Appendix — Sac & Fox Tribe of Indians of Oklahoma v. United States
Supreme Court brief1975
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No. 75- 4 7 5
IN THE
SUPREME COURT OF TH
Octoser TERM, 1
THE SAC AND FOX TRIBE OF INDIANS OF
OKLAHOMA, et al.,
Petitioners
v.
THE UNITED STATES OF AMERICA,
Respondent
Appenpix To
Perrrion For A Writ or Certiorari To
Tae Unrrep States Court or CLaimMs
Grorusz B. PLETSCH,
7200 Sears Tower
Chicago, Illinois 60606
Attorney of Record for The Sac and
Fox Tribe of Indians of Oklahoma,
et al.
Aaron J. KRAMER,
Scurrr Harpin & WaITE
Of Counsel
Lawrence C. MILs,
29 South LaSalle Street
Chicago, Illinois 60603
Attorney of Record for The Sac and
—_ Tribe of the Mississippi in Iowa,
et al.
MILLs AND GARRETT,
Of Counsel
STANFORD CLINTON,
6000 North Bay Road
Miami Beach, Florida 33140
Attorney of Record for The Sac and
Fox Tribe of Missouri, et al.
September 25, 1975
ee SSS SSS
_ EEE Serer rrarae
La Salle Street Press — Chicago Printed in U.S.A.
— 08. ao
INDEX TO APPENDIX
PAGE
Order of Court of Claims Denying Petitioners’ Motion
for Rehearing En Banc, The Sac and Fox Tribe of
Indians of Oklahoma, et al. v. The United States,
App. No. 7-74 and App. No. 9-74 (June 27, 1975) ....
Order of Court of Claims Affirming Decision of Indian
Claims Commission, The Sac and Fox Tribe of In-
dians of Oklahoma, et al. and Related Appeals v. The
United States, App. No. 7-74 (April 25, 1974) .......
Opinion of Commission in The Sac and Fox Tribe of
Indians of Oklahoma, et al. v. The United States,
Dockets 158, 209 and 231, 32 Ind. Cl. Comm. 256
EE ead dee eee Coe eR beads we Cede ne ees
Opinion of Court of Claims in The Sac and Fox Tribe
of Indians of Oklahoma, et al. v. The United States,
se ee ED 0h cededecdescecenesescdeses
Opinion of Commission in The Sac and Fox Tribe of
Indians of Oklahoma, et al. v. The United States,
Dockets 158, 209 and 231, 20 Ind. Cl. Comm. 439
Dt <n didseusthdaeihedabeseesevedésuabesebess
Findings of Commission in The Sac and Fox Tribe of
Indians of Oklahoma, et al. v. The United States,
Dockets 158, 209 and 231, 20 Ind. Cl. Comm. 439
Dt ccticdedibuatvedeavepenesabebenndewcucensce
19
28
ii
PAGE
Order Denying Plaintiffs’ Motion to Rehear and for
Other Purposes, The Sac and Fox Tribe of Indians
of Oklahoma, et al. v. The United States, Dockets 158,
209 and 231, 22 Ind. Cl. Comm. 439 (1970) .......... 89
Opinion of Commission in The Iowa Tribe of the Iowa
Reservation in Kansas and Nebraska, et al. v. The
United States, Docket 153, 22 Ind. Cl. Comm. 385
[RUE shebddudeedd<dduseuensunnecensdssdsuntesed 91
Findings of Commission in The Iowa Tribe of Iowa
Reservation in Kansas and Nebraska, et al. v. The
United States, Docket 153, 22 Ind. Cl. Comm. 385
CRED édutedecdscdbeusebessuevedecdeesueeesanets 100
BED ccccocvcsececcceceescessovescoesevescescdes 121
SD ac ccbeuenreceuuede shee cueksesduseaavenusuns 127
hc 2 et eee Rene Ne Se ase en on 132
Rl stisskbanetaeeenssehdeeuanndwodeuenueseean 136
Indian Claims Commission Act, Section 70s (25 U.S.C.
RD ccisecehanbanacenke hada rabsaern knee leueeaue 138
ee OO EEE eee ae —————_———— lO OTe SL
In THe Unirtep States Court or CuLams
Tue Sac anp Fox Trise or Inpians } A
or OxLaHOoMa, Er At. 4 No 774
and
Vv. App.
No. 9-7
Tue Unitep States ;
Before SKELTON, Judge, Presiding, DURFEF, Senior
Judge, and KUNZIG, Judge.
ORDER
These cases come before the court on motions, filed May
14, 1975, by the petitioners (the various Tribes of Indians)
for rehearing en banc pursuant to Rules 7(d) and 151 in
both cases. Upon consideration thereof, without oral argu-
ment, by the five active Judges of the court (Judges Davis
and Kashiwa not participating) as to the suggestions for
rehearing en banc under Rule 7(d), which suggestions are
denied, and further having been so considered by the panel
listed above as to the motions for rehearing under Rule 151,
IT IS ORDERED that petitioners’ said motions, filed
May 14, 1975, for rehearing be and the same are denied.
BY THE COURT
Rosert L. Kunzic
Judge, acting for the
Presiding Judge
June 27, 1975
Iw Tue Unrrep States Covrt or Cuams
Tue Sac anp Fox Tripe or Inp1ans oF )
OxtaHoma, Er Au., anp ReLaTep APPEALS,
Appellants,
v. No. 7-74
Tae Unrirep States,
Appellees.
J
Before SKELTON, Judge, Presiding, DURFEE, Senior
Judge, and KUNZIG, Judge.
ORDER
This case comes before the court on appeal from the
decision of the Indian Claims Commission in its Dockets
158, 209 and 231, having been presented and submitted to
this court on the briefs and oral argument of counsel. Upon
consideration thereof,
IT IS ORDERED that the decision of the Indian Claims
Commission from which the appeals have been taken be and
it is affirmed.
BY THE COURT
Byron SKELTON
Byron Skelton
Judge, Presiding
April 25, 1975
32 Ind. Cl. Comm. 256
BEFORE THE
INDIAN CLAIMS COMMISSION
ee et~—t—S.
THE SAC AND FOX TRIBE OF INDIANS
OF OKLAHOMA, et al,
THE IOWA TRIBE OF THE IOWA| pocket
RESERVATION IN KANSAS AND NE-| No, 158
BRASKA, et al,
THE SAC AND FOX TRIBE OF INDIANS ; Docket
OF OKLAHOMA, et al,
Plaintiffs, Docket
v. No. 231
THE UNITED STATES OF AMERICA,
Defendant.
Decided : November 23, 1973
Appearances:
Aaron J. Kramer and George B. Pletsch, At-
torneys for the Sac and Fox Tribe of Indians of
Oklahoma. Schiff Hardin Waite Dorschel &
Britton were on the brief.
Lawrence C. Mills, Attorney for the Sac and Fox
Tribe of the Mississippi in Iowa. Mills and
Garrett were on the brief.
Stanford Clinton, Attorney for the Sac and Fox
Tribe of Missouri.
Richard L. Beal, with whom was Mr. Assistant
Attorney General Kent Frizzell, Attorneys for
the Defendant.
- — i ——EEEEEeEeEeEeEeEeEeEeEeEeEeEeaEErEaEaEeEeaeaeeee
— ai aia nia
.-
OPINION OF THE COMMISSION
Vance, Commissioner, delivered the opinion of the Com-
mission.
These cases are before us again on remand from the
Court of Claims. In its per curiam opinion of November 12,
1971, the court stated that [256] it was “unable, on the
present opinion and findings of the Indian Claims Commis-
sion in Docket Nos. 158, 209, 231 . . ., to determine if the
Commission’s ultimate conclusions as to valuation of the
tracts involved are adequately supported by substantial
evidence and untainted by legal error ....” Sac and Fox
Tribe of Indians*¥. United States, 196 Ct. Cl. 548, 549 (1971).
Accordingly, the court remanded these cases to the Com-
mission “for further proceedings in conformity with this
order, to supply more specific findings and reasoning as to
the valuations adopted for the tracts involved in Docket
Nos. 158, 209, 231.” Id. at 550. We shall attempt in this
opinion to provide additional reasons to support the con-
clusions we have reached on the values of the subject tracts
on the dates they were acquired by the defendant.
In our decision of May 12, 1969, in these dockets, 20 Ind.
Cl. Comm. 438, we determined the fair market value of four
land cessions. We valued the interests of the Sac and Fox
Nation in Royce Areas 175, 226 and 244, which it ceded to
the United States under the treaties of September 21, 1832,
7 Stat. 374, September 28, 1836, 7 Stat. 517, and October 21,
1837, 7 Stat. 540, respectively, and the undivided one-half
interest of the Iowa Nation in some 2,345,133 acres in Royce
Areas 175, 226 and 244, which it ceded to the United States
by the Treaty of October 19, 1838, 7 Stat. 568. The Commis-
sion concluded that the per acre value of Royce Area 175
was $0.90 in 1833 (plus an additional $240,000 for lead de-
posits), that Royce Area 226 was [257] worth $1.25 per acre
in 1837, that Royce Area 244 was worth $1.10 per acre in
5
t the value of the 2,345,133 acre Lowa tract was
yn “i sa in 1839. We entered final awards totalling
$4,474,378.00 for the Sac and Fox plaintiffs and $1,795,506.40
for the Iowa plaintiffs. On May 11, 1970, the Sac and Fox
plaintiffs filed a notice of appeal from our 1969 decision. The
Iowa plaintiffs chose not to appeal our decision, and by the
Act of July 6, 1970, 84 Stat. 376, Congress appropriated
funds to satisfy our judgment in their favor.
The opinion of the Court of Claims is quite brief and gives
us few clues as to what the court found lacking in our de-
cision. The court merely states that
mmission’s reasoning is too summary, and too
ten in detail and specificity to comply fully with
25 U.S.C. § 70r(3) and to enable the court properly to
exercise its review function; in this connection, the
court cannot properly determine, from the present opin-
ion and findings, whether there is a significant and un-
warranted inconsistency between the valuations (or the
theories underlying them) adopted in Docket Nos. 158,
209, 231, and that adopted, some nine months later, in
clorziy related Docket No. 153.
196 Ct. Cl. at 549. The Commission has carefully examined
its opinion and findings, in light not only of the majority and
dissenting opinions of the Court in this case but also of the
per curiam and concurring opinions in Seminole Indians v.
United States, 197 Ct. Cl. 350, 455 F.2d 539 (1972) (remand-
ing, Dockets 73 and 151, 23 Ind. Cl. Comm. 108 (1970) ), and
the order in United States v. Ponca Tribe of Indians, [258]
197 Ct. Cl. 1065 (1972) (remanding, Docket 323, 24 Ind. Cl.
Comm. 339 (1970)), in an attempt to discover what changes
or additions would be necessary to satisfy the requirements
of 25 U.S.C. § 70r(3) as the Court of Claims sees them. Our
conclusions make up the remainder of this opinion.
EVIDENTIARY FINDINGS
The Commission is of the opinion that its evidentiary
findings adequately and accurately relate the facts as estab-
lished by the evidence, and that more specific evidentiary
findings are not necessary to satisfy the mandate of the
Court of Claims. In findings 1 through 8 we described the
parties and found they had standing to bring these claims,
identified the subject lands, indicated the acreages of the
subject tracts and their respective dates of cession, and
listed the present-day Iowa counties which are included in
the tracts. In finding 9 we described the climate of the sub-
ject tracts and found their temperatures, rainfall and grow-
ing season to be ideal for agricultural purposes. Finding 10
describes the six rivers which drain the subject tracts.
In finding 11 we found the topography of the subject
tracts to be generally favorable to agriculture. In finding 12
we found that the soils of the area were excellent, and in
finding 13 we described the crops which were grown by the
early settlers. In finding 14 we indicated that there was
adequate grazing for livestock within ihe subject areas as
well as ample surface water both for human and animal
consumption. We found, in finding 15, that there was ade-
quate timber [259] to satisfy the needs of early settlers, and,
in finding 16, that water power was sufficient to operate mills
both for the sawing of timber and the grinding of grain into
flour. In finding 17 we indicated that the subject tracts had
adequate stone for building purposes, and coal for local con-
sumption. In finding 18 we found that the subject tracts were
readily accessible to new settlement by means of water
transportation.
Findings 19 and 20 describe the entry of squatters onto
the subject tract prior to the land being opened for public
sale, the development of government within the area, the
surveying of the area and establishment of land districts,
a iecectenit ease .
7
and the enactment of the Pre-emption Law. Findings 21 and
22 describe the growth of population both within Iowa and
in the neighboring areas of [Illinois and Missouri. Finding
23 describes the effect of the Pre-emption Law and the
operation of the “claims” clubs.
In findings 24 and 25 we found that at the time of the
cessions there was a vast expanse of public lands in neigh-
boring states available for purchase at the uniform price of
$1.25 per acre. In finding 26 we described the public sale of
lands within the subject tracts after they became open for
settlement in 1838. In finding 27 we described the private
sales of land which took place in the subject tracts between
1839 and 1849. We found that the average transaction dur-
ing that period was of a tract of 70.2 acres at a price of $2.46
per acre. We further found that the continued availability
of public land at $1.25 per acre prevented any rapid increase
in land prices. In finding 28 [260] we indicated the costs that
a settler would face in improving his land, and in finding 29
described business conditions during the 1833 to 1839 period.
In finding 30 we found the highest and best use for the
subject tracts was subsistence homestead farming including
the raising of livestock for local consumption.
In finding 31 we discussed the views expressed by the
plaintiffs’ expert witnesses, Drs. Hammer and Barlowe. We
found that the opinion expressed by these experts was based
on a “bona fide market” approach, which we found to be
unacceptable as not reflecting the actual conditions which
would have affected the land market in the subject tracts as
of their respective dates of cession. In finding 32 we dis-
cussed the views expressed by the defendant’s expert wit-
ness, Dr. Murray. We found that Dr. Murray’s opinion was
based on a “market value” approach, which we found to be
acceptable, although we found Dr. Murray’s conclusions to
be too conservative.
CONCLUSIONS OF VALUE
The Commission’s conclusions on value appeared in
findings 33, 42, 47, 50, and 53. We have decided that, with
the exception of our findings and conclusions with respect
to the Dubuque lead district (findings 34 through 42), some
elaboration on the method we used to reach our conclusions
is needed to satisfy the requirements of 25 U.S.C. § 70r(3)
as the Court of Claims interpreted them. [261]
We valued the Sac and Fox interest in Royce Area 175
as of February 8, 1833, the effective date of the 1832 treaty.
In finding 33 we indicated the various factors which a
prospective purchaser of this tract would have taken into
consideration in deciding on the price he would be willing
to pay for the tract. We then stated our conclusion that the
fair market value of the tract was $.90 per acre. The method
we used to reach this result was as follows:
As a starting point for our evaluation we used the $1.25
per acre price at which public lands were being sold. We
chose this price because the record contained no evidence of
comparable private land sales prior to the date of taking.
The prospective willing purchaser in 1833 would have had
only the public land sales in Illinois and Missouri as a
reference point to use in calculating the value of the
subject tract.
We then considered the factors which a prospective pur-
chaser might have found favorable and which would have
increased the price he would have paid for Royce 175. These
included, among others, the excellent soils of the area, its
ideal climate, including both temperatures and rainfall, the
presence of adequate water and building materials, and the
availability of water transportation. In sum, the prospective
purchaser would have realized that the lands of Royce 175
were superior to the public lands available for sale in
—_——i ie, ae
9
Missouri and Illinois, and would have concluded that he
could resell them for a price in excess of $1.25 per acre. [262]
We then considered the various discounts that the pros-
pective purchaser would have applied in his calc alations.
The primary discount would have been the size of the
tract. Royce 175 contained more than 544 million acres of
unimproved land. For the prospective purchaser to adapt
the tract to its highest and best use he would have to sub-
divide it and resell it over a period of time. He would be
faced with the costs of surveying, managing, and selling the
land, as well as the interest payments on his investment
money. Another discount factor would have been the re-
moteness of the greater portion of the tract. The mainstream
of population growth was in Illinois and Missouri, and much
of Royce 175 was far removed from these population
centers.
Finally, we balanced the discount and plus factors and
concluded that the 1833 purchaser of Royce Area 175 would
have expected an overall discount of $.35 per acre from the
$1.25 starting price, and therefore would have been willing
to pay an average of $.90 per acre for the entire tract.
We valued the Sac and Fox interest in Royce Area 226
as of October 13, 1837, the effective date of the 1836 treaty.
The factors we considered and our conclusion that the tract
was worth $1.25 per acre are set out in finding 47. The
method we used to reach this result was similar to that we
used in valuing Royce 175. As the record contained no
comparable private land sales that would have been known
to an 1837 prospective purchaser, we again chose $1.25 per
acre as a starting point. Among the positive factors we
then considered were the excellence of the [263] soil and
the climate, the good location of the land, and the political
organization in adjacent southeastern Iowa. The negative
factor we considered was the imminent opening of Govern-
10
ment lands in Royce Area 175 to public sale. The prospective
purchaser would have realized that the presence of millions
of acres of public lands, comparable in quality to the lands
of the subject tract, available for purchase at $1.25 per acre,
would greatly depress the private land sales market. We
concluded that the positive and negative factors would
cancel each other and that the prospective purchaser would
be unwilling to pay more than an average of $1.25 per acre
for the entire tract.
The Sac and Fox interest in Royce Area 244 was valued
as of February 16, 1838, the effective date of the 1837
treaty. In finding 50 we indicated the various factors which
we considered in reaching our conclusion that the tract was
worth $1.10 per acre. In reaching this result we again began
our calculations with a base price of $1.25 per acre, as there
were no comparable private sales in the record which would
have been known to an 1838 purchaser. The positive factors
we then applied to this base price related to the excellence
of the subject tract for subsistence farming.
