Petition — Strong v. United States

In the |

Supreme Court of the United Sime 1 N85

Octoser TRRN, 1975 | MICHAEL RODAK, JR.. CLERK

JAMES STRONG, et al.,

Petitioners,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

RODNEY J. EDWARDS PAUL G. REILLY

800 First American National Bank Suite 1 The Watergate 600

600 New pshire Avenue, N.W.

Attorney for Wyandot and Attorney for Six Nations

Chippewa petitioners petitioners

JAMES R. FITZHARRIS ROCHMES

700 Lake Shore Drive 2711 Lene

ee te Chi Ottawa : :

—1 * — for Delaware

ALLAN HULL 2

6505 Wil Mills , — 1 —

Mayfield Village, Ohio, 44143 Chicago, Illinois, 60606

Attorney for Ottawa petitioners Attorney for Miami petitioners

JACK JOSEPH

69 West Washington Street

Chicago, Illinois, 60602

Attorney for Shawnee and

Peoria (Piankeshaw/Wea)

petitioners

7 The Scheffer Press, Inc.—(312) 263-6850

TABLE OF CONTENTS

PAGE

c 1

ö e 2

Gr 2

Treaties and Statutes Involved . . . . .. 2

Z sa seesnscnsossnrnclielien 3

(1) The Pre-Treaty History of the Lands 3

(2) The Claims of all the Petitioners ................ 6

(3) The Separate Claims of Two Petitioners . 8

Reasons for Granting the Writ . . . . 9

1. The Importance of the Questions ................... 9

2. The Confused State of the Law. . . . .. 11

c —— ͤ—ͤ——ů— 14

Appendix A, Opinion of the Court of Claims App. 1

Appendices B, C, D, E and F are contained in a

separate volume.

List or AUTHORITIES

Choctaws, et al. v. United States, 34 C. Cls. 17, 51. 11

Confederate Tribes of the Warm Springs Reservation

v. United States, 177 C. Cls. 184, 194. 11

Miami Tribe v. United States, 146 C. Cls. 421, 431 .... 12

Mitchell v. United States, 9 Pet. 711, 745, 756 ............ 3, 13

Sac and Fox Tribe v. United States, 161 C. Cls. 189,

li

PAGE

James Strong et al. v. United States, decided May

30, 1975, the Court of Claims . . . . . 12

Tee-Hit-Ton Indians v. United States, 348 U.S. 272. 13

United States v. Alcea Band of Tillamooks, 329 U.S.

— 5m! ish ee Ake et 13

United States v. Kickapoo Tribe, 174 C. Cls. 550 =

United States v. Santa Fe R. Co., 314 U.S. 339 12

Worcester v. Georgia, 6 Pet. 515, 550 4

STATUTES AND TREATIES

Indian Claims Commission Act, 60 Stat. 1049, 25

— 2, 3, 10

Lc De Da 2

Canandaigua Treaty, Nov. 11, 1794, 7 Stat. 44. 3

Fort Wayne Treaty, June 7, 1803, 7 Stat. 74 3, 8

Greeneville Treaty, Aug. 3, 1795, 7 Stat. 49 3, 5, 6, 8

Treaty of Sept. 17, 1778, 7 Stat. 13 . . . .. . . 4

Treaty of Oct. 22, 1784, 7 Stat. 15 4

Treaty of Jan. 21, 1785, 7 Stat. 16 q —

Treaty of Jan. 31, 1786, 7 Stat. 2 a

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroszr Tzrm, 1975

No.

TRONG, et al.,

sa spain = Petitioners,

us.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

Petitioners (Indian tribes which were parties to the

treaty of Greeneville of August 3, 1975, 7 Stat. 49 and

the treaty of Canandaigua of November 11, 1794, 7 Stat.

44, or their representatives) pray that a writ of certiorari

issue to the United States Court of Claims to review the

judgment of that Court entered in this case on June

25, 1975.

OPINIONS BELOW

The opinion of the Court of Claims, rendered on June

25, 1975 by a three-judge panel of that Court, on appeal

from the Indian Claims Commission, is reprinted as

Appendix A hereto. The decision is as yet unreported. The

decision of the Indian Claims Commission, 31 Ind. Cl.

Comm. 89, August 9, 1973, is printed as Appendix B,

under separate cover.

**

The judgment of the Court of Claims was entered on

June 25, 1975; no rehearing was sought; no extensions

of time to petition for certiorari were sought.

Jurisdiction is invoked under § 20 of the Indian Claims

Commission Act, 60 Stat. 1049, 27 U.S.C. § 70s(c) [Ap-

pendix, F, p. 137a, under separate cover], and 28 U.S.C.

§ 1255.

QUESTIONS PRESENTED

1. Are Indian tribes which used and occupied certain

lands for about half a century, whose rights to the con-

tinued possession of such lands had been acknowledged,

first by the King of England and later by the United

States, and whose rights to compensation for yielding

possession had been acknowledged by the United States,

barred from recovering a conscionable consideration un-

der the Indian Claims Commission Act because more

than one tribe shared such use and occupancy in par-

ticular areas?

2. As to one substantial area claimed by two of the

tribes, where an exception to the recognition of tribal

titles to land was identified in a treaty, and in a subse-

quent treaty the Indians were induced to agree, without

consideration, to define the exception so as to result, in

effect, in a grant to the United States at least 10 times

larger than the treaty identifying the exception provided,

are the Indians barred from recovering a conscionable

consideration because the relinquishment was by an er-

roneous definition rather than by an explicit cession?

TREATIES AND STATUTES INVOLVED

Pertinent provisions of the treaties of Greeneville of

August 3, 1975, 7 Stat. 49, of Canandaigua of November

2

11, 1794, 7 Stat. 44, and of Fort Wayne of June 7, 1803,

7 Stat. 74 and of the Indian Claims Commission Act, 60

Stat. 1049, 25 U.S.C. §§ 70 et seq. are set forth as

appendices B, C, D, E and F under separate cover.

STATEMENT OF THE CASE

The petitioners are Indian tribes which for about half

a century used and occupied lands ceded to the United

States by the Six Nations under the Treaty of Canan-

daigua of 1794, 7 Stat. 44 and by the other tribes under

the Greeneville Treaty of 1795, 7 Stat. 49, for which the

Indian Claims Commission and the Court of Claims

have held they are not entitled to compensation where

the use was shared by more than one tribe.

(1) The Pre-Treaty History of the Lands

The ceded lands were part of the Old Northwest, the

territory north and west of the Ohio River and east of

the Mississippi. From 1763, when the French yielded

their sovereignty to the English, to 1795, the Indians

in possession insisted on their continued rights of posses-

sion, and except for a short hiatus following the Ameri-

can Revolution, both the English and American govern-

ments conceded such rights.

In 1763 the King of England issued a proclamation

which “reserved and secured to the Indians” rights of

“perpetual possession” while retaining in the Crown

“the ultimate reversion in fee” (Mitchell v. United States,

9 Pet. 711, 756).

In 1768 the Fort Stanwix Treaty modified the boundaries

of the reserved territory (Finding 11b, 31 Ind. Cl. Comm.

79, 170, Appendix B, p. 66a).

In 1776, at a treaty with three of the petitioner tribes,

Commissioners representing the United States stated:

— vo

You may rest assured that no white people will be

suffered to pass the line settled at Fort Stanwix,

for altho that agreement was made with the King

yet as we are satisfied with it, we shall take care that

it is complied with. [Docket 27-B Ex. 70, p. 10]

In 1778, under the first treaty published in the Statutes

at Large, the United States engaged “to guarantee to the

. . nation of Delawares . all their territorial rights

in the fullest and most ample manner, as it hath been

bounded by former treaties .. (7 Stat. 13).“ Chief

Justice John Marshall referred to the quoted provision

as one “entitled to peculiar attention, as it contains a

disclaimer of designs which were, at that time, ascribed

to the United States by their enemies, and from which

Congress was then peculiarliy anxious to free the govern-

ment.” Worcester v. Georgia, 6 Pet. 515, 550.

During the Revolutionary War a majority of the tribes

here concerned sided with the British, because, despite

such disclaimers, they believed (“correctly”, the Commis-

sion concluded, 31 Cl. Comm. at 101, App. B, p. lla) that

the Americans did have designs on their lands.

In 1783 the King conceded to the United States sover-

eignty over the Old Northwest (8 Stat. 80). In the earliest

Indian treaties which followed, the United States commis-

sioners asserted that the Indians, having been allied with

the King, were dispossessed of their lands, to which the

United States now claimed title by conquest (Finding 13b,

31 Ind. Cl. Comm. 177, App. B, p. 72a). These early

As disclosed by the evidence, the “former treaties”

included the one held in 1776, cited above, and two held

in 1775 and 1777. No written agreements were concluded

at these treaties, which the Commission and the Court

of Claims disparage as merely “meetings” (31 Ind. Cl.

Comm. 172-3, App. B, pp. 67a-68a; C. Cls., App. A, p. 10).

— =

treaties provided for the surrender by the tribes of more

than half of Ohio, and for the allocation of described

areas to certain tribes. (7 Stat. 15, 16, 26. The treaty

journals are in the record.)

The Indians “resented the treaties they had been forced

to execute, and they continued to regard all the territory

west of the Ohio River as theirs” (Finding 13c, 31 Ind.

