Appendix — Citizen Band of Potawatomi Indians v. United States

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APPENDIX A _

IN THE UNITED STATES COURT OF CLAIMS

Appeal No. 6-65

11 Ind. Cl. Comm. 693 (1962) ’

15 Ind. Cl. Comm. 232 (1965)

(Decided, April 14, 1967)

Crrizen Banp or PoTawaTOMjINDIANS OF OKLAHOMA, AND

Porawatomi Nation REPRESENTED BY CITIZEN BAND OF

‘Porawatomi Inp1ans oF OKLAHOMA, ET AL., THE Porawa-

‘tomigz Nation or Inpians, THe Prater Bann or THE

‘Porawaromts Nation oF INDIANS, ET AL, ©

.- :

‘ Tas Untrep States

Louis L. Rochmes, attorney of record for appellant Citi-

zen Band, ete., Robert S. Johnson, attorney of record for

appellant Prairie Band,: etc., and: Howard D. Moses, and

Giddings Howd, of counsel.

Robert Cc. Bell, Jr., attorney of ere for Hannahville

Indian Community, etc., intervenor. Walter H. Maloney,

Sr:, of counsel.

Frank De Nuneio; witli ‘whom was Assistant Attorney

General Edwin .L. Weisl, Jr., for appelleé. -

_ Before Cowen, Chief Judge, Rrep, Justice (Ret.) sitting

_by designation, Laramore, Durrer, Cotuins, SKELTON ‘and

NioHoLs, Judges.

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‘Mien Judge, delivered the opinion of the court:

This case : involves, as its controlling i issue, the interpreta-

tion of a treaty enfered into on August 24, 1816 (7 Stat..”

146), between the United States and ‘‘the chiefs-and war-

riors of the united tribes of Ottawas, Chipawas, and Potto-

wotomees, residing on the Illinois and Melwakee rivers, and

their waters, and on the southwestern parts of Lake Michi-

gan,’’ hereinafter referred to as the United Nation.

The United: Nation’s present successors! claim additional ae

compensation for land ceded to them under the above treaty —

and receded by them to the United States under a later :

treaty of July 29, 1829 (7 Stat..320). We must consider

here what rights the United States reserved, and did not

_ convey to the Indians, under the Treaty of 1816. The lands

involved are located in northern Tlinois and’ southwestern

_ Wisconsin. For convenience we will refer to these cessions

_ by the tract number used by Royce on his Iinois and Wis-

. Consin Land Cession ‘published i in the 18th Annual Report

of the Bureau of America Ethnology for 1896-97. %

Said areas are known and described es (1) Royce Area

147 on Royce Maps Wisconsin 1, Illinois :2, and (2) Royce

Area 148, Illinois 2, and are more particularly described

as follows:

Beginning at the Winnebago Village, on Rock river,

forty miles from its mouth, and runnirig thence down |

the Rock river, to a line which runs due west from the

most southern bend of Lake Michigan to the Missis: °

, sippi river, and with that line to the Missi ippi river

opposite to Rock Island; thence, up that river; to the’

United States’ reservation at the mouth of tlie Ouiscon-

oe

7 Files tik sils saw stents Gs sei is severed and is the

* subject of Appeal No. 5—65._—.

7'See appindix for map.

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POG AAD IME PAT IP RTL NT FES ETE AIA I NE RT Pr

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sin; thence, with the south and east lines of said reser-. -

vation, to the Ouisconsin riyer; thence, southerly, pass- .

ing - the heads of the small streams emptying into the

® Mississippi, to the Rock River aforesaid, at the Winne-

bago. Village, the place of beginning. . And, also, one

otger tract of land, described as follows, to wit: Begin-

ning on the Western Shore of Lake Michigan, at the

‘northeast corner of the field of Antoihe Ouitmette, who

lives near- Grosse Pointe, about twelve miles north of

Chicago ; thence, runing due west, to the Rock River,

aforesaid; thence, down the said river, to where a line

drawn due west from the most southern bend of Lake

Michigan crosses said river; thence, east, along said

line, to the Fox River of the Tlinois; thence, along the

northwestern boundary line of the cession of 1816, to

Lake Michigan ; thence, northwardly, along the Western

Shore of said Lake, to the place of beginning. °

e treaty .was entered into by and seinen the defendant -

herein, the United States, and the chiefs and headmen of

' the United Sac and Fox Tribe, dated November 3, 1804 ©

(7 Stat. 84), wherein the United Sac and Fox Tribe ‘coded .

