# Appendix — Sac & Fox Tribe of Indians of Oklahoma v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1106%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1016 ## Text ry itp Sites 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 Docket No. 153 v. The United States of America, Defendant. } Decided : February 4, 1970 FINDINGS OF FACT The Commission makes the following findings of fact which are supplemental to the findings numbered 1 through 14 previously made, 7 Ind. Cl. Comm. 98 (1959) : 15. Royce Cession 262 is located in central Iowa, bounded on the south by the Iowa-Missouri line, on the east of Royce Cession 244, on the north by Royce Cession 152, and on the northwest and west by Royce Cession 151. The Cession includes 11,776,000 acres. The Iowa Nation had recognized title to a tract of 3,184,000 acres in the southwestern portion of Cession 262 (“262 South”), which is to be valued as of February 28, 1839, the effective date of the Iowa Treaty of October 19, 1838, 7 Stat. 568. The Sac and Fox Nation had recognized title to the remaining 8,592,000 acres of the Ces- sion (“262 North”). This tract is to be valued as of Febru- ary 15, 1843, the effective date of the Sac and Fox Treaty of October 11, 1842, 7 Stat. 596. 16. Cession 262 has an excellent climate for growing field [395] grain crops, especially corn, and livestock prod- ucts. The average annual temperature is about 50 degrees and the summer temperatures average 70 to 75 degrees. 101 Precipitation averages from 30 to 36 inches, with the major part coming during the growing season. The growing sea- son is from 150 to 170 days. At the cession dates, the cli- mate was known to be well suited to agriculture. Over 55% of the cession area had from 0 to 4% slope and 30% had from 5% to 13% slope. This is excellent topogra- phy for farming. Much of the cession land was well drained, although in the northwest portion of the cession a lack of natural drainage caused depressional areas or pot holes. The land however could often be farmed between the de- pressional areas and settlers at the valuation dates would not have seriously considered artificially draining the area. The cession lies in the central part of the highly produc- tive corn belt. The soils in the cession area were among the best in the country for the production of grains and grasses. We find that the highest and best use of Cession 262 was for general farming by settlers to whom the purchaser of the tract would be expected to sell in smaller parcels. Other uses existed for small portions of the area. These included town and mill sites, hunting, fishing, trapping, grazing, mining and quarrying. 17. Many rivers and streams flow through the cession area. The Des Moines River, with its tributaries, was the principal river in the cession. The Des Moines River flows from northwest to southeast through Royce Area 262. Other important rivers in the subject tract [396] were the Skunk, Iowa, Cedar and Wapsipinicon in the Sac and Fox portion of the cession, and the Grand (also known as the Thomp- son) and the Chariton in the Iowa portion. Only the Des Moines was navigable for steamboats, and as of the cession dates it was in need of navigational improvements. Keel- boats could operate on some of the other rivers. 102 The streams also provided numerous millsites which were of importance to the settlers in supplying the water power for saw and grist mills. 18. Timber was found along the rivers and streams of the cession area. We find that the settlers preferred at least to have sufficient wood to use for fences, fuel and simi- lar needs. Thus if a prospective purchaser of the tract envisioned resale of the cession area in small parcels, the distribution as well as the quantity of wooded lands would be of importance to him in determining value. Dr. William Murray, defendant’s appraiser, tabulated the percentage of townships in which woodlands of various qualities were distributed, as follows: In Area 262 South, for 93 townships, based on surveyors’ notes: Very good or good timber—57%; Medium or fair timber—23% ; Poor or no timber—20%. For 52 additional townships, based on survey plats: Large amount of tim- ber—33% ; Average amount of timber—34%; Little tim- ber—33%. In Area 262 North, for 271 townships, based on sur- veyors’ notes: Very good or good timber—37%; Medium or fair timber—34% ; Poor or no [397] timber—29%. For 117 additional townships, based on end-of-mile comments: Large amount of timber—17%; Average amount of tim- ber—32% ; Little or no timber—51%. Drs. Raleigh Barlowe and Conrad H. Hammer, in their valuation report made for plaintiffs, calculated that some timber was found in 93.3% of the townships in the cession area for which surveyor’s notes and comments are available. 19. It was known as of the valuation dates that there were significant deposits of coal in Cession 262. During the early years of settlement drift mining predominated. Sur- 103 face outcroppings of coal usually occurred along banks of _Tivers and streams, the same areas in which timber was most plentiful. This plentiful supply of timber for fuel thus limited early mining activities. At the valuation dates, the cession areas were also known to contain deposits of limestone and sandstone which were useful for building purposes. Gypsum and iron ore were also known to be present in parts of cession 262 North. 20. In the 1830’s and 1840’s the nation experienced suc- cessive prosperity-depression-revival periods in its econ- omy. Willard Long Thorp, in a book entitled Business Annals published by the National Bureau of Economic Research described the economic conditions as of the ces- sion dates as follows: 1839 Revival [from the 1837-38 depression]; panic; re- cession. Continued improvement; revival of land speculation early in year; rapid decline to depression, autumn; many failures; commodity prices collapse after rapid rise; recovery in foreign trade. [398] Further resumption led by United States Bank, January; money market tightens to panic and bank failures, October; specie payment again suspended, except New England and New York, last quarter. Excellent wheat harvest, record cotton crop, prices collapse. War with England over boundary threatened, Jan- uary. 1843 Depression [which began in 1839-40 continues] ; revival. Inactivity gradually yields to improvement, summer, except in south; commodity prices reach low point and improve, autumn; excellent exports, small import trade. Money easy; active speculation, security prices ad- vancing to July. 104 Good cereal crops, especially corn; poor cotton yield; very low wheat price. Thus, as of February 28, 1839, general economic con- ditions had improved after the 1837-1838 depression. As of February 15, 1843, a long depression continued with some signs of revival appearing in the easing of the money supply and the advance of securities prices. 91. At the valuation dates, the minimum cash price for government lands was $1.25 per acre. In practice this became the maximum cash price as well. Preemption laws, “claim clubs” to prevent the bidding up of prices, and the large supply of public lands resulted in $1.25 becoming the standard price for government lands, even though all lands, except those subject to preemption claims, were offered at public auction. The average sales price for public lands in Iowa from 1838 through 1843 was $1.25 in every year except 1847, when it was [399] $1.26. On August 15, 1836, Jackson’s specie circular went into effect. After that date, all cash payments to government land offices were required to be in gold or silver coins or in authorized paper currency, thus eliminating the use of state bank notes of questionable value. Land could also be purchased through the use of military land warrants. Between 1847 and 1855 Congress granted warrants for almost 61,000,000 acres to veterans and a mar- ket for them quickly developed. Until March 1852, warrant prices remained extremely low because of difficulties in transferring them. At that date Congress made all previ- ously issued and future warrants assignable. In 1847, Congress gave each veteran the option of $100 in treasury scrip or a 160 acre warrant. Few chose scrip, but this tended to put a floor of 621% cents per acre on the price of land warrants, although reports exist of sales as low as $30 for 160 acre warrants in 1849. 