Cl. Comm. 179, App. B, pp. 73a-74a). After a few years

of fruitless negotiations and inconclusive dostilities, the

United States explicitly repudiated the doctrine of con-

quest, and explicitly conceded that the King had con-

veyed to the Republic only what he claimed, which was

the right of preemption. The United States commissioners

stated to the Indians, in 1793:

Brothers: . . We, by the express authority of the

President of the United States, acknowledge the prop-

erty, or right of soil, of the great country, above

described [the Old Northwest], to be in the Indian

nations, so long as they desire to occupy the same.

We only claim particular tracts in it...and... the

right of purchasing of the Indian nations disposed to

sell their lands, to the exclusion of all other white

people whatever. [Docket 27-B, Ex. 95, pp. 13-14]

At the same time the commissioners asked that the Indians

make the concession of relinquishing “some of the lands

on your side of the river Ohio” (ibid., p. 12). This was

the compromise effected by the Greeneville Treaty.

For that treaty, General Anthony Wayne, who acted

for the United States, was provided with the speech of

the 1793 commissioners, quoted in part above, and in-

structed to make the same kind of compromise. He was

advised that the original construction of the treaty of

peace with Britain,

po

a construction as unfounded in itself as it was un-

intelligible and mysterious to the Indians . . . cannot

be too explicitly renounced. At the same time you

will carefully explain and maintain the preemption

right of the United States. Some delicacy will be

required to state even this claim, without exciting

their displeasure. If the land is theirs (and this we

acknowledge) they will say “Why shall we not sell

it to whom we please?” [Docket 27-B Ex. 101, p. 4]

None of the acknowledgments of the Indians’ rights to

their lands was conditioned on exclusive tribal possession.

The possibility of shared use and occupancy was expressly

accepted in Wayne’s instructions:

The treaties heretofore made with the Western In-

dians, have comprized a number of nations; and if

there be any truth in their pretensions of late years,

their interests are blended together. [ibid., p. 3]

By the Greeneville Treaty the tribes relinquished to the

United States a large area in Ohio and Indiana, and

smaller areas to the north and west. The United States

relinquished all the unceded lands of the Old Northwest

to the “tribes who have a right to those lands” and

guaranteed them the quiet enjoyment of the lands “against

all citizens of the United States, and against all other

white persons who intrude upon the same” (7 Stat. 49,

51-52; App. C, p. 114a).

(2) The Claims of All the Petitioners

The petitioners brought suit under the Indian Claims

Commission Act alleging, in substance, that the considera-

tion paid to them for lands of which they lost the use

(less than a penny an acre) was unconscionable. At the

time, the minimum selling price of the public lands, after

extinguishment of Indian claims, was $2.00 an acre.

=

As found by the Commission, whose findings were sus-

tained by the Court of Claims, in virtually all the geo-

graphic divisions of the ceded lands, different combina-

tions comprising two or more of the tribes represented

by petitioners (Chippewa, Delaware, Miami, Ottawa,

Piankeshaw, Six Nations (Mingo), Shawnee, Wea and

Wyandot) were occupying villages together and sharing

hunting territories. Until the Revolutionary War, which

disrupted tribal life in Ohio and Indiana, “the patterns

of use and occupancy . . . had remained fairly consistent

since the 1740’s” (Finding 12b, 31 Ind. Cl. Comm. 89,

174, App. B, p. 69a).°

The Commission held and the Court of Claims affirmed,

that “aboriginal title” and the right to compensation are

limited to the two land segments utilized by each of two

tribes (Delaware and Shawnee) exclusively, while in the

lands shared by two or more tribes there was no “aborigi-

nal title” by reason of such sharing, and no compensa-

tion need be paid for the cession of such lands to the

United States. It held further that none of the prior

treaties or representations of the United States consti-

tuted a “recognition” of the Indian title such as would

overcome the imposed handicap of non-exclusive posses-

sion.

* The statement in the Court's opinion (App. A, p. 5)

that, “The area as a whole ‘was inhabit controlled

or wandered over by many tribes or groups’” is not a

quotation from the Commission’s findings but from an-

other decision of the Court, involving different tribes

and a different area. As ~~ to this case, it is am-

biguous. The Commission’s findings show that different

portions of Royce Area 11, the “area as a whole” referred

to by the Court of Claims, was inhabited and controlled

in two cases by one tribe and in the remainder by differ-

ent combinations of two or more tribes. There was no

“wandering” and no single tribe was spread throughout

the area as a whole.

—

(3) The Separate Claims of Two Petitioners

For one area, the Vincennes Tract, the decision, while

adhering to its main premises, was based primarily upon

another ground. The Greeneville Treaty excepted from

the lands guaranteed to the Indians “the post of St. Vin-

cennes on the river Wabash, and the lands adjacent, of

which the Indian title has been extinguished” (7 Stat. 49,

51, App. C, p. 113a). The title had been extinguished

(supposedly in 1742) by a grant to the French of which

the boundaries were uncertain. In 1803 a treaty was held

to fix the boundaries of the lands so excepted. An agree-

ment was concluded which described a tract of approxi-

mately 1,800,000 acres, despite an Indian protest at its

extent, a protest which William Henry Harrison, the

United States treaty commissioner, found to be valid

after investigation (7 Stat. 74; App. E, p. 128a; Finding

32, 31 Ind. Cl. Comm. at 209-210, App. B, p. 98a). In

subsequent administrative proceedings, the Government

confirmed titles acquired under the earlier grant to the

extent of not more than 180,000 acres, the remainder

becoming public lands of the United States. The 1803

treaty provided no consideration to the Indians.

The Piankeshaw Tribe, grantor to the French and

original undisputed occupant of the area, and the D¢ia-

ware Tribe, an occupant by leave of the Piankeshaw,

claimed compensation for the approximate!, 1,620,000

acres lost to them and acquired by the United States

without consideration by reason of the erroneous boun-

dary description. In dismissing the claim, the Commission

stated, “. . although. the Indians did at first protest

. . the Indians did ultimately agree . . the Indians re-

ceived no additional consideration . . other than a re-

affirmance of the relinquishment by the United States

of claims to surrounding areas.” (31 Ind. Cl. Comm.

at 209-210, App. B, p. 98a). The Court of Claims affirmed

(App. A, pp. 14-16).

— —

==

REASONS FOR GRANTING THE WRIT

1. The Importance of the Questions

First to be resolved is the question whether the right

to compensation for the loss of lands on and by which

Indians lived is recognized only when a single monolithic

tribe possessed land exclusively as against all others,

or whether the right may justly be asserted when two

or more tribes, in stable occupancy, together possessed

land to the exclusion of al! others. The holding of the

Court of Claims is that, absent special recognition by

Congress, no rights are possessed by Indians where there

is common use—the occupancy of a second tribe destroys

the rights of the first tribe, not in favor of the second

tribe but in favor of the United States.

Second, even if the Court’s decision has some validity

as an abstract principle, which petitioners dispute, the

question remains whether the commitments of the United

States, legal or moral, in the period when it was solidify-

ing its independence, the commitments on the basis of

which it made peace with the Indians and obtained their

lands, may be brushed aside as though never made, now

that the Indian Claims Commission Act has provided a

forum in which such commitments may be made good.

With respect to the Vincennes Tract, the gist of the

decision below is the statement of the Court (App. A,

pp. 15-16) that, “The 1803 Treaty was intended to define

the scope of the earlier cession, not to change it. Under

these circumstances, we do not find the absence of addi-

tional consideration a factor which entitles appellants to

recover.” The Indians are not entitled to recover because

some 1.6 million acres were “defined” out of their posses-

sion, rather than ceded by them. This decision elevates

an incorrect formalistic distinction into a principle which

implies that the mandate of Congress to do justice to the

== 1.

Indians as expressed in the Indian Claims Commission

Act may be ignored when an unjust transaction is cast

in terms of an appropriate verbal formula.“

These are issues of special significance in this Bicen-

tennial Year. They have been disposed of too cavalierly

by the Court below. Its decision reinstates the false doc-

trine that the Indian lands passed by conquest from the

King of England to the new republic, a doctrine re-

nounced two centuries ago (so the Indians believed)

in the instructions given to Anthony Wayne for the

treaty by which the Indians ceded their lands:

As this construction . . as unfounded in itself as it

was unintelligible and mysterious to the Indians

has probably been the main spring of the distressing

war on the frontier, it cannot be too explicitly re-

nounced. [Docket 27-B Ex. 101, p. 4]

It has sometimes been said that as the United States

won its independence, the Indians lost theirs. The Indian

Claims Commission Act was designed to render justice at

least in those cases in which damages are measurable.““

* Congress explicitly provided in the Indian Claims

Commission Act (§ 2, Clause (4), 25 U.S.C., § 70a App. F,

2 132a) that the Commission shall hear “claims arising

rom 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 payment for

such lands of compensation agreed to by the claimant”, a

provision which would appear directly contrary to the

Court’s holding. [Emphasis added.]

That Congress intended justice be done to the Indians

is evidenced, inter alia, by Clause (5) of § 2 of the Indian

Claims Commission Act (25 U.S.C. § 70a, App. F, p.

133a), which provides, in addition to the traditional legal

and equitable grounds enumerated, that the Commission

was to entertain “claims based upon fair and honorable

dealings that are not recogni by any existing rule

of law or equity.”

—

The question whether justice has been rendered on these

claims (the word is missing and the concept is not ap-

parent in the opinions of the Indian Claims Commission

and the Court of Claims) deserves the consideration of

this Court.