. to the United States the land making up Royce Area 50

(which, aniong others, includes Areas 147 and 148). Sub-

sequently, the United States entered into the: treaty dated

August 24, 1816, with the United Nation, wherein the United

States recognized title in the United Nation to part of the

land contained in the cession of the Treaty of 1804. Said

‘lands were described in Article 2 of the Treaty of 1816,

_ the provision in question, as follows: .

* * © al the land contained in the aforesaid cession

of the Sacs and Foxes, which lies north of a due west

line, from the southern extremity of Lake Michigan to

the ‘Miséiesippi river, except three leagues square at

the mouth of the Ouiscohsing [the ‘‘Quisconsing”” is

the present Wisconsin River] river, including both

banks, and,such other tracts, on or near to the Ouis-

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- consing and Mississippi rivers, as the geuabieic of the ~

. United States may think proper to reserve: Provided,

That such other tracts shall not in the ‘whole exceed

the quantity that would be contained in five leagues

square.

‘The United States by reaseia of i Treaty of 1816, recog-

nized title, subject to the above reservation, in the United -

Nation as to Royce Area 147 and Royce Area 148, excepting. he

the area herein described as 148-A, which.is that portion of

Royce Area 148-lying east of the Fox River. in Illinois.

However, from a time long prior to the United States’ _

acquisition of Area 148, until ceded by the Treaty of July

" 29, 1829, the United Nation had original Indian title. to

Area 148A. Therefore, at the time of the Treaty of 1829

the United Nation had ana to all of Royee Areas - 147

and 148.

The. Indian Claims. Commission eee that the i mies of -

. $864,901 was the treaty date value of the consideration

’ for the céssion made by the United Nation under the 1829 —

Treaty, that this sum was so grossly inadequate an amount

for the lands involved as to make the consideration uncon- ~

scionable, and concluded as a matter of law that the United

. Nation was entitled to recover from the defendant the sum

of $2,407,264.30, less the sum, of $364,901.00, representing

the consideration paid by the United States for the 1829

_ cession and ‘less the sum of $10,790.28, representing allow-

able gratuitous offsets, leaving a net balance of $2,094,573.02

owed by the defendant. 11 Ind. Cl. Comm. 693 (November

29, 1962), as amended by order entered April 15, 19665,

15.Ind. Cl. Comm. 232. The United Nation contends here

that this sum,is only a less ean consideration for the

larids ceded. - scat "

_, According to the commissioners who made the Treaty of

a 1816, their reason for reserving the area ‘‘five leagues

square’’ was that it ‘‘contained those immensely valuable

lead mines which for some time past had attracted and

seas npnanaaeetatnmhta tetera Os

= coe ate GIN APRON GA ORE ag tenes

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occu! ied much Public attention * * *,” The ‘‘stipulation |

‘woul authorize the President to nti such, reservation as

would include all those mines * * *,’? | ;

The lead deposits were in Area 147 and were ‘aa a

little exploited ‘up to 1825, at which time there were but 30

miners at work and few locations considered worth ‘‘giving

bond: for the: occupation thereof.’?- The area, however,

continued to‘ be deemed rich in lead and had attracted at

_ least 10,000 people for mining, and presumably supportin go

trades, . by the time of the Treaty of 1829. The deposits

were known to extend along the east side of the Mississippi,

from near to its confluence with the Wisconsin, south 100

miles, plus or minus a few, to the Apple River, and east for.

- from 20 to 30 miles. - In 1828 the = of the mines

- was 12 311,730 pounds of lead.