We then considered the negative factors that the pros-
pective purchaser would have applied in calculating the
price he would be wil'ing to pay for the tract. We applied
a small discount for the size of the tract. Because of the
availability of millions of acres of public lands of com-
parable quality, the prospective purchaser would have ex-
pected to [264] hold the tract for a long time before he
could sell it. Thus he would have faced the costs of survey-
ing, management, and resale. An additional negative factor
would have been the remoteness of the northern half of
Royce 244.
Considering both the positive and negative factors we
concluded that the 1838 prospective purchaser would have
expected a $.15 per acre discount from the base price, and
therefore would be willing to pay an average of $1.10 per
acre for all of Royce Area 244.
itu ee
1l
We valued the Iowa interest in Royce Areas 175, 226 and
244 as of February 28, 1839, the effective date of the 1838
treaty. The factors which we considered in reaching our
conclusion that this interest was worth an average of $1.60
per acre are indicated in finding 53. The method we fol-
lowed in reaching our conclusion was similar to that we
had used in valuing the Sac and Fox tracts.
We again used a basic price of $1.25 per acre as a start-
ing point for our calculations. Although the record did con-
tain evidence of some private land sales within the subject
‘tract prior to the date of cession, the prospective purchaser
would have considered these to be too few to serve as a
basis for his calculations. He would have relied instead
upon the $1.25 per acre price of public land.
We then considered the many positive factors which the
prospective purchaser would have applied in deciding on
the price he would pay for the Iowa interest. The lowa tract
contained excellent farmland; its soil and climate were ideal
for subsistence farming. Much of the [265] area had already
been settled, and local and territorial government existed
within the tract. Public land sales were progressing at a
rapid rate and it would have been evident to the purchaser
that the population of southeastern Iowa was expanding
rapidly. Furthermore the tract was favorably located, being
situated along the path of westward migration. The pros-
pective purchaser would have examined the limited private
resale data available to him and discovered that land was
being sold within the tract at an average price in excess of
$2.30 per acre.
We then considered the discounts that the prospective
purchaser would apply. The sole discount would have been
for size. The Iowa tract contained in excess of 2% million
acres. In reselling the tract the prospective purchaser
would have to hold the tract for some time and incur the
12
costs of management and sale. The size discount would
have been somewhat reduced because most of the tract had
already been surveyed and the purchaser could have thus
avoided that cost.
We balanced the discount and plus factors and concluded
that the 1839 purchaser of the Iowa interest in Royce Areas
175, 226 and 244 would have expected to pay $.35 per acre
in excess of the base price, and therefore would have been
. willing to pay an average of $1.60 per acre for the entire
tract.
DOCKET 153 DISTINGUISHED
The brief opinion of the Court of Claims in these cases
appears to indicate that the court saw some inconsistencies
between our valuation [266] in these cases and our valua-
tion in Docket 153, Iowa Tribe v. United States, 22 Ind. Cl.
Comm. 385 (1970). In Docket 153 we valued the respective
interests of the lowa Nation and the Sac and Fox Nation
in Royce Area 262, a nearly 12 million acre tract to the
west of and adjacent to Royce 244. We concluded that as
of February 28, 1839, the Iowa interest had an average
value of $.90 per acre, and that as of February 15, 1843, the
Sac and Fox interest had an average value of $1.40 per
acre. An examination of plantiffs’ appellate brief has led
the Commission to believe that the apparent inconsistency
which the court might have seen in our two decisions is
that in Docket 153 we used as primary evidence of value
the identical land sales data which we refused to use in
these dockets. We have reexamined our decision in Docket
153 and conclude that there is no inconsistency between the
two valuations.
The valuation dates in the present cases were February
8, 1833, October 13, 1837, February 16, 1838, and February
28, 1839. The records of private land sales placed in evi-
13
dence by the plaintiffs covered the period 1839 through
1849. Thus, it is clear that, with the exceptions of the few
sales which had taken place prior to the 1839 Iowa cession,
these private land sales would not have been known to a
prospective purchas: r on the valuation dates. The prospec-
tive purchaser could not have considered these sales in
calculating the price he would be willing to pay for the
subject tracts. For the same reason, when we valued these
tracts we did not use this sales data as primary evidence of
value. [267]
In Docket 153, on the other hand, the valuation dates were
February 28, 1839, and February 15, 1843. Therefore, much
of the private sales data placed in evidence by plaintiffs
would have been known to a prospective purchaser, espe-
cially at the 1843 valuation date. Such a purchaser would
have taken these sales into account in calculating his pur-
chase price for the subject tracts. In valuing these tracts,
therefore, we did consider, as primary evidence of value,
the records of private sales during the 1839 to 1849 period.
That our methods of valuation in the two decisions are
consistent is illustrated by the manner in which we handled
evidence of postcession land sales in Docket 153: In that
case plaintiff not only introduced evidence of 1839 to 1849
private land sales in Royce Areas 175, 226 and 244, but also
evidence of postcession sales in Royce 262, the subject tract
in that docket. In rejecting such data as primary evidence of
value we stated, “Resales of land in the cession area, we feel,
do not carry great weight since they would not have been
known to a purchaser on the valuation dates and because
they reflect a land market with far different patterns of
settlement than existed on the earlier valuation dates.” 22
Ind. Cl. Comm. at 387. It seems clear that our treatment of
evidence of postcession private resales within [268] the sub-
14
ject tracts was identical in Docket 153 and in the present
cases.
Joun T. Vance
John T. Vance, Commissioner
We Concur:
JEROME K. KvyKENnDALL
Jerome K. Kuykendall, Chairman
Ricuarp W. YarsoroucH
Richard W. Yarborough, Commissioner
Marcaret H. Prerce
Margaret H. Pierce, Commissioner
Brantley Buve
Brantley Blue, Commissioner [269]
15
32 Ind. Cl. Comm. 256
BEFORE THE
INDIAN CLAIMS COMMISSION
~
THE SAC AND FOX TRIBE OF INDIANS
OF OKLAHOMA, et al,
THE IOWA TRIBE OF THE IOWA
RESERVATION IN KANSAS AND NE.| Docket
BRASKA, et al, No. 158
THE SAC AND FOX TRIBE OF INDIANS | Docket
OF OKLAHOMA, et al, - No, 209
Plaintiffs,
v. Docket
No. 231
THE UNITED STATES OF AMERICA,
Defendant. |
Sl
——
FINAL AWARD ON REMAND
Upon the findings of fact and opinion entered herein on
May 12, 1969, 20 Ind. Cl. Comm. 439, upon the amendments
to those findings and opinion entered herein by order on
February 11, 1970, 22 Ind. Cl. Comm. 439, and upon the
opinion entered herein this day, all of which are made a
part of this order, the Commission concludes as a matter
of law that:
1. Under the Treaty of September 21, 1832 ( 7 Stat.
374), hereinafter referred to as the Treaty of 1832, the
ee
+
:
16
Sac and Fox Nation ceded to the United States all its
right, title, and interest to the lands in Royce Area
175 in eastern Iowa; and, that, as of February 9, 1833,
the effective date of the Treaty of 1832, the fair market
value of the Sac and Fox interest in Royce Area 175
was $4,276,320.
2. Under the Treaty of 1832, and the Missouri Sac
and Fox Treaty of October 21, 1837 (7 Stat. 543), the
United States paid $745,741.79 to the Sac and Fox Na-
tion for its interest in Royce Area 175.
3. The payment of $745,741.79 by the United States
for the Sac and Fox interest in Royce Area 175, which
interest had a then fair market value of $4,276,320, was
payment of an unconscionable consideration under the
Indian Claims Commission Act, and the defendant is
therefore liable to the Sac and Fox petitioners for addi-
tional compensation in the sum of $3,530,578.21. [270]
4. Under the Treaty of September 28, 1836 (7 Stat.
520), hereinafter referred to as the Treaty of 1836,
the Sac and Fox Nation ceded to the United States its
undivided one-half interest in Royce Area 226, a 217,600
acre tract in southeastern Iowa, which Sac and Fox
interest, as of October 13, 1837, the effective date of
the Treaty of 1836, had a fair market value of $136,000.
5. Under the Treaty of 1836 and the Missouri Sac
and Fox Treaty of October 21, 1837, supra, the United
States agreed to pay and did pay to the Sac and Fox
Nation for its undivided one-half interest in Royce 226
the sum of $193,056.12, which sum is in excess of its
then fair market value.
6. The defendant is not liable to the Sac and Fox
petitioners for additional compensation for the cession
of the Sac and Fox undivided one-half interest in Royce
Area 226 under the Treaty of 1836.
ne *
17
7. Under the Treaty of October 21, 1837 (7 Stat.
540), hereinafter referred to as the Treaty of 1837, the
Sac and Fox Nation ceded to the United States all its
right, title, and interest to the lands in Royce Area 244
in eastern Iowa, which Sac and Fox interest, as of
February 13, 1838, the effective date of the Treaty of
1837, had a fair market value of $1,089,926.85.
8. Under the Treaty of 1837, and the Missouri Sac
and Fox Treaty of October 21, 1837, supra, the United
States agreed to pay and did pay $146,127.06 to the
Sac and Fox Nation for its interest in Royce Area 244.
9. The payment of $146,127.06 by the United States
for the Sac and Fox interest in Royce Area 244, which
interest had a then fair market value of $1,089,926.85,
was payment of an unconscionable consideration under
the Indian Claims Commission Act, and the defendant
is therefore liable to the Sac and Fox petitioners for
additional compensation in the sum of $943,799.79.
10. No gratuitous offsets are chargeable against the
several judgments herein, said gratuities having been
either set-off against the awards made in Docket No.
138, Iowa Tribe v. United States, 15 Ind. Cl. Comm. 42,
or waived by the defendant. [271]
Ir Is Tuererore OrpereD that the Sac and Fox peti-
tioners, for and on behalf of the Sac and Fox Nation and
all of its members, do have and recover of and from the
defendant,
a. In Docket No. 158 the sum of $3,530,578.21.
b. In Docket No. 231 the sum of $943,799.79.
Ir Is FurtHEr Onverep that the claim of the Sac and Fox
petitioners in Docket No. 209 for additional compensation
for the cession to the United States of all right, title and
18
interest in Royce Area 226 under the provisions of the
Treaty of 1836, be, and the same is hereby, dismissed.
Dated at Washington, D. C., this day of
JzRoME K. Kurkenpay
Jerome K. Kuykendall, Chairman
Joun T. Vance
John T. Vance, Commissioner
. RicHarp W. YarsoroucH
Richard W. Yarborough, Commissioner
Marcaret H. Prerce
Margaret H. Pierce, Commissioner
BrantTiey Buve
Brantley Blue, Commissioner [272]
Warten...
19
196 Ct. Cl. 548
THE SAC AND FOX TRIBE OF INDIANS OF
OKLAHOMA, ET AL. v. THE UNITED STATES
Appeal No. 4-70
Ind. Cl. Comm. Docket Nos. 158, 209, 231
20 Ind. Cl. Comm. 439
22 Ind. Cl. Comm. 439
[Decided November 12, 1971]
ON APPEAL FROM THE INDIAN CLAIMS COMMISSION
Indian claims; appeal from Indian Claims Commission ;
valuation.—
The Sac and Fox Tribes have appealed from the deci-
sion of the [548] Indian Claims Commission which held
that the Tribes were entitled to additional compensa-
tion for three tracts of tribal lands in eastern lowa
(Cessions 175, 226 and 244) ceded to the United States
by treaties entered into in the 1830's. Each tract of land
was the subject of a separate petition, the three cases
being consolidated for trial. Appellants dispute the
Commission’s determinations of the fair market value
of the lands. The court remands this case to the Com-
mission for further proceedings to supply more specific
findings and reasoning as to the Commission’s valua-
tions.
Aaron J. Kramer for appellants. George B. Pletsch, at-
torney of record for The Sac and Fox Tribe of Indians of
Oklahoma, et al; Lawrence C. Mills, attorney of record for
The Sac and Fox Tribe of the Mississippi in Iowa, et al;
and Stanford Clinton, attorney of record for The Sac and
Fox Tribe of Missouri, et al.
Richard L. Beal, with whom was Assistant Attorney Gen-
eral Shiro Kashiwa for appellee.
Before Cowen, Chief Judge, Lanamore, Durnrez, Davis,
Cotuixs, SKELTON, and Nicuoxs, Judges.
20
Per Curia»: This case comes before the court on appeal
from the Indian Claims Commission, and, after considering
the briefs and record and hearing oral argument of counsel,
the court has concluded that, as in United States v. Nez
Perce Tribe, 194 Ct. Cl. 490, 503, cert. denied, 404 U.S. 872
(1971), the court is unable, on the present opinion and find-
ings of the Indian Claims Commission in Docket Nos. 158,
209, 231 (now under review), to determine if the Commis-
sion’s ultimate conclusions as to valuation of the tracts in-
volved are adequately supported by substantial evidence
and untainted by legal error; the Commission’s reasoning is
too summary, and too lacking in detail and specificity, to
comply fully with 25 U.S.C. § 70r(3) and to enable the court
properly to exercise its review function; in this connection,
the court cannot properly determine, from the present opin-
ion and findings, whether there is significant and unwar-
ranted inconsistency between the valuations (or the theory
underlying them) adopted in Dockets Nos. 158, 209, 231, and
that adopted, some nine months later, in closely related
Docket No. 153. [549]
It Is Taererore Orperep that this case be and hereby is
remanded to the Indian Claims Commission for further pro-
ceedings in conformity with this order, to supply more
specific findings and reasoning as to the valuations adopted
for the tracts involved in Docket Nos. 158, 209, 231.
It Is FurtHer Onpenep that this remand is without preju-
dice to the right of appellants to raise again, on any further
appeal to the court in this case, any point or issue raised in
the instant appeal.
Cowen, Chief Judge, dissenting:
The first ground for the Court’s order of remand is that
the Commission’s reasoning is lacking in the detail and
specificity needed to enable the Court to determine whether
lit ama ——— leer cusses mee
21
the Commission’s conclusions on va’nation are supported by
substantial evidence and untainted by legal error. With def-
erence, I do not join in the Court’s order, because I think the
remand is unnecessary in this case. I also think that the
order imposes requirements on the Commission that are
beyond the purview of the applicable statute and contrary
to the rules of law generally followed in this court and other
courts for the review of a factfinder’s determination of the
value of property. I do not read 25 U.S.C. 70r(3) as requir-
ing the Commission to pinpoint its value determinations by
setting out in detail the arithmetical computation or formula
used in a case where the evidence is conflicting and the value
found is well within the range of values testified to by the
witnesses. All that the statute requires is that the Commis-
sion provide a statement of the reasons for its findings and
conclusions. I think it has done so in this case.
In the beginning of its opinion, the Commission pointed
out that on the basis of the evidence offered by petitioners,
they claimed that the value of the lands, exclusive of the lead
lands in Dubuque, Iowa, was from $2.50 to $3 or more per
acre in the 1833-39 period. In contrast, the value figures
claimed by defendant, on the basis of its evidence, were in
[550] the range of 43 cents to 80 cents per acre for the same
lands [ Appendix 4].
The Commission then proceeded to set forth the reasons
on which its determinations of value were based. Among
these were the lack of a land market of any kind in eastern
Iowa in 1833, whereas across the Mississippi River and in
Illinois and in Missouri, there was a large quantity of public
land available at $1.25 per acre [Appendix 4-5]; various
1 The reference here and elsewhere to the Appendix is to perti-
nent pages of the opinion and findings of fact of the Commission in
this case and in Docket No. 153 of the Indian Claims Commission,
all of which are printed in the Appendix to the Brief of the Ap-
pellants.
22
physical and economic factors, including the excellent souls
and topography of the lands, the favorable climate and grow-
ing season, the presence of good stands of timber along the
water courses, and the rapid growth of population during
the 1833-39 period [Appendix 7].
The Commission also referred to the establishment of ter-
ritorial and local governments in Iowa, and the passage cf
the 1838 Preemption Act; the volume and rate of nearby
public land sales from 1820 to 1850, and private sales that
occurred in the ceded areas from 1838 through 1856
[ Appendix 8}.
The Commission also took into account prevailing busi-
ness conditions, farm prices and farm costs, current interest
rates, the lack of a sound currency and tue scarcity of
money [Appendix 8]. The Commission also called attention
to the very large size of the ceded areas and the requirement
that each tract be valued as a whole [Appendix 9].
In each instance, the Commission’s statement of the rea-
sons for its conclusions is backed up by carefully prepared
and detailed findings of fact. Finally, the Commission stated
that, in the absence of comparable sales in an actual market,
it utilized the data offered by defendant’s expert witness,
Dr. William G. Murray, as it had done with similar data in
other cases. However, his testimony was considered on an
equal footing with other value criteria, and the Commission
determined that his ultimate conclusions as to value were
too [551] low [Appendix 6].' I will not discuss the other
criteria considered by the Commission, because I think that
its opinion and findings adequately set forth the reasons for
its conclusion. The situation here is unlike that before the
Court in the Nez Perce case, where the Court found that the
Commission increased the value of Indian land from $4 to
_ 1? A full statement of the data utilized by Dr. Murray is contained
in Commission finding 32 at page 38 of the Appendix.
|
|
23
$5.50 per acre without making any findings to support the
new figure.
