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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Appendix — Sac & Fox Tribe of Indians of Oklahoma v. United States · 423 U.S. 1016 | Frix