‘Exploration started i in’ the neighborhood of Gidain and

on the Fever River, near the south end of the deposits as

they are now known, but by 1828 miners were operating

up country near the Wisconsin River.. The whole area was:

recogmzed as one where ‘‘the same geological features

present themselves * *.*.”? Beyond all actual exploration

as of 1829, there would seem ample evidence to show the

existence of a much larger region, including’ perhaps the

whole northern half of Area 147, where the probabilities of

extracting minerals in commercial quantities were deemed —

sufficient in 1829 to justify expenditures for exploration and

development, immediately or at a somewhat later date.

Thus, the price a willing buyer and a willing seller would

- have settled on for fee title to land in that area would have ©

been influenced, to some degree, be it great or small, by

such factor. The value of actually non-mineral land was

also affected; the miners used their gains from mining to

buy farm land, food had to be grown for the miners, trans-

: portation was necessary and therefore roads had to be built. !

* In 1821 the superintendence of the’ lead’ mines allegedly

reserved to the United States by the 1816 Treaty was trans-

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ferred to the War Department, the lead being regarded as

a strategic material. It would seem that at first there was

some uncertainty whether a contiguous area ‘‘five leagues

square’” should be laid out under authority of the 1816°

Treaty in that part of Area 147 deemed to-be richest in

lead, with the hope it would contain enough good mines to

satisfy all of the prospectors, or whether the prospectors

should first go anywhere i in Area 147, stake out locations,

and apply for Jeases thereon, which would be pro tanto part

of the reserved area, however scattered. The latter prof |

cedure won out because the former would have had the -

unacceptable consequence of necessarily leaving some of the -

lead deposits in Indian ownership, as the lessons of actual

exploration speedily bore out. The adopted routine was .

for a prospector to stake out an area and apply’for a lease;

it would normally run for three years. The area covered by

a lease was at first 160 acres, later 320 (there also were ten ~

acre mining permits). The rent was one-tenth of the lead

recovered, in kind. Many prospectors, however, omitted

_. the formality of applying for leases and paying trent and

had little regard for the legal rights of the United States

or the Indians, The result was that the whole area, many’

times five leagues square, was being cut up and made useless

for the Indian way of life. The army ordnance officers in

charge naturally cared more for a maximum accumulation

of munitions than they did for the Indians’ well-being.

‘They did not want the miners to bé&‘‘cramped,’’ as any.

contiguous reservation necessarily would do. They repre-

sented to Washington that the Indians never used the area

and did not care what was done with it, but the Indians -

_ themselves, when finally consulted, hardly supported thi?

.view. Responsible persons pointed out that this was an

impossible situation, sure to lead to a clash, and a purchase

’ of the whole area from the Indians was seen as the only

- way out. .

The Commission ‘henained | in finding 75 that, of the

fe ‘éfive leagues square,’’ about 40 000 acres had been selected

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as of 1829,* through leases’ fa mining oaiithe and by the

setting aside of 640 acres for the townsite of Galena;

. leaving about 100,000 acres unselected. It also found that

’ the total probable area of [unselected] lead deposits did

not exceed 18,000 acres,* Therefore, the possibility that a

‘‘prospective purchaser’’ from the Indians could share in

the lead discoveries was too remote to be corisidered. This

was based, of. course, on the premise first adopted by the

Commission, that the United States retained in 1816 the -

legal right to select parcels of any size, at any location

_ within Area 147, as it had been doing since 1822, regard-

less of how the Indians’ estate was-cut up thereby, and |

apparently also regardless of how long it took for explora-

tion of Area 147: to be complete. Until that unknown

future date the Indians were to wait and never know what

' part of Area 147 belonged to them. °

The United Nation denies that such an interpretation of

the treaty is a proper one, and we agree. The statement

of the United States’ position is, indeed, its own most effec-

tive refutation. It takes a wrong done to a treaty partner

and makes. it the basis of a finding of right, though never

acquiesced»im, and though but for the 1829 purchase, it

would have, if persisted in, led to a collision between the

parties. Gmc

The Indian ‘Chains Commission held that ‘‘The. said

United Nation did not receive any interest in the reserva-

tion of five leagues. square”’ as set forth in Article 2 of the -

Treaty of 1816, quoted supra, and found that under this

_ reservation the United States had ‘‘retained lead reserves

_ of not to exceed 144,000 acres.’’ In our opinion, we need

8 Cf., however, the pvenamnat s brief, p. 16 #17, which alleges aa

that only about 20,000 acres were selected out of a total lead de-

posit acreage of 40 to 50,000 acres: We need not resolve this now, .