A determination of the fair market value of Indian land
is a difficult task and often requires a determination of
values as of a date which precedes the date of the trial by
more than one hundred years. Vast acreages of land, far
exceeding the acreage included in any private sales, are
involved, and usually there is no evidence of truly com-
parable sales. In such situations, the trier of the facts must
rely primarily upon the testimony of expert witnesses.
Where, as in most cases, the testimony of the expert wit-
nesses is conflicting, the trier of the facts is the judge of
the weight to be given their testimony. It is his function
to decide which witnesses are to be relied on and, in de-
termining the value of property, he may find an amount
that lies between the figures advanced by different wit-
nesses. This is a rule which is followed in the Court of
Claims and I believe in most courts. Toronto, Hamilton ¢
Buffalo Nav. Co. v. United States, 116 Ct. Cl. 184, 88
F.Supp. 1016 (1950). The trial commissioners of the Court
of Claims often determine the value of Indian land and
other property in cases where the testimony of expert wit-
nesses is in conflict. Frequently, the commissioners find a
value which is somewhere between the figures advanced
by the opposing experts. When this occurs, I have never
known of a case where the court required them to set forth
the mathematical computations or other detailed methods
by which they made their determinations. We should not
impose a more exacting standard on the Indian Claims
Commission.
The second basis for the court’s remand, as stated in the
order, is the court’s inability to determine whether there
is a [552] significant and unwarranted inconsistency be-
tween the valuations (or the theory underlying them)
24
adopted in this case and that adopted later in Docket No.
153. The alleged inconsistency is based upon the appellant’s
contention that in Docket No. 153, the Commission relied
on evidence offered by them of private resales of land in
eastern lowa, whereas in this case, the Commission rejected
the same evidence.
There was a time spread of many years between the
valuation dates of the lands involved in this appeal and
the relevant valuation dates of the lands in Docket 153.
More importantly, in the latter period there was a rapid
growth of population in Iowa, a greater knowledge of the
fertility and worth of the land, and other causes for the
increase in land values as detailed in the Commission’s
findings of fact [Appendix 77-86]. In my opinion, the find-
ings of fact and opinions of the Commission in both cases
show that there was a rational and valid basis for the
differences in probative value which the Commission gave
to the evidence of resales of private land in eastern Iowa.
In both cases, the Commission admitted and considered
evidence of private resales of land lying within the ceded
areas. The Commission attached little weight to these re-
sales, because of the dates on which the sales were made
and other factors affecting the land values at that time.
Thus, in the case now before us, the Commission’s opinion
states as follows:
The private sales data in the record was limited ex-
clusively to those transactions that occurred in the
ceded areas beginning from about 1838 through 1856.
* * * [Emphasis supplied]
Except for the relatively few number of sales that
occurred prior to and at the time of the 1838 effective
date of the Iowa cession, the [448] bulk of the private
sales in eastern Iowa do not qualify as comparable
sales, hut they do earn some probative value as hind-
sight or confirmatory evidence. * * * [Appendix 8]
25
The petitioners in Docket 153 also presented evidence of
the resale prices of the ceded lands involved in that case,
as shown in Commission finding 27 [Appendix 82]. Just
as in the case [553] before us, the Commission gave little
weight to the evidence of the resale prices of the ceded
lands in Docket 153. In that connection, the Commission
said:
Results of these resales in Cession 262 would not have
been known to a purchaser as of the valuation date of
either portion of the tract, and thus can be regarded
only as hindsight information which can be used only
to corroborate findings of value based on [405] infor-
mation known as of the valuation date. [Appendix 82]
In its opinion in Docket 153, the Commission gave the
following explanation of its reasons for giving greater
weight to the evidence of the private resales of the lands in
eastern Iowa than was accorded to such evidence in this
case:
Resales of land in the cession area, we feel, do not
carry great weight since they would not have been
known to a purchaser on the valuation dates and be-
cause they reflect a land market with far different
patterns of settlement than existed on the earlier valua-
tion dates. The resales in eastern Iowa from 1838 to
1843 are, we feel, of more relevance. Many of them
would have been known to a purchaser, particularly as
of the valuation date of 262 North. They reflect the
settlement pattern in Iowa at the relevant valuation
dates and thus indicate the market expectations which
a purchaser might reasonably have in regard to Cession
262. The differences between the lands in eastern Iowa
and Cession 262 are relatively minor, and we have ex-
amined those differences in our findings of fact. [387]
[ Appendix 65-66]
Additional reasons for the Commission’s treatment of the
evidence of the resales in eastern Iowa are set forth in the
26
findings of fact in Docket 153 [Findings 25, 26, and 27—
Appendix 80-82]. One of the most significant of these find-
ings was the following:
As of the cession dates, a purchaser would estimate his
return on investment by examining resales of lands in
eastern Iowa (Royce Areas 175, 226, and 224). A pur-
chaser would know that while the [402] eastern Iowa
lands were generally comparable to those in Cession
262, the eastern lands had certain advantages not en-
joyed by the lands further west. * * * [Appendix 80]
[554]
In summary, I would conclude that appellants have failed
to demonstrate that the claimed inconsistency amounts to
an error of law that justifies a remand in this case.
Sxeroy, Judge, dissenting:
I join in the dissent of Chief Judge Cowen.
In addition, I would add that the court in directing the
Indian Claims Commission to be consistent as to the valua-
tions (or the theory underlying them) in this case and those
in Docket 153 amounts to requiring the Commission to do
what the court itself refused to do in the cases of Virginia
Electric d Power Co. v. United States, 188 Ct. Cl. 120, 411
F.2d 1314 (1969) and Pennsylvania Power ¢ Light Co. v.
United States, 188 Ct. Cl. 76, 411 F.2d 1300 (1969). Those
two cases were pending in this court at the same time and
were decided the same day. They involved power companies
operating at the same time in the same general area
(Virginia and Pennsylvania) in tue same manner. Both
companies sought the same relief (i.e., determination of the
useful life of transmission and distribution easements and
initial clearing costs). While there was some evidence in the
Vepco case that was not present in the Pennsylvania Power
& Light case, an expert witness named John J. Reilly
testified in both cases and his testimony was practically the
et eee ee er eae
Z
;
:
:
}
27
same in both cases. The court refused to take judicial notice
of the facts, etc., in both cases, used a different standard in
one to that used in the other, and rendered a decision more
favorable to Vepco than to Pennsylvania Power & Light.
(See the dissenting opinion of Judges Skelton and Collins
in the Vepco case, 188 Ct. Cl. 120, 130.). The facts and issues
in those cases were much closer and more related than those
in the case before us as compared to those in Docket 153.
As pointed out by Chief Judge Cowen, the case before us
is quite different to that in Docket 153, not only as to the
facts, but also as to the period of time involved (ten years—
1833 and 1843).
No purpose will be served by sending the case back to the
Commission except to cause the Commission to do a lot of
[555] extra work to reach the same result. Furthermore, it
will cause additional delay for the Indians, who have waited
long enough for their money. [556]
28
Brrore THE Inp1an CLarms CoMMISSION
The Sac and Fox Tribe of Indians of) Docket No. 158
Oklahoma, et al.,
The Iowa Tribe of the Iowa Reservation | Docket No. 209
in Kansas and Nebraska, et al.,
The Sac and Fox Tribe of Indians of ; Docket No. 231
Oklahoma, et al.,
Petitioners,
v.
The United States,
Defendant. !
Decided: May 12, 1969
(20 Ind. Cl. Comm. 439)
OPINION OF THE COMMISSION
Vance, Chairman delivered opinion of the Commission.
The ultimate issue now before the Commission in this
consolidated matter is whether or not the defendant must
pay additional compensation to the Sac and Fox and Iowa
petitioners for three contiguous tracts of land in eastern
Iowa that were ceded to the United States by the Sac and
Fox Nation and the Iowa Nation under the Sac and Fox
Treaties of September 21, 1832 (7 Stat. 374), September
28, 1836 (7 Stat. 520), and October 21, 1837 (7 Stat. 540)
and the Iowa Treaty of October 19, 1838 (7 Stat. 568). The
tribal petitioners contend that under their respective ces-
sion treaties the United States paid them an unconscionable
consideration for lands which they now claim were worth
at the time of cession a minimum of $2.50 to $3.00 or more
an acre. The Sac and Fox petitioners are also asking the
Commission to find separately that the 180,000 acres of re-
served mineral lands in and around Dubuque, Iowa, which
were included in the overall land cession under the Treaty
of 1832, were worth $25.00 per acre for their lead content,
and that they should be paid four and one-half million dol-
29
lars as compensation for their interest therein. The de-
fendant takes sharp issue with the petitioners on all of their
value and liability claims.
The three contiguous tracts in eastern Iowa with which
we are concerned are Royce Area 175, ceded by the Sac and
Fox Nation under the Treaty [440] of 1832, Royce Area
226, ceded by the Sac and Fox Nation under the Treaty of
1836, and Royce Area 244, ceded under the Treaty of 1837.
The Treaty of 1838 with the Iowa Nation accomplished a
relinguishment of all Iowa interest in these three tracts by
way of a general cession to the United States of all lands
situated between the Missouri and Mississippi Rivers and
the Sioux-Sac and Fox boundary line as established under
“Article 2” of the 1825 Prairie des Chein Treaty (7 Stat.
272).
The title questions were substantially resolved earlier in
three separate trials.
In Docket No. 158 we previously found that the Sac and
Fox Nation was the exclusive owner by virtue of the 1825
Prairie des Chein Treaty of approximately the northern
two-thirds of Royce Area 175, and that it enjoyed an un-
divided one-half interest in the southern third of the tract
with the Iowa Nation. We now find that of 5,350,400 acres
in Royce Area 175, the Sac and Fox Nation was the ex-
clusive owner of 3,619,200 acres, and the Sac and Fox and
Iowa Nations jointly owned the remaining 1,731,200 acres.
In Docket No. 209 the Commission concluded that the
Sac and Fox and Iowa Nations each had an undivided one-
half interest in Royce Area 226.? [441] Royce Area 226
1 The Sac and Foz Tribe of Indians of Oklahoma, et al. v. United
States, 5 Ind. Cl. Comm. 367 (1957)
2 The Iowa Tribe of the Iowa Reservation in Kansas and Nebraska,
et al. v. United States, 10 Ind. Cl. Comm. 404 (1962)
30
was a 400-section tract of land in southeastern Lowa con-
taining 217,600 acres that was reserved from the lands in
Royce Area 175 at the time this tract was ceded under the
Treaty of 1832.
In Docket No. 231 this Commission previously found that
the Sac and Fox Nation and the Iowa Nation had recog-
nized title to the lands in Royce Area 244 and that the ex-
tent of their respective interests therein would be the sub-
ject of further proceedings.* The Commission has now
determined that the Sac and Fox Nation exclusively owned
the northern two-thirds of Royce Area 244, containing some
792,667 acres, and that the Sac and Fox and Iowa Nations
were joint owners of 396,333 acres in the southern third of
Royce Area 244.
The Commission’s finding that Royce Area 244 contains
a total of 1,189,000 acres differs from that acreage figure
specified in the Treaty of 1837. In Article 1 of the Treaty,
the Sac and Fox cession is described as being one “of a
tract containing 1,250,000 (one million two hundred and
fifty thousand) acres .. .” but according to the defendant
a recent survey of Royce Area 244 indicates only 1,189,000
acres. Petitioners do not actually dispute the accuracy of
defendant’s survey but they insist that the treaty figure
controls. The Commission accepts the defendant’s figure as
correctly reflecting just what the Sac and Fox Indians
parted with under the Treaty of 1837. A blind adherence
to the 1837 Treaty acreage figure in this instance would
unjustly enrich the Indians at the defendant’s expense
should the government be compelled to pay additional com-
pensation for some 61,000 acres [442] of land that it never
received.
3 The Sac and Foz Tribe ot Indians of Oklahoma, et al. v. United
States, 10 Ind. Cl. Comm. 408 (1962)
31
These three dockets were consolidated for the purpose of
trying the issues of value and liability. Extensive hearings
were conducted in October of 1962, and an enormous record
has been developed. From the mountain of documentary
evidence and sworn festimony, the Commission believes that
its ultimate conclusions on the issues of value and liability
as detailed in its findings of fact are more than amply
supported on the record. We shall seek to avoid, as far as
possible, any needless repetition of these findings of fact
in this opinion.
The expert testimony tendered by the parties was lengthy
but informative, and it traveled both novel and traditional
avenues in arriving at the proposed fair market values.
However, we question the ultimate conclusions reached on
both sides.
As stated earlier, the petitioners would have the Commis-
sion believe from the record that in the 1833-39 period, a
prospective purchaser of the extensive Sac and Fox and
Towa land interests in eastern Iowa, would pay “from $2.50
to $3.00 or more per acre”, plus an additional four and
one-half million dollars to the Sac and Fox Indians for the
lead lands at Dubuque. In contrast to these value figures
the defendant suggests that the same evidence indicates
fair market values in the range of $0.43 to $0.80 per acre
for the same lands inclusive of the value of the Dubuque
lead mines.
As of February 9, 1833, the effective date of the Sac and
Fox Treaty [443] of 1832, Royce Area 175 was by and large
a raw, unsurveyed and unimproved tract of land in eastern
Iowa containing over five million acres. As history shows,
almost six years will pass before government surveys will
have been completed and the first public land sales will have
taken place. In 1833 an unknown number of “squatters”
were already settled in southeastern Iowa and also around
32
the Dubuque lead mine region in the northeastern part of
Royce Area 175. There was no land market of any sort
operating in eastern Iowa, but across the Mississippi River
in Illinois and to the south of Royce Area 175 in Missouri
there was an enormous quantity of public land still avail-
able at $1.25 per acre; a supply far in excess of the de-
mands of new settlement.
Recognizing that this superabundance of nearby public
land could only depress and control land values in eastern
Iowa during the 1833-39 period the petitioners through
their expert witnesses, Drs. Barlowe and Hammer, ur
the Commission to adopt their novel “bona fide market”
method of valuation.
As explained by Drs. Barlowe and Hammer, a “bona fide
market” condition is established when approximately 757%
of the public lands in a given area have passed into private
ownership. In the case of the eastern lowa lands this “bona
fide market” condition would not be reached until some
time in the late 1840’s or early 1850’s. As we view peti-
tioners’ “bona fide market” approach, it simply avoids the
consequences of valuing [444] the subject tracts as of the
1833-39 period.* We must reject it as unrealistic and con-
trary to the law.
4 We find repeated admonitions in petitioners’ appraisal report con-
cerning the depressing effect on land values in eastern Iowa that was
occasioned by the enormous supply of public land then available both in
and around the subject area during the 1833-39 period.
A few examples from Pet.ex.T-4:
“The abundance of high quality lands still available in areas imme-
diately adjacent to lands already in use was an effective bar to any
general upsurge in land values. Indeed the huge acreages of public
domain which were on the market and which were being placed on
sale provided an obstacle to rising land values over the entire north-
ern Mississippi valley area for decades. (P. 109)
As long as the $1.25 land remained in great abundance, it put an
effective ceiling on land prices. * * *
ek a 1 dle re eens
33
Defendant offered Dr. William G. Murray as its expert
witness on the value of the eastern lowa lands. Dr. Murray
testified at some length [445] and was supported in his tes-
timony by an appraisal report which he had prepared. Dr.
Murray’s “market value” method of appraisal is substan-
tially that which the Commission has adopted in valuing the
three subject tracts, and which it has followed in the past
when no actual market exists for the lands to be valued
either at the time of cession or for sometime thereafter. Dr.
Murray laid great stress in his report on contemporaneous
government land sales in so-called comparison areas as a
prime value factor. His liberal use of such public land sale
data is consistent with his view that such evidence consti-
tutes “... a fundamental part of this appraisa .”” The Com-
mission utilized the same data, but we also considered on an
equal footing certain other value criteria. We believe that
Dr. Murray’s ultimate conclusions on value tend to be some-
what on the conservative side.
Indian lands acquired by the United States by purchase
or otherwise shall be valued as of the date of their acquisi-
tion. Sac and Fox Tribe of Indians of Oklahoma, et all., v.
The United States, 179 Ct. Cls. 8 (1967). And where, as
was the situation with the Sac and Fox petitioners, there
was no actual market for land existing in eastern Iowa at
the time of cession, then we shall follow the rule laid down
originally in the Otoe M issouria®’ case and reiterated most
There is no doubt that so long as any considerable quantity of Gov-
ernment land was available in eastern Iowa for purchase at the
minimum $1.25 per acre, it continued to have a depressing effect on
land values in that area.” (P. 110)
Faced with the rather formidable task of establishing “$2.50 to $3.00 or
more per acre” valuations for the subject lands during the 1833-39 period,
it seems to us that the petitioners had little recourse but to devise a new
appraisal method aimed at negating the “depressing effect on land values”
occasioned by this enormous supply of available public land.
5 Otoe and Missouria Tribe of Indians v. United States, 131 Ct. Cls.
593 (1955); 177 Ct. Cls. 263; See also Red Lake Pembina and White Earth
Bands v. United States, 164 Ct. Cls. 389 (1964); Miami Tribe of Oklahoma
vy. United States, 146 Ct. Cis. 421 (1959).
34
recently in Emigrant New York Indian [446] decision
wherein it is stated
“In the absence of comparable sales and an actual
market at the time «nd place in question, this court has
regularly taken into consideration various physical and
economic factors in determining the value of lands ac-
quired by the Government from the Indians—elements
of value which a willing buyer and seller would have
considered in reaching an agreed sale price for the
claimed area at the time of acquisition.”*
Among the physical and environmental factors which the
Commission considered in fixing 1833-39 fair market values
to the lands in eastern Iowa were the excellent soils and
topography; the favorable climate, growing season, and
annual rainfall; and, the numerous rivers and streams that
insured an adequate water supply and drainage as well as
making access and egress into most of the area far less a
problem than by overland travel.
