy. [R. 145, 155-157, 161,
166),
“I do not think that there is any evidence that the
$20,000 was pd to the Creek Nation. The evidence
shows that in Article ALI of the 1861 Treaty the
Confederate States agreed to pay the $29,000 [R. 256-
257!: that the Provisional Congress of the Confed-
erate States appropriated the $29,000 on December 24,
1861 | R. 257): that on December 30, 1861, that amount
was requisitioned by J. P. Benjamin, the Confederate
Secretary of War, from the Confederate Secretary
of the Treasury [R. 259]; that on the same date C. G.
Memmenver, the Secretary of the Treasury, ordered
69
a War Department Warrant No. 16 to be issued in
favor of General Albert: Pike, a War Department
agent, for delivery to Major Elias Rector, Superin
tendent of indian Affairs | R. 259); that on January 1,
1862, S. S. Seott, Acting Commissioner of Indian
Affairs, wrote to Majer Rector at) Fort) Smith,
Arkansas, informing him that the money was in the
hands of General Pike for delivery to him [R. 261):
and that on January 2s, 1862, General Pike wrote to
Major Reetor from Little Rock, Arkansas, informing
him that he supposed he would reach Fort Smith in
six days |[R. 262-263]. It is true that there is no
receipt for the $29,000, but in the light of the evidence
which | have detailed, ] think it was not improper for
the Indian Claims Commission to conclude that the
money was received by the Indians. See Chickasaw
Nation v. United States, supra, 108 Ct. Cl. at do.
“However, although the evidence may be sufficient
to support a finding that a payment ef $29,000 was
made to some Creek Indians, there is no indication
that this payment was made to the Creek Nation, as
distiszuished from some portion thereof. The obliga-
tion here was owed to the Creek Nation, and could
not be satisfied by payment to any party other than
the Creek Nation. Debts can only be satistied when
paid to the creditors to whom they are due, or to
others by direction of lawful authority. Therefore, a
payment to any party other than the Creek Nation,
even if that party was some portion of the Creek
Nation, cannot have satisfied the obligation owed to
the Creek Nation unless the party receiving payment
was authorized to receive it on behalf of the Creek
Nation. The evidence upon which appellee relies to
show payment indicates that no payment was made
to any party before January 28, 1862. on which date
General Pike, the Confederate representative charged
with delivering the money to the Creeks, was still at
Little Rock, Arkansas [R. 262-262]. The evidence also
indicates that after the treaty with the Confederacy
had been signed on July 10, 1861, a considerable por
tion of the Creek Nation, under the leadership of
Opoeth-le-vo-ho-la, was in sympathy with the Union.
This group met in convention on August o and de-
70
clared that the chiefs who had signed the Confederate
treaty had forfeited their administrative rank [R.
161]. A ‘Non-Treaty Party’ moved westward to avoid
the reach of those who were sympathetic to the Con
federate cause, and sent messengers to confer with
representatives of the United States | R. 161-166]. The
evidence also shows that by November 15, the Union-
minded Creeks had withdrawn further north, toward
the southern border of Kansas, and that they fought
a series of battles with Confederate forces along the
shores of the Arkansas and Verdegris Rivers through-
out November and December of 1861 [R. 140-146, 165-
174). The size of the group with Opoeth-le-vo-ho-la
is estimated at around 2,000 men, plus women, chil-
dren, and the siek and aged, in a total number of
perhaps 6,000, estimated to be from one-half to three
fourths of the Creeks |R. 140-141, 145-146, 166, 183).
It also appears that during the months of November
and December representatives of the refugee Creek
groups were treating with United States agents for
relief for the refugees and arranging for the render-
ing of military assistance by the Creeks to the United
States [R. 142-144, 148, 175-184].
“Tt seems to me to be clearly established by the
evidence that the Creek Nation had become divided
into two independc -t entities. It cannot be said that
the portion which remained in the South constituted,
after some time in November of 1861, the Creek Na-
tion, Payment to this southern group cannot be said
to have been payment of the obligation which was
owed to the Creek Nation.
“The record is barren of any evidence to show pay-
ment te an entity which could be called the Creek
Nation, since it shows, as pointed out by appellee,
that payment was made somewhere in the vicinity of
Little Rock, Arkansas (that is, at the camp of the
Southern group) some time after January 28, 1862
(that is, when the Creeks remaining in that vicinity
no longer constituted the Creek Nation).