2. The Confused State of the Law

The decision below expresses the Court’s reluctance to

“redefine a concept [of aboriginal Indian title] which has

stood the test of many decisions” (App. A., p. 6). If the

Court’s concept were indeed consistent with the precedents,

petitioners would argue that it is time a just rule replaced

an unjust precedent. But petitioners believe that what is

needed is not so much change as light. The Court below,

by enlarging some and contracting some of its own past

dicta, has arrived at a result which, if allowed to stand,

would leave the legal concept of aboriginal title in a

state of confusion.

While some decisions cited in the opinion below rou-

tinely defined Indian title by reference to exclusive pos-

session, not one of these decisions concerned a situation,

such as here, of two or more tribes occupying permanent-

type villages together, and utilizing hunting territories

cooperatively rather than competitively. Moreover, the

Court has consistently expressed the view that compen-

sable Indian title may be based upon joint and amicable

possession of land by two or more tribes. Choctaws, et al.

v. United States, 34 C. Cls. 17, 51; Sac and Fox Tribe v.

United States, 161 C. Cls. 189, 202; United States v. Kicka-

poo Tribe, 174 C. Cls. 550; Confederated Tribes of the

Warm Springs Reservation v. United States, 177 C. Cls.

184, 194. Nevertheless, in this, the first case based upon

actual joint and amicable possession“, the Court shifts

* Joint occupancy of villages is the clearest evidence

of joint and amicable possession.

23

its ground and re- interprets joint and amicable” to imply

political merger. The decision cited as precedent for this

interpretation, Sac and Fox Tribe v. United States, 179

C. Cls. 8 (App. A, pp. 67) has nothing whatsoever to do

with “joint and amicable possession”. As the quotation

from that decision demonstrates, it was a case of “a

single nation” formed by the “merger” of what had

earlier been two ethnically distinct tribes. The opinion

in that case discloses that exclusiveness of possession

was not even in issue. Thus the Court below, while

asserting strict adherence to precedents, has actually,

although without saying so, parted company with its own

past decisions.

The decision below is also inconsistent with leading

decisions of this Court.

In United States v. Santa Fe R. Co., 314 U.S. 339, the

leading case cited for the exclusiveness doctrine, a dis-

tinction was drawn between lands held by exclusive use

and occupancy and “lands wandered over by many tribes”

(at p. 345). The Court of Claims has read that decision

as if it held that one tribe may have title, but more than

one is legally equivalent to “many” and “wandering” and

therefore landless. But Santa Fe, contrasting two ex-

tremes in Indian life styles, does not support the all-or-

nothing doctrine applied by the Court below.

The Court below has adopted one rule for lands ceded

at Greeneville (no compensability for lands held by two

tribes) and another rule for the lands reserved at Greene-

ville (compensability for lands held by any number of

tribes: Miami Tribe v. United States, 146 C. Cls. 421, 431;

United States v. Kickapoo Tribe, 174 C. Cls. 550; James

Strong et al. v. United States, decided May 30, 1975.*)

This decision, captioned like the instant case, involves

some of the same parties.

*

The distinction drawn is that title to the reserved lands

was recognized“ whereas title to the ceded lands was

“aboriginal”. So far as Greeneville is concerned, such a

distinction is historically absurd, and implies a dichotomy

not visible in the record of what occurred. So far as the

law is concerned, as laid down by this Court, the distinc-

tion applies to cases relying upon the Fifth Amendment

to the Constitution, but not to suits for fair compensation

brought, like this one, under a general jurisdictional act.

United States v. Alcea Band of Tillamooks, 329 U.S. 40,

51; ef. Tee-Hit-Ton Indians v. United States, 348 U.S.

272.

The decision below is likewise inconsistent with the

principle that “Indian possession or occupation was con-

sidered with respect to their habits and modes of life

Mitchell v. United States, 9 Pet. 711, 745.

—_*

CONCLUSION

For the foregoing reasons, the writ of certiorari to the

United States Court of Claims should be granted.

Respectfully submitted,

RODNEY J. EDWARDS PAUL G. REILLY

800 First American National Bank Suite The Watergate 600

Bee 2 Avenue. N.W

Attorney for Wyandot and Attorney for Six Nations

petitioners petitioners

JAMES R. FITZHARRIS LOUIS ROCHMES

700 Lake Shore Drive $000 Ashburton

Escanaba, Michigan, 49629 Maryland,

Attorney for Chippewa, Ottawa Attorney for Delaware

ALLAN HULL

6505 Wilson Mills Rosd 12

Attorney for Ottawa petitioners “Tae te petiti

So West Washington

Illinois, 60602

APPENDIX A

DECISION OF

THE UNITED STATES COURT OF CLAIMS

Appeal No. 1-74 Decided June 25, 1975

In the Wnited States Court of Claims

Appeal No. 1-74

Ind. Cl. Comm. Docket Nos. 13-G, 15-E, 27-B, 29-C, 64, 89,

120, 130, 18-M, 40-F, 252, 335 and 338

31 Ind. Cl. Comm. 89

(Decided June 25, 1975)

JAMES STRONG, ET AL., apreLLANTS-CROSS APPELLEES v.

THE UNITED STATES OF AMERICA, run

CROSS APPELLANT

James R. Fitzharris, attorney of record, for James Strong,

et al., as the representatives and on behalf of all members

by blood of the Chippewa Tribe of Indians; for Robert

Dominic, et al., on behalf of the Ottawa Tribe of Indians;

for the Shawnee Tribe of Indians of Oklahoma, et al., appel-

lants, cross-appellees.

Robert C. Bell, Jr., attorney of record, for Hannahville

Indian Community, et al., appellants, cross-appellees.

Rodney J. Edwards, attorney of record, for Red Lake

Band, et al.; for Lawrence Zane, et al., ex rel. Wyandot

Tribe, et al., appellants, cross-appellees.

Robert S. Johnson, attorney of record, for the Potawat-

omie Tribe of Indians, the Prairie Band of the Potawatomie

Tribe of Indians, et al., appellants; cross-appellees.

David L. Kiley, attorney of record, for Ira Sylvester God-

froy, et al., ex rel. the Miami Indian Tribe, appellants; cross-

appellees. a

Paul G. Reilly, attorney of record, for the Six Nations,

appellants, cross-appellees.

877-278—78

Louis L. Rochmes, attorney of record, for the Delaware

Tribe of Indians; for the Absentee Delaware Tribe of Okla-

homa; for the Citizen Band of Potawatomi Indians of Okla-

homa, appellants ; cross-appellees.

Edwin A. Rothschild, attorney of record, for the Miami

Tribe of Oklahoma, appellants, cross-appellees.

Jack Joseph, attorney of record, for the Eastern Shawnee

Tribe of Oklahoma, et al., for the Peoria Tribe of Indians

of Oklahoma, et al., appellants, cross-appellees.

Allan Hull, attorney of record, for the Kickapoo Tribe of

Oklahoma, the Kickapoo Tribe of Kansas, et al., and the

Ottawa Tribe of Oklahoma, et al., appellants, cross-appellees.

Robert Z. Fraley, with whom was Assistant Attorney Gen-

eral Wallace H. Johnson, for the United States, appellee,

cross-appellant.

Before Cowen, Chief Judge, Kunzic, and Bennert,

Judges.

ON APPEALS FROM THE INDIAN CLAIMS COMMISSION

Cowen, Chief Judge, delivered the opinion of the court:

This case is before the court on numerous appeals, as well

as the Government’s cross-appeal, from various portions of

an interlocutory decision of the Indian Claims Commission

dated August 9, 1973. The consolidated proceedings below

involved the determination by the Commission of title claims

by various tribal claimants to an area of land identified on

Royce’s Map of Ohio as Area 11 (hereinafter called Royce

Area 11), as well as claims of title by several appellants to

certain smaller areas and rights of passage located north and

west of Royce Area 11. The land with which this appeal is

concerned was relinquished to defendant by the various tribes

who signed the Treaty of Greeneville of August 3, 1795 (7

Stat. 49), and by the Six Nations* who signed the treaties

‘The following tribes were signatories of the Treaty of Greeneville:

Wyandots, Delawares, Shawnees, Ottawas, Chippewas, Potawatomis, Miamis,

Del-Rlvers, Weas, Kickapoos, Piankeshaws, and Kashaskias. The treaty, by its

terms, superseded various earlier agreements made with certain of the above

tribes.

* The Six Nations was a confederacy consisting of the Seneca, Cayuga, Onelda,

Onondaga, Mohawk, and Tuscarora Nations. In these treaties the Six Nations

relinquished its claims of title to the areas west of New York, which included

Royce Area 11.

of October 22, 1784 (7 Stat. 15), at Fort Stanwix; of Jan-

uary 9, 1789 (7 Stat. 33), at Fort Harmar; and of Novem-

ber 11, 1794 (7 Stat. 44) at Canandaigua.

In summary, the Commission found that, except for two

relatively small segments of land held “aboriginally” by the

Delaware and Shawnee Tribes respectively, Royce Area 11

was not held by the ancestors of the present Indian claimants

in such a manner as to require defendant to compensate them

under the Indian Claims Commission Act, 60 Stat. 1049.

Furthermore, the Commission determined that the appell-

ants had no compensable interest in most of the smaller areas

lying north and west of Royce Area 11. For the reasons dis-

cussed below, we hold that, with one exception, the Commis-

sion’s findings of fact are based on substantial evidence in

the record and that its conclusions of law are correct.