- as it is one of the matters for the Commies Ss deer on on .

_ remand.

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not decide the question whether there is substantial evi-

- dence to support the finding of the Commission that it was

intended at the time of the Treaty of 1816 that lands bear-

_ ing lead would be selected as tracts reserved from the

cession to the United Nation, since we hold that as a matter

_of law the Indian Claims Commission erred in interpreting

Article 2, and that the reservation in question was not

meant to inelude all lands bearing lead without any regard

to the other purposes which led to the signing of the treaty.

We are free to reach our own independent conclusion on

' this question since the interpretation of a treaty is a ques- _

tion of law and not a matter of fact. See, e.g., Minnesota

Chippewa Tribe v. United States, 161 Ct. Cl. 258, 262, 315

F. 2d 906, 908 (1963) § Lower Sioux Indian in Minnesota v.

United States, 163 Ct. Cl. 329, 332 (1963). -

When the United States enters into treaties with an In-

- dian tribe, said treaties ‘‘are not to be interpreted narrowly,

as sometimes may be writings expressed in words of art

employed by conveyancers, but are to be construed in the

sense in which naturally the Indians would understand

them.”? United States v. Shoshone Tribe, 304 U.S. 111, 116 ©

(1938). - {T]hey are to be construed, so far as possible,

in the sense in which the Indians understood them, and ‘in

a spirit which generously recognizes the full obligation of

this nation to protect the interests of a dependent people.’

Tulee v. Washington, 315 U.S. 681, 684-685.’ Choctaw

Nation v. United States, 318 U.S. 423,- 432 (1943).. And,

where the words of a treaty are not clear or unambiguous, .

we should review both the history and purpose of the Ar-

ticle in question in an effort to determine its true meaning.

Lower Sioux Indian in Minnesota, supra, at 332. To help

us in this search, appropriate landmarks are, inter alia, the

. instructions to the treaty commissioners, their report to

their superior, the treaty preamble, the President’s message

transmitting the treaty to Congress and the subsequent

treatment given to the terms of the treaty by the United:

States and the Indians. Cf. Lower Sioux Indian in Min-

9a.

nesota, supra, at 334; Minnesota ewe Tribe, supra, at

. 262, 315 F. 2d at 909.

In 1816 the validity of the Illinois cession to the United

States, made under the treaty of 1804, was contested by

some of the Indian tribes who used the land contained

therein as a hunting ground. Treaty commissioners were

sent to this area and were instructed by Secretary of War

Crawford to quiet those claims by offering to the Indians

‘*such parts [of the Illinois cession] as lie North of the

Northern line of the state of Ohio extended westward, to

the Mississippi river, and east of the Western boundary

of the Indiana territory. ’? In making this tender, the com-

missioners had to make a reservation for a military post

at the mouth of the Wisconsin River, which was to include

both banks of the river, ‘‘and such other reservations for

the same object’? as their knowledge of the territory would

show them fo be necessary. The United States at this time

did not want the entire Illinois cession inhabited by whites

because this would have necessitated the formation of an-

other territorial government and would have given rise to

a small settlement in the Indian territory separated by an

. immense distance from the inhabited part of the territory.

It was decided, as Secretary of War Crawford’s instruc-

tions bear out, that since the claims of the Indians. were

for a tract of land smaller in size. than the whole Illinois

cession, the easiest way to avoid the problems that were

foreseen was to give the Indians their own land to five on,

leaving the remainder to the United States, with a reser-

vation for additional military posts. The preamble to the

treaty also showed that its object was to settle rights to

land ceded to the United States by the Sac and Fox in 1804

and the President told Congress that the treaty .was one

of ‘‘peace, friendship and limits.’? (Emphasis supplied.)