105 Reputable brokerage firms on the east coast soon con- trolled and regularized the land warrant market. Warrants could be sold for cash in the West at an advance above New York prices. The purchase of warrants also involved the payment of a brokerage fee, a land office fee and a real estate agent’s fee. These added approximately 10 cents per acre to the cost of land. The New York prices per acre for land warrants were quoted as follows: Years High Low 1848-1850 $ .883, $.621, 1851-1852 96% 62Yo 1853-1854 1.20 1% 1855-1856 1.16% 85 1857-1858 1.05 .60 1859-1860 .96 .60 [400] Exclusive of lands granted to the state and to railroads, 52.4% of the land in the state of Iowa was entered through land warrants. 22. The minimum price for government land of $1.25 per acre had emerged as a compromise between those members of Congress who believed that the government 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 govern- ment price of $1.25 per acre was the same for the finest and for the worst lands. 23. The first townships were proclaimed for sale in the cession area in 1845. More than half of the cession area was proclaimed for sale by the end of 1848, and 80% was offered by 1850. By 1854, all but six townships (offered in 1858), had been offered for sale. . Comparatively little land was sold from 1845 through 1852. At the end of 1852, 22.5% of the sales in 262 South 106 and 19.9% of those in 262 North had taken place. The years 1853 through 1856 brought the largest numbers of sales, with 1854 and 1855 being peak periods. From 1853 through 1856, 75.8% of the sales in 262 South and the same percentage in 262 North took place. The remainder of the sales were completed by the end of 1860. 24. In 1840, there were 18,370,000 acres of unsold public land in Missouri, 13,936,000 acres in Illinois and 112,646,000 acres in the entire United States. With land selling at a uniform price, comparative value may be gauged by the rapidity of sale. Drs. Raleigh Barlowe and Conrad H. Hammer, witnesses for plaintiffs, mapped for each [401] township in the cession the number of years which elapsed from the time each was put on sale (1845 to 1858) until 90% of the privately acquired land in the township was sold. Of the 527 townships in the cession area, approximately 80 were 90% or more sold in less than four years. Many of these were among the last offered townships in the western part of 262 North. Most of the townships along the Des Moines River, some along the Iowa River, those on the northern border of 262 North, and the great majority of those in 262 South were 90% sold in four to seven years. Over half the townships in the cession were 90% sold in less than seven years. Almost all the remaining townships, in the eastern and northcentral part of 262 North and some in 262 South, were sold to the 90% level in seven to ten years. Only eleven townships, in the north and west of 262 North, required more than ten years to reach the 90% sale level. By comparison, in 1840, 8,341,000 acres of the unsold public land in Missouri, 5,271,000 acres of such land in Illinois, and 60,421,000 acres of such land in the entire United States had been on the market for over ten years. In 1854, the Graduation Act, 10 Stat. 574, provided for a reduc- 107 tion of land prices from $1.25 to $1.00 per acre for lands remaining on the market for ten years or more, and further reductions at five year intervals to 1214 cents per acre after 30 years. 25. 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 purchaser would know that while the [402] eastern lowa lands were generally comparable to those in Cession 262, the eastern lands had certain advantages not enjoyed by the lands further west. Much of eastern Iowa was located along the Mississippi River which was a very important commercial route at that time. The east :rn counties were also closer to the population centers of the East and South than the lands in Cession 262. Eastern Iowa had more timber than Cession 262; it also had a slightly longer growing season and received more precipitation. Cession 262 had fewer steep lands than eastern Iowa, but it had drainage problems and problems with pot holes in the northwest portion which eastern Iowa did not have. A purchaser might have thought the soil in Cession 262 to be slightly more productive than that in Eastern Iowa because of the dark color of the Webster soils in the northwest, although little difference in soil fertility seems actually to exist on the average between the two areas. Drs. Raleigh Barlowe and Conrad H. Hammer, witnesses for plaintiffs, assembled information on resales of land in eastern Iowa. In one tabulation they examined resales ‘for the counties of Cedar, Delaware, Des Moines, Jackson, Yan Buren and Washington. Eliminating sales under $1.26 as partial financing and those over $5.00 as representing improved land, they obtained the following results for aver- age resale prices in the six county area: 1838—$2.33 ; 1839— $2.65; 1840—$2.63; 1841—$2.60; 1842—$2.82; 1843—$2.96. 108 Drs. Barlowe and Hammer also used another method to adjust these resale figures for improvements. The Census of 1900 showed that improvements in the 19 eastern Iowa counties accounted for 16.7% to [403] 22.3% of farm real estate values. By deducting 20% from resale prices, after elimination of transactions which seem to involve partial financing arrangements, resale values per acre for the six county sample are $2.88 in 1839, $2.98 in 1840, $2.55 in 1841, $2.85 in 1842 and $2.98 in 1843. As an additional method of adjusting for improvements, Drs. Barlowe and Hammer examined the Census of 1850 which first reported on the amount of improved land in eastern Iowa. They then eliminated the highest sales roughly in proportion to the amount of improvements, as well as eliminating all sales of $1.00 or less per acre as representing partial financing arrangements or other situ- ations untypical of bona fide sales. For five counties bor- dering on Cession 262, the following results were reached: % improved land shown in 1850 census; by county: VC BP. . Pere. 19.33% PUD na. c0cededessannseue 19.50% See 6.85% GURNEE. 6000006sedeeensesaneee 6.38% BA 00 0050000000000000000n ee 8,16% VERE 60 00000600000005000"n 12.44% % Acreage % Acreage removed—Sales Per Acre removed—Sales Per Acre Year over $5.00 value over $4.00 value a sescwmeay 11.2 $2.31 18.8 $2.08 Me wecencces 12.3 2.33 22.8 2.00 ee wcssvaeus 6.2 2.37 13.5 2.16 ee er 11.6 2.82 29.2 2.38 ee 11.3 2.38 21.6 2.06 26. Dr. Robert P. Swierenga, plaintiffs’ witness, found that ten large investors entered 14.2% of the land in 109 eastern Iowa. Resales by these persons during the years 1838 to 1842 in eight counties in [404] eastern Iowa aver- aged $2.19 per acre. Dr. Swierenga also found that in- vestors acquiring 1,000 or more acres in Cession 262 who also had holding: in eastern Iowa sold 5,779 acres in the eastern counties between 1838 and 1842 at an average price of $3.21 per acre. 27. It appears that in fact resale prices in Cession 262 were higher than the resales for Eastern lowa would have indicated. Through the use of electronic data processing methods, Dr. Swierenga tabulated resales of 460,000 acres in nine counties in Cession 262 by persons who had origi- nally entered 1,000 acres or more in the entire cession area. The resales occurred between 1846 and 1889, with 98.5% of the resales occurring before 1871. He found that the land was held by such persons for an average of 31.6 months before resale and was sold by them at an average of $3.10 per acre. He computed that the net rate of return to these investors averaged 53.42%. This is not, however, the profit of the investor since, as Dr. Swierenga points out, it makes no allowance for an interest rate to the in- vested capital nor for the time spent by the investor in managing his real estate. Defendant’s expert witness, Dr. William Murray, reports that commercial paper rates in February 1839 were 6% to 9% and in February 1843 were 5% to 6%. Rates by November 1839 went as high as 36% and in June 1843 went as low as 24%2% to 3%. 