Noting that the early Iowa settlers initially preferred
lands close to timber, we have found that there were good
stands of timber along the water courses. In lieu of timber
as a building material there were ample deposits of good
quality limestone throughout eastern Iowa. Surface coal
could be easily dug and utilized as a wood substitute for
fuel. We have considered the presence of lead ore in north-
eastern Iowa in our separate evaluation of the Dubuque
lead mining region.
We have also considered the fact that the population
grew rapidly in Iowa during the 1833-39 period, and we
could also see that the pattern of new settlement into this
region was moving generally north and west, following the
Mississippi, Missouri, and other principal rivers. [447]
6 United States v. Emigrant New York Indian, et al., 177 Ct. Cl. 263,
285 (1966)
|
,
:
;
:
‘
:
5
4
-
35
We took note of certain political factors such as the for-
mation of Iowa as a territory including the establishment
of both territorial and local government, the creation of
courts; and the passage of the 1838 Preemption Act. On the
economic level we have considered the general and local
business conditions that prevailed, the contemporary farm
prices and farm costs including those costs associated with
capital improvement, current interest rates, the lack of a
sound paper currency and the resultant scarcity of money.
We have looked at the volume and rate of nearby public
land sales from about 1820 to the middle 1850's as well as
those public sales that began in eastern Iowa in 1838.
Throughout the 1833-39 treaty period the price of public
land remained at $1.25 per acre in cash.
The private sales data in the record was limited exclu-
sively to those transactions that occurred in the ceded areas
beginning from about 1838 through 1856. It included, with-
out distinction, sales and resales of both unimproved and
improved land wherein it was impossible to determine
separately the value of improvements. The Commission in
some detail made a specific finding with respect to those
private sales transactions of $5.00 per acre or less in east-
ern Iowa for the 1839-49 period, and we have found that
for this entire ten year period the average private sale or
transaction involved only 70.3 acres for which the buyer
paid $2.46 per acre.®
Except for the relatively few number of sales that oc-
curred prior to and at the time of the 1838 effective date
of the Iowa cession, the [448] bulk of the private sales in
eastern Iowa do not qualify as comparable sales, but they
do earn some probative value as hindsight or confirmatory
evidence. Viewed in this light we fail to see how they con-
firm petitioners conclusion that in the 1833-39 period the
* As amended in accordance with order of the Commission entered
February 11, 1970 (App. 63).
36
subject lands in eastern Iowa were worth “. . . $2.50 to $3.00
or more per acre.”
Another flaw in petitioners’ evaluation approach is the
obvious failure to consider the very size of the ceded areas
as an appropriate discount factor in estimating their fair
market value. These particular Iowa tracts are to be valued
as a whole. The Court of Claims had reason in the case of
Nez Perce Tribe of Indians v. United States, 176 Ct. Cls.
815 (1966) to speak directly on this subject. In commenting
upon the method followed by the Nez Perce appraiser in
valuing the 549,559 acre Nez Perce tract the Court said:
“Finally, we note regarding Brown’s method, that
he made no discount for size. We think this is an ex-
tremely important feature entering into market value.
A purchaser of over one-half million acres simply
would not pay what 1000 purchasers of 500 acres each
would be willing to pay... - It is simply the fact,
however, that in buying such a large, undeveloped tract,
the government undertook the project of dividing and
selling the land. Cf. Miami Tribe of Oklahoma v. United
States, 9 Ind. Cl. Comm. 1, 17 (1960) aff'd by order 159
Ct. Cl. 593 (1962). These are expenses the Indians were
saved by selling the land as a unit. In addition, by buy-
ing the land and holding it pending disposition, the gov-
ernment lost interest on the amount of the purchase
price for the period prior to resale. Any purchaser of a
large tract necessarily must take account of the inter-
est cost of holding land pending resale. How much of
a discount is warranted by the size is difficult to
say....”7 [449]
With the exception of Royce Area 226 which contains
217,400 acres, the other cession areas were in excess of
500,000 acres.
We are also of the opinion that some form of improve-
ment discount is warranted in connection with the use of
7176 Ct. Cl. 824, 825
:
é
37
the private sales data even in the role of confirmatory
evidence. When the subject lands were sold in small tracts
during the ten year period that followed initial settlement,
growth and development of internal improvements alone
during that same period gave them increment value. Thus,
the birth of new towns and villages, the formation of ter-
ritorial, county and city government, plus a judicial sys-
tem, new highway and bridge construction, new schools,
etc., all of these public improvements could not help but
increase land values.
In light of all these factors as described above, the Com-
mission is satisfied that, consistent with their highest
and best use, which was subsistence homestead farming,
our per acre value of $0.90 for Royce Area 275 in 1833,
exclusive of the value of the Dubuque lead mines, of $1.25
per acre in 1837 for Royce Area 226, of $1.10 for Royce
Area 244 in 1838, and finally $1.60 per acre in 1839 for
the more than two and a quarter million acres in south-
eastern Iowa belonging to the Iowa Nation, are amply sup-
ported by the evidence of record.
To complete the 1833 evaluation of Royce Area 175 there
must be added the fair market value of the Dubuque lead
mines in the northeastern part of the tract. For the Dubuque
lead mines the Sac and Fox petitioners are asking an
additional four and a half million dollars; a figure which
we [450] find wholly unsupported in the record.
At the time of the 1832 Sac and Fox Treaty, the United
States reserved from public sale roughly 180,000 acres in
the Dubuque area. These lands the Government had classi-
fied as mineral bearing on the basis of reports of high lead
content and possibly out of an abundance of caution because
there were and had been for years valuable lead deposits
at Dubuque.
38
We think the Sac and Fox petitioners have based their
four and a half million dollar estimate on two somewhat
specious assumptions; one, that in 1833 the entire 180,000
acres of reserved mineral lands around Dubuque contained
commercially profitable lead bearing ore, and secondly,
that the record of mineral lot sales or “claims” occurring
around Dubuque between 1836 and 1850 at an average
price of roughly $25.00 per acre are the best evidence of
the value of the mineral content of the reserved lands.
First of all, the evaluation of lead mining operations such
as existed around Dubuque is not an acre by acre proposi-
tion. The value of a particular lead_mine in most instances
has no genuine relationship to the size of the tract upon
which it might be located or the extent of the area sur-
rounding it. There are several examples in the record of
commercially valuable lead mines being worked in their
entirety within the confines of a few hundred square yards
or even less.
Secondly, the prices realized in the trafficking <. mineral
“claims” around Dubuque in the 1836-1850 period are not
a sound basis for valuing the mineral content of land. [451]
In the case of The Tlingit and Haida Indians of Alaska
v. United States, 182 Ct. Cls. 130 (1968), the Court of
Claims, in as few words as possible, clearly enunciated the
criteria which should be fcllowed in valuing mineral lands:
(P. 148)
«“***Mineral value is established by adequate proof o*
a fair market value indicating that removal of the de-
posit would be a profitable venture and would not in-
volve exorbitant expense.
Proof either of actual profits from an existing mine or
of prospective profits from a potential mineral area
establishes the mineral value of the area.*°°*”
te athe ly es ern te te i) LO an Ata el OO SEINE eDaily hy A Rai mete 6
ae
in, tl
|
:
|
39
And with respect to such speculative ventures as pur-
chasing “claims” as evidence of mineral value the Court
went on to say: (P. 149)
“Plaintiffs have offered proof of recorded sales of the
mineral interests as speculations. This proves only the
value of the property as a speculation but does not es-
tablish the value of the mineral. The supply and de-
mand for a speculative property does not establish the
value of the mineral. The fair market value of a specu-
lation does not enhance the value of the land or the
value of a mineral deposit. The purchase of a right to
explore does not prove the value of the minerals which
the purchaser believes to be present in the land.”
The Commission has attempted to value the lead opera-
tions at Dubuque in line with criteria set forth in the
Tlingit case. However, certain evidentiary facts relative to
capitalization expenditures were not available in the rec-
ord and the absence of such information actually accrued
to the benefit of the Sac and Fox petitioners in our final
value estimate. We did have evidence of the fact that the
prevailing market price of lead remained at a fairly stable
$0.04 per Ib. in 1833 and for several years thereafter. We
nave also found that the lead production costs worked out
to [452] approximately $0.025 per Ib., and these included
such items as the labor costs for digging and smelting, and
transportation costs. Absent evidence of the cost of capital
outlay, including any additional capital needed to attain the
Sac and Fox petitioners’ projected annual production fig-
ure of 3,000,000 pounds of lead, we have determined an
operating profit of $0.015 per lb., or a projected annual re-
turn of $45,000.
Knowing that any mining venture includes distinct ele-
ments of risk, and that 20 years is a reasonable estimate
of the productive life of an operating lead mine, a prudent
investor in our judgment would expect a minimum profit
40
return of 15% on his investment, plus a 5% rate of re-
demption of his capital over the life of the operation. =
this basis the prudent and knowledgeable purchaser bes
Royce Area 175 would not invest more than an —_
$240,000, which figure we believe fairly represents the 1
market value of the Dubrque lead mining area.
Having established treaty market values for the ceded
areas, the question now is the adequacy of the respective
treaty considerations that the United States had agreed to
pay to the Sac and Fox and the Iowa Indians for their lands.
Except for the Sac and Fox cession of Royce Area 226 un-
der the Treaty of 1836 for which these Indians received
more than full value, the government paid a grossly inade-
quate price to the Sac and Fox Nation under the 1832 and
1837 treaties for Royce Areas 175 and 244, and to the Iowa
Nation under the Treaty of 1838 for its interest in the
eastern [453] Iowa lands.
Although the defendant is liable to these petitioners for
the payment of additional compensation for the loss of their
eastern Iowa lands, the Commission does not agree with
all of the petitioners’ conclusions relative to the value of
the treaty considerations. Our differences are slight with
the Iowa petitioners in regard to the 1838 treaty, but not
so with the Sac and Fox petitioners who apparently have
ignored binding principles of law as well as pertinent treaty
provisions in seeking to maintain minimum values for the
1832 and 1836 treaty considerations.
Under Article 1 of the 1832 Sac and Fox Treaty, the
United States agreed to pay to the Sac and Fox Nations
annually for 30 years the sum of $20,000 in specie, or a
total of $600,000. The Sac and Fox petitioners would have
us commute this figure on the basis that it is a deferred
payment of consideration over 30 years, the actual cash
41
value computed at 5% interest as of the date of the treaty
being $317,499, a difference of $282,551.
In Docket No. 10, The Pawnee Indian Tribe of Oklahoma
v. United States, 9 Ind. Cl. Comm. 82, the Commission, fol-
lowing the rule of the Court of Claims as set forth in the
case of Miami Tribe of Oklahoma v. United States, 150 Ct.
Cl. 725 (1960) and Crow Tribe of Indians v. United States,
151 Ct. Cl. 281 (1960), commuted a deferred payment ar-
rangement of the treaty consideration (not amounting to
a perpetual annuity) in the identical manner contended for
by the Sac and Fox petitioners herein. On appeal [454] the
Court of Claims reversed, admitted there was error in the
earlier Miami and Crow decisions, and then stated among
other things:
“Tt now seems evident to us that this is tantamount
to charging the United States with interest—in face
of the well established rule that the United States is
-not liable for interest in absence of a contractual or
statutory requirement to pay interest...
“We are of the opinion that the defendant is en-
titled to credit for the full amount paid, although paid
over a period of years.”*
The Commission has credited the defendant with the
entire $600,000, as well as certain other items that are set
forth as consideration under the Treaty of 1832. We have
done so in light of the Pawnee decision, but with the feeling
that our actions are in some measure inconsistent with what
normally would have been expected in handling this annuity
arrangement. Contrary to the situation that confronted the
Court of Claims in the Pawnee case, the payment herein to
the Sac and Fox Indians under Article ITI of the Treaty of
1832 “annually, for thirty successive years, ... the sum of
8 Pawnee Tribe of Oklahoma v. United States, 157 Ct. Cl. 134, 138, 139
(1962)
————————————
42
Twenty Thousand in specie,” allows the defendant to realize
as an offset a greater value in this limited annuity than had
the treaty called for payment of a perpetual annuity of
$20,000.
In the Pawnee case, the Court of Claims in considering
what credit the United States was entitled to for payments
made to the Pawnee Indians [455] on account of a $30,000
perpetual annuity, limited the offset value of said annuity to
its commuted value, that is, an amount which, if invested
at 5% interest, would have produced the yearly payment
required under the Pawnee treaty. In the instant case the
limited Sac and Fox $20,000 annuity ran for thirty years.
Thus, the defendant is permitted to offset some $200,000
more than the value of the principal sum that would have
been needed, if invested at 5% interest, to produce $20,000
annually ad infinitum.
The Sac and Fox petitioners also discounted a part of the
1836 Sac and Fox treaty consideration involving the cession
of Royce Area 226. The Commission found the 1836 Sac
and Fox treaty consideration to be $192,000.12, but the Sac
and Fox petitioners say it was worth only $140,417.00. The
$51,583.12 difference can be attributed, for the most part,
to the Sac and Fox petitioners discounting $100,000 which
the United States under Article 2 of the 1836 treaty had
agreed to pay to the Sac and Fox Nation over a ten year
period. With an 1837 fair market value of $1.25 per acre,
the Sac and Fox one-half interest in the 217,600 acres in
Royce Area 226 was worth only $136,000. Accepting the Sac
and Fox petitioners’ estimate of the value of the 1836 treaty
consideration, the Sac and Fox Indians received full value
for their one-half interest, and under the Commission’s con-
sideration figure they received more than full value.
In summation the Sac and Fox and the Iowa petitioners
are entitled to recover from the defendant additional com-
43
pensation for the relinquishment [456] of théir lands in
eastern Iowa in the amounts as set forth in Commission
findings 45, 51 and 53. Since the defendant is not liable to
the Sac and Fox petitioners for additional compensation
for the cession of Royce Area 226 under the Treaty of
September 28, 1836, this particular claim in Docket No. 209
will be dismissed.
All offsets applicable to the Sac and Fox and Iowa
awards in these dockets have either been settled and set
off under previous orders of the Commission or waived by
the defendant.*® Therefore, the several judgments entered in
Docket Nos. 158, 209, and 231 are final in all respects.
John T. Vance, Chairman
We concur:
Jerome K. Kuykendall, Commissioner
Richard W. Yarborough, Commissioner
Margaret H. Pierce, Commissioner
(Commissioner Blue did not participate in the consideration or
decision in this case.)
® Docket Nos. 138 and 232, The Iowa Tribe, et al. v. United States, 15
Ind. Cl. Comm. 42, Docket No. 135, The Iowa Tribe, et al. v. United States,
15 ind. Cl. Comm. 248, Defendant's “Motion to Remove Hearing on Offsets
from Trial Calendar”, March 5, 1969. [457]
44
Berore THE Indian CLarms ComMISSION
The Sac and Fox Tribe of Indians of | Docket No. 158
Oklahoma, et al.,
The Iowa Tribe of the Iowa Reservation Docket No. 205
in Kansas and Nebraska, et al.,
The Sac and Fox Tribe of Indians of q Docket No. 231
Oklahoma, et al., "
Petitioners,
v.
The United States,
Defendant. |
Decided: May 12, 1969
(20 Ind. Cl. Comm. 439)
FINDINGS OF FACT
The Commission makes the following findings of fact:
1. The tribal petitioners herein who are the successors
in interest to the Sac and Fox Nation (also known as the
“Confederated Sac and Fox”) are the Sac and Fox Tribe
of Indians of Oklahoma, the Sac and Fox Tribe of Mis-
souri, and the Sac and Fox Tribe of the Mississippi in
Iowa. The tribal petitioners herein, who are the successors
in interest to the Iowa Nation of Indians, are the Iowa
Tribe of the Iowa Reservation in Kansas and Nebraska
and the Iowa Tribe of the Iowa Reservation in Oklahoma.
Certain individual members of the several tribal petitioners
have brought these suits as representatives of and on be-
half of the Sac and Fox and Iowa Nations and all of their
members.
On August 2, 1957 in Docket No. 158, (5 Ind. Cl. Comm.
367) and on [458] June 1, 1962 in Docket No. 209 (10 Ind.
Cl. Comm. 404) and Docket No. 231 (10 Ind. Cl. Comm.
408), this Commission entered interlocutory orders con-
cerning the subject lands involved in this proceeding where-
45
in it was determined that the Iowa tribal petitioners and
the Sac and Fox tribal petitioners had the right and ca-
pacity under the Indian Claims Commission Act to bring
and maintain these proceedings as the successor in interest
to those Indians who owned the subject lands ceded under
the Treaties of September 21, 1832 (7 Stat. 374), September
28, 1836 (7 Stat. 520), October 21, 1837 (7 Stat. 540), and
October 19, 1838 (7 Stat. 568).
2. The subject lands to be valued herein are three con-
tiguous tracts in eastern Iowa which together form one
large area of land aggregating 6,757,000 acres. Officially
they are identified as Royce Areas 175, 226 and 244.