In their report to Secretary of War Crawford, the treaty

commissioners noted that within the boundary they were

directed to recede lay immensely valuable lead mines.

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“TAJnd not being certain that it was contemplated or in-

tended by [their] instructions, [they] thought it advisable

to endeavor to introduce into the Treaty a stipulation which

would authorize the President to make such reservations.

as would include all those mines,’’ and they thought they

had succeeded in so doing. | There i is no question whether

they had the power to do this as their action was ratified

by Congress. However, we do find that-such an attempt

clearly was not one of the purposes for which:the treaty

was to be entered into. nor did the language employed carry

out their intention. It is true that it was the declared policy

of Congress, as enunciated by section 5 of the Act of March |

_8, 1807 (2 Stat. 448, 449), to reserve the lead lands of the

Indiana territory, which included Royce Area 147, from

public sale and that the: President had been delegated con-

trol of the disposition of mineral lands. While this may

have been Congressional policy, the reasons for making

the treaty weré not directed to it nor did the language used -

carry it out. (Emphasis. supplied.) .

-Not only do we deem that the United States is now

_ trying to rewrite the Article in question, we also view

their déalings with.the Indians as less than fair and honor-

able. This is borne out by the commissioners’ observa-

tion that, ‘‘Taking all things into consideration we do not

think the amount of goods which we have contracted to

give them, a sufficient equivalent for the relinquishment _

_. and cession which we have obtained from them'* * *.”?

In 1817, in a letter to General Land Office Commis-

sioner Meigs, two of his subordinates stated, ‘“They

[people seeking lead mine leases in the Illinois cession]

are sensible of the danger they might incur by trespassing

“ on the rich mineral grounds which have been receded to

the Indians by the late Treaty [that of August 24, 1816],

sinte it is. known that the Indians in that Country would -

. not ‘suffer even an attempt to work their mines with im-

: punity . ot _ Five years later, Lt. Col. Bomford, then

-,

on ordnance duty, stated that ‘‘the locations of each [the

lead mine leases to settlers] must be made in one ° body, |

not indifferent parts or places e 0 099.

It is true that in 1829 Lt. Col. tee then Super-.

visor of the Lead Mines of the Upper Mississippi Valley,

stated that the object of the 144,000 acre reservation was

to enable the Government, to determine which tracts of

land within Royce Area 147 it would be most advantageous

for it to have and: that each selection was ‘‘left without

instruction as to time or situation within those limits, and

[might] be taken, either in one body, or in as many de- ° °

tachments or parcels, as [was] thought proper.’’ -How-

ever, we fail to see how the defendant can say that Lt. Col.

Bomford’s later statement goes to show what was intended

by the reservation when he had been of the contrary view

| only seven years before, a date closer in time to the sign-

ing of ‘the treaty we are how construing.

In 1827, Lt. Martin Thomas, at that time Agent of ‘fe

President for. the’selection of the United States lead re-

serves and Superintendent of the Upper Mississippi Valley

Lead Mines, was of the opinion that the United States had

retained 144,000 acres of lead land within Royce Area 147

and that the location of the- reservations in detached par-

cels was at the discretion of the Government. He stated,

“The reservations being for mining purposes,‘ they are

necessarily made in detached parcels. This presents a

difficulty as respects the jurisdiction of Illinois or Michi-

‘gan. The intermediate land between the reservations is

still the property of the Indians; a purchase of which

would seem to be the only way of removing the embarrass-

ments ‘produced by this state of things.”? We think the

‘‘embarrassments’’ Lt. Thomas referred to were two: first,

the fact that his interpretation and: the actual implementa-

tion thereof would fly in the face of the treaty instructions

in that if the Government did not buy the ‘‘intermediate -

land’? a new territorial government, in all probability, -

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would have had to have been set up to govern the lead

lease areas, and second, the fact that under this interpre-

“~tation-the Indians would have had ne piece of ‘contiguous

‘land on which they could permanently settle because the

Government would have had the right to come in-at any

time and designate all or a part of the sections the ‘Indians

had chosen as being part of the tracts reserved to the

United States under the reservation in question. We

think Lewis Cass, then Governor of the Michigan terri-”

tory, and Thomas L. McKenney, head of the Office of.