By far the largest area covered by the Commission’s de-

cision was Royce Area 11, consisting of approximately

18,000,000 acres and covering two-thirds of what is today

the State of Ohio and a small contiguous area in Indiana.“

It is, therefore, not surprising that the most vigorous and

lengthy contentions of the parties deal with this territory.*

Simply stated, the tribal appellants seek affirmance of the

Commission’s determinations that the Delaware and Shawnee

Tribes had aboriginal title to certain portions of Royce Area

11, and reversal of the Commission’s decision that in the

remainder of Royce Area 11, there was no Indian title. On

the other hand, the Government contends that no tribe is

entitled to recover additional compensation for any portion

of Royce Area 11, since none had aboriginal or recognized

title. Defendant further argues that, if any title did exist at

* Article III of the Treaty of Greeneville drew a general boundary line be-

tween land agreed to be owned by the United States and lands agreed to be

owned by the Indian signatories of the treaty. This line, called the Greeneville

River on Lake +

now located. From this point, the Line ran south

nodian

and east of this line, which were ceded and relinquished to the United States,

were identified as Royce Area 11.

title, which we do not.

4

any point in time, it was extinguished. Thus, the Government

seeks affirmance of the Commission’s decision against claim-

ants and a reversal of the decisions favorable to the Delaware

and Shawnee in Royce Area 11, and to the Wyandot in

Royce Area 20 and the unsurveyed area near Sandusky,

Ohio.

The Commission’s opinion and accompanying findings of

fact trace in detail the history of Indian settlements in this

area from 1650 through 1795, emphasizing the evolving re-

lationships among the various tribes and between the several

tribal groups and the French, the British, and the Americans.

The findings demonstrate considerable thoroughness and at-

tention to detail, and for the most part they are not questioned

by the Indian appellants. As stated in the Opening Brief

of Certain Appellants: “The issues in these appeals [as to

Royce Area 11] involve primarily questions of principle,

not of fact.”

Aboriginal title. The primary “question of principle” pre-

sented in the Indian claimants’ appeals concerns the Com-

mission’s concept of “aboriginal title.” Throughout its

discussion of this issue, the Commission relied on past case

law in determining whether claimants sufficiently proved the

existence of aboriginal title at the cession date in 1795. The

doctrine of aboriginal title is not new. As the court stated in

Sac & Fow Tribe v. United States, 179 Ct. Cl. 8, 20-21, 383

F. 2d 991, 997, cert. denied, 389 U.S. 900 (1967) :

[T]he right of sovereignty over discovered land was

always subject to the right of use and occupancy and

enjoyment of the land by Indians. This right of use and

occupancy by Indians came to be known as “Indian title.”

> a, aD called “original title” or “aboriginal

i

Similarly, the requirements for an Indian claimant to prove

aboriginal title have been listed on numerous occasions in the

past. For example, we held in Sac & Fow Tribe v. United

States, 161 Ct. Cl. 189, 201-02, 315 F. 2d 896, 902, cert.

denied, 375 U.S. 921 (1963) , that

[t]o be accepted under the Indian Claims Commission

Act, aboriginal I. must rest on — — exclusive and

continuous use occupancy “for a time” prior to

the loss of the property. alu supplied. ]

See United States v. Santa Fe R. R., 314 U.S. 339 (1941);

Confederated Tribes of Warm Springs Reservation v. United

States, 177 Ct. Cl. 184, 194 (1966), and cases cited therein.

It was with this standard that the Commission approached

its task in this case.

The obstacle facing the Indian claimants in this litigation

is the requirement of “exclusiveness.” Generally, mixed and

non-exclusive use and occupancy of an area precludes the

establishment of any aboriginal title by any of the users

of the subject property. Quapaw Tribe v. United States,

128 Ct. Cl. 45, 120 F. Supp. 283 (1954). The purpose of

this requirement is fairly obvious. In order to award com-

pensation to the Indians for the value of land ceded to or

taken by the Government, it is essential that the Commis-

sion first determine that the land in question was truly

“owned” by the ancestors of the particular claimant or claim-

ants. Certainly, one of the primary characteristics of owner-

ship is the desire and ability to exclude others from the

area over which ownership is claimed. Confronted with a

similar issue recently, the court stated in United States v.

Pueblo of San Ildefonso, —— Ct. Cl. —— (April 1975):

Implicit in the concept of ownership of property is the

ight to exclude others. Generally onion, — owner

of land exercises full dominion and control over it; a

true owner the right to expel intruders. In

order for an Indian tribe t establish ownership of land

by so-called Indian title, i aust show that it used and

occupied the land to the exclusion of other Indian

groups. True ownership of land by a tribe is called in

question where the historical record of the indi-

cates that it was inhabited, controlled or red over

by many tribes or groups. [slip op. at 17]

“Exclusiveness” becomes a problem to plaintiffs simply

because the historical record of Royce Area 11 demonstrates

clearly that, with the exceptions found by the Commission,

the area as a whole was “inhabited, controlled or wandered

over by many tribes or groups.” Indeed, claimants’ own

expert witnesses testified that prior to 1795 there was no

exclusive use and occupancy ascertainable in the overall

Royce Area 11 or in any large portion of it. Thus, without

more, it would seem that the appeals grounded on claims of

aboriginal title must be denied. Faced with the problem, the

appellants have urged us to redefine the aboriginal title

concept to fit their particular situations. According to the

claimants:

‘Aboriginal title’ as of 1795, if it means anything, must

refer either to the customs and practices of the Indians

in the ceded area, at the relevant t es, or to the 1795

law of the sovereign United States. The sharing of lands

by tribes who had not otherwise combined in the ceded

area to form a new entity, conformed to both.

This attempt to have us redefine a concept which has stood

the test of many decisions in the past is not persuasive. We

are not disposed to discard a principle which has, in numerous

cases. been held to meet the purposes and objectives of the

Tndian Claims Commission Act.

However, a denial of claimants’ attempt at redefining the

“aboriginal title” theory does not automatically result in the

defeat of their aboriginal title claim. Although normally no

tribe will be deemed to have proven aboriginal title when

others used and oceupied the land in question, there is a

“built-in exception” to the “exclusivity” requirement. Ac-

tually, this “exception” merely creates a method of analysis

of “exclusivity” in certain rare situations. In the past, the

court has held on several occasions that two or more tribes

or groups might inhabit an area in “joint and amicable”

possession without erasing the “exclusive” nature of their use

and occupancy. See United States v. Pueblo of San Ildefonso,

supra; Turtle Mt. Band of Chippewa Indians v. United

States, 203 Ct. Cl. 426, 490 F. 2d 935 (1974); Sac & For

Tribe v. United States. 179 Ct. Cl. 8, 383 F. 2d 991, cert.

denied. 389 U.S. 909 (1967). To qualify for treatment under

“joint and amicable” occupancy, the relationship of the

Indian groups must be extremely close. We described just

such a relationship in Sac & For Tribe v. United States, Id.

at 16, 383 F. 2d at 995, as follows:

Originally the Sac and Fox Nation consisted of two

separate and identifiable tribes of Indians belonging to

the Algonquin stock. Around 1735, due to their mutual

hostility and conflict with the French, they formed a

close and intimate alliance, politically and socially, so

that from thence forward they hare been dealt with and

referred to as a single nation both in their relationship

with other Indian tribes and in treaty negotiations and

7

other matters with the United States. (Emphasis

supplied)

Indeed, the tribal relationship between the Sac and the Fox

was deemed by the court to be so close as to constitute a

“merger” of the previously existing tribal entities.

The Commission was correct in finding that no such re-

lationship existed among the tribal claimants in the case

presently before the court. The attempts by appellants to

prove the existence of a “confederacy” of various tribal en-

tities living at times in Royce Area 11 are simply not per-

suasive, when one reviews the evidence presented to the

Commission. The cooperation upon which claimants rely can

be explained readily without reference to any “confederacy”

theory. In this regard it should be remembered that Royce

Area 11 was, during the relevant time period, “an immense

open territory which was sufficiently large to accommodate all

those Indians who settled or hunted there.” 31 Ind. Cl. Comm.

at 111. Thus, one reason for cooperation among the tribal

claimants was the lack of any need for inter-tribal warfare

over the property rights of the various tribes. The urea was

simply too large and untamed for such activity to be neces-

sary. Furthermore, the cooperation which did exist resulted

from the existence of a common enemy, the “white man,”

who, according to the evidence, battled the tribes continu-

ously. Finally, there is little evidence in the record to support

a theory that the Indians considered themselves as “one

nation.” The 1750 inter-tribal council, relied on so heavily

by the claimants, was not such a recognition ; instead, it was

an attempt to reduce the likelihood of armed conflict between

various tribes interested in their own tribal interests. The

United States did not view the tribal residents of Royce

Area 11 as a confederacy. For example, the Commission, in

looking at those lands on the Indian side of the Greeneville

Treaty Line, found:

* * * it was understood by the Government's repre-

sentatives and the Indians [at Greeneville] that each

tribe had separate lands, that there was no community

of interest in the lands of the Northwest territory.

5 Ind. Cl. Comm. 180, 214 (1957). For these reasons, we

reach the same conclusion that we reached in Iowa Tribe v.

8

United States, 195 Ct. Cl. 365, 370 (1971), cert. denied, 404

U.S. 1017 (1972), where we held:

The [tribes] did not consider themselves, and were not

treated, as a single or closely 2 — but

rather as separate political 11 ch were friends

or allies (for the most part). ir use of the same

lands may have been in common, like much of Indian

use of the midwestern and western regions—but the

Commission could properly decide that it was not proved

to be truly joint, and therefore that each separate tribe’s

claim to Indian title would have to be tested on its own

distinct basis.