3. The Sac and Fox Nation ceded its interest in the lands
designated as Royce’s Cession 175 by a treaty concluded on
September 21, 1832 (7 Stat. 374), herein called the Treaty
of 1832, which became effective on February 9, 1833, the
date of its ratification by the United States Senate. The
Iowa Nation ceded its interest in Cession 175 by a treaty
concluded October 19, 1838 (7 Stat. 568), herein called the
Treaty of 1838, which became effective on February 28,
1839. The Commission has previously found in Docket No.
158, supra that the Sac and Fox Nation was the exclusive
owner of the lands in Cession 175 lying north of a line ex-
tending from the point where the western boundary of
Cession 175 crosses the Red Cedar River to a point [459]
on the Mississippi River five miles northeast of Muscatine,
Iowa. This part of Cession 175 contains 3,619,200 acres. The
Commission also determined that the Iowa and Sac and Fox
Nations jointly owned the lands in Cession 175 lying south-
erly of the above described line, and that their interests
therein were equal. This part of Cession 175 contains
1,731,200 acres. Cession 175 has a total area of 5,350,400
acres.
46
4. The lands designated as Royce Cession 226 consist of
400 sections—or 217,600 acres—in southeast Iowa.
Cession 226 was reserved from the lands ceded by the
Treaty of 1832 and is an enclave surrounded on three sides
by the boundaries of Cession 175. The Sac and Fox Nation
ceded its interest in Cession 226 by the Treaty of September
28, 1836 (7 Stat. 520), herein called the Treaty of 1836,
which treaty became effective on October 13, 1837. The Iowa
Nation ceded its interest in Cession 226 by the Treaty of
1838 referred to in Finding 1. The Commission has hereto-
fore found that the Sac and Fox Nation and the lowa
Nation each owned an undivided one-half interest in Cession
226. (10 Ind. Cl. Comm. 404, 407 (1962)).
5. The lands designated as Royce Cession 244 were ceded
by the Sac and Fox Nation to the United States under the
Treaty of October 21, 1837, (7 Stat. 540), herein called the
Treaty of 1837, which treaty became effective on February
16, 1838, and by the Iowa Nation under the Treaty of 1838
referred to in Finding 1.
The Commission has heretofore found in Dockets 158,
supra and 209, supra that the Sac and Fox Nation and the
Iowa Nation jointly used and owned in equal part lands in
Iowa to the east of Cession 244. For a number of years
commencing around the 1770’s, the Iowa Nation had a
village at or in the vicinity of present Selma, Iowa, and
therefore in or immediately east of the [460] southern part
of Cession 244. While their village was located at this place
Iowa Nation used the lands in approximately the southern
one-third of Cession 244 as well as lands in Iowa to the
east of those lands for hunting purposes. As the Commis-
sion has heretofore found in Docket 158, supra the Sac and
Fox Nation had villages along the Mississippi River in the
47
area in southeastern Iowa which it jointly used with the
Iowa Nation. Residents of those villages as well as other
members of the Sac and Fox Nation hunted and otherwise
used lands in Iowa to the west of those villages.
We find that the Sac and Fox Nation exclusively owned
the north part of Cession 244, comprising two-thirds of its
total area, and that the Iowa Nation and the Sac and Fox
Nation each owned an undivided one-half interest in the
balance of Cession 244. This finding is supported by the
evidence and is consistent with the findings which the Com-
mission has made concerning the ownership of Cession 175
in Docket 158 and Cession 226 in Docket 209. The finding is
also consistent with the position taken by counsel for the
Sac and Fox and Iowa in this proceeding and is in accord-
ance with the stipulation executed on behalf of both tribes.
6. The Treaty of 1837 fixes the acreage of Royce Area
244 at 1,250,000 acres. Recent figures submitted by the
Bureau of Land Management, the accuracy of said figures
not being controverted, show that the boundaries of Royce
Area 244 contain 1,189,000 acres. The Commission therefore
accepts the latter figure as correctly reflecting the total area
actually ceded to the United States under the Treaty of
1837. The northern two-thirds of Cession 244, which was
exclusively owned by the Sac and Fox N ation, contains
792,667 acres. The southern one-third of Cession 244 com-
prises [461] 396,333 acres of which the Iowa and Sac and
Fox each owned an undivided one-half interest.
7. The Sac and Fox interest in Cession 175 shall be
valued as of February 9, 1833, in Cession 226 as of October
13, 1837, and in Cession 244 as of February 16, 1838. The
interest of the Iowe Nation in all three cessions shall be
valued as of February 28, 1839, which is the effective date
of the Treaty of 1838.
48
8. The acreage of Royce Cessions 175, 226 and 244 in-
cludes all or part of the following present-day lowa
counties :
Allamakee Jackson Scott
Clayton Iowa Jefferson
Fayette Johnson Henry ;
Buchanan Cedar Des Moines
Delaware Clinton Davis
Dubuque Keokuk Van Buren
Benton Washington Lee
Linn Louisa Jones
Muscatine
9. For the most part the climate of eastern Iowa is ideal
from both the point of view of the health of its inhabitants
and for the formation of its soils. The average annual
temperature is about 50° F. and in the summer months is
about 70° to 75°; rainfall is highest in the eastern part of
the state, averaging about 32 to 36 inches per year. Most
of it falls in the crop growing season which varies from 150
to 170 days between May and October. At times there are
periods in which there is experienced hot winds and pro-
longed high temperatures that cause major crop damage.
The climate of the State of Iowa has been the same for the
past 5,000 years and this constancy of weather has contrib-
uted to the general excellence of the Iowa soils. [462]
10. The Mississippi River forms the eastern boundary
of the cession lands and into it flow six of Iowa’s medium-
sized rivers that provide ideal natural drainage. From the
south to the north those rivers are: The Des Moines River
in the extreme southern portion; the Skunk River that
erms the border of Lee and Des Moines Counties; the
Cedar River that is the confluence of the Red Cedar River
and the Iowa River; the Wapsipinicon that empties into
the Mississippi between the present cities of Davenport
ee
49
and Clinton; the Maquoketa, between the cities of Clinton
and Dubuque; and the Turkey that reaches the Mississippi
approximately 30 miles north of Dubuque.
The early settlers and observers noted that very little of
the three cession areas was subject to flood and that the
country was generally high, dry, and rolling, but not so
rolling as to render the lands unfit for cultivation. In gen-
eral, there were no large swamps or broken wastelands.
11. Roughly 80% of the three cession areas is level to
moderately sloping land. This kind of topography is de-
sirable for agricultural purposes. Most of the eastern Iowa
lands are sufficiently sloping as to provide good natural
drainage through the streams and tributaries previously
referred to. However it can be stated that about 15 to 20
percent of the land in the three cession areas can be classi-
fied as being somewhat wet or poorly drained. Where not
subject to serious erosion the sloping lands in eastern
Iowa were cultivated without too much difficulty.
12. An optimum combination of environmental factors
in the cession lands—climate, parent materials, natural
vegetation, topography, natural [463] drainage, and geo-
logic time—produced soils of unusual fertility. Ninety-
eight percent of the parent material of the cession lands
soils consisted of loess, glacial drift, and alluvium, which
are ideal for growing both native prairie grasses and grain
crops.
Practically the entire subject area is made up of soil
associations in either the prairie-formed or forest-formed
soil group. The remainder consisted of bottom land area
along the Mississippi River. The prairie-formed and
forest-formed soils were quite intermixed in the cession
lands and both types are found on many farms. The prairie-
formed soils are superior in both fertility and natural drain-
age; forest-formed soils are only slightly less desirable
50
and the bottom lands, although often highly productive,
are sometimes poorly drained.
13. The inherent fertility of the Iowa soils is an im-
portant consideration in the early capability of lowa land
to grow seed grain crops and vegetables. The lowa yields
in the early period reflect the inherently high fertility status
of these soils. The early eastern Iowa settlers grew wheat,
corn, rye, barley, buckwheat, oats, and clover. All kinds of
vegetables and fruits were also raised including potatoes,
melons, pumpkins, onions, beets, turnips, parsnips, ruta-
baga, grapes, strawberries, gooseberries, plums and apples.
Per acre crop yields reported by early settlers ranged
as follows: Corn, 40 to 100 bushels ; wheat, 25 to 40 bushels;
barley, 50 buvhels; clover, 80 bushels; oats, 60 to 110
bushels; and buckwheat, 20 to 30 bushels. Wheat when
sowed in newly-turned prairie sod would usually [464]
produce 30 bushels to the acre. Yields of 400 to 500 bushels
of potatoes and onions per acre were realized.
Apart from food growing activities, edible fish could be
readily taken from the many streams, sugar obtained from
the sugar maple, and there seemed to be a plentiful supply
of small game and wild fowl.
14. The prairie grasses provided excellent natural graz-
ing and large quantities of hay. A variety of peas which
grew in some of the river bottoms also provided excellent
fodder. The early settlers used these resources in raising
their beef and dairy cattle, sheep and swine.
Small streams and springs provided ample water for
human and stock consumption. Wells, while not often nec-
essary, could easily be dug.
15. For the most part adequate quantities of timber
suitable for the needs of the early settler were found
throughout the three cession areas. White oak, black oak,
51
sugar, maple, ash, elm, black walnut, hickory, ironwood,
lynn [linden], hackberry, butternut, cedar, and poplar were
among the kinds of trees. The farms which were
located entirely in the prairie were seldom more than two
or three miles away from timber which was not necessarily
a burdensome distance for the early settler. Moreover, new
timber grew easily and rapidly in eastern Iowa. However,
the Commission finds that in the initial selection of lands
in eastern Iowa, settlers showed a preference for the land
near the water courses and near timber.
16. There were a large number of mill sites in the three
cession areas. Some mills were already in existence in 1836
when the government surveys of Cession 175 commenced.
The detailed notes of the surveys refer [465] to more than
125 mill sites in these lands. The mills were used to saw
lumber, grind grain for flour and meal and to provide
power for other mechanical purposes.
The abundant water power available throughout the three
cession areas was an important feature of those lands.
Near-at-hand mills enabled the early settler conveniently to
satisfy his own needs for, and to convert his surplus
agricultural crops into, milled products.
17. Building stone was readily available to the early
settlers throughout the cession areas. There was an abund-
ance of limestone of an unusual fine quality throughout.
Detailed notes made from Government surveys during this
early period refer to the presence of coal in each of the
cession areas. Some coal was mined in eastern Iowa in
1835 for sale to steamboats using the Mississippi River
and in 1838 for sale to the inhabitants of Davenport and
Rockingham. However, during the treaty periods involved
herein coal production was not of any substantial com-
mercial value, its use being generally restricted to local
consumption as a fuel substitute for wood and to the
activities of the village blacksmith. During this same period
52
the presence of zinc and iron ore deposits were of no com-
mercial value. Zine production did not become an economic
factor until nearly 1860, there being no existing market
prior to that time.
18. The three cession areas were readily accessible to
new settlement in the 1830’s. The mainstream of new settle-
ment into the middle west during this period flowed in the
general direction and with the courses of the principal
navigable rivers and streams, the Ohio, Mississippi, Mis-
souri and [466] Illinois. These waterways provided the best
means of transportation and the pioneer settlers located
along them because they did furnish optimum accessibility
to the land.
In and prior to the 1830’s, the main routes to lowa were
from Pittsburgh down the Ohio River and thence up the
Mississippi River, or from New Orleans north on the latter
river. In addition, boats cruised on the Great Lakes from
Buffalo to Green Bay and from Green Bay there was a
water route to the Mississippi River by way of the Fox
and Wisconsin Rivers. Buffalo could be reached from New
York by way of the Hudson River and the Erie Canal. Great
Lakes steamers also served Milwaukee and Chicago and
there were overland stage routes leading from those places
to Iowa. The Cumberland Road, from Cumberland, Mary-
land to Columbus, and the Mississippi River were also
available. By 1830 there was considerable steamship traffic
on the Mississippi River. With the settlement of eastern
Iowa, this traffic expanded rapidly.
From at least 1833 there were ferries operating on the
Mississippi between Iowa and Lllinois. By 1846 ferries were
authorized at all the leading towns along the Mississippi.
The Cedar, the Iowa, the Skunk and the Des Moines
Rivers were all used by early settlers for the movement of
goods and produce and other transportation purposes
53
within the three cession areas. The Turkey, Maquoketa and
Wapsipinicon Rivers were not used to the same extent as
the four streams first mentioned.
Overland travel in the cession lands in the early 1830's
presented some problems. The almost total absence of
public roads and bridges [467] during the first years of
settlement made travel by ox teams and wagon very difficult.
In rainy weather travel was nearly impossible and very
dangerous. As eastern Iowa became more settled, roads
were laid out and established. Railroads contributed
nothing to the transportation situation in Iowa during the
1830's since the first railroad did not reach the Mississippi
from the east until 1854.
19. In 1833, the year in which the Sac and Fox interest
in Royce Area 175 had been effectively extinguished, none
of the lands in Iowa had been surveyed or officially opened
for public sale or settlement. Although it was illegal to do
so, thousands of settlers entered Iowa between 1833 and
1838 when the first public sales took place. These settlers
or “squatters” established farms, and villages, and towns
were laid out at Dubuque, Davenport, Burlington, Fort
Madison, and other places.
Early settlers also moved into Royce Area 226 and Royce
Area 244, some of them prior to the treaty cession dates
and before the lands had been surveyed and offered for
sale,
The United States recognized that settlement was taking
place in eastern Iowa although no provision had been made
for the sale of public lands before 1838. Iowa was added to
the Territory of Michigan in June of 1834, and was sub-
sequently transferred to the new territory of Wisconsin
in April of 1836. A session of the Wisconsin Territorial
Legislature was held at Burlington, Iowa, in November,
54
1837, and in June, 1838, the Iowa Territory was created.
Courts were established and Des Moines and Dubuque
counties were organized in 1834 in advance of the surveys.
By 1839 there [468] were 19 counties substantially within
the overall three cession area.
20. In 1836, the Congress appropriated $30,000 for land
surveys to begin in Royce Area 175. Surveys were not com-
pleted until 1838, at which time the surveyed area was
divided into two land districts. Burlington and Dubuque,
each on the Mississippi River, were designated respectively
as the sale headquarters for the southern district and the
northern district. The Burlington or southern district ac-
counts for approximately one-third of the overall three
cession area, while the Dubuque or northern district takes
care of the remaining two-thirds.
In June 1838 the Congress enacted a Pre-emption Law
that granted the early settlers or “squatters” who had
settled in Iowa before February 22, 1838, and who were
living there on June 22, 1838, a right to buy their quarter
sections within two years without competition, at the pre-
vailing government price of $1.25 per acre. The filing of
pre-emption claims commenced on September 23, 1838, at
Dubuque and on October 1, 1838, at Burlington. Auctions
of the public lands at $1.25 per acre minimum price started
at Dubuque on November 5, 1838, and at Burlington on
November 19, 1838.
21. At the time of the first public sales of land in eastern
Iowa in 1838, the Iowa population had been officially re-
corded at 22,859. This is more than double the 10,531 figure
recorded for the year 1836. [469]
Of the 22,859 persons recorded under the 1838 census,
some 13,676 of them or about 60 percent of the total popula-
tion were living in the four southernmost counties of Des
55
Moines, Henry, Lee, and Van Buren, which counties formed
a contiguous area situated between the broad general con-
finence of the Mississippi River and the Des Moines River.
After these four counties, the next most populous county in
1838 was Dubuque, the lead mining center, with 2,835
people.
22. Relevant population data with respect to the ad-
joining Lllinois and Missouri areas to the east and south
of the subject lands shows that in 1810 there was an in-
crease in population along the Ohio River and a movement
up the Mississippi River from the Ohio River to St. Louis.
North of St. Louis there were no settlements of a density
of two or more inhabitants per square mile. During this
period the largest population nearest to the subject lands in
eastern Iowa was concentrated close to the Mississippi
River at St. Louis and to the south of St. Louis. By 1820
settlement had expanded along the Ohio and Mississippi
rivers and later from St. Louis northward near the con-
fluence of the Des Moines River just below Royce Area 175,
and contemporaneously westward along both sides of the
Missouri River. The 1820 census shows that some 30,185
people were living north of the Missouri River in the State
of Missouri in those counties bordering the Mississippi
River. The most sizeable population in 1820 west of St.
Louis along the Missouri River was at Boone’s Lick in the
Missouri River Valley. By 1830 the westward [470] flow of
settlers along the Missouri River had reached the Missouri
borders with a large population \ecated at present-day
Kansas City.
In Lilinois the 1830 census showed that 75,973 people were
living in the northern two-thirds of the State as against
some 17,412 people recorded under the 1820 census. In the
northwest corner of Illinois there was a settlement near
Galena. Galena, Dlinois, on the east side of the Mississippi
56
is in the same Upper Mississippi Valley lead mining region
as is Dubuque, lowa.
i i i-Illinois areas
The population patterns for the Missouri
south and east of the subject lands between 1810 and 1830
show a definite expansion movement along the major river
courses.
23. During the six year interval between the 1832 on
and Fox cession of Royce Area 175 and the first sales )
public lands in 1838, many thousands of settlers had _
gally entered eastern Iowa, settled there, and made valuable
improvements on their lands. Acceding to the many ha
quests of the territorial legislature, Congress finall-’ c aac
a pre-emption law aimed at protecting the land «.aims ne
these “squatters”. By its preferential treatment, the 1
Pre-emption Law allowed those persons, who had actually
settled in Iowa before February 22, 1838 and had continued
living on their lands until June 22, 1838, first call to their
lands at the prevailing $1.25 per acre cash price.
Also operating in eastern Iowa, prior to the first public
land my “vy were the so-called “claims” clubs. These
clubs or associations were organized by “squatters” for
their mutual protection. Members of the club agreed to
respect the land claims of their fellow members by not
entering bids at the public sale. By eliminating or dis-
couraging competitive bidding club members could normally
be assured that they would only have to pay the minimum
$1.25 Government price in order to purchase the lands upon
which they had illegally settled. However, the role of these
“claims” clubs in preventing competitive bidding at public
land sales can be overemphasized since in actual practice
many settlers did not need this service because of the pref-
erential rights gained under the 1838 pre-emption law.