Indian Affairs, in their letter to Secretary of War Bar-

‘hour in 1827, correcly expressed the interpretation to be

given to the 144,000 acre reservation: ‘‘[C]ertainly, noth-

ing can be more incorrect than a construction which gives

the right of location in tracts of one or two hundred acres

over the whole country * * * and considering the reserva- .

tion of fifteen miles square complete, when the quantity lo-

cated equals that extent. It would render the whole coun-

try utterly useless to the Indians, and the exercise of sep-

_ arate jurisdiction over these people and ours would be im-

practicable. All the provisions of the laws, regulating

trade with them, would be inefficient; and, in fact, the

principles of our Indian policy must be wholly abandoned,

if this construction [that subscribed to by Lt. nisapian

prevails.’?® (Emphasis —— ). ,

_ 5 Lewis Cass was a lawyer and a diplomat, later to become Am- :

bassador to France, Secretary of War, Secretary of State, a United

States Senator, and a presidential candidate. 4 Encyclopedia

_ Brittanica (1957 Ed.) 970, Article: ‘‘Cass, Lewis.’’. He himself

had negotiated treaties with Indian tribes and he was the author

of a book about the Indians. His view, as quoted, was more than

4 statement of what the President ought to do under. the treaty ; it

was an opinion he was well-qualified to give, as to what the treaty

meant. Our holding that the construction of the treaty, a legal

question, is the controlling issue herein, of course makes ‘this con- -

temporary interpretation by a lawyer of special importance. Yet,

tie Commission preferred to rely on the views of subordinate Army

ee a on

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Certainly, where administrative practice has been con-

sistent and generally unchallenged, such ‘*practice has

peculiar weight when it involves a contemporaneous con-

struction of a statute by the men charged with the respon<

sibility of setting its machinery in motion [and] making

- the parts work efficiently-and smoothly * * *.’? Norwegian

Nitrogen Co.'v. United States, 288 U.S. 294, 315 (1933).

And, where such practice is disputed in later years, more

weight should be given to the interpretation made closer in

time to the making of the law to be construed.

In later treaties and/or treaty negotiations, the United

States clearly recognized the fact that the United Nation

continued to claim the lead lands within Royce Area 147. —

It could even be said that the United States implied that

the United Nation did own the lead areas. . In August,

1828, at treaty negotiations with the United Nation,

Winnebago and Sac’ and Fox, Commissioner Pierre Men-

ard stated to the United Nation’s representative, ‘“There

is no game on your land, it is good for nothing except the

lead.’’. In his instructions to the 1829 treaty commis-

sioners, the Secretary of War stated that they were to

treat ‘‘* * * for a relinquishment of the title of those _

- Indians to the mineral regions claimed by them ** *,”? At

those tr ty negotiations the commissioners stated,

‘‘Brother: and Friends—Your Great Father has also sent

us to pay you what he promised you last year ‘Tin the

Treaty of 1828 (7 Stat.'315)] for the occupation of your

mineral country occupied by his White children * * *.’?

And, in a letter sent by the commissioners to the Secre-

tary of War, they stated that the United Nation had ceded

«“* * * to the United States, all the country claimed by

them (émbracing their mineral lands) * * *.”? —

‘ supplied.)

Suppose, however, that the negotiators of the 1816 treaty

on the United States side did intend the reserved, right of

ie selection to be exercised by the location of mines and -the

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: grant of leases thereon, wherever and whenever that o¢-

curred, in. random fashion. This intent would not bind .

the Indians if they did not know of it and the language of

the treaty did not fairly express it. Of. a recent case in

‘ the Customs Court, First Division, The De Haan Company .

v. United States, 57 . Ct., C.D. 2722 (June‘28, 1966, .

'- appeal pending), in which it was held that Mexico was not

bound by a definition 6f ‘‘huarache’’ published by the

Tariff Commission in 1943, not shown to have been com-

municated to the Mexican negotiators when a duty reduc-

tion on huaraches was negotiated i in 1942.