Taking each tribe's right to title individually and utilizing

the applicable precedents discussed above, it becomes obvi-

ous that the Commission’s denial of aboriginal title for a

large portion of Royce Area 11 was correct.

Recognized title. Several of the claimants in this case also

argue that, even if aboriginal title is not found for Royce

Area 11, their ancestors had “recognized title” to this land.

According to their contentions, Indian title to this land was

recognized by the Government (1) by its assumption of the

rights and obligations of the British Crown under the Fort

Stanwix Treaty of 1768; (2) by its own treaties of 1775,

1776, and 1778, and (3) by its acknowledgments of Indian

title during the post-Revolutionary War era. We recognize

at the outset that “we are free to reach our own independent

conclusion on this question since the interpretation of a treaty

is a question of law and not a matter of fact.” Citizen Band

of Potawatomi Indians v. United States, 179 Ct. Cl. 473.

482, 391 F. 2d 614, 618 (1967), cert. denied, 389 U.S. 1046

(1968) ; see Minnesota Chippewa Tribe v. United States,

161 Ct. Cl. 258, 262, 315 F. 2d 906, 908 (1963). After making

that independent determination, we have concluded that the

Commission's denial of recognized title in this case was

correct.“

The doctrine of recognized title, like that of aboriginal

title, is not novel, and there can today be little room for

misunderstanding precisely what proof must be presented

by claimants seeking to benefit from it. These standards

* Claims listed in the Opening Brief of Certain Appellants as moral and

equitable claims” are merely a repetition of plaintiffs’ aboriginal title claims

and are likewise without merit. See Otoe 4 Missouria Tribe of Indians v. United

States, 131 Ct. Cl. 593, 181 F. Supp. 265, cert. denied, 350 U.S. 848 (1955).

9

were clearly summarized in Miami Jribe v. United States,

146 Ct. Cl. 421, 439, 175 F. Supp. 926, 936 (1959) as follows:

Where Congress has by treaty or statute conferred

upon the Indians or acknowledged in the Indians the

right to permanently occupy and use land, then the

Indians have a right or title to that land which has been

variously refe to in court decisions as “treaty title,”

“reservation title.“ “recognized title,” and “acknowl-

edged title.” As noted by the Commission. there exists

no one particular form for such Congressional recog-

nition or acknowledgment of a tribe's right to occupy

permanently land and that right may be established in

a variety of ways. [citing Tee-Hit-Ton v. United States,

348 U.S. 272 (1955) ; Hynes v. Grimes Packing Co., 337

U.S. 86 (1949); Minnesota v. Hitchcock, 185 U.S. 373

(1902).]

The significance of the recognized title doctrine generally

lies in the fact that a plaintiff successful on this issue need

not present proof demonstrating aboriginal use and occu-

pancy. Minnesota Chippewa Tribe, supra, at 445. The theory

has special interest to the claimants in this case, since it was

their failure to prove “exclusive use” which resulted in their

defeat on the aboriginal title claims discussed above.

Although the claimants need not demonstrate “exclusive

use” to show possession of recognized title, they must still

prove that Congress intended to recognize that they had the

right to permanently use and occupy the land area under

scrutiny. This requirement has long been a part of the recog-

nized title doctrine as enunciated by the Commission and the

courts. As we stated in Sac & For Tribe v. United States, 161

Ct. Cl. 189, 197, 315 F. 2d 896, 900, cert. denied, 375 U.S. 921

(1963) :

Appellants apparently assume that “recognition” or

“acknowledgment” necessarily follow from an accept-

ance by the United States of the bare fact that the par-

ticular Indians dwelt or hunted, or claimed to dwell or

hunt, in the area at that time. But there must be another

indispensable element before recognition is had. The

Congress must affirmatively intend to grant the right to

— and use the land permanently. (Emphasis

supplied.)

Taking a close look at each treaty, we have determined

that the claimants have failed to show the necessary Congres-

577-275—75——2

10

sional intention to grant them “permanent” rights in Royce

Area 11. They have failed to demonstrate that the “recog-

nition” involved here was anything more than “permissive

occupation.” See Sioux Tribe v. United States, 205 Ct. Cl.

148, 500 F. 2d 458 (1974). The 1768 Fort Stanwix Treaty,

upon which the Chippewa, Shawnee and Wyandot rely, was

negotiated by the British to protect against a threatened

Indian uprising. Furthermore, this treaty was entered into

by the Six Nations of New York. It is very questionable what

role, if any, was played by the Ohio tribes at this conference,

since their representation was quite small and their “rank

and file” never accepted the boundary drawn up by the agree-

ment. The meetings in Pittsburgh during 1775 and 1776

occurred because of the Government’s desire to maintain a

semblance of Indian neutrality during the Revolutionary

War; these informal gatherings cannot be viewed as Gov-

ernment recognition of Indian title. The Treaty of Septem-

ber 17, 1778, relied on by the Delaware claimants, was clearly

a treaty of peace entered into by the Government to counter

British propaganda that the Americans planned to confiscate

Indian lands. At most, the guarantee of Delaware “territorial

rights” as described in Article VI of the 1778 treaty can be

read as a declaration of American intention to continue the

former British policy of respecting Indian title where it was

established against third parties.

By the end of the American Revolution, the intent of

the United States Government was “unequivocally the op-

posite of what is required to establish recognized title.” 31

Ind. Cl. Comm. at 107. Through the post-Revolutionary

War era until 1795, the Government attempted through its

military might and its skills at the negotiating table to rid

Royce Area 11 of the appellants. The first treaty negotiated

after the close of the War was the Treaty of Fort Stanwix

of October 22. 1784. in which the Government attempted

to convince the tribal representatives of the Six Nations

that Indian title had been relinquished by their ally, Great

Britain, in the Treaty of Paris of 1783. This so-called “right

of conquest” theory is evidence of the Government's inten-

tion not to acknowledge Indian title, but to make peace with

formerly hostile Indians and at the same time to obtain clear

rights to lands northwest of the Ohio River. This doctrine

11

was also used in various talks with the Wyandot, Delaware,

Ottawa, Chippewa, and Shawnee during 1785-1786 but

proved, in the end, to be unsuccessful in maintaining peace

in Royce Area 11. Instead, augmented by British agents,

the Indian hostility remained. Toward the end of 1787, in

response to pleas for another treaty, a Congressional com-

mittee recommended to the Congress that the “policy of

conquest” be replaced by a policy in which the Government

would negotiate and “purchase” the Indian lands in question.

Congress then authorized Governor St. Clair of the North-

west Territory to negotiate with the dissident tribes, instruct-

ing him as follows:

The primary objects of the treaty are, the removing

[of] all causes of controversy, so that peace and harmony

continue between the United States, and the Indian

tribes, the regulating [of] trade, and settling bound-

aries sess 8

This change in policy does not demonstrate, as claimed by

several of the appellants, that the Government had deter-

mined to recognize Indian title to this area. To the contrary,

the Government’s instructions to its representative demon-

strate that its motives were otherwise. Furthermore, the

Government’s activities in encouraging settlement in this

region pursuant to the Ordinance of May 20, 1785. does not

show an intention to recognize Indian title. Thus, we have

concluded, after reviewing the evidence presented to the

Commission, that the treaties and policies cited by appellants

do not show that any of them had “recognized title” to any

part of Royce Area 11.

The Govrernment’s Cross-Appeal as to Royce Area 11. We

also affirm the Commission’s finding of aboriginal title for

the Delaware and Shawnee Tribes in the two relatively small

portions of Royce Area 11. In describing the area of land

awarded to the Delaware Tribe, the Commission stated :

Delaware presence in [the upper Muskingum and its

tributaries} during [1742 to 1.51] was overwhelmingly

predominant and lasted a long time. Those incidents of

use and occupancy by other Indians we view as i

sive or as 80 as not to be inconsistent wit Dela-

ware use and occupancy Based u the evi-

dence in this record, we conclude that as of the date of the

1795 Treaty of Greeneville, the Delaware Indians pos-

12

sessed aboriginal title to that portion of Royce Area 11

included within the present-day counties of Tuscarawas,

Coshockton and Muski in Ohio.

31 Ind. Cl. Comm. at 121. With regard to the Shawnee award

tract, the Commission found that :

The Shawnees continuously used and occupied this area

from the late 1730’s until — were forced to abandon

these lands in the late 1770’s * * * * Until they were

forced out in the late 1770’s, the Shawnees had estab-

lished Indian title to the area ded on the north by an

east-west line running along the 40th degree north lati-

tude and on the south by a straight line running from the

city of Athens in Athens County west to the town of

Highland in northern Highland County, and bounded

on the east and west by the lines described in note 6 of

the findings of fact as the east and west boundaries of

central Royce Area 11.

31 Ind. Cl. Comm. at 122-23. Defendant appeals from this

portion of the Commission’s opinion, claiming that (1) the

Commission’s findings of fact do not support its ultimate

determinations that aboriginal title existed for these por-

tions of Area 11; (2) the Delaware and the Shawnee had

abandoned their respective lands prior to 1789, and (3) the

“prior sovereigns” of Virginia, Connecticut and the “Colonial

Confederacy” extinguished Indian title to this land.