Indeed the record herein is devoid of any substantial evi-
57
dence upon which the Commission can draw valid con-
clusions as to overall effect of “claims” clubs’ operations
upon both public and private land sales in and during the
late 1830’s and 1840's,
24, At the time of the first public land sales in eastern
Iowa in 1838, a sizeable quantity of competitive public land
had been on the market in neighboring Illinois and in
northern Missouri. In northeastern Missouri, an area just
south of and adjoining Royce Area 175, some 713,509 acres
of public land was still available for sale in 1833. Public
lands in northeastern Missouri had been offered for sale
between 1819 and 1831 with most of the townships being
offered in 1823. In the northwestern part of Missouri near
the site of present-day Kansas City, some 292,712 [472]
acres of public land were still available for sale in 1833.
This whole area had been first offered for public sale in
1821.
On the east side of the Mississippi River in Illinois, and
adjacent to its confluence with the Rock River, some 169,210
acres of public lands were offered for sale in 1829, In 1833
some 166,447 acres were still available. At this time the
Rock Island area in Illinois was somewhat north of existing
settlements and this accounts for the lack of any serious
demand for these lands in the first sale years.
25. During the period relevant to evaluation of the three
cession areas, namely 1833 to 1839, the prevailing price for
government lands remained at a cash price of $1.25 per
acre. This price had emerged as a compromise between
those members of Congress who believed that the Govern-
ment should sell lands as a prime revenue raising measure,
and those who believed that public lands should be turned
over to the settlers free of charge or at a nominal price.
The Government price of $1.25 per acre was the same for
the finest lands and for the worst lands. Between 1833 and
58
1839 the Government continued to offer millions of acres of
public lands at a $1.25 per acre notwithstanding the fact
that prospective purchasers were not numerous enough to
buy more than a fraction of the amount of land being
offered, In 1834 the quantity of surveyed and unsold land
was 104,000,000 acres, Settlers were not likely to and did
not usually pay more than the minimum price for land in
purchasing from the Government in view of the millions of
acres available throughout the United States at that price.
[473]
The superabundance of available public lands at the uni-
form $1.25 per acre price situated immediately adjacent to
and within the three cession areas during the years 1833
through 1839 was an effective bar to any upsurge in land
values in eastern Iowa for many years to come. In fact,
the enormous glut of public land on the market during this
period depressed land values over the entire northern
Mississippi valley area for decades.
26. The record of public land sales in eastern Iowa within
the three cession areas shows that the available lands in
Royce Area 175 and Royce Area 226 were first offered for
sale in 1838. Public land sales in Royce Area 244 did not
commence until 1843.
With the bulk of the 1838 population concentrated in the
southeastern part of Iowa, the volume of public land sales
handled by the Burlington land office far outstripped those
recorded by the Dubuque land office. The four most pop-
ulous counties in the Burlington land district in 1838 were
within that area the Commission has identified in Finding
3 supra, as Royce Area 175 south, which also includes Royce
Area 226.
In the Burlington land district over 50% of the lands that
were offered for sale in 1838 and 1839, the initial sale years,
were sold by 1840. By 1842 some 1,629,680 acres of land in
59
the Burlington land district had been proclaimed for sale
and over 62% had been sold. The initial burst of sales must
be attributed to the fact that out of the 16,386 persons in
the Burlington land district, there were a large number of
resident “squatters” who were now availing themselves of
their pre-emptive right [474] of purchasing the claims upon
which they had been living at $1.25 per acre free of any com-
petitive bidding.
In the early 1840’s an economic depression put a damper
on land sales. Thus it appears that in Royce Area 175,
south, and in Royce Area 226, one-half of all the public
lands reached private hands within the years 1838 to 1840,
inclusive, while it took from 1841 to 1855 to dispose of the
remainder with the three high years of sales occurring in
the 1851-53 period.
In the northern or upper part of Royce Area 175 within
the Dubuque land district, public lands did not sell as
rapidly as those in the Burlington land district. Most of the
1838-1840 population in northeastern Iowa was in the Du-
buque lead mining area. Some 180,000 acres of lands in the
Dubuque area were classified as mineral bearing by the
Government, and had been withheld from public sale until
1847. This lack of any sizeable population near the first
public land offerings in Dubuque land district in 1838-1840
was the real reason that there was no genuine demand for
these lands. The public land offerings in northeastern Iowa,
besides being somewhat remote from the existing settlement
areas, were not directly in the path of the general move-
ment of new settlement.
By 1842 nearly 2,381,760 acres had been proclaimed for
sale in the Dubuque district of which 239,969 acres or 10.0%
were sold. By 1845, some 4,012,720 acres had been pro-
claimed for sale, of which 473,430 acres had been sold. [475]
60
Included in the latter figures was some land in Royce
Cession 244. Most of the townships in those counties within
Royce Area 244 were offered for public sale in 1843, but
those along the western border with the exception of one
township were offered in 1845-1847. By 1855 practically all
the public lands available in Royce Area 244 had been sold.
Most of the lands in the three cession areas were sold for
cash. All of the land was sold at a price of $1.25 per acre or
within a penny of that amount. The cost to the Government
of surveying the public lands in the three cession area prior
to sale was approximately 6.2 cents per acre.
27. Contemporaneous with the sale of public lands within
the three cession area that began in the years 1838, 1839,
there were recorded the first private land sales. There has
been reproduced and placed in evidence a compilation of
some 13,600 private land transactions of $5.00 per acre or
less taken off the land record books of the nineteen counties
within the three cession area.* These nineteen counties are:
Buchanan, Cedar, Clayton, Clinton, Delaware, Des Moines,
Dubuque, Henry, Jackson, Jefferson, Johnson, Jones, Lee,
Linn, Louisa, Muscatine, Scott, Van Buren, and Wasbing-
ton.
There was a steady volume of private sales following
public entry during the ten year period 1839-1849. On the
whole resale prices were at a higher level in the southern
part of the three cession area than in [476] the northern
part. An analysis of this private sales data, which includes
a conglomerate of improved, unimproved land, and resales,
shows the following average price per acre within the then
three cession areas and for the total area during this
1839-1849 period.
In Royce Area 175 south some 448,543 acres were sold for
$1,197,375.00, or at an average price of $2.67 per acre. Some
*As amended in accordance with order of the Commission entered
February 11, 1970 (App. 62).
61
5,850 transactions were involved, Based on the total acreage
sold during this period the average transaction works out
to 76.7 acres per sale,
In Royce Area 175 north 200,593 acres were sold for
$4,033,017.00 or et an average price of $2.16 per acre, There
were 3,011 transactions recorded in this period with the
average transaction based on total acreage sold, being 66.6
acres.
In Royce Area 226 there were 47,096 acres sold for
$134,463.00 or at an average price of $2.86 per acre. There
were 638 transactions with the average transaction based on
total acreage sold being 73.8 acres.
In Royce Area 244 a total of 263,214 acres were sold for
$594,523.00 or at an average price of $2.26 per acre. Some
4,161 transactions were involved with the average transac-
tion being 63.3 acres.
From the record of the above private land transactions it
is not possible to determine the amount of improved land
that was involved, the actual value of any such improve-
ments, the number of resales, or the number of credit trans-
actions.
Totaling up all the private sales transactions of $5.00 per
acre or less in the three cession area during the 1839-1849
period the Commission finds that 959,446 acres [477] were
sold for $2,359,378.00 or at an average price of $2.46 per
acre, and that the average transaction was 70.3 acres.°
There is evidence that during the 1839-49 period some
sixty-two grantors sold 1000 or more acres in the three
cession areas aggregating 144,662 acres for an average
consideration of $2.63 per acre. However, there were no
significant large scale transactions of a speculative nature
that would appreciably affect the overall private land sale
*As amended in accordance with order of the Commission entered
February 11, 1970 (App. 63).
62
market during this period. Since 70.2 acres represents the
size of the average transaction throughout the entire three
cession area during this 1839-49 period, the vast majority of
settlers in eastern Iowa were purchasing at private sale
only that quantity of land sufficient to satisfy their own
immediate needs. The prevailing $2.46 per acre average
price paid for all types of land at private sale throughout
the three cession area during the 1839-1849 post cession
period is a clear indication that the available supply of
Government land in eastern Iowa at $1.25 per acre during
this same period was large enough to be an effective depres-
sant to any general upward movement in land prices.
28. The cost of improving raw virgin land in eastern
Iowa in 1833 as well as during this 1837-39 period was a
considerable expense that the settler had to face. Besides
the initial $1.25 per acre purchase price, the new settler
either had to improve his land through his own labor or
pay others to do it. The initial improvements to the land
generally [478] involved fencing, breaking the sod, and
constructing the necessary buildings. The charges for
breaking prairie ranged hetween $1.50 to $2.50 per acre and
fencing costs were quoted at $1.00 per acre. A rudely made
double log cabin cost $75.00 in 1844. In 1849 a four room
frame house would cost $294.50 and a brick house of the
same size $325.00. Farm costs would vary according to size
of the tract, and to the extent to which the settlers used
their own labor or contracted it out. It was estimated in
1844 that a settler could acquire and begin operating an
80 acre farm with an initial investment of $400.00 in land,
animals, farming equipment, buildings, seed and living
expenses.
Besides improvements actually made to the land, the
presence of anil the continuous development of public im-
provements added indeterminable value to all land subject
63
to sale. During the 1839-49 post cession period eastern Iowa
had witnessed the organization of county and local govern-
ment, growth of towns, the building of bridges, roads, and
schools.
29. Within the interval covered by the cession dates, 1833
to 1839, business conditions were generally favorable with
the exception of the years 1837-1838 when there was ex-
perienced periods of recession and depression. Interest
rates on government bonds remained at the 6% level. Short
term commercial interest rates were in the 6 to 9 per cent
range, and any prospective buyer or buyers of the three
cession areas would have to pay minimum interest rates
between 7 and 8 per cent for purchase money. [479]
Individual settlers borrowing money for their land pur-
chases were facing interest rates of from 10 to 40 per cent
from private lenders.
As was the case in most frontier settlements, hard money
was scarce in the 1830’s. This was strictly a period of a
subsistence economy in Iowa, and the supply of money in
circulation was smaller than that found in the eastern
states. Paper money issued by state banks was used widely
in Iowa in the 1830's, but most of it was of dubious value
and drastically discounted. This lack of a sound paper
currency, coupled with a genuine shortage of hard money
forced the settlers into a bartering system wherein the early
merchants accepted farm products in exchange for goods.
30. Except for the lead mining activities in and around
Dubuque, Iowa, the highest and best use of the three cession
areas during the 1833-1839 period was for general sub-
sistence homestead farming, preferably on tracts of 80
acres or less. In conjunction with such subsistence farming
during this period, and where there was open prairie and
grazing land, stock raising was conducted although limited
primarily to local consumption.
64
31. To assist the Commission in determining the fair
market values of Royce Areas 175, 226, and 244 as of their
respective valuation dates, the petitioners offered nr
expert testimony of Drs. Conrad R. Hammer and Raleig
Barlowe. These two witnesses jointly authored an ovelas-
tion report entitled, “Valuation of Lands in Eastern Iowa”,
which report contains a great deal of data that the Com-
mission found to be most helpful and [480] informative. The
testimony of Drs. Hammer and Barlowe was for the most
part explanatory and in support of their report. Based on
their studies of all the relevant data in evidence, both
witnesses were of the opinion that Royce Areas 17 5, 226,
and 244 had a fair market value exclusive of any umprove-
ments thereon in the range of $2.00 to $3.00 per acre as of
the 1833-39 period. Both witnesses, however, based their
value conclusions on the existence of a “bona fide market
condition, a situation which both acknowledge did not exist
as of the respective cession dates but theoretically was not
reached in the cession areas until the early 1850’s when ap-
proximately 75% of the available public land had passed
into private hands. As a result both witnesses rely on the
conditions affecting land values in eastern Iowa that existed
from 15 to 20 years after the subject areas were ceded to
the United States. Both of petitioners’ experts viewed the
subject tracts as being best utilized for commercial farming.
While the petitioners’ experts did use private sales data
in their computations, the Commission finds the “bona fide
market” approach upon which their fair market value con-
clusions were based is unacceptable and not responsive to
the economic, political and other conditions that would have
influenced and controlled a land market in eastern Iowa as
of the effective cession dates for the three subject tracts.
Their heavy reliance upon novel formulae in estimating
land improvements, both public and private, as well as their
use of certain post cession census data, embodied too much
65
of the speculative. In the Commission’s judgment the
petitioners’ experts ultimate conclusions on the value of the
three [481] subject tracts as of their respective cession
dates are unrealistic and not supported by substantial evi-
dence.
82. Defendant offered the testimony of Dr. William
Murray as an expert witness on value. In support of his
testimony Dr. Murray prepared a valuation report which
contained a great deal of useful material. In contrast to the
“bona fide market” value approach adopted by the peti-
tioners’ experts, Dr. Murray sought to establish fair market
values for the subject tracts as of their effective cession
dates. In utilizing the market value method, Dr. Murray
relied on such contemporary value data as: the physical
aspects of the subject tracts including topography, soils,
drainage, climate and timber, population figures, transpor-
tation facilities, prevailing economic conditions, surveyors’
notes, public land sales in nearby areas, settlers’ preference
for lands, the highest and best use for the subject tracts,
and confirmatory hindsight evidence with respect to public
land sales in the subject lands after the respective valua-
tion dates. Dr. Murray gave separate treatment to the
valuation of the lead mine area at Dubuque, Iowa. Within
the 1833-1839 period, Dr. Murray’s evaluation conclusions
for the three subject tracts including the mineral value of
the Dubuque lead mines, ranged between $0.43 and $0.80 per
acre. This figure was well below the Government prices of
land for the same period, and in the Commission’s judg-
ment, based on the same record, is on the conservative side.
Dr. Murray’s separate valuation of the Dubuque lead mine
area in Royce Area 175 as of February 9, 1837, [482] based
on there being 46,500 acres of mineral land, was $116,250.00.
33. With the exception of the mining activity around
Dubuque, Iowa, Royce Area 175 as of February 8, 1833, the
66
effective date of the Treaty of 1832, was for the most part
raw, unimproved land. The prime plus factor of Royce Area
175 was its physical attributes. Thus the 1833 prospective
purchaser of the entire tract would have considered the
excellent soils and prairie grass in eastern Iowa, its good
climate, its adequate rainfall, and favorable climate, the
numerous streams and swift rivers that provided a plentiful
water supply, as well as avenues of access into the tract.
On the other hand, the 1833 prospective purchaser of
Royce Area 175 would have considered the fact that he was
buying an enormous tract of some 5,350,400 acres, the
greater proportions of which was far removed from the
mainstream of the population growth and settlement that
was still to the south of Royce Area i175 and across the
Mississippi River in Dlinois. In adapting Royce Area 175
to its highest and best use, subsistence homestead farming,
he could readily see that subdividing and reselling such a
large area in smaller parcels over a period of time involved
necessary surveying, management, and selling costs. He
would know that his purchase money would cost him a
minimum 7% interest at the prime rate. He would also
consider the fact that the Indians still held the land ad-
joining the western boundary of Royce Area 175 and a
217,600 acre reservation that extended well into the
southern part of Royce Area 175. [483]
Finally, the 1833 purchaser of Royce Area 175 faced the
immediate prospect of selling small tracts of ‘and in com-
petition with millions of acres of public lands in nearby
Missouri and Illinois at $1.25 per acre, a market situation
that would obviously depress and control the price of the
private land sales for many years to come.
Having considered the foregoing and all the evidence of
record, the Commission finds that as of February 8, 1833
67
the fair market value of Royce Area 175, taken as a whole,
but excluding the value of the Dubuque lead mines, was
$0.90 per acre. To this must be added the value of the
Dubuque lead mines.
34. Located within the northern portion of Cession 175
is the Iowa section (sometimes called the Iowa Mining
District or the Dubuque Mining District) of the Upper
Mississippi Valley Mining District. That whole district in-
cludes the southwest part of Wisconsin, the northwest
corner of Illinois, and a strip of land in Iowa having a
maximum width of about 13 miles, about 54 miles along the
west bank of the Mississippi, in the eastern part of Jackson,
Dubuque, and Clayton Counties, extending from present-
day Bellevue to McGregor, Iowa. The Iowa portion is
considered an integral part of the entire Mining District,
and, in general, the geology and mineralization are the
same on both sides of the Mississippi River. The area of
the entire district is about 4,000 square miles, of which the
Iowa portion comprises about 288 square miles, or 184,320
acres, and is roughly 11 per cent of the total area. Pursuant
to an [484] Act of Congress in 1807 making it unlawful to
sell any land belonging to the United States containing lead
mines, 180,000 acres of the Iowa Mining District were with-
held from public sale after Cession 175 was ceded by the
Sac and Fox Nation. The 180,000 acres thus withheld were
placed under control of the Land Office having a Superin-
tendent of Mines and for which royalties were exacted that
were payable in cash or in lead. This leasing system was
opposed by the local Iowa courts and was unpopular with
the settlers; consequently, not many leases were made of
mines in the reserved lands.
35. The Dubuque mining district is one of the oldest lead
producing areas in the United States. The Sac and Fox
Indians had mined lead in this area before 1800. In 1788
68
Julian Dubuque, after whom the present city of Dubuque,
Iowa was named, entered into an agreement with the Sac
and Fox Indians under which he mined lead near the city
of Dubuque until 1810 when he died. After Dubuque’s death
and until the lands were ceded in 1832, the lead mining
operations were conducted by the Sac and Fox Indians.