A fair interpretation of the treaty i is that the President

_ would ‘select the 144,000 acres in his capacity as ‘‘Great

. White Father’’ of the Indians as well as head of the United

States government. A callous disregard of the interests

of either would be an abuse of discretion. Accordingly,

the valid contemporaneous expectation was that he would

select a large, contiguous tract ‘(or tracts), without await-

. ing full mineral exploration, which would leave the Indians

te carry on their life, undisturbed in their traditional man-

ner, in the parts not selected, assured of ownership, and

free from collisions with the Whites. For the Whites too,

there would be advantages in not being scattered about

among Indian neighbors. The view that prevailed later

on that selection might be accomplished pro tanto by min-

eral locations, permits, ‘and leases of from ten to 320 acres,

" seems to have reflected pecuniary interests which then, as

- now, sometimes might -unduly influence - legal interpreta-

tions. So far as this view was acted on by officials of the

. United States government, it was an-abuse of the discre-.

tion reserved in the treaty. As the Indians rightly’ be-

lieved, their rights were being violated; it was also a col-

. . lision course, the impact being averted only by. the timely

purchase of the entire area from the Indians in 1829.

mt This i is not to say, of course, that in selecting the bound-

| aries of a large, contiguous tract (or tracts), not exceeding

aeinieiiidahniientiniiatateiabeidiaminiiia wbtitidiiadeRiaaia

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144,000 acres, the President might not have been influenced

by the location of known mineral deposits and if the whole

of them could have been included within such tract: (or

tracts) he might have done it. However, the record re-

flects that in no way could a large, contiguous tract. (or

tracts) have been located without failing to include at

least some of the known deposits, not to mention those then

unknown, in Area 147.

In addition to the contention sontatinn the type of acre- -

age the United. States could reserve, the United Nation

contends that defendant’s right to the 144,000 acres was

contingent, not absolute, and that it was abandoned in fact,

and lost as a matter of equity, in 1829, because of the de-

fendant’s failure to exercise its rights thereunder beyond

its reservation of a town-site for Galena. The Indian

Claims Commission found that there was no intent to vest

title in the Indians as to any of the 144,000 acres retained

by the defendant and that while the defendant did not

exercise ifs right of reservation as to the complete 144,000

acres, this right was not lost by the failure to make further.

specific reservations. With these findings this court — ;

agrees, at least to the extent the right was not lost: as~

- early as 1829. ‘‘In order * * * to ascertain what is granted,

we must first ascertain what is included in the exception; —

for whatever is within the exception, is excluded from the

grant ***.”? Greenleaf’s Lessee v. Birth, 6 Pet. (31 U.S.)

302, 310 (1832). We hold that while the defendant did not z

have the right to choose ‘scattered lands up to the 144,000:

acre maximum, it did except an undesignated total of

144,000 acres from its grant to the United Nation. As of

1816 title to Royce Area 147 was in the defendant and it .

was within its rights ir excepting from its ‘cession -to the

United Nation 144,000 acres of its own land.

In 1829 the United. Nation ceded Royce Areas 147 and 148 ©

back to the United States (7 Stat. 320). Article 3 of .the

Treaty of 1829, supra, at 321, reserved 7,040 acres for the

16a

use of named chiefs and their bands and Article 4, supra,

at’ 321, contained grants by the United States to named

individuals of a total of 9,600 acres. The Indian Claims

Commission considered the total 16,640 acres as land not

ceded by the United Nation, and therefore not to be com- -

pensated for. The United Nation contends that the Coni-

mission erred with respect to the 9,600 acres specified in

Article 4. We think the Commission was. correct.

The United Nation argued that the larids referred to in

Article 4 were ceded by it to the United States and in turn

conveyed by the United States to the named grantees. It .

also argued that these grants represented bribes given by

- the United States to the named individuals to - them to

influence the Indians to sign the treaty.