“(2) The basis for appellee's second claim of eredit
for a second payment of the $29,000 is that the United
States authorized payments, out of Creek annuities
j
71
Which had not vet been paid, for the benefit of refugee
Indians during the Civil War, Resolution of February
22, 1862, 12 Stat. 614: that the $29,000 here in ques.
ton Was so used: and that the use of the annuities
for that purpose was ratified and confirmed by ap-
pellant by Article Xi of the Treaty of June 14. 1866,
14 Stat. 785, 789-790.
“The Supreme Court's decision in Seminole Nation
v. United States, 316 Ul S. 286, 290-291, supports ap-
pellee’s legal position, if in fact the $29,000 here in
question has been shown to have been disbursed for
the benefit of refugee Indians. In the Seminole case
this court had found that the $61,563.42 in question
had been diverted and dishursed by the Government.
“While itfis clear that payments were made by the
United States for the benefit of refugee Indians, | do
not think that there is substantial evidence im this
case to support a finding that fhe S29.000 i issue was
in fact paid to refugee Indians. | note that the In
dian Claims Comission did not so find. 11 found only
that the United States Congress had approved such
payment for the benefit of refugee Indians.” ‘which
expenditure the plaintiff Indians approved and. rati-
fied in the Treaty of June 14, 1866 (14 Stat. 785,
790).
“The Treaty of 1866 approved and confirmed co
penditures made by the United States since the di-
version of annuities for that purpose. The facet that
other annuity money was diverted for payment to
the refugees does not establish that the United States’
obligation for this $29,000 was released.
“The evidence in this ease shows that $843,321.17
was disbursed by the United States, during the vears
1862 to 1867 for the relief of refugee Indians, under
the appropriation entitled ‘Fulfilling Treaties with
Creeks.” Appellee savs that Creek treaties in force
during that period provided for a total of $229,260 in
annuities pavable to the Creeks. This figure appears
“’ The approval was not specifically of the S29.000. but of all
‘annuities pavable te the * * * Creeks * * * and which have not
been paid.” Resoiution of February 22, 1862. 12 Stat 614"
72
to have been taken from the total amounts appro-
priated under Creek treaties by Congress in the fiscal
vears 1862-1866.
“Appellee argues that because the amount expended
for the relief of refugee Indians exceeded the total
of the United States’ obligations for the period in
question by more than $29,000, the $29,000 due under
Article VI of the Treaty of 1856 is shown to have
been expended for the refugee Indians. This does not
follow at all. There may well have been other out-
standing treaty obligations which formed the basis
for the 1862-1867 expenditures. Indeed there must
have been, since the excess of expenditures over cur-
rent treaty obligations was considerably more than
$29,000.
“Unless, upon remand to the Indian Claims Com-
- mission, appellee could show that the $29,000 due
under the 1856 Treaty was among the sums disbursed
in 1862-1867, either by pointing to an explicit account-
ing for that obligation, or by showing that the total
of the treaty obligations payable to the Creeks was
not greater than the amount of 1862-1867 expendi-
tures in excess of current obligations, or otherwise,
I think that appellant is entitled to recover fhe
$29,000.”
Therefore, the Commission failed to find the essential
facts set forth above in the dissenting opinion of Judge
Littleton, and found facts which were not supported by
the substantial evidence in the record.
It is well settled that the failure of the lower court
to make essential findings of fact, or makes findings not
supported by substantial evidence, are reversible errors.
Seminole Nation v. United States (1942), 316 U. S. 310,
316; Snake or Piute Indians vy. United States (1953), 125
C. Cls. 241, 255.
Therefore, we submit that this case should be reversed
and remanded for this further reason, and that the Com-
mission be directed to make proper findings essential to
73
the proper disposition of the claims herein presented, and
in accord with the substantial evidence in the record.
The views of the dissenting opinion above quoted are
supported by well settled principles of law. The Creek
Nation divided into two independent parties: one, con-
stituting the majority, that "naintained its loyalty to the
United States and became its ally; and the other, con-
stituting the minority, that joined the Southern cause.
Vattel states (Book II], Ch. XVID, pars. 292, 293;
Chitty Ed., p. 424):
“When a party is formed in a state, who no longer
obey the sovereign, and are possessed of sufficient
strength to oppese him,—or when, in a republic the
nation is divided into two opposite factions, and both
sides take up arms,—this is called a civil war. ° * °”
° . . .
“A civil war breaks the bands of society and gov-
ernment, or, at least, suspends their force and effect:
it produces in the nation two independent parties, who
consider each other enemies, and acknowledges no
common judge.”