The thrust of defendant's first argument is that the Com-

mission failed to use the correct standard of proof for de-

termining aboriginal title. We acknowledge that the findings

are not as clear and concise as they might have been. How-

ever, after much study, we have decided that the findings

themselves are supported by substantial evidence. It is clear

that the Commission, after finding that the two tribes in

question enjoyed “predominance” over certain portions of

Royce Area 11, restricted the determination of aboriginal

title to that limited area of land over which the tribes in

question enjoyed exclusive occupancy and control. We are

not presented here with a situation in which we are unable

to ascertain precisely what method the Commission utilized

to arrive at its final decision. Cf. Seminole Indians v. United

States, 197 Ct. Cl. 350, 455 F. 2d 539 (1972). Indeed, it would

be unreasonable to conclude that the Commission would use

a standard of proof other than the one with which it is so

ee” eet —

— — ͤ— bE

13

familiar, which it found so readily in the case law, and which

it set forth so accurately in its opinion. Therefore, defend-

ant's contentions concerning abandonment and extinguish-

ment of title to these tracts of land are without merit and

deserve no extended discussion in this opinion.

II

Having resolved the claims relating to Royce Area 11, we

now turn to the remaining appeals. In the 1795 Greeneville

Treaty, the Indians not only ceded Royce Area 11, but also

relinquished their claims to 16 enclaves (described in Article

III), five rights of passage (described in Article III), and

four other areas (described in Article IV)—all of which

were located north and west of the Greeneville Treaty Line.

In the proceedings before the Commission, the Indian claim-

ants sought to establish aboriginal title to these areas. In

some instances they were successful; in others they were not.

On appeal, we are primarily concerned with the areas in

which the Commission found that the appellants had no

aboriginal title. The Government’s cross-appeal is limited

to the Commission’s determination in favor of the Wyandot.

The Commission found insufficient evidence of Indian title

with respect to Royce Areas 12, 13, 14, and 15 in Ohio,

Detroit and the surrounding area, the areas located at the

Straits of Mackinac (Royce Areas 21, 22, and 23 in Michi-

gan), Royce Area 25 (known as Clark’s Gran*), Royce Area

26 (the Vincennes Tract), and the lands traversed by three

of the rights of passage. Several Indian groups have ap-

pealed from the Commission’s determination as to these areas.

In addition, the Ottawa Tribe claims it is entitled to par-

ticipate in the Wyandot recovery for an area around Fort

Sandusky in Ohio. The Peoria Tribe of Oklahoma (repre-

senting the Weas) asserts that the Commission erred in deny-

ing recovery for the Ouatanon enclave and that the Peoria

Tribe is entitled to participate in the recoveries of the Miami

Tribe. For the reasons given below, we reject the claims of

the appellants, as well as the Government’s cross-appeal, and

affirm the Commission’s determination as to all areas with the

exception of the Ouatanon enclave. The findings of the Com-

mission as to this enclave are not sufficient to enable us to

decide the issue raised in the appeal by the Peoria Tribe.

14

The Vincennes Tract (Royce Area 26, Indiana). The

Vincennes Tract, ceded to the United States in the 1795

Greeneville Treaty, was defined in Article IV of the Treaty

as follows: It Ihe post of St. Vincennes on the river Wabash,

and the lands adjacent, of which Indian title has been ex-

tinguished.” The question before us is whether the appellants

possessed aboriginal title to any part of what is known as

the Vincennes Tract (Royce Area 26) at the time of the

Greeneville Treaty.

The Commission found that the boundaries of the Vin-

cennes Tract ceded at Greeneville were described in the 1803

Fort Wayne Treaty (7 Stat. 74) and that in the 1803 Treaty,

the Indians acknowledged that any claims they may have

had to this area were extinguished prior to 1795. The Com-

mission further found that no Indian tribes possessed ab-

original title to the Vincennes Tract at the time of the 1795

Greeneville Treaty.

The Peoria/Piankeshaw and the Delaware Tribes appeal

from this determination. They contend that the two tribes

between them had aboriginal title to the area around St.

Vincennes until 1803 (except as to that portion of the land

which had been given to the French prior to the Greeneville

Treaty). They also claim that the Indians ceded only an

area of 180,000 acres at Greeneville and that in the 1803 Fort

Wayne Treaty, the United States defined the ceded area

around St. Vincennes in such a way that the tract was in-

creased from the original cession of 180,000 acres to an area

of 1.8 million acres. From this, they argue that the 1803

Treaty provided no additional consideration to the Indians

for the increase in the amount of the ceded land, and that

the Indian parties to the treaties are entitled to recover under

the Indian Claims Commission Act for an unconscionable

taking of property amounting to the difference between the

1.8 million acres and the 180,000 acres originally ceded in

1795. We hold that the Commission’s determination is sup-

ported by substantial evidence and is correct as a matter of

law. Therefore. we reject appellant’s arguments to the

contrary.

The Greeneville Treaty did not specifically delineate the

boundaries of the Vincennes Tract; rather the treaty makes

only a vague reference to lands in which title had previously

" ee et mae

a

15

been extinguished. The record shows that the Indians had

given the French an area of land surrounding St. Vincennes

in about 1742, but the size of the grant was not clearly defined

See, L. Lux. Vincennes Donation Lands 428-29 (1949) '

Carter, Territorial Papers of the United States, Vol. 11

58-59 (1934). Nor were the boundaries of the French grant

subsequently clarified under the periods of British and

American control prior to 1795. While the United States did

institute a land grant system in 1788 under which it is esti-

mated that the United States eventually distributed about

180,000 acres in the Vincennes area (see, L. Lux, supra, at

444-46, 478, 481), there is no indication that these grants

bore any relationship to the total amount of land which the

Indians had given the French and which were subsequently

ceded to the United States at Greeneville. Thus, there was

apparently no definite understanding at the time of the

Greeneville Treaty concerning what lands had previously

been alienated by the Indians.

It was only after the Greeneville Treaty that the Gover-

nor of the Indiana Territory, William Henry Harrison,

undertook to define the boundaries of the Vincennes Tract.

Because of the uncertainty, even at that time, as to the extent

to which the Indians had alienated the land around Vin-

cennes prior to Greeneville, Harrison began negotiations with

the Indians in the Vincennes area with a view toward estab-

lishing the boundaries by agreement. These negotiations cul-

minated in the 1803 Fort Wayne Treaty, by which the

parties agreed to the cession of approximately 1.8 million

acres.* The 1803 Treaty is the first time that the boundaries

* The First Article of the Fort Wayne Treaty of June 7, 1803, provided

Whereas it is declared by the fourth: article of the treaty of Greeneville

that the United States reserve for their use the post of St. Vincennes and ell

the lands adjacent to which the Indian tities had been extinguished 4

whereas, it has been found difficult to determine the precise limits of the .

tract as held by the French and British governments : it is hereby agreed. that

the boundaries of the said tract shall be as follows : Beginning at Point Coupee

on the Wabash. and running thence by a line north seventy-cight degrees. west

twelve miles. thence by a line parallel to the general course of the Wabash.

until it shall be intersected by a line at right angles to the same, passing

en cae mouth of White river, thence by the last mentioned line across the

abash and towards the Ohio, seventy-two miles, thence by a line north twelve

degrees west rr

Potat by the last

— 2 4 mentioned line to the place of

16

of these lands were clearly defined, and there is no indication

that the 1803 Treaty increased the size of the Vincennes Tract.

as appellants argue. The 1803 Treaty was intended to define

the scope of the earlier cession, not to change it. Under these

circumstances, we do not find the absence of additional con-

sideration a factor’ which entitles appellants to recover.

In other cases, we have relied upon subsequent treaties to

define the boundaries of lands covered by the Treaty of

Greeneville (see Miami Tribe v. United States. 146 Ct. C1.

421, 442. 175 F. Supp. 926. 938 (1959) ). We follow the same

practice in this instance where the question is one of defining

the boundaries of the land ceded to the United States at

Greeneville.

At Greeneville, the Indians ceded the lands surrounding

St. Vincennes to which title had previously been extinguished.

This area was defined in the 1803 Treaty as the entire area

now included in Royce Area 26. Consequently, appellant's

attempt to prove aboriginal title to this area or any part of

it in 1795 by evidence of use and occupancy was not

successful.

Even if it is conceded that the Delawares and the Pianke-

shaws had used a part of the Vincennes Tract prior to Greene-

ville, as appellants argue, such shared use, without more.

would not constitute the exclusive use and occupancy required

to establish aboriginal title.

Clark’s Grant (Royce Area 25, Indiana). Clark’s Grant is

a tract of 150,000 acres of land located in southern Indiana

which was ceded to the United States for the use of George

Rogers Clark and his men by Article IV of the Greeneville

Treaty.“ The appellants* claim that the Commission erred

’ Before the Commission, the appellants claimed that they bad aboriginal

title in 1795 to part of Royce Area 26. In order to recover, they had to show

not only that they used this area prior to 1795, but also that the entire area

had not been sifenated prior to 1795. In the proceedings before the Commission.

the appellants had an opportunity to put in evidence on both points or te

respond to the Government's evidence concerning the Indian alienation of the

land in the Vincennes area prior to 1795. Under the circumstances, we do not

think the Commission erred in relying upon the 1803 Treaty to establish the

extent of pre-Greeneville alienation. Nor is it appropriate to remand the case

to enable the appellants to put in evidence to show that the pre-Greeneville

alienation was smaller than the estimated 180,000 acres distributed by the

United States.

