# Petition — Strong v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 1015

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1024%3A1. Public record. Not legal advice.