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 cor- roborate findings of value based on [405] information known as of the valuation date. 110 28. Defendant’s expert witness, Dr. William G. Murray, reviewed factors such as location, population, topography, resources, climate, transportation, economic factors and public land sales in comparison areas. He did not consider private resale transactions because he wa. unable to de- termine the extent of improvements on the lands. His val- uation of Area 262 South was as follows: 15% of tract most accessible to Des Moines River— 90¢ per acre 35% of tract in Des Moines River basin—40¢ per acre 50% of tract principally in Grand and Chariton River basins—25¢ per acre. Average value for entire 262 South—40¢ per acre. His valuation for 262 North was as follows: 10% of tract near Des Moines River—$1.45 per acre 20% of tract near rivers and/or timber—95¢ per acre 60% of tract, open prairie—25¢ per acre 10% of tract, wet, marshy or steep lands—15¢ per acre. Average value for entire 262 North—s0¢ per acre. 29. As of February 28, 1839, a purchaser of Area 262 South could not have anticipated rapid settlement of the Area. Immediately to the west lay several million acres (Royce Cessions 151 and 256, which overlap to a large extent) which were used for hunting by the Yankton Sioux, Omaha, Otoe, Iowa and Sac and Fox. See, Otoe and Mis- souria Tribe v. United States, 5 Ind. Cl Comm. 316 (1957). In addition the United Nation of Chippewa, Ottawa and Potawatomi had been granted a 5 million acre tract of this land in 1833. See, Prairie Band of [406] Potawatomi Indians, et al., v. United States, 4 Ind. Cl. Comm. 409 (1956). Be- ginning in 1836, even though all the United Nation mem- bers had not completed their move to western Iowa, the government initiated attempts at a second removal south- 111 west of the Missouri River. Prairie Band of Potawatomi, id, at 426. This removal was not effected until 1846. Directly to the south of 262 South lay lands ceded by the Iowa Nation in 1824. See, Iowa Tribe et al., v. United States, 6 Ind. Cl. Comm. 464 (1958), aff’d. in part and re- versed in part 179 Ct. Cl. 8, 383 F. 2d 991 (1967), cert. denied, 389 U.S. 900 (1967). The pattern of settlement in Missouri however was such that this area was first settled in the middle and late 1830’s. See, Jowa Tribe et al., v. United States, 12 Ind. Cl. Comm. 487, 499 (1963), aff’d. in part and reversed in part 179 Ct. Cl. 8, 383 F. 2d 991 (1967), cert. denied, 389 U.S. 900 (1967). To the north and east of Area 262 South lay Area 262 North. A purchaser would probably have known that a cession by the Sac and Fox who owned this area would be one of the necessary prerequisites to the rapid settlement of 262 South. He would also have known that the govern- ment had encountered difficulties in negotiating a treaty with the Sac and Fox to cede the area. Reporting his nego- tiations which led to the Treaty of September 28, 1836, 7 Stat. 520, with the Sac and Fox, Treaty Commissioner Dodge wrote to the Commissioner of Indian Affairs as follows (Pet. Ex. A-3): [407] “The Sac and Fox Indians would not consent to a proposition I made them to sell their Country and remove South of the Missouri River. The Chiefs and principal men of these nations are under the belief that their Country is to become immensely valuable; and I have no doubt their traders were the means of preventing their selling more of their Country at the Treaty I made with them. It is inconvenient for traders to follow the Indians South of the Missouri River.” A purchaser would know that 25,000 to 30,000 people lived in Eastern Iowa at the valuation date of 262 South. 112 He would know that land in 48 townships of Cession 175 had been offered for sale in 1838. By the end of 1838, 25% of this land had been sold including 46% of the land of- fered in the southern portion. Another 12% of the 48 townships was sold in 1839. As of February 28, 1839, less than one-third of the land in the southern portion had yet been offered for sale. 30. As of February 15, 1843, a purchaser of Area 262 North would know that the cession by the Sac and Fox opened a vast area in central Iowa although the Sac and Fox retained the right to occupy the western portion of the Cession, comprising over half of Cession 262, until 1845, Treaty of October 11, 1842, 7 Stat. 596. He would know that the population of Iowa had grown to approximately 55,000 to 60,000. He would know that land in some 205 townships in eastern Iowa had been placed on the public land market, although it was 1843 before any land in Ces- sion 244, immediately to the east of Cession 262, was of- fered. In addition, a purchaser would know that through 1842, 32% of the land in the 205 townships offered prior to 1843 had been sold. In the 79 southern townships, 67% of the land had been sold. Virtually [408] all the land in the southern area except for Cession 244 had been offered for sale. 31. At the cession dates, the people in eastern Iowa thought the lands in Cession 262 to be highly desirable and productive. A number of settlers rushed into the eastern and western portions of the cession areas at the respective dates when they were opened for settlement. Indeed a number of squatters had established claims prior to gov- ernment survey of the areas. The comparatively heavy population in the southern part of eastern Iowa would lead a purchaser to believe that the course of movement into Cession 262 would be along the 113 Des Moines River and other rivers which flowed into the southern part of eastern Iowa from the cession area. 32. For the reasons indicated in our opinion, we find the value of the 3,184,000 acres in 262 South to be $2,865,600 or an average of 90¢ per acre. We find the value of the 8,592,000 acres in 262 North to be $12,028,000 or an average of $1.40 per acre. 33. The Iowa Treaty of October 19, 1838, 7 Stat. 568, ceded the Iowa Tribe’s interest in Royce Areas 175, 226, 244 and 262. An award for the first three of these areas was made in The Sac and Fox Tribe et al., v. United States, 20 Ind. Cl. Comm. 439 (1969). Finding of fact No. 52 in that case stated in part: “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.” 20 Ind. Cl. Comm. 439, 501 (1969). The remainder of this consideration, amounting to $81,900, is [409] allocable to Cession 262. Such consideration is un- conscionable under the Indian Claims Commission Act. 34. The Sac and Fox Nation ceded all its right, title and interest to Cession 262 under two treaties. The first of these, with the Sac and Fox of Missouri dated October 21, 1837, 7 Stat. 543, provided for consideration of $160,000 in payment for their interest in Royce Cessions 175, 226, 244 and 262. Pursuant to the stipulation for entry of final judg- ment in Docket 138 which was approved and entered by the Commission, Otoe and Missouria Tribe v. United States, 15 Ind. Cl. Comm. 42, 46 (1965), it was provided that “140,800 of the sum paid to the Sac and Fox of the Mis- souri” under this treaty “is to be accredited to the govern- ment on account of payments for Royce Cessions 175, 226, 244 and 262 and allocated in Dockets numbered 158, 209, 114 231 and 153.” The Commission has previously credited to the government $54,729 on account of payments for Royce Cessions 175 and 244, The Sac and Fox Tribe et al., v. United States, 20 Ind. Cl. Comm. 439, 493, 499-500 (1969). The Commission found that $1,056 was allocable to Cession 226, id., 20 Ind. Cl. Comm. 439, 497 (1969), but did not credit this to the Government since it found that full value was paid for Cession 226. Thus $86,071 remains to be cred- ited to the government in this docket. 