* Subsection 1, Article IV. of the 1795 Greeneville Treaty provided

“The tract of one hundred and fifty thousand acres near the rapids of the

river Obio. which has been assigned to General Clark. for the use of himself

17

to several different pieces of land adjacent to Royce Area

(see 31 Ind. Cl. Comm. 89, — teeted eden,

based their claim upon the shared use of this land the

* * * I

neighboring tribes, and they ask for a recovery to be dividea

is insufficient to establish joint Indian title to the prope

Since the appellants have not made the requisite —

exclusive use and occupancy, we find that the Commission’s

determination is supported by substantial evidence.

There is no “logical contradiction” in the Commission’s

finding that the United States “perfected its title” to Clark’s

Grant in the Greeneville Treaty and its finding that none

of the appellants bad title to this tract. At Greeneville, the

Indians jointly acknowledged the earlier grant to Clark and

the United States confirmed its title to this land.” Appel-

lants failed to show either an aboriginal or a recognized

18

title interest in this land. The fact that they collectively

granted it to Clark and subsequently acknowledged the grant

in the Greeneville Treaty, does not give them a compensable

interest in the land.

Royce Areas 12, 13, 14, 15. and the Rights of Passage.

Royce Areas, 12, 13, 14, and 15 are separate tracts (or

enclaves). located north and west of the Greeneville Treaty

line. which were ceded to the United States at Greeneville.”

As to these areas. the Commission found that none of the

Indian claimants had aboriginal title in 1795. The Commis-

sion also found that Royce Areas 12, 13, and 14 were located

so close to the Greeneville Treaty Line that they should be

treated as appendages of the nearby portions of Royce Area

11. Moreover, the Commission found that the sporadic use

of Royce Area 15 by various groups did not support a finding

of aboriginal title in any tribe. Lf

Several Indian tribes are appealing from this decision.

These appellants all argue. at least in part. that these areas

should be treated the same as Royce Area 11 and that the

various Indian tribes shared the use of the land, thus acquir-

ing a common compensable interest or a “joint aboriginal

title.” We rejected this argument in our discussion of the

Vincennes Tract. Clark’s Grant. and Royce Area 11, and we

need not discuss it further. The fact that Royce Area 14 1s

adjacent to Royce Areas 165 and 166, which were granted to

the Shawnee by Article 6 of the Treaty of September 29,

1817, (7 Stat. 162), and that Royce Area 14 was relatively

close to Shawnee settlements in Royce Area 11 in the late

1770’s and early 1780's, does not establish exclusive use and

he Greeneville

u Royce Areas 12 through 15 are described in Article III of t

Treaty as follows: Royce Ares 12: “One piece of land six miles square at or

“One

19

occupancy by the Shawnee of Royce Area 14. Since there is

little or no evidence of exclusive use and occupancy by any

tribe or unified combination thereof in any of these areas, we

hold that the Commission's determination is supported by

substantial evidence.

Article III of the Greeneville Treaty also granted the

United States free passage over certain routes on the Indian

side of the Greeneville Treaty Line. These rights of passage

were not cessions, but they nevertheless constituted a grant

of valuable property rights. Only three of the rights of pas-

sage are in issue on appeal—those designated by the Com-

mission as routes 1, 2, and 3. As to these, the Commission

found that appellants had no aboriginal title interest.”

Here again, the appellants “ argue that they have a com-

pensable interest by virtue of their shared usage of the land

traversed by the rights of passage. We cannot accept this

position for the reasons pre ously stated in the discussion

of the claims to Royce Area 11. Accordingly, the decision of

the Commission on this issue is affirmed.

Loyce Areas 21, 22, and 23. These areas consist of land

on Mackinac Island and the northern tip of lower Michigan

at the Straits (Royce Area 21), the southern tip of the upper

Michigan peninsula (Royce Area 22), and the Island of

Bois Blank located a few miles from the Straits (Royce

Area 23). The appellants ** contend that the Commission

erred in finding that they had no aboriginal title to these

The rights of pasxage described in the last paragraph of Article III of the

(reeneville Treaty are nearly all over the waters of navigable rivers. The por-

tions that traverse land are (1) that portion of the first passage running from

Loromie’s store (Royce Area 12, Ohio) to the St. Mary's River (the portage

path meets the St. Mary's River within Royce Area 13, Ohio) : (2) that por-

tion of the second passage running from Loromie’s store (Royce Area 12. Ohio)

to the Au-Glaize River at a point within Royce Area 14—this passage includes

the portage between Royce Areas 12 and 13 and then proceeds through Royce

Area 87 for a distance of approximately nine miles to Royce Area 14: and (3)

that portion of the third described passage running from Lotomie s xtore ( Rovee

Kren 12) to the Sanduxky River (this pasxage most probably proceeded across

south-central Royce Area 7 for a distance of approximately 606 miles). See

31 Ind. Cl. Comm. 89. 202-03.

“The Wyandot plaintiffs in Docket 120. the Shawnee in I'ocket 64. the

Chippewa in Docket 1G. and the Shawnee and Peoria in Dockets 225 and

338. and the Ottawa plaintiffs in Docket 338 all appeal the Commission's deter

mination with respect to the rights of paxaage.

The appellants in this instance are the plaintiffs in Dockets 18—-M and 40-F

(Ottawa and Chippewa), as well as the Potawatomie Tribe, plaintiffs in Docket

IE.

areas; again, they argue that their shared use of the land

made them joint owners of the land. This contention is re-

jected on the same grounds which we have discussed in deny-

ing similar claims.

The Ottawa and Chippewa appellants make the further

argument that they should be treated as joint owners of

these lands in the same way as was done with Royce Area 205,

which is adjacent to the lands in issue here (see 7 Ind. Cl.

Comm. 576). The Ottawa and Chippewa parties in this

appeal were the plaintiffs in that case, where the Commission

found that the Ottawa and Chippewa Tribe had aboriginal

title to Royce Area 205, primarily because they found that

the Ottawa and Chippewa had formed a single entity some-

time after 1795 and before 1836. The appellants here have

not shown evidence of such unity prior to 1795. The fact that

these tribes combined into a single entity after 1795 does not

show that they jointly owned the land prior to that date.

The Commission found that in 1795 Royce Areas 21, 22, and

23 were areas of common use and occupancy by autonomous

bands of the Ottawa and Chippewa Indians and that they

failed to establish aboriginal title. We find this determina-

tion is supported by substantial evidence.

Detroit and Surrounding Area. This area consists of

approximately 288,000 acres around Detroit. In this appeal,

the Wyandot Tribe argues that the Commission erred in

finding that no tribe possessed aboriginal title to the area

surrounding Detroit in 1795. The Ottawa Tribe and the

Prairie Band of the Potawatomie Indians also appeal from

the Commission's decision on the ground that they shared

the use of this area with other tribes and thus acquired a

joint interest in the land, for which they are entitled to

compensation.

The main issue is whether the Wyandot Tribe established

aboriginal title to the land. The evidence shows that Cadillac

founded a post at Detroit in 1701. From 1710 to 1720, four

tribes had settlements around Detroit: Chippewa, Potawa-

tomi, Ottawa, and Wyandot (Huron). While the Chippewa

never established a strong presence in the area, the other

tribes shared the use of these lands for about half of the

Eighteenth Century. The Ottawas occupied a village near

—

— — ee — .

21

Detroit until 1763, when they moved south into the Maumee

River area of Ohio; the Potawatomis occupied a village in

the ceded area from 1710 to approximately 1764 when they

left the area; and the Wyandots maintained a settlement in

the area from 1705 to 1742 when they moved across the

Detroit River into present-day Ontario. The period of mixed

occupancy up to approximately 1763 shows that no tribe or

unified tribal combination had the requisite exclusive use and

occupancy to establish aboriginal title up to that time.

The Wyandot claim is based primarily on the fact that

in 1777 they established two village sites at present Wyan-

dotte and Gibraltar, Michigan, within the ceded area, and

that they remained there until 1796. The Commission found

that no other Indian groups were in the area during these

years. The Wyandot conclude that this is sufficient proof of

exclusive use and occupancy to establish Indian title in 1795.

The Wyandot position does not account for the fact that

whites had moved into the Detroit area in relatively large

numbers prior to the Greeneville Treaty. The Commission

found that shortly after Cadillac’s settlement of Detroit,

whites were granted lands adjacent the Fort.

Later, several tracts of land were sold or granted by

Indians to settlers. By 1788, there were approximately 4,000

whites settled on both sides of the Detroit River. The area

for several miles around the post of Detroit was farmland.

The Commission found that by 1795 most of the Detroit area

was occupied by whites.

In this instance, we are not presented with a question of

whether the white intrusion on Indian land extinguished

4 previously established aboriginal title. Turtle Mountain

Band v. United States, 203 Ct. Cl. 426, 447-48, 490 F. 2d

935, 947 (1974). Nor is the white settlement on the land being

used to establish a date for the extinguishment of Indian

title. United States v. Pueblo of San Ildefonso, supra, slip op.

at 12; United States v. Northern Paiute Nation, 203 Ct. Cl.

468, 474-75, 490 F. 2d 954, 958 (1974). Here, the Wyandot

Tribe did not have aboriginal title at the time of white settle-

ment, which began in the early Eighteenth Century and in-

creased thereafter. The presence of white settlers in the area

shows that the Wyandot Tribe did not exclusively use and

22

occupy the entire Detroit area prior to 1795. On the basis of

the evidence in the record, we conclude that the Commission’s

determination of this factual issue is supported by substan-

tial evidence.

It is not necessary to discuss the claims of the Ottawa and

the Prairie Band of the Potawatomi which are also based

on the shared use theory. This argument has been treaied in

our discussion of Royce Area 11, and, again, we rely on the

reasons given there in rejecting this claim.