And at page 427: he states:
“But, when a nation becomes divided into two parts
absolutely independent, and no longer acknowledging
a common superior, the state is dissolved, and the war
between the two parties stands on the same ground, in
every respect, as a public war between two different
nations.”
In Conners v. United States (1898), 33 C. Cls. 317, 325
the Court said:
“e ° * it must likewise be held that where the
United States engages in war with a distinct portion
of a tribe, acting independently of the tribe over
which the tribe can exercise no control, being in fact a
distinct military command, the tribe in amity can not
be held responsible for the act of the hostile Indians.”
In affirming this case this Court in Conners v. United
States (1901), 180 U.S. 271, 275-276, stated:
74
“While the ghastly facts of this case, which are set
forth with much greater detail in the opinion of the
Court of Claims, appeal strongly to the generosity of
Congress to recompense those who have suffered by
the inconsiderate and hasty action of the troops in
dividing these Indians into hostility, they afford no
ground whatever for a judgment against the tribes
to which these Indians originally boionged, but from
which they had separated and carried on independent
operations. In fact, it would be highly unjust to add
to their manifest sufferings the payment of these
damages from their annuities, or for other funds
standing to their eredit. * * That band itself was
beyond the control of the tribes to which it originally
belonged is equally clear. As stated by the court
below, ‘It was not the case of individual Indians
wandering from the main body, murdering and des-
troying, while the main body remained in amity with
the United States, but it was the case of an entire
body waging armed resistance, with all its might and
will all the ferocity of Indian warfare, against what-
ever power the United States could bring to bear upoi
them. ee aad ”
To the same effect is Montoya v. United States (1897),
32. C. Cls. 349, affirmed by this Court in Montoya v. United
States (1901), in 180 U.S. 261, 268, in which this Court
stated:
“e * © On the other hand, if the marauders are so
numerous and well erganized as to be able to dety
the efforts of the tribe to detain them, in other words,
to make them a separate and independent band, carry.
ing on hostilities against the United States, it wouid
be obvicusly unjust to hold the tribe responsible for
their acts. It can hardly be supposed that Congress
would impose a liability upon tribes in amity with the
United States, for the acts of an independent band,
strong enough to defy the authority of the tribe,
although it would not be inequitable to hold the tribe
liable for individual members whom it was able, but
had failed, to control.”
79
Clearly, the minority portion of the Creek Nation that
joined the South, and acted independently of the Ma JOTI
portion of the Creek Nation that remained loval to. the
United States and beeame its ally. and fought three battles
With the majority pertion of the Creek Nation. did not
constitute the Creek Nation. as Judge Littleton Clearly
pointed out in the dissenting opinion.
Furthermore, the respondent’. own aceonnting shows
that most of the S34352L17 of Creek annuity moneys
diverted for refugee Indians Garing the Civil War period,
Was not disbursed for Creek refucees. (R. 33-34).
vd.
A Denial of a Writ of Certiorari by This Court
Does Not Constitute an Affirmance of the Decision
of the Lower Court
The Indian Claims Commission relied largely upon
the decision of the Court of Claims in Chickasaw Nation
v. United States (1945), 1083 ©. Cls. 1. instead of later
opinions of the Court of Claims overruling the Chickasaw
Case, and gave as its reason that the Chickasaw Case
decision was affirmed by a denial of certiocari by this
Court.
In reviewing the Indian Claims Commission opinion, as
affirmed by the majority of the Court of Claims, the dis-
senting opinion of Judge Littleton stated (R. 800-301):
“The Indian Claims Commission relied heavily, in
its decision of this case, upon Chickasaw Nation v.
United States, 3 Ct. Cl. 1, certiorari granted, limit-
ed to question of specifie designation of offsets, and
judgment reversed, 326 U.S. 217. That case does sup
port appellee's position, but does not have the weight
attributed to it by the Indian Claims Commissicn as a
result of the Commission's misconception of the mean-
ing of the Supreme, Court's denial of certiorari as te
the issues relevant to this case,
76
“In Chickasaw the Government's records showed
that it had purchased annuity goods for various tribes,
but did not show how much of these goods had been
allocated to the Chickasaws as distinguished from the
other tribes. This court said, ‘Unless this allocation
is known, the shortage, if any, in the goods annuity
of $3,000 cannot be ascertained. The accounts show
no shortage for which judgment may be given.’ 103
Ct. Cl. at 35-36. It should be noted, however, that
the problem did not receive extended consideration
by this court in Chickasaw. The Indian Claims Com-
mission, however, in relying upon Chickasaw rather
than upon more recent decisions of this court which
support the conclusion which | would reach, stated
that ‘The refusal of the Supreme Court to allow cer-
tiorari on the matters * ° ° specifically called to its
attention [in Chickasaw] is evidence that it approved
the holdings of the Court of Claims in reference to
such matters.’ 7 Ind. Cl. Comm. at 135. The Commis-
sion went on to say that the decision of this court
in Sioux Tribe of Indians v. United States, 105 Ct. Cl.