35. The second treaty with the Sac and Fox Nation was made with the Sac and Fox Indians and dated October 11, 1842, 7 Stat. 596. It provided in part as follows: [410] ARTICLE II In consideration of the cession contained in the pre- ceding article, the United States agree to pay annually to the Sac and Foxes, an interest of five per centum upon the sum of eight hundred thousand dollars, and to pay their debts mentioned in the schedule annexed to and made part of this treaty, amounting to the sum of two hundred and fifty-eight thousand, five hundred and sixty-two dollars and thirty four cents; and the United States also agree, First, That the President will as soon after this treaty is ratified on their part as may be convenient, assign a tract of land suitable and convenient, for In- dian purposes, to the Sacs and Foxes for a permanent and perpetual residence... . Second, That the United States will [provide certain blacksmith and gunsmith supplies and services]. Third, That the President of the United States will [cause a line to be run between the land which the Sac and Fox reserved the right to occupy for three years and ceded lands opened to white settlement]. For the reasons indicated in our opinion, we have found that the payments described as interest of 5% on $800,000 115 were intended to be a perpetual annuity and that credit should be allowed for consideration of $800,000 by reason of this provision. 36. Under the Treaty of October 11, 1842, certain ex- penditures were to be made out of annuities payable to the tribe. Under Article IT Second “... all expenses attending the removal of the tools, iron and steel, and the erection of new shops, and the purchase of iron and steel, and the support and main- tenance of the shops, and wages of the smiths and their assistants, are to be paid by the tribe, except such por- tion thereof as they are now entitled to have paid by the United States, under [certain previous treaties. } Under Article III, the Sac and Foxes agree to move first to the western [411] portion of the cession and then to their new residence lands, “and that if they do not remove before the expiration of the term of three years, they will then remove at their own expense; and the United States agree, that .. + & quantity of provisions sufficient for their sub- sistence while removing, shall be furnished them at their agency, and an additional quantity, not exceeding one years supply shall be delivered to them upon their arrival upon the lands assigned them; the cost and expenses of which supplies shall be retained out of any money payable to them by the United States.” Reviewing the Treaty, we find that the only items of con- sideration for this cession to be received by the Sacs and Foxes besides the annuity were (1) the new residence lands, (2) the payment of debts, (3) the running of a line mark- ing their temporary residence lands, and (4) perhaps ex- penses of removal (but not of provisions for subsistence) under Article ITI. In the Report of the General Accounting Office no expenditure which may be identified as the running of the above line is found and expenditures for removal 116 cannot be separated from those for subsistence for which the Sacs and Foxes themselves were to be charged. Thus the government may receive additional credit for $258,566.34 which was the amount of debts paid pursuant to Article I and for the reservation lands in Kansas given to the Sacs and Foxes. 37. The tract selected for the Sac and Fox Reservation pursuant to the 1842 Treaty, and to which the Sac and Fox removed in 1845 and 1846, was not officially surveyed until after they had settled on it. Subsequently, it was discovered that the Sac and Fox Reservation overlapped 90,000 acres of the northwest corner of the Pottawatomi Reservation (Royce Area 266). By the treaty of cession of June 5, and 17, 1846, 9 Stat. 853, with the Pottawatomi Nation, the United States [412] cleared the title to the overlap area in favor of the Sac and Fox Indians. In Prairie Band of Pot- tawatomi Indians v. United States, 4 Ind. Cl. Comm. 409 (1956) we found the fair market value of a 909,565.62 acre tract which included the 90,000 acre overlap to be 65¢ per acre in June 1846. We find this to be an accurate reflection of the per acre value of the entire Kansas Reservation at the date it was received by the Sac and Fox. Thus the total consideration paid by the United States under the Treaty of October 11, 1842, was as follows: BEE chacddndineeonnseeensseden $800,000.00 SE EE hod de6bd badends Sovnwesae 258,566.34 Kansas Reservation (435,200 acres at 65¢ per acre).... 282,880.00 $1,341,446.34 38. We also find that the consideration paid the Sac and Fox under the Treaties of October 21, 1837, and October 11, 1842, was unconscionable under the Indian Claims Com- mission Act. 117 39. On July 19, 1961, a stipulation between the Sac and Fox Tribes and defendant was filed with the Commission, agreeing to a compromise of offsets in the amount of $35,000 for the period from November 2, 1804, to June 30, 1960, in dockets including 153. The stipulated offsets were applied in full in Docket No. 138, 15 Ind. Cl. Comm. 42, 47, 65 (1965). On February 5, 1964, a stipulation between the Iowa Tribes and defendant was filed with the Commission, agreeing to a compromise of offsets in the amount of $45,000 for the period from August 4, 1824, to June 30, 1956, in Dockets including 153. The stipulated [413] offsets were applied in full in Docket No. 135, 15 Ind. Cl. Comm. 248, 249, 265 (1965). The defendant has made no claim for offsets of gratuities subsequent to June 30, 1960, as to the Sac and Fox Tribes and subsequent to June 30, 1956, as to the Iowa Tribes, but has reserved such offsets for any other claims of the petitioners. On the basis of these stipulations, we find that the judg- ment in this value stage of this claim shall be the final judgment. Based on all the evidence, we find that the Iowa Nation is entitled to recover the following amount: Pee OE Fe Ek ccccdsccccpess $2,865,600 Less consideration received ......... 81,900 $2,783,700 118 The Sac and Fox Nation is entitled to recover the follow- ing amount: Value of “262 North” ............ $12,028,800.00 Less consideration received DOT BOE cencncccccessceses 86,071.00 Sy SE a vncdéecdeuscdeune« 1,341,446.34 $10,601,282.66 John T. Vance, Commissioner We concur: Jerome K. Kuykendall, Chairman Richard W. Yarborough, Commissioner Margaret H. Pierce, Commissioner Brantly Blue, Commissioner [414] 119 Berore THE Inpian CLarmms ComMIssion 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, 7 Docket No. 153 Vv. The United Ste er: of America, Defendant.) FINAL AWARD Upon the findings of fact and opinion this day filed herein and which are hereby made a part of this order, the Com- mission concludes as a matter of law that: a. The fair market value of the lands ceded by the Iowa Nation was $2,865,600 as of February 28, 1839. The Iowa Nation received $81,900 in consideration for the cession. The consideration received was un- conscionable. b. The fair market value of the lands ceded by the Sac and Fox Nation was $12,028,800 as of February 15, 1843. The consideration received by the Sac and Fox for their lands was unconscionable. The government is entitled to a credit for payment under the Treaty of October 21, 1837, 7 Stat. 543, of $86,071 and under the Treaty of October 11, 1842, 7 Stat. 596, of $1,341,446.34. e. Gratuitous offsets applicable have either been ap- plied in full in other cases or reserved for assertion in later cases. d. The Iowa Nation is entitled to recover $2,783,700. The Sac and Fox