Dubuque’s lead production was estimated in 1805 as being
in the vicinity of 20,000 to 40,000 pounds of lead ore a year.
In 1810, the Sac and Fox Indians mined about 400,000
pounds of lead which were sold to traders at Prairie du
Chien.
36. In 1830 a number of miners from Galena, [llinois,
crossed the [485] Mississippi River and began mining
operations in the Dubuque area. However, they were re-
moved by Government troops. Following the ratification of
the Sac and Fox treaty of cession on February 9, 1833, the
miners returned to their operations and Dubuque became
the most important town in Iowa and the center of lead-
mining activity in Royce Area 175 in the 1830’s. An esti-
mated 2,000 miners entered the area.
37. During the 1800’s, leadmining in Cession 175 was
largely confined to the crevice opening type of lead deposit,
which existed in relative abundance. This type of deposit
was particularly favorable for the small mine type of
operation common in the Dubuque mining district at this
time inasmuch as it required a minimal outlay by way of
prospecting, and drilling and shooting expenses.
38. Accurate production records for the Upper Missis-
sippi Valley Mining District and especially the Iowa portion
during this period prior to 1907 are nonexistent. Early
Indian and French production figures are purely guesses.
In 1839 Dr. David Dale Owen, a renowned geologist of his
time, explored the Upper Mississippi Valley mining district
69
for the specific purpose of providing an inventory of the
mineral lands in this region. Based on the report filed by
Dr. Owen as well as all the evidence of record, the Com-
mission finds that in the 1830’s the Dubuque mining area
in Iowa was responsible for 10% of the total lead prodnue-
tion for the entire Upper Mississippi River Valley mining
district. Total lead production for the Dubuque area in 1833
was roughly 1,359,300 pounds. By 1839 it had [486] risen to
2,682,610 pounds. Lead prices during this period averaged
about $0.04 per pound.
39. In the 1830’s and for many years thereafter lead
mining methods were relatively simple, if not crude. The
only implements were spades, picks, shovels, and a common
windlass and tub to remove the earth, stones and water
from the pits. Rarely were the pits dug deeper than 40
feet since at this depth water is found and efforts to go
deeper are usually abandoned as too costly and not worth
the effort.
Cost estimates for lead production in the 1830’s vary
somewhat but fall generally within the following range. The
major expense was the miner’s labor. On the average a
lead miner can earn $1.00 for each 150 pounds of lead ore
mined and elevated to the surface. When reduced by smelt-
ing one hundred pounds of ore will produce sixty to seventy
pounds of lead. Smelting costs will add at least $4.00 per
ton to the price of lead and transportation costs from $20.00
to $40.00 per ton. Overall production costs for lead there-
fore will run a minimum of 2.5 cents per pound during this
period.
40. For fourteen years following the 1832 Sac and Fox
treaty of cession, the Dubuque lead mine lands were not for
sale. Government leases of the mine areas on a rental or
royalty basis were not very successful and both the settlers
70
and the Iowa courts looked with disfavor on this type of
arrangement. Prior to the first public sale in 1847 of the
180,000 acres reserved mineral land in the Dubuque mining
area, many [487] persons attempted to obtain special rights
to the land by taking possession. While a few entered into
mining leases with the United States, others squatted on
the land attempting to establish claims. There was con-
siderable trading between miners, speculators and settlers
with respect to these claims. Since title to land remained in
the United States, none of these so-called sales of mining
claims were of any legal validity. However, in 1835, a num-
ber of these sales transactions were recorded in Dubuque
and Clayton Counties.
41. A good deal of the sales transactions involving min-
eral lands in the Dubuque area forms the bulk of the brief
evaluation report of Dr. William A. Broughton, a geologist,
who appeared and testified in these dockets as petitioners’
expert witness on minerals and mineral lands. In his report
Dr. Broughton set out in capsule form some 20 mineral
lot sales transactions taken off the deed records in Dubuque
County for the period 1836 through February 1847, some
57 mineral lot sales taken from the same source for the
period 1848-50 and some 30 mineral lot sales transactions
of unspecified acreage taken from the same source and
covering the period 1835 through February 1847. From a
sample tabulation of all the sales of known acreage and
the consideration paid for the mineral lots, Dr. Broughton
concluded that the average mineral lot transaction for those
sales recorded in the period 1836 through February 1847
was 13 acres which sold at an average price of $22.38 per
acre; for the period 1848 through 1850, the average lot
sale was [488] 12.1 acres which sold for an average price of
$19.57 per acre. For those mineral lot transactions of un-
specified acreage covering the period 1835 through Febrnu-
71
ary 1847, an average mineral lot size of 16.4 acres was sub-
stituted and the weighted average per acre sale price was
calculated to be $20.53. From this sales data, the petitioners
seek to value the 180,000 acres of reserved mineral lands in
the Dubuque mining area in 1833 at $25.00 per acre.
The Commission finds that the sales data with respect to
mineral lot transactions in Dubuque County shows that
there was a relatively active market for the sale of mineral
lots many years after the 1833 valuation date for Royce
Area 175, that in minera!] lot transactions the actual acreage
involved is not the prime consideration, that some of the
transactions are not arm’s length transactions, that many
of the transactions involved actual “digs”, and that the
transactions involved the sale of more than just mineral
lands and included such things as mining and agricultural
equipment to cultivate farm land, farm animals, houses and
other equipment.
Apart from the above qualifications the Commission finds
that this mineral lot sales data is of no genuine probative
value in establishing the 1833 fair market value of the
Dubuque lead lands. The tra‘ficking in mineral lots is essen-
tially a speculative venture, and prices established in such
a market are indicative of the value of these properties as
speculations and nothing more. The speculative value of
such property does not establish or prove its mineral con-
tent. The Tlingit and Haida Indians of Alaska v. United
States, 182 Ct. Cl. 13 (1968). [489]
Subsequent events following the cession of Royce Area
175 proved that most of the 180,000 acres originally re-
served in the Dubuque area as mineral lands and withheld
from public sale had no economic value as mineral lands.
Under the Act of July 11, 1846 (9 Stat. 37) Congress
authorized the President to sell all such reserved land
72
supposed to contain lead ore in Arkansas, Illinois, Wis-
consin and Iowa at a minimum of $2.50 per acre for so
much as was proved to contain lead ore actually discovered
and being worked. The residue would then be sold at the
prevailing rate of $1.25 per acre. Some 285,126 acres,
including over 180,000 acres of the reserved mineral lands,
were offered for public sale in Iowa in March of 1847 and
697.80 acres were sold at the minimum of $2.50 per acre
price.
In his testimony Dr. Broughton recapped the material in
his report covering such items as the history of lead mining
in Iowa, the findings in David Dale Owen’s report, and the
mineral lot sales data referred to above.
42. The well-informed prospective purchaser of Royce
Area 175 in 1833 would have taken into consideration
certain basic factors in determining what the Dubuque lead
mining area was worth as an investment upon which he
could expect a reasonable return.
While there were opinions voiced that the lead supply in
the Upper Mississippi Valley Mining District was inex-
haustible, he would have considered 20 years as the norma!
produc.ive life of the Dubuque mining region, — absent new
discoveries. The prospective purchaser [490] would have
familiarized himself with the pre-1833 lead production
figures for the Upper Mississippi Valley Mining District,
and noting that there was a steady increase in lead produc-
tion each year, he could calculate an increased average
annual production of 3,000,000 pounds of !ead for the
Dubuque area. Stepping up lead production to meet this
projected annual figure would require additional capital
outlay. He would know that the price of lead on the market
was a stable four cents per pound and that production
cost ran a minimum 2.5 cents per pound.
73
While the Dubuque lead area was seemingly blessed with
a high grade of lead ore and his prospects seem good for
expanding existing mining operations in order to meet the
projected annual lead production figure, mining ventures do
contain a distinct element of risk. Considering the risk
factor and the necessary redemption of capital expenditures
over the productive life span of the mining operations, the
prospective p*rchaser should realize a minimum 15% return
on his investment with a redemption of capital rate of 5%.
The Commission, therefore concludes that the 1833 pro-
spective purchaser of Royce Area 175 would be willing to
invest an additional $240,000 to cover the value of the
Dubuque mineral area, and that this amount should be
added to the overall 1833 fair market value of Royce
Area 175 as set forth in Finding 33. [491]
43. In light of all the evidence of record and the matters
set forth in the above findings of fact, the Commission
finds and concludes that, as of February 9, 1833, the effec-
tive date of the Sac and Fox Treaty of cession of September
21, 1832, the fair market value of the Sac and Fox interest
in Royce Area 175 was $4,276,320.
44. The Commission finds that the consideration paid by
the United States to the Sac and Fox Nation under the
Treaty of 1832 for Royce Area 175 was $701,361.79, com-
puted as follows:
a) Under Article III the United States agreed to pay to
the Sac and Fox Indians the sum of $20,000 in specie
annually for 30 years, a total of $600,000, which sum was
duly paid.
b) As further consideration the United States agreed
under Article IV of the treaty to maintain “for the use and
benefit of the Sacs and Foxes” for a period of 30 years one
74
additional blacksmith and gunsmith shop with the necessary
tools, iron and steel, and to make a yearly allowance for the
same period to the said tribe of forty kegs of tobacco and
forty barrels of salt. The sum of $61,361.79 was expended
by the United States in fulfilling its obligations under
Article IV of the treaty.
c) Under Article V and “at the earnest request of the said
confederated tribes,” the United States agreed to pay the
sum of $40,000 to the Sac and Fox Indian traders, said sum
to be in full satisfaction of the claims of the said traders
against the tribe. This sum was duly paid by the United
States.
The Missouri Sac and Fox by a separate treaty concluded
on October 21, [492] 1837 (7 Stat. 543) ceded all of its
interest to lands in Iowa. Pursuant to the stipulation for
entry of final judgment which was approved and entered by
the Commission on March 2, 1965, in Docket 138, the Iowa
Tribe of The Iowa Reservation in Kansas and Nebraska v.
The United States, 15 Ind. Cl. Comm. 42, it was provided
that $140,800 of the sum paid to the Sac and Fox of Mis-
souri under that Treaty shall be credited to the Government
“on account of payments for Royce Cessions 175, 226, 244
and 262, and allocated in Dockets numbered 158, 209, 231
and 153.” The acreage represented by the interest of the
Sac and Fox Nation in Cession 175 comprises approximately
31.52% of the total acreage represented by the Nation’s
interest in the three cession areas and in Cession 262. The
sum of $44,380 represents 31.52% of the total consideration
of $140,800 paid the Missouri Sac and Fox under the 1837
Treaty which remains to be allocated. The corresponding
percentages applicable to Cessions 226 and 244 are respec-
tively .75% and 7.35%.
45. The Commission finds that the United States paid a
total consideration of $745,741.79 to the Sac and Fox Indians
es
75
for the cession of all their right, title and interest to Royce
Area 175. The Commission further finds and concludes that
payment of $745,741.79 for the Sac and Fox interest in
Royce Area 175 in 1833 having a then fair market value
of $4,276,320 was payment of an unconscionable considera-
tion under the provisions of the Indian Claims Commission
Act.
The Sac and Fox petitioners in Docket No. 158 are there-
fore entitled to recover from the defendant as additional
compensation for their interest in Royce Area 175 the sum
of $3,530,578.21. [493]
46. As the Commission has previously found, Royce Area
226 is a narrow strip of land extending along both sides
of the Iowa River into the lower portions of Royce Area
175. It is approximately 10 miles wide and 40 miles in
length and it was popularly known as the Keokuk Reserve.
In 1837 it was surrounded on three sides by lands now
substantially free of Indian tribal interests.
Owing principally to its unfortunate location and un-
usual dimensions, Royce Area 226 provide to be unsuitable
for the needs and welfare of Indian occupants. With white
squatters moving into the adjacent areas, the Sac and Fox
Chiefs realized that in order to avoid future conflict with
white settlers they would have to abandon the tract. In
addition, wild gaziie that was still on the reserve was being
rapidly depleted. Under these circumstances, the principal
Sac and Fox chiefs expressed a desire to sell the tract and
entered into negotiations with the Government representa-
tives to effect a treaty of cession. These negotiations re-
sulted in the Treaty of September 28, 1836, whereby the
United States purchased the Keokuk Reserve. Congress
subsequently ratified this treaty on October 13, 1837. After
reviewing the events leading up to the 1836 Sac and Fox
76
treaty, including the treaty minutes, this Commission finds
no evidence of undue pressure or coercion exerted by re-
sponsible Government officials on the Indians relative to
ceding Royce Area 226, nor do we find any evidence of
deception or the withholding of vital information relative
to value of the lands, or any other conduct on the part of
the Government that would support allegations that the
Treaty of 1836 was executed under duress. [494]
47. A prospective purchaser of Royce Area 226 in 1837
would have considered the fact that he was buying as a
unit 217,600 acres of excellent farm land situated in south-
eastern Iowa along both sides of the Iowa River and readily
accessible to potential settlers. He would have been cogni-
zant that based on topography, climate and other environ-
mental features of the area, Royce Area 226 was best suited
for subsistence homestead farming on tracts of 80 acres or
less. The prospective buyer could see that the bulk of the
Iowa population was in southeastern Iowa, and that in
reality “squatters,” were moving into the adjacent lands
even though they were not yet available for public sale.
He would have known that a territorial government had
already been organized, that the government surveys of the
adjacent lands were in progress, that Des Moines and
Dubuque Counties had already been established prior to
any surveys, and that the territorial legislature was pres-
suring Congress to enact some form of pre-emption law
that would guarantee squatters prime rights to their lands
and the improvements thereon in the event of public sale.
All of these factors were strong indicators that Government
lands in eastern Iowa would soon be on the market.
Thus, any prudent prospective purchaser of Royce Area
226 would have to face the immediate prospects of com-
peting in the market place with an enormous quantity of
equally comparable land that could be purchased in 80 acre
tracts at a uniform $1.25 per acre; that his only competitive
77
advantage would be to undercut the Government price on
his initial sales or be able to hold his purchase until adja-
cent public lands had been sold off and market conditions
were more favorable for private sales. [495]
Considering all the value factors as they existed in 1837,
and particularly the fact that there was no open market
for the public or private sale of land in eastern lowa at
that time, the Commission finds and concludes that as of
October 28, 1837, the effective date of the 1836 Sac and Fox
Treaty of cession, Royce Area 226 had a fair market value
of $1.25 per acre.
48. Under the Treaty of 1836, the United States agreed
to pay to the Sac and Fox Indians for the cession of Royce
Area 226 the following consideration:
1. Under Article 2, the United States “. . . in considera-
tion of the cession contained in the preceding article” ...,
agreed to pay the Indians $30,000 and $10,000 annually for
ten successive years thereafter; to pay $1,000.00 to the
widow and children of the Indian Agent who had been
killed by the Indians; and $44,459.12 to certain listed cred-
itors of the Sac and Fox Indians in partial satisfaction of
tribal indebtedness thereto. Total consideration agreed to
be paid by the United States was $175,459.12. According
to the Government accounting records, $175,444.17 was
actually disbursed pursuant to Article I.
2. By Article 3 of the Treaty of the United States further
agreed to deliver to the Sac and Fox “two hundred horses,
as near that number as can be procured with the sum of”
$9,341.00. Government accounting records show an ex-
penditure in the above amount pursuant to Article 3.
3. Under Article 4 “At the special request of the Sac and
Fox Indians .. .” the United States agreed to pay $7,000
78
for the benefit and [496] support of seven half breeds of
the Sac and Fox Nation. Government accounting records
show an actual expenditure of $5,342.40.
4. Under Article 5 of the treaty “at the special request of
the said confederated tribes of Sac and Fox Indians .. .”
the United States agreed to pay $200.00 to the Indian agent
for the use and benefit of the two children of a deceased
tribal friend. Government accounting record show an ex-
penditure in the above amount pursuant to Article 5.
The total consideration agreed to be paid by the United
States to the Sac and Fox Nation under the 1836 treaty
was $192,000.12. To this amount there must be added
$1,056.00 which represents that part of the consideration
allocable to Royce Area 226 that was paid to the Missouri
Sac and Fox under the Treaty of October 21, 1837 (7 Stat.
543).
49. The Commission finds and concludes that as of Octo-
ber 13, 1837, the effective date of the Treaty of 1836, the
Sac and Fox undivided one-half interest in Royce Area 226
was worth $136,000.00 for which interest the United States
agreed to pay and did in fact pay more than full value.
Accordingly, the defendant is not liable to the Sac and Fox
petitioners in Docket No. 209 on their claim for additional
compensation for the cession of Royce Area 226 and said
claim chould be dismissed.
50. Royce Area 244 is located in eastern Iowa, contiguous
to and entirely west of Royce Area 175. It is triangular in
shape and rather elongated. That portion of the triangle
corresponding to the base line forms the western boundary
of the tract and runs generally north and south. [497]
The apex of the triangle and the other two sides form
the eastern boundary of the tract and the entire western
boundary of Royce Aree 175.
79
As of Febrnary 16, 1838, the effective date of the Sac
and Fox Treaty of October 21, 1837 (7 Stat. 540), Royce
Area 244 was an unsurveyed, raw and unimproved tract
of land containing 1,189,000 acres of excellent farm land.
It was well watered and easily accessible, there being a
network of six rivers equidistance apart that flowed through
the tract. As was the general situation throughout eastern
Iowa the topography, climate, and rainfall were favorable
to farming. As the Commission found with respect to Royce
Areas 175 and 226, Royce Area 244 as of 1838 was best
suited for subsistence homestead farming on tracts of 80
acres or less.