725, infra, -econld not overrule the [Chickasaw case |
because the Stour case is a Court of Claims opinion
only, while the holdings in the Chickasaw case were
approved by the Supreme Court by its refusal to
grant a writ of certiorari.’ 7 Ind. Cl. Comm. at 137.
“The Supreme Court has made clear that no such
inference is to be drawn from its denial of certiorari
in any case.”
The dissenting opinion spports this point by citing the
following cases in which this point has been passed upon
by this Court (R. 501, footnote 4):
“United States v. Shubert, 348 U.S. 222, 228-229;
Sunal v. Large, 332 U. S. 174, 181; House v. Mayo,
324 U. S. 42, 48; Atlantic Coast Line R. Co. v. Powe.
283 U. S. 401, 403-404: United States v. Carcer, 260
U. S, 482, 490; Hamilton-Brown Shoe Co. v. Wolf
Bros. and Co., 240 U. S. 251, 258. See also dissenting
opinion of Mr. Justice Frankfurter in Darr v. Bur-
forll, 339 U. S. 200, 226-228, where he stated at page
236:
“"The significance of a denial of a petition for cer
tiorari ought no longer to require discussion. This
Court has said again and again and again that such
a denial has no legal significance whatever bearing on
the merits of the claim. The denial means that this
Court has refused to take the case. It means nothing
else,
e s eo e
“Nothing is more basic to the functioning of this
Court than an understanding that denial of certiorari
is occasioned by a variety of reasons which precludes
the implication that were the case here the merits
would go against the petitioner.”
Clearly the dissenting opinion of Judge Littleton, con
eurred in by Judge Madden, is correct in its statement
of the law on this point, and the Indian Claims Commis
sion and the majority of the Court of Claims were in
erro?e. iY
CONCLUSION
For the reason set forth above we submit that the case
should be reversed and remanded with instructions to the
lower tribunals to follow the decisions of this Court
holding that a fiduciary relationship does exist between
the Umited States and the Indian tribes, in this ease the
Creek Nation: and with the further direction that) they
determine the issues in this case on the basis of the most
exacting fiduciary standards: and with further direction
to find facts which are essential to a proper disposition
of these claims, and in accordance with the substantia!
evidence in the reeord.
Respectfully submittea,
THE CREEK NATION, Petitioner
Pact M. Nrepens
Attorney for Petitioner
,
78
APPENDIX
SECRET ARTICLES OF THE TREATY OF
PEACK AND FRIENDSHIP
New York, August 7, 1790
George Washington, President of the United States of
America and the Creek Nation of Indians
Additional secret articles to the Treaty of Peace and
Friendship with the Upper Creeks, Lower Creeks, and
the Semanolees
Typescript of MS, Unpublished Treaty, Archives No. 17,
in U.S. Department of the Interior, Office of the Solici-
tor, Statutory compilation of the Indian law survey:
a compendium of Federal laws and treaties relatina
to Indians. Edited by Felix S. Cohen, Chief, Indian
Law Survey. Part 5: Indian Treaties (1778-1817).
Mimeo. Washington. 1940.
Unpublished Treaty
Archives No. 17
August 7, 1790
GEORGE WASHINGTON
PRESIDENT OF THE
UNITED STATES OF AMERICA
TO ALL TO WHOM THESE PRESENTS SHALL.
COME, GREETINGS
WilEREAS the treaty of peace and friendship, between
the United States of America and the Creek Nation of
Indians made and concluded on the seventh day of the
present month of August, Contains certain secret articles,
which are in the form and words following:
SECRET ARTICLES OF THE TREATY OF.
PEACK AND FRIENDSHIP
Made and concluded on behalt of the United States ot
America on the on part, and the Creek nation of Indians
on the other part in the City of New Yort. on this seventh
day af Angus, one Shousand seve Ww hundred and wine ty.
ARTICLE 1.
The commerce necessary for the Creek mation sh
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.