Nation is entitled to recover $10,601,282.66. EE 120 IT IS THEREFORE ORDERED that plaintiff Iowa Nation shall have and recover from defendant as a final judgment $2,783,700 and that plaintiff Sac and Fox Nation shall have and recover from defendant as a final judgment $10,601,282.66. [415] Dated at Washington, D. C., this 4th day of February, 1970. Jerome K. Kuykendall, Chairman John T. Vance, Commissioner Richard W. Yarborough, Commissioner Margaret H. Pierce, Commissioner Brantley Blue, Commissioner [416] 121 TREATY WITH THE SAUK AND FOXES, 1832. Articles of a Treaty of Peace, Friendship and Cession, concluded at Fort Armstrong, Rock Island, Illinois, be- tween the United States of America, by their Commis- stoners, Major General Winfield Scott, of the United States Army, and his Excellency John Reynolds, Governor of the State of Illinois, and the confederated tribes of Sac and Fox Indians, represented, in general Council, by the undersigned Chiefs, Headmen and Warrvors. Wuereas, under certain lawless and desperate leaders, a formidable band, constituting a large portion of the Sac and Fox nation, left their country in April last, and, in violation of treaties, commenced an unprovoked war upon unsuspecting and defenceless citizens of the United States, sparing neither age nor sex; and whereas, the United States, at a great expense of treasure, have subdued the said hostile band, killing or capturing all its principal Chiefs and War- riors—the said States, partly as indemnity for the expense incurred, and partly to secure the future safety and tran- quility of the invaded frontier, demand of the said tribes, to the use of the United States, a cession of a tract of the Sac and Fox country, bordering on said frontier, more than proportional to the numbers of the hostile band who have been so conquered and subdued. Articte I. Accordingly, the confederated tribes of Sacs and Foxes hereby cede to the United States forever, all the lands to which the said tribes have title, or claim, (with the exception of the reservation hereinafter made,) included within the following bounds, to wit: Beginning on the Mis- sissippi river, at the point where the Sac and Fox northern boundary line, as established by the second article of the 122 treaty of Prairie du Chien, of the fifteenth of July, one thousand eight hundred and thirty, strikes said river; thence, up said boundary line to a point fifty miles from the Mississippi, measured on said line; thence, in a right line to the nearest point on the Red Cedar of the Ioway, forty miles from the Mississippi river; thence, in a right line to a point in the northern boundary line of the State of Missouri, fifty miles, measured on said boundary, from the Mississippi river; thence, by the last mentioned boun- dary to the Mississippi river, and by the western shore of said river to the place of beginning. And the said con- federated tribes of Sacs and Foxes hereby stipulate and agree to remove from the lands herein ceded to the United States, on or before the first day of June next; and, in order to prevent any future misunderstanding, it is ex- pressly understood, that no band or party of the Sac or Fox tribes shall reside, plant, fish, or hunt on any portion of the ceded country after the period just mentioned. Articte II. Out of the cession made in the preceding article, the United States agree to a reservation for the use of the said confederated tribes, of a tract of land con- taining four hundred square miles, to be laid off under the directions of the President of the United States, from the boundary line crossing the Ioway river, in such man- ner that nearly an equal portion of the reservation may be on both sides of said river, and extending downwards, so as to include Ke-o-kuck’s principal village on its right bank, which village is about twelve miles from the Mississippi river. Articte III. In consideration of the great extent of the foregoing cession, the United States stipulate and agree to pay to the said confederated tribes, annually, for thirty 123 successive years, the first payment to be made in September of the next year, the sum of twenty thousand dollars in specie. Articite IV. It is further agreed that the United States shall establish and maintain within the limits, and for the use and benefit of the Sacs and Foxes, for the period of thirty years, one additional black and gun smith shop, with the necessary tools, iron and steel; and finally make a yearly allowance for the same period, to the said tribes, of forty kegs of tobacco, and forty barrels of salt, to be de- livered at the mouth of the Ioway river. Articte V. The United States, at the earnest request of the said confederated tribes, further agree to pay to Farn- ham and Davenport, Indian traders at Rock Island, the sum of forty thousand dollars without interest, which sum will be in full satisfaction of the claims of the said traders against the said tribes, and by the latter was, on the tenth day of July, one thousand eight hundred and thirty-one, acknowledged to be justly due, for articles of necessity, furnished in the course of the seven preceding years, in an instrument of writing of said date, duly signed by the Chiefs and Headmen of said tribes, and certified by the late Felix St. Vrain, United States’ agent, and Antoine Le Claire, United States’ Interpreter, both for the said tribes. ArticLe VI. At the special request of the said con- federated tribes, the United States agree to grant, by patent, in fee simple, to Antoine Le Claire, Interpreter, a part Indian, one section of land opposite Rock Island, and one section at the head of the first rapids above said Island, within the country herein ceded by the Sacs and Foxes. Articte VII. Trusting to the good faith of the neutral bands of Sacs and Foxes, the United States have already delivered up to those bands the great mass of prisoners 124 made in the course of the war by the United States, and promise to use their influence to procure the delivery of other Sacs and Foxes, wuo may still be prisoners in the hands of a band of Sioux Indians, the friends of the United States; but the following named prisoners of war, now in confinement, who were Chiefs and Headmen, shall be held as hostages for the future good conduct of the late hostile bands, during the pleasure of the President of the United States, viz:—Muk-ka-ta-mish-a-ka-kaik (or Black Hawk) and his two sons; Wau-ba-kee-shik (the Prophet) his brother and two sons; Na-pope; We-sheet Ioway; Pamaho; and Cha-kee-pa-shi-pa-ho (the little stabbing Chief). Articte VIII. And is it further stipulated and agreed between the porties to this treaty, that there shall never be allowed in the confederated Sac and Fox nation, any sepa- rate band, or village, under any chief or warrior of the last hostile bands; but that the remnant of the said hostile bands shall be divided among the neutral bands of the said tribes according to blood—the Sacs among the Sacs, and the Foxes among the Foxes. Articte IX. In consideration of the premises, peace and friendship are declared, and shall be prepetually main- tained between the United States and the whole con- federated Sac and Fox nation, excepting from the latter the hostages before mentioned. Arrticte X. The United States, besides the presents, de- livered at the signing of this treaty, wishing to give a striking evidence of their mercy and liberality, will imme- diately cause to be issued to the said confederated tribes, principally for the use of the Sac and Fox women and children, whose husbands, fathers and brothers, have been killed in the late war, and generally for the use of the whole confederated tribes, articles of subsistence as follows :— thirty-five beef cattle; twelve bushels of salt; thirty barrels 125 of pork; and fifty barrels of flour, and cause to be delivered for the same purposes, in the month of April next, at the mouth of the lower Ioway, six thousand bushels