There being only a four month differential between the
1837 valuation date for Royce Area 226 and the 1838 Royce
Area 244 valuation date, the Commission finds that with
one qualification the valuation factors that influenced the
prospective purchaser of Royce Area 226 would have the
same effect on the thinking of the 1838 prospective pur-
chaser of Royce Area 244. This is especially true with
respect to the lower part of Royce Area 244.
Thus the 1838 prospective purchaser of Royce Area 244
would also face the prospect of shortly competing with
the public sale of an enormous area of Government owned
land of equal comparability, that was located even nearer
to the potential buyers than Royce Area 244, and which
could be purchased at a uniform $1.25 per acre price. He
would know that until a substantial quantity of this public
land had passed into private ownership its availability
[498] in large quantities could only depress the price that
would be paid for small unimproved tracts at private sale.
With the northern half of Royce Area 244 being espe-
cially far removed from the normal part of new settlement
that was flowing toward and into southeastern Iowa at this
80
time, there could be no genuine demand or market for these
particular lands until sometime well into the future. The
prospective purchaser of Royce Area 244 in 1838 would
have to estimate his immediate purchase price in light of
resales at some future date with necessary adjustments to
cover surveying management, and selling costs. In addi-
tion to the above, the prospective purchaser of Royce Area
244 in 1838 would have considered the fact that the lengthy
western boundary of the tract formed the eastern boundary
of the Indian country to the west, a situation not calculated
to promote private sales of land when comparable Govern-
ment lands at $1.25 would still be available east of the tract.
Based on all the evidence of record and all the matters
set forth in the preceding findings of fact, the Commission
concludes that Royce Area 244, as of February 13, 1838,
the effective date of the 1837 Sac and Fox treaty of cession,
had an average fair market value of $1.10 per acre.
51. The parties are in agreement and the Commission
finds that the consideration, which the United States agreed
to pay the Sac and Fox Nation pursuant to the Treaty of
October 13, 1837, allocable to Royce Area 244 is $135,778.06.
The value of the consideration paid to the Missouri Sac
and Fox under the said treaty of October 21, 1837, allocable
to Royce Area 244 [499] was $10,349.00. The Commission
has already determined that the Sac and Fox Nation exclu-
sively owned the northern two-thirds of Royce Area 244
and enjoyed an undivided one-half interest in the lower
one-third of the tract. We find that, as of February 13, 1838,
the effective date of the 1837 Sac and Fox treaty of cession,
the fair market value of the Sac and Fox interests in Royce
Area 244 was $1,089,926.85, and that payment of only
$146,127.06 for said Sac and Fox interest was payment
of an unconscionable consideration.
81
As additional compensation for their interest in Royce
Area 244 that was ceded under the Treaty of 1837, the
Sac and Fox petitioners in Docket No. 231 are entitled to
recover from the defendant the sum of $943,799.79.
52. The Iowa Nation ceded its interest in Royce Areas
175, 226 and 244 to the United States by the Treaty of
October 19, 1838 (7 Stat. 568). This treaty was concluded
with the Iowa Nation at the Great Nemahaw opening on
the south side of the Missouri River in Kansas where the
Iowa were then living with the Missouri Sac and Fox on
a 400 section reservation that had been set aside for both
tribes under the Treaty of September 17, 1836 (7 Stat. 511).
We find no evidence in the record that the Iowa Nation con-
cluded this Treaty of 1838 under duress. By this same
Treaty of 1838 the Iowa Nation also ceded whatever interest
it had in Royce Area 262, which is an enormous tract that
adjoins Royce Area 244 on the west. For the cession of its
interest in all four areas the United States agreed under
“Article 2d” of the 1838 treaty to pay to the Iowa Nation
$157,500; and, “. . . in addition to the above consideration
..” the United States further agreed under “Article 3d”
to build ten houses on the Iowa reservation. Government
accounting [500] records in evidence show that for this
purpose the United States spent $5,000.
The total consideration paid to the Iowa Nation under
the 1838 Iowa treaty was $162,500 of which amount $80,600
is allocable to the Iowa interests in the three cession areas.
53. As of February 28, 1839, the effective date of the
1838 Iowa treaty of cession, the Iowa Nation held an un-
divided one-half interest in some 2,345,133 acres, which
acreage comprises roughly the lower third of the three ces-
sion area in the southeastern part of Iowa.
As the Commission has already found, it was in the
southeastern part of Iowa that the then Iowa population
82
was concentrated. Approximately 60 percent of the nearly
23,000 people in Iowa were living in the extreme southeast
corner of the territory. County organization had been com-
pleted in southeastern Iowa and local governments were
functioning.
With the exception of the Royce Area 244, all public
lands in southeastern Iowa had been surveyed. The public
sale of land had commenced on November 15, 1838. Records
from the Burlington land office show that over 50 percent
of the public land offered for sale in the 1838-39 period had
been sold by 1840. Particularly heavy was the sale of public
land in the four counties in the southeast corner near the
Mississippi River and along the Des Moines River. Pre-
emption claimants contributed greatly to the initial burst
of public land sales.
Consistent with its highest and best use of subsistence
homestead [501] farming, a prospective purchase of the
Iowa interest in southeastern Iowa in early 1839 would have
considered the fact that he was purchasing an area in
which the lands had now been freed of all Indian activity,
and, having been surveyed and offered for public sale, were
now moving rapidly into private ownership. He could see
evidence of both private and public improvements to the
land, through the efforts of “squatters” and the organiza-
tion of both territorial, county and local government. He
could see that the population was rapidly increasing, and
that southeastern Iowa was favorably situated in the path
of the general movement of white settlement west of the
Mississippi River.
Considering all the valuation factors as set forth in the
preceding findings of fact, as well as all the evidence of
record, the Commission finds that as of February 28, 1839,
the effective date of the 1838 Iowa treaty cession, the
2,345,133 acres in southeastern Iowa in which the Iowa
83
Nation held an undivided one-half interest had a fair mar-
ket value of $1.60 per acre, or $1,876,106.40. For this in-
terest the Iowa Nation was paid an overall unconscionable
consideration of $80,600.
Accordingly, we find the Iowa petitioners are entitled to
recover the following sums from the defendant as additional
compensation for their interest in the three cession areas.
(a) Docket No. 158—The value of the Iowa undivided
one-half interest in the 1,731,200 acres in Royce Area 175
as of February 28, 1839 was $1,384,960. The consideration
allocated under the Treaty of 1838 to Royce Area 175 and
paid to the Iowa Nation was $44,525. Accordingly, the
Iowa [502] petitioners in this docket are entitled to recover
from the defendant the sum of $1,340,435.
(b) Docket No. 209—The value of the Iowa undivided
one-half interest in the 217,600 acres in Royce Area 226 as
of February 28, 1839 was $174,080. The consideration allo-
cated to Royce Area 226 under the Treaty of 1838 and
paid to the Iowa Nation was $5,525. Accordingly, the lowa
petitioners in this docket are entitled to recover from the
defendant the sum of $168,555.
(c) Docket No. 231—The value of the Iowa undivided
one-half interest in the 396,333 acres in the southern part
of Royce Area 244 as of February 28, 1839 was $317,066.40.
The consideration allocated to Royce Area 244 under the
Treaty of 1838 and paid to the Iowa Nation was $30,550.
Accordingly, the Iowa petitioners in this docket are entitled
to recover from the defendant the sum of $286,516.40.
54. The Commission further finds that there are no gra-
tuitous expenditures between November 2, 1804 and June
30, 1960 that can be charged against the judgments rendered
herein in favor of the Sac and Fox petitioners, said gratui-
84
ties having been compromised and set off against the award
made in Docket No. 138, The Iowa Tribe, etc. v. United
States, supra. In like manner, there are no gratuitous ex-
penditures between August 24, 1824 and June 30, 1956
chargeable against the judgments rendered herein in favor
of the Iowa petitioners, said gratuities having been com-
promised and set off against the award made in Docket No.
135, The Iowa Tribe of the Iowa Reservation im Kansas and
Nebraska, 15 Ind. Cl. Comm. 248. [503]
By its motion of March 5, 1969, entitled “Motion To Re-
move Hearing On Offsets From The Trial Calendar”, the
defendant has waived the presentation of any additional
gratuities subsequent to June 30, 1960 as to the Sac and Fox
petitioners, and subsequent to June 30, 1956 as to the Iowa
petitioners in Docket Nos. 158, 209 and 231.
Accordingly, the judgments rendered herein in favor of
the Sac and Fox and Iowa petitioners are final in all
respects.
John T. Vance, Chairman
Jerome K. Kuykendall, Commissioner
Richard W. Yarborough, Commissioner
Margaret H. Pierce, Commissioner
(Commissioner Blue did not participate in the consideration or de
cision in this case.) [504]
85
Berore THE Inpian CLarms ComMIssION
The Sac and Fox Tribe of Indians of) Docket No. 158
Oklahoma, et al.,
The Iowa Tribe of the Iowa Reservation | Docket No. 209
in Kansas and Nebraska, et al.,
The Sac and Fox Tribe of Indians of | Docket No. 231
Oklahoma, et al.,
Petitioners,
v.
The United States,
Defendant. ,
FINAL AWARDS
Upon the findings of fact and opinion this day entered
herein, which findings of fact and cpinion are hereby made
a part of this order, the Commission concludes as a matter
of law that:
1. Under the Treaty of September 21, 1832 (7 Stat. 374),
hereinafter referred to as the Treaty of 1832, the Sac and
Fox Nation ceded to the United States all its right, title,
and interest to the lands in Royce Area 175 in eastern Iowa;
and, that, as of February 9, 1833, the effective date of the
Treaty of 1832, the fair market value of the Sac and Fox
interest in Royce Area 175 was $4,276,320.
2. Under the Treaty of 1832, and the Missouri Sac and
Fox Treaty of October 21, 1837 (7 Stat. 543), the United
States paid $745,741.79 to the Sac and Fox Nation for its
interest in Royce Area 175.
3. The payment of $745,741.79 by the United States for
the Sac and Fox interest in Royce Area 175, which interest
had a then fair market value of $4,276,320, was payment of
86
an unconscionable consideration under the Indian Claims
Commission Act, and the defendant is therefore liable to
the Sac and Fox petitioners for additional compensation
in the sum of $3,530,578.21. [505]
4. Under the Treaty of September 28, 1836 (7 Stat. 520),
hereinafter referred to as tie Treaty of 1836, the Sac and
Fox Nation ceded to the United States its undivided one-
half interest in Royce Area 226, a 217,600 acre tract in
southeastern Iowa, which Sac and Fox interest, as of
October 13, 1837, the effective date of the Treaty of 1836,
had a fair market value of $136,000.
5. Under the Treaty of 1836 and the Missouri Sac and
Fox Treaty of October 21, 1837, supra, the United States
agreed to pay and did pay to the Sac and Fox Nation for
its undivided one-half interest in Royce 226 the sum of
$193,056.12, which sum is in excess of its then fair market
value.
6. The defendant is not liable to the Sac and Fox peti-
tioners for additional compensation for the cession of the
Sac and Fox undivided one-half interest in Royce Area
226 under the Treaty of 1836.
7. Under the Treaty of October 21, 1837 (7 Stat. 540),
hereinafter referred to as the Treaty of 1837, the Sac and
Fox Nation ceded to the United States all its right, title, and
interest to the lands in Royce Area 244 in eastern Iowa,
which Sac and Fox interest, as of February 13, 1838, the
effective date of the Treaty of 1837, had a fair market value
of $1,089,926.85.
8. Under the Treaty of 1837, and the Missouri Sac and
Fox Treaty of October 21, 1837, supra, the United States
agreed to pay and did pay $146,127.06 to the Sac and Fox
Nation for its interest in Royce Area 244.
87
9. The payment of $146,127.06 by the United States ter
the Sac and Fox interest in Royce Area 244, which interest
had a then fair market value of $1,089,926.85, was payment
of an unconscionable consideration under the Indian Claims
Commission Act, and the defendant is therefore liable to
the Sac and Fox petitioners for additional compensation in
the sum of $943,799.79.
10. Under the Treaty of October 19, 1838 (7 Stat. 568),
hereinafter referred to as the Treaty of 1838, the Iowa
Nation ceded its undivided one-half interest in 2,345,133
acres of land in Royce Areas 175, 226, and 244 in south-
eastern Iowu, which Iowa interest, as of February 28, 1839,
the effective date of the Treaty of 1838, had a fair market
value of $1,876,106.40.
11. Under the Treaty of 1838 the United States paid the
Iowa Nation $80,600 for its undivided one-half interest in
Royce Areas 175, 226, and 244. [506]
12. The payment of $80,600 by the United States for the
Iowa interest in Royce Areas 175, 226, and 244, which
interest had a then fair market value of $1,876,106.40 was
payment of an unconscionable consideration under the
Indian Claims Commission Act, and the defendant is there-
fore liable to the Iowa petitioners for additional compen-
sation in the sum of $1,795,506.40.
13. No gratuitous offsets are chargeable against the
several judgments herein, said gratuities having been either
set-off against the awards made in Docket No. 138, The
Iowa Tribe, etc., v. United States, 15 Ind. Cl. Comm. 42,
and in Docket No. 135, The Iowa Tribe, etc., v. United
States, 15 Ind. Cl. Comm. 248, or waived by the defendant.
IT IS THEREFORE ORDERED that the Sac and Fox
and Iowa petitioners, for and on behalf of the Sac and Fox
88
Nation and the Iowa Nation, and all of their members, do
have and recover of and from the defendant,
a) In Docket No. 158, for the Sac and Fox petitioners,
the sum of $3,530,578.21, and for the Iowa peti-
tioners, the sum of $1,340,435.00.
b) In Docket No. 209, for the Jowa petitioners, the
sum of $168,555.00.
ec) In Docket No. 231, for the Sac and Fox petitioners,
the sum of $943,799.79, and for the Iowa petitioners,
the sum of $286,516.40.
IT IS FURTHER ORDERED that the claim of the Sac
and Fox petitioners in Docket No. 209 for additional com-
pensation for the cession to the United States of all right,
title, and interest in Royce Area 226 under the provisions
of the Treaty of 1836, be and the same is hereby dismissed.
Dated at Washington, D. C., this 12th day of May, 1969.
John T. Vance, Chairman
Jerome K. Kuykendall, Commissioner
Richard W. Yarborough, Commissioner
Margaret H. Pierce, Commissioner
(Commissioner Blue did not participate in the consideration or de
cision in this case.) [507]
89
Berore THE Indian Ciarms Commission
The Sac and Fox Tribe of Indians of ) Docket No. 158
Oklahoma, et al.,
The Iowa Tribe of the Iowa Reservation | Docket No. 209
in Kansas and Nebraska, et al.,
The Sac and Fox Tribe of Indians of : Docket No. 231
Oklahoma, et al.,
Plaintiffs,
v.
The United States of America,
Defendant.
(22 Ind. Cl. Comm. 439)
ORDER DENYING PLAINTIFFS’ MOTION
TO REHEAR, AND FOR OTHER PURPOSES
Urow Consmenration of all matters set forth in plaintiffs’
motion to rehear filed herein on July 31, 1969,
Ir Is Oxnpenep that plaintiffs’ motion to rehear be, and
the same is hereby, denied.
Ir Is FuntHer Onperep that the Commission’s finding of
fact “27.” (20 Ind. Cl. Comm. 439, 476 (1969)) be amended
as follows:
1. That the second sentence of the third paragraph on
page 476 be stricken, and in lieu thereof is substituted the
following:
“There has been reproduced and placed in evidence
a compilation of some 13,600 private transactions of
$5.00 per acre or less taken off the land record books
of the nineteen counties within the three cession area.”
rr TTT
90
2. That the last paragraph on page 477 be stricken, and
‘n lieu thercof is substituted the following: [439]
“Totaling up all the private sales transactions of
5.00 per acre or less in the three cession area during
the 1839-1849 period the Commission finds that 959,446
acres [478] were sold for $2,359,378.00 or at an average
price of $2.46 per acre, and that the average transac-
tion was 70.3 acres.”
Ir Is FunrHer Onperep that the third sentence in the
third paragraph on page 448 of the Commission’s opinion is
hereby stricken, and in lieu thereof is substituted the fol-
lowing:
“The Commission in some detail made a specific find-
ing with respect to those private sales transactions of
$5.00 per acre or less in eastern lowa for the 183949
period, and we have found that for this entire ten year
period the average private sale or transaction involved
only 70.3 acres for which the buyer paid $2.46 per acre.”
Dated at Washington, D. C., this 11th day of February,
1970.
Jerome K. Kuykendall, Chairman
John T. Vance, Commissioner
Richard W. Yarborough, Commissioner
Margaret H. Pierce, Commissioner
Brantley Blue, Commissioner [440]
91
BerorE THE InpIAN CLarms ComMMISSION
The Iowa Tribe of the Iowa Reservation )
In Kansas and Nebraska, et al.,
The Sac and Fox Tribe of Indians of
Oklahoma, et al.,
Plaintiffs, L Nocket No. 153
v.
The United States of America,
Defendant. )
Decided: February 4, 1970
(22 Ind. Cl. Comm. 385)
OPINION OF THE COMMISSION
Vance, Commissioner, delivered the Opinion of the Com-
mission.
The Commission has before it the question of the dam-
ages to which the Iowa Nation and the Sac and Fox Nation
are entitled. In an earlier decision, 7 Ind. Cl. Comm. 98
(1959), we held that the Iowa Nation had recognized title
to a trac
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