Ouatanon or the Old Wea Towns. This area, ceded in Ar-

ticle III of the Greeneville Treaty, was described as [o] ne

piece six miles square at the Ouatanon or old Weea towns on

the Wabash river.” While the Commission found that this

area was located within the aboriginal area of the Wea Na-

tion in 1795, which at that time was a part of the Miami

Tribe, the Commission also found that the area was subse-

quently returned to the Indians by the Treaty of Septem-

ber 30, 1809 (7 Stat. 113) ; that it was receded to the United

States as part of Royce Areas 98 and 99 by the Wea and

Miami Tribes in the Treaties of October 2, 1818 (7 Stat. 186)

and October 6, 1818 (7 Stat. 189); that the Wea had been

compensated for most of the land as part of Royce Area 99,

and that a small portion of the ceded land north of the

Wabash River is included within the claim of the Peoria

Tribe in another docket (Docket 314-A) before the Com-

mission. Consequently, the Commission determined that the

Indians were not entitled to recover for this enclave.

Appellant * takes issue with this conclusion for several

reasons, one of which is that the evidence before the Com-

mission is insufficient to show that the Weas were compen-

sated for this land, even in part, through the recovery for

Royce Area 99. After reviewing the briefs, treaties, cited

cases, and after oral argument, we find that the Commission’s

determination on this issue is too summary for us to decide

whether the Commission’s findings are supported by sub-

stantial evidence or whether the conclusions of law are valid

and supported by the findings of fact.

1 The appellant in this instance is the Peoria Tribe of Indians of Oklahoma

in Docket 338, representing the Wea.

Article 8 of the Treaty of September 30 i

that It Ihe United States agree to wn she Reese arty —

the reservation, at the old Ouroctenon towns, made by the

treaty of Greenville, so far at least as to make no further

use of it than for the establishment of a military post.”

(7 Stat. 114). It is significant that the Weas were not a

party to this treaty, although they subsequently gave their

consent (7 Stat. 116). Also, it is unclear which tribes received

the rights to this area and what rights were received. Fur-

thermore, the record does not show whether the Ouatanon

enclave was included in the 1818 cessions by the Weas or the

Miamis. We therefore conclude that the Commission has not

furnished a sufficient statement of the reasons for its find-

ings and conclusions under 25 U.S.C. §70r(3) for us to

review the Commission’s decision on this issue. (See Sac G

Fou Tribe v. United States, 196 Ct. Cl. 548 (1971) ; United

States v. Nez Perce Tribe, 194 Ct. Cl. 490, 503, cert. denied

404 U.S. 872 (1971)), and we remand this portion of the

= “a 8 proceedings.

! rea Around Fort Sandusky and

Article III of the Greeneville — nor rag United

States the following area around Fort Sandusky: “[o]ne

Piece six miles square upon Sandusky lake, where a fort

formerly stood.” The Treaty describes Royce Area 20 as

[o]ne piece two miles square at the lower rapids of the

Sandusky river.” These areas are located in northern Ohio

on or near Lake Erie. The Commission found that the Wyan-

dot had Indian title to these areas because of their — of

the Fort Sandusky area from 1737 to 1748 and from the

early 1750's until after 1795 and on the basis that the Wyan-

dots had exclusive use and occupancy of the land in Ro ce

Area 20 from 1760 to 1794. The Commission further —

that two bands of Otta was settled in the Fort Sandusky area

from 1784 to 1811 but that the use and occupancy by the

Ottawas was with the permission of the Wyandots.

The Ottawa appellants take issue with the decision to the

extent that it does not allow them to participate in the

recovery for the Fort Sandusky area. They argue that the

Commission found the Ottawas had two settlements in this

area prior to 1795, that there is no evidence upon which to

24

conclude that this use was by permission of the Wyandot,

and that even if their use was by permission of the Wyandot,

they have a compensable interest by virtue of their shared

use of the property. We hold that there is substantial evi-

dence to support the Commission’s decision on this point.

The Wyandot had been in the area around Sandusky for

more than 30 years prior to the Ottawa settlements. There is

evidence that the Wyandot had given permission to other

Indian tribes to use their lands in Ohio, and we think the

record, taken as a whole, supports the inference that the

Ottawa were in the Sandusky area with the consent of the

Wyandot. Permissive use by the Ottawa did not diminish the

title of the Wyandot, and by the same token, such use gave

the Ottawa no interest in the land. The Spokane Tribe of

Indians v. United States, 163 Ct. Cl. 58, 68 (1963).

The Government also appeals from the Commission deci-

sion concerning the area around Fort Sandusky and from

the determination as to Royce Area 20, claiming that Indian

title to these enclaves had been extinguished by prior

sovereigns before March 3, 1789, with the result that the

Wyandot did not have aboriginal title at the time of the

Greeneville Treaty. The Government takes the position that

Virginia, Connecticut, or the Colonial Confederacy extin-

guished Indian title to these enclaves as well as to certain

areas within Royce Area 11. The Commission found that

the inclusion of the Fort Sandusky area within Connecticut’s

Western Reserve had no effect on the aboriginal title of the

Wyandot to this area, which was ceded to the United States

in 1795. We have considered the Government’s arguments

on prior extinguishment and conclude, as did the Commis-

sion, that the Wyandot held aboriginal title to these enclaves

at the time of the Greeneville Treaty.

Wea Participation in Miami Recoveries. The Wea are cur-

rently one of the constituent tribes of the Peoria appellants

in Docket 338. Before the Commission, the Wea claimed that

they were entitled to a one-third interest in any Miami re-

coveries resulting from the Greeneville Treaty by virtue of

the fact that the Miami, Eel River, and Wea had formerly

been one nation and were a nation at the time of the 1795

Greeneville Treaty. The Commission did not go so far as

to find what interest, if any, the Weas would have in any

25

Miami recoveries, but issi i

— Mien oeeiipges tnt att

he Miami appellant takes issue wi mmission’

finding to the extent that it would ina an to —

in Miami recoveries. With the exception of Royce Areas 16

and 17, and a portion of the fifth described passage in Arti

cle III of the Greeneville Treaty, we have found that the

Miami did not have a compensable interest in any of the lands

ceded to the United States at Greeneville. Consequentl the

question of Wea participation in Miami recoveries on] —

Soe — recovery, if —5 for two of the enclaves — one

— 0 — Miami

oe title in — 9

® appellant claims that the Weas had no interest i

the disputed property because the Weas did — —

control any of these lands or have a recognized title ror =

ont — further that the statement in the Grouse-

‘and Treaty that the Miami, Eel River, and Wea were “one

ion prior to 1805 did not constitute a retroactive deter-

mination that each tribe owned an undivided interest in the

— of the other 10 years before the Grouseland Treaty

y, appellant es that i i i '

political rather —— Pate

The evidence shows that the Miami, Eel River and Wea

considered themselves as an entity and that they agreed to

hold their property in common. Article IV of the Grouseland

Treaty, signed August 21, 1805, provided :

As the tribes which are now call iami

River and Weas, were formerly and ph per me Rona

hey have determined that

engage to consider joi

try on the Wabesh and ita — 2 —

by tig od which has not been to the United States,

y or any former treaty; * * *” (7 Stat. 91-92)

The Grouseland Treaty is an acknowledgmen

— to the treaty that the Miami, Eel River, — —

ormerly been an entity prior to 1805 and that they held

their property in common. This was the basis for consider -

ing them to be joint owners of the property in 1805. In a

26

letter to the Secretary of War, dated March 22, 1814, William

Henry Harrison stated :

The Miamies have their principal settlements at the

forks of the Wabash, thirty miles from fort Wayne;

and at Mississineway, thirty miles lower down. A band

of them under the name of weas [sic], have resided on

the Wabash sixty miles above Vincennes; and another

under the Turtle on Eel river, a branch of the Wabash,

twenty miles northwest of fort Wayne. By an artifice

of the Little Turtle these three bands were passed on

general Wayne as distinct tribes, and an annuity was

ted to each. The Eel river and Weas however to this

ay call themselves Miamies, and are recognized as such

by the Mississineway band.

The Commission has on two previous occasions found the

Weas to have been a constituent part of the Miami Nation

in the period prior to 1795 (see 2 Ind. Cl. Comm. 617, 618;

5 Ind. Cl. Comm. 180, 181) and these decisions were affirmed

in pertinent part in 146 Ct. Cl. 421 (1959). This evidence

supports the Commission’s determination that the Wea were

part of the Miami Tribe in the Eighteenth Century and as

such they are entitled to participate in the Miami recoveries.

As for the division of interests, the Commission did not

specify the percentage of recovery which should be given to

the Wea, and neither party asks us to make such a deter-

mination. Accordingly, the allocation of interests is to be

decided by the Commission on remand.

III

In conclusion, we hold, with one exception, that the Com-

mission has correctly resolved the numerous issues involv-

ing Royce Area 11 and the smaller areas north and west of

the Greeneville Treaty Line. Accordingly, we affirm the

Commission's determinations in these matters. As previously

stated, that portion of the Commission’s decision dealing with

the Ouatanon enclave is remanded to the Commission for

additional proceedings in accordance with this opinion. Since

the amount to be recovered by the several appellants was not

involved in the Commission’s interlocutory decision, we also

remand the case for further proceedings in that regard.

REMANDED

6.5. GOVEREBERT PRIATING OFFICE: 1978