of maize or Indian corn. Articte XI. At the request of the said confederated tribes, it is agreed that a suitable present shall be made to them on their pointing out to any United States agent, authorized for the purpose, the position or positions of one or more mines, supposed by the said tribes to be of a metal more valuable than lead or iron. Articte XII. This treaty shall take effect and be obliga- tory on the contracting parties, as soon as the same shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof. Done at Fort Armstrong, Rock Island, Illinois, this twen- ty-first day of September, in the year of our Lord one thou- sand eight hundred and thirty-two, and of the independence of the United States the fifty-seventh. Winfield Scott, John Reynolds. Sacs. Kee-o-kuck, or he who has been every where, his x mark, Pa-she-pa-ho, or the stabber, his x mark, Pia-tshe-noay, or the noise maker, his x mark, Wawk-kum-mee, or clear water, his x mark, O-sow-wish-kan-no, or yellow bird, his x mark, Pa-ca-tokee, or wounded lip, his x mark, Winne-wun-quai-saat, or the terror of man, his x mark, Mau-noa-tuck, or he who controls many, his x mark, Wau-we-au-tun, or the curling wave, his x mark, Foxes. Wau-pel-la, or he who is painted white, his x mark, Tay-wee-mau, or medicine man, (strawberry,) his x mark, Pow-sheek, or the roused bear, his x mark, An-nau-mee, or the running fox, his x mark, Ma-tow-e-qua, or the jealous woman, his x mark, Me-shee-wau-quaw, or the dried tree, his x mark, May-kee-sa-mau-ker, or the wam- pum fish, his x mark, Chaw-co-saut, or the prowler, his x mark, Kaw-kaw-kee, or the crow, his x mark, 126 Mau-que-tee, or the bald eagle, mark, Ma-she-na, or cross man, his x mark, Kaw-kaw-ke-monte, or the pouc> (running bear,) his x mark, Wee-she-kaw-k-a-skuck, or he who steps firmly, his x mark, Wee-ca-ma, or good fish, his x mark, Paw-qua-nuey, or the runner, his x mark, Ma-hua-wai-be, or the wolf skin, his x mark, Mis-see-quaw-kaw, or hairy neck, his x mark, In presence of— R. Bache, captain ordnance, secre tary to the commission, Abrm. Eustis, Alex. Cummings, lieutenant-colonel Second Infantry, Alex. R. Thompson, major U. S&. Army, Sexton G. Frazer, P. H. Galt, Assistant Adjutant-Gen- eral, Benj. F. Pike, Wm. Henry, James Craig, John Aukeney, J. B. F. Russell, Isaac Chambers, John Clitz, adjutant infantry, John Pickell, lieutenant Fourth Ar- tillery, A. G. Miller, lieutenant First Infan- try, Geo. Davenport, assistant quarter- master-general Illinois Militia, A. Drane, Jeneas Mackay, captain U. S. Army, J. R. Smith, first lieutenant Second Infantry, Wm. Maynadier, lieutenant and aid- de-camp, J. S. Gallagher, first lieutenant, act- ing commissary subsistence, N. B. Bennett, lieutenant Third Ar- tillery, site skin, 4, or broken ass X Mark, Nau-nah-que-kee-shee-ko, or between two days, his x mark, Paw-puck-ka-kaw, or stealing fox, his x mark, Tay-e-sheek, or the falling bear, his x mark, Wau-pee-maw-ker, or the white loon, his x mark, Wau-co-see-nee-me, or fox man, his x mark. B. Riley, major U. S. Army, H. Dodge, major, W. Campbell, Hy. Wilson, major Fourth U. S. In- fantry, Donald Ward, Thos. Black Wolf, Horatio A. Wilson, lieutenant Fourth Artillery, H. Day, lieutenant Second Infantry, Jas. W. Penrose, lieutenant Second Infantry, J. E. Johnston, lieutenant Fourth Artillery, S. Burbank, lieutenant First Infan- try, J. H. Prentiss, lieutenant First Ar- tillery, L. J. Beall, lieutenant First Infantry, Addison Philleo, Thomas L. Alexander, lieutenant Sixth Infantry, Horace Beale, acting surgeon U. S. Army, Oliver W. Kellogg, Jona Leighton, acting surgeon U. 8S. Army, Robt. C. Buchanan, lieutenant Fourth Infantry, Jas. S. Williams, lieutenant Sixth Infantry, John W. Spencer, Antoine Le Claire, interpreter. 127 TREATY WITH THE SAUK AND FOXES, 1836. Articles of a treaty made and entered into at the treaty ground on the right bank of the Mississippi river in the county of Debuque and Territory of Wisconsin opposite Rock island, on the twenty-eighth day of September one thousand eight hundred and thirty-six, between Henry Dodge commissioner on the part of the United States, of the one part, and the confederated tribes of Sac and Fox Indians represented in general council by the undersigned chiefs, headmen and warriors of the said tribes, of the other part: Wuereas by the second article of the treaty made between the United States and the confederate tribes of the Sac and Fox Indians on the twenty-first day of September one thou- sand eight hundred and thirty-two, a reservation of four hundred sections of land was made to the Sac and Fox Indians to be laid off under the directions of the President of the United States in conformity to the provisions of said article, and the same having been so subsequently laid out accordingly, and the confederated tribes of Sacs and Foxes being desirous of obtaining additional means of support, and to pay their just creditors, have entered into this treaty, and make the following cession of land. Articte 1. The confederated tribes of Sacs and Foxes for the purposes above expressed, and for and in considera- tion of the stipulations and agreements hereinafter ex- pressed, do hereby cede to the United States forever, the said reservation of four hundred sections of land as desig- nated in the second article of the treaty made between the United States and the confederated tribes of Sacs and Foxes as the same has been surveyed and laid off by order of the President of the United States. ArticLe 2. In consideration of the cession contained in the preceding article, the United States hereby agree as 128 follows, to wit: To pay to the confederated tribes of the Sac and Fox Indians in the month of June one thousand eight hundred and thirty-seven, the sum of thirty thousand dollars, and for ten successive years thereafter the sum of ten thousand dollars each year in specie, to be paid at the treaty ground opposite Rock island or such other place as may be designated by the President of the United States, to pay to the widow and children of Felix St. Vrain deceased former Indian agent who was killed by the Indians, one thousand dollars: to pay to the following named persons the sums set opposite to their names respectively, being the one half of the amount agreed to be due and owing by the confederated tribes of Sacs and Foxes to their creditors, provided said creditors will wait for the other half until the same can be paid out of their annuities, for which purpose the Sacs and Foxes will set apart the sum of five thousand dollars each year, beginning in one thousand eight hundred and thirty-eight, out of their annuities to be paid upon said debts in the proper proportion untill the whole amount is discharged: to wit: to John Campbell ten thousand dollars, to Jeremiah Smith six hundred and forty dollars, to Stephen Dubois three hundred and five dollars and twenty cents, to Nathaniel Knapp one hundred dollars, to Wharton R. Me- Phearson two hundred and fifty dollars, to S. S. Phelps & Co. four thousand dollars, to Jesse W. Shull five hundred dollars, to James Jordan one hundred and fifty dollars, to John R. Campbell fifteen dollars, to Amos Farrar one hundred dollars, to the owners of the S. boat Warrior, one hundred and sixty-two dollars and seventy-five cents, to George Davenport two thousand five hundred and sixty- three dollars and fifty cents, to Madame St. Ament five hundred dollars, to Madame Joseph Gunville five hundred dollars, to Madame Le Claire one hundred and twenty-five dollars, to Miss Blondeau one hundred and twenty-five dollars, to Antoine Le Claire two thousand four hundred 129 and thirty-six dollars and fifty cents, to Francis Labachiere one thousand one hundred and sixty-seven dollars and seventy-five cents, to Pratte Chouteau & Co. twenty thou- sand three hundred and sixty-two dollars, and forty-two and a half cents, to Nathaniel Patterson four hundred and fifty-six dollars. The Iowa Indians having set up a claim to a part of the lands ceded by this treaty, it is therefore hereby provided, that the President of the United States shall cause the validity and extent of said claim to be as- certained, and upon a relinquishment of said claim to the United States, he shall cause the reasonable and fair value thereof to be paid to said Iowa Indians, and the same amount to be deducted from the sum stipulated to be paid to the Sacs and Foxes. ArticLe 3. The United States further agree to deliver to the confederated tribes of Sacs and Foxes two hundred horses, as near that number as can be procurred with the sum of nine thousand three hundred and forty-one dollars, to be delivered at the payment of the annuities in June one thousand eight hundred and thirty-seven. ArticLe 4. At the special request of the Sac and Fox Indians aforesaid, the United States agree to make the fol- lowing provisions for the benefit and support of seven half- breeds of the Sac and Fox nation, to wit; The United States agree to pay to—Wayman for the use and benefit of his half-breed child by a Fox woman named Ni-an-no, one thousand dollars, to Wharton R. McPhearson for the use and benefit of his half-breed child by To-to-qua, a Fox woman, one thousand dollars, to James Thorn for the use and benefit of his half-breed child by Ka-kee-o-sa-qua, a Fox woman, one thousand dollars, to Joseph Smart for the use of his half-breed child by Ka-ti-qua a Fox woman one thousand dollars, to Nathan Smith for the use and benefit of his half-breed child by Wa-na-sa a Sac woman one thousand 130 dollars, and to Joseph M. Street Indian agent, two thousand dollars for the use and benefit of two half-breed children, one the child of Niwa-ka-kee a Fox woman, by one Mitchell, the other the child of Ni-an-na by Amos Farrar, the two thousand dollars to be put at interest, and so much of said interest arising therefrom to be expended for the benefit of the children as said agent shall deem proper and neces- sary, and when each shall arrive at the age of twenty years, the said agent shall pay to each half-breed one thousand dollars and any balance of interest remaining in his hands at the time. Arricie 5. At the special request of the said confederated tribes of Sac and Fox Indians it is further agreed by the United States, to pay to Joseph M. Street their agent, two hundred dollars for the use and benefit of Thompson Con- noly and James Connoly children of their friend John Connoly deceased, to be by said agent put at interest and expended on the education of said Thompson and James Connoly children of said John Connoly deceased. ArticLe 6. The said confederated tribes of Sac and Fox Indians hereby stipulate and agree to remove from off the lands herein in the first article of this treaty ceded to the United States, by the first day of November next en- suing the date hereof, and in order to prevent any future misunderstanding, it is expressly agreed and understood that no band or party of the said confederated tribes of Sac and Fox Indians, shall plant, fish or hunt on any por- tion of the country herein ceded after the period just men- tioned. Articte 7. This treaty shall be obligatory on the con- tracting parties after it shall be ratified by the President and Senate of the United States. Done at the treaty ground on the right bank of the Mis- 131 sissippe in Debuque country Wisconsin Territory opposite Rock island this twenty eighth day of September one thou- sand eight hundred and thirty-six. A-sho-wa-huk, Ma-sha-na, Wa-ko-sha-she, Sa-sa-pe-man, Na-wo-huck, Pen-na-see Foxes: Wa-pella, Pow-a-sheek, Qua-qua-na-pe-qua, Wa-pak-onas-kuck, In presence of us— James W. Grimes, secretary of com- mission. Jos. M. Street, Indian agent. L. Dorsey Stockton, jr., attorney at law. Ant. Leclaire, interpreter. Frans. Labussar, interpreter. James Craig. P. R. Chouteau, jr. Geo. Davenport. Nathl. Knapp. A. Dodge. Wa-tup-a-waut, Ma-kee-won-a-see, Ka-ka-no-an-na. Sacs: Kee-o-kuck, Pashapahoo, Wesheko-ma-quit, Ap-a-noose, Pe-a-chin-wa, Mo-wha-wi, Wa-pe-sha-kon. W. R. McPherson. Geo. W. Atchison. Jeremiah Smith. Nathan Smith. Robt. Serrell Wood. Geo. Catlin. Richard J. Lockwood. Enoch Gilbert. Courtlandt Lawson. George Miller, jr. Courtlandt Lawson. To the Indian names are subjoined a mark and seal. 132 TREATY WITH THE SAUK AND FOXES, 1837. Articles of a treaty made at the city of Washington, between Carey A. Harris, Commissioner of Indian A fairs, thereto authorized by the President of the United States, and the confederated tribes of Sacs and Foxes, by their chiefs and delegates. Articte 1. The Saecs and Foxes make to the United States the following cessions: First. Of a tract of country containing 1,250,000 (one million two hundred and fifty thousand) acres lying west and adjoining the tract conveyed by them to the United States in the treaty of September 21st, 1832. It is under- stood that the points of termination for the present cession shall be the northern and southern points of said tract as fixed by the survey made under the authority of the United States, and that a line shall be drawn between them, so as to intersect a line extended westwardly from the angle of said tract nearly opposite to Rock Island as laid down in the above survey, so far as may be necessary to include the number of acres hereby ceded, which last mentioned line it is estimated will be about twenty-five miles. Second. Of all right or interest in the land ceded by said confederated tribes on the 15th of July 1830, which might be claimed by them, under the phraseology of the first article of said treaty. Articie 2d. In consideration of the cessions contained in the preceding article, the United States agree to the follow- ing stipulations on their part: First. To cause the land ceded to be surveyed at the ex- pense of the United States, and permanent and prominent land marks established, in the presence of a deputation of the chiefs of said confederated tribes. 133 Second. To pay the debts of the confederated tribes, which may be ascertained to be justly due, and which may be admitted by the Indians, to the amount of one hundred thousand dollars ($100,000) provided, that if 2il their just debts amount to more than this sum, then their creditors are to be paid pro rata upon their giving receipts in full; and if said debts fall short of said sum, then the remainder to be paid to the Indians. And provided also, That no claim for depredations shall be paid out of said sum. Third. To deliver to them goods, suited to their wants, at cost, to the amount of twenty-eight thousand five hun- dred dollars ($28,500.) Fourth. To expend, in the erection of two grist mills, and the support of two millers for five years, ten thousand dollars ($10,000.) Fifth. To expend in breaking up and fencing in ground on the land retained by said confederated tribes, and for other beneficial objects, twenty-four thousand dollars ($24,000. ) Sizth. To expend in procuring the services of the neces- sary number of laborers, and for other objects connected with aiding them in agriculture, two thousand dollars ($2,000) a year, for five years. Seventh. For the purchase of horses and presents, to be delivered to the chiefs and delegates on their arrival at St. Louis, four thousand five hundred dollars ($4,500,) one thousand dollars ($1,000) of which is in full setisfaction of any claim said tribe may have on account of the stipulation for blacksmiths in the treaty of 1832. 134 Eighth. To invest the sum of two hundred thousand dol- lars ($200,000) in safe State stocks, and to guarantee to the Indians, an annual income of not less than five per cent. the said interest to be paid to them each year, in the man- ner annuities are paid, at such time and place, and in money or goods as the tribe may direct. Provided, That it may be competent for the President to direct that a por- tion of the same may, with the consent of the Indians, be applied to education, or other purposes calculated to im- prove them. Articte 3d. The two blacksmith’s establishments, and the gunsmith’s establishment, to which the Sacs and Foxes are entitled under treaties prior to this, shall be removed to, and be supported in the country retained by them, and all other stipulations in former treaties, inconsistent with this, or with their residence, and the transaction of their busi- ness on their retained land are hereby declared void. ArticLe 4th. The Sacs and Foxes agree to remove from the tract ceded, with the exception of Keokuck’s village, possession of which may be retained for two years, within eight months from the ratification of this treaty. ArticLe 5th. The expenses of this negotiation and of the chiefs and delegates signing this treaty to this city, and to their homes, to be paid by the United States. ArticLe 6th. This treaty to be binding upon the con- tracting parties when the same shall be ratified by the United States. A ee CR © | 135 In witness whereof the said Carey A. Harris, and the undersigned chiefs and delegates of the said tribes, have hereunto set their hands at the city of Washington, this 2ist October A. D. 1837. Sacs or Saukes: Kee-o-kuck. The Watchful Fox, prin- cipal chief of the confederated tribes, Wau-cai-chai. Crooked Sturgeon, a chief, A-shee-an-kon, Sun Fish, a chief, Pa-nau-se, Shedding Elk, Wau-wau-tosa, Great Walker, Pa-sha-ka-se, The Deer, Appan-oze-o-ke-mar, The Hereditary Chief, (or He who was a Chief when a Child,) Waa-co-me, Clear Water, a chief, Kar-ka-no-we-nar, The Long-horned Elk, Nar-nar-he-keit, the Self-made Man, As-ke-puck-a-wau, The Green Track, Wa-pella, the Prince, a principal chief, Signed in presence of— Chauncey Bush, Secretary. Joseph M. Street, U. S. Indian Agent. Joshua Pilcher, Indian Agent. Geo. Davenport. J. F. A. Sanford. C. A. Harris. Qua-qua-naa-pe-pua, the Rolling Eyes, a chief, Paa-ka-kar, the Striker, Waa-pa-shar-kon, the White Skin, Wa-pe-mauk, White Lyon, Nar-nar-wau-ke-hait, the Repenter, (or the Sorrowful, ) Po-we-sheek, Shedding Bear, a (prin- cipal chief,) Con-no-ma-co, Long Nose Fox, a chief, (wounded,) Waa-coshaa-shee, Red Nose Fox, a principal chief Fox tribe, (wounded, ) An-non-e-wit, The Brave Man, Kau-kau-kee, The Crow, Kish-kee-wosh, The Man with one leg off. S. C. Stambaugh. P. G. Hambaugh. Antoine Le Claire, U. S. Indian In- terpreter. (To the Indian names are subjoined marks.) 136 § 70a. Jurisdiction; claims considered; offsets and counterclaims The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Ex- ecutive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in @ court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, con- tracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, un- conscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after August 13, 1946, shall be considered by the Commission. All claims under this chapter may be heard and deter- mined by the Commission notwiths*.uding any statute of limitations or laches, but all other defenses shall be avail- able to the United States. In determining the quantum of relief the Commission shall make appropriate deductions for all payments made 137 by the United States on the claim, and for all other offsets, counterclaims and demands that would be allowable in a suit brought in the Court of Claims under section 250 of Title 28: Provided, That expenditures for food, rations, or provisions shall not be deemed payments on the claim. The Commission may also inquire into and consider all money or property given to or funds expended gratuitously for the benefit of the claimant and if it finds that the nature of the claim and the entire course of dealings and accounts between the United 3tates and the claimant in good con- science warrants such action, may set off all or part of such expenditures against any award made to the claimant, ex- cept that it is declared to be the policy of Congress that monies spent for the removal of the claimant from one place to another at the request of the United States, or for agency or other administrative, educational, health or highway pur- poses, or for expenditures made prior to the date of the law, treaty or Executive Order under which the claim arose, or for expenditures made pursuant to sections 461, 462, 463, 464, 465, 466-470, 471-473, 474, 475, 476-478 and 479 of this title, save expenditures made under section 465 of this title, or for expenditures under any emergency appropria- tion or allotment made subsequent to March 4, 1933, and generally applicable throughout the United States for relief in stricken agricultural areas, relief from distress caused by unemployment and conditions resulting therefrom, the prosecution of public work and public projects for the relief of unemployment or to increase employment, and for work relief (including the Civil Works Program) shall not be a proper offset against any award. As amended Oct. 27, 1974, Pub.L. 93-494, § 2, 88 Stat. 1499. 138 § 70s. Review by Court of Claims and Supreme Court (a) In considering any claim the Commission at any time may certify to the Court of Claims any definite and distinct questions of law concerning which instructions are desired for the proper disposition of the claim; and thereupon the Court of Claims may give appropriate instructions on the questions certified and transmit the same to the Commission for its guidance in the further consideration of the claim. (b) When the final determination of the Commission has been filed with the clerk of said Commission the clerk shall give notice of the filing of such determination to the parties to the proceeding in manner and form as directed by the Commission. At any time within three months from the date of the filing of the determination of the Commission with the clerk either party may appeal from the determination of the Commission to the Court of Claims, which Court shall have exclusive jurisdiction to affirm, modify, or set aside such final determination. In similar manner and with like effect either party may appeal to the Court of Claims from any interlocutory determination by the Commission estab- lishing the liability of the United States notwithstanding such determination is not for any reason whatever final as to the amount of recovery; and any such interlocutory ap- peal shall be taken on or before January 1, 1961, or three months from such interlocutory determination, whichever is later: Provided, That the failure of either party to appeal from any such interlocutory determination shall not con- stitute a waiver of its right to challenge such interlocutory determination in any appeal from any final determination subsequently made in the case. On said appeal the Court shall determine whether the findings of fact of the Commis- sion are supported by substantial evidence, in which event they shall be conclusive, and also whether the conclusions of law, including any conclusions respecting “fair and honor- . eee 139 able dealings”, where applisable, stated by the Commission as a basis for its final determination, are valid and sup- ported by the Commission’s findings of fact. In making the foregoing determinations, the Court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of pre- judicial error. The Court may at any time remand the cause to the Commission for such further proceedings as it may direct, not inconsistent with the foregoing provisions of this section. The Court shall promulgate such rules of practice as it may find necessary to carry out the foregoing provi- sions of this section. (c) Determinations of questions of law by the Court of Claims under this section shall be subject to review by the Supreme Court of the United States in the manner pre- scribed by section 288 of Title 28. Aug. 13, 1946, ¢. 959, § 20, &" Stat. 1054; Sept. 8, 1960, Pub.L. 86-722, 74 Stat. 829. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1106%3A2. Public record. Not legal advice.