The Indian Claims Commission could find no proof of

fraud or undue influence with respect to the grants and

we agree. While there was some indirect evidence of al-

legedly fraudulent dealings by the United States i in prior

treaties, such evidence canont be used to establish fraud

by implication in the 1829 Treaty. No protest was made

by the ‘United Nation against the provision for these grants

and ‘‘[s]uch lack of protest has-been considered clear

indication that no fraud has been practiced.’’ Sac and Fox

Tribe, et.al. val/nited States, 159 Ct. Cl. 247, 253 (1962).

And, it is too late in the day to conjure up a fraud now.

It is true that the 9,600 acres were ‘‘granted’’ by the

United States.to named individuals and not ‘‘reserved’’

for them, as were the 7,040 acres specified in Article 3.

The defendant argued that since the terms ‘‘reserved’’ or

‘‘reservation’’ are used to set aside, out of lands ceded,

) an area which the Indians are to continue to use and occupy

in a communal manner, the use of the term ‘‘grant’’ with

reference to the individuals, as: opposed to the term ‘re.

' gerved’’ used with reference to the chiefs and their

was to signify that they were being given something ich .

neither they or any other tribal:member had had Vefore, |

a ‘ oa

‘

OC NR IP PRIN DIEM OE: ROR NS AEN RINE ETP RE MeO yh oN ee ee

17a

i.e., an individual. right or interest in land separate pnd *¢

apart from the tribe.

While we recognize the distinction made by the defend-

ant, we must note that the interests which the individuals }

» received were not as broad as complete and unrestricted . ,

ownership. Article 4 specified that the individual grantees ; ,

. eould never lease or convey their land without the permis-

sion of the President of the United States. However, we 7

_ think this factor strengthens the defendant’s argument, we"

especially ini light of the fact that some of the individually, 7

granted lands were located near to, or adjacent with, the”

tracts reserved for the chiefs and their tribes.’ ‘The United

Nation has recognized the correctness of excepting the

tracts ‘‘reserved’’ from the land for which they are to be

compensated. The same recognition should be given to

the individual ‘‘grants’’ located within the ‘‘reserved”’

Indian community. As to the “grants’’ not located within

. the community, it has been the practice of the Indian Claims

Commission not to include in the area for which compen-

sation is to be allowed, lands which, though ceded to the

‘ United States under one provision of a treaty, were by

subsequent treaty provisions to be granted by the United ©

States to third parties. ‘Citizen Band of Potawatomie In-

dians v. United States, 6 Ind. Cl: Comm. 414, 426 (1958),

' 14 Ind. Cl. Comm. 518, 566 (1964); Red Lake, Pembina and

White Earth Bands v. United States, 6 Ind. Cl. Comm: 247,

334-335 (1958), aff’d 164 Ct. Cl. 389 (1964). With this

practice Wwe concur.

The next issue for decision is the standard by which to.

measure the amount of the United Nation’s award. This

court has held that the measure of recovery in cases as- -

serting claims based on cessions for unconscionable consid-

eration ‘‘* * * is the difference between the true market

value of the land ceded at the time of the cession and the

consideration paid for such land by the Government, less

offsets for gratuities and less any payments the United

A

4

| : ; ;

States may have ‘made ‘on the claif’.”” Miami Tribe of

Oklahoma v. United States; 146 Ct. Cl. 421,:470, 175 F.

Supp. 926 (1959). . And, as stated in the Osage Nation of |

Indians v. United States, 3 Ind. Cl. Comm. 231, 236 (1954),

‘‘Market price is the highest price estimated in terms of

- ’ money which land will bring if exposed for sale in the

'" open market with a reasonable time allowed: to find a

purchaser buying with knowledge of all the uses and pur-

poses to which it is best adapted and for which it is capable

\ Of being used.’’ To the extent not withheld from them‘ by

‘ the 1816 reservation, the Indians are entitled to have con-

‘sidered in fixing their award the enhancement in the value —

of Area 147 caused by the minerals it contained. United

States v. Shoshone: Tribe, supra. In determining ‘‘fair

- market value,’’. what is called for is a valuation of the

properties as a whole and not the mere sum of the values

of quantities of various individual. components such as_

mineral deposits, or stands of timber, or the value of the

bare land. The Yakima Tribe v. United States, 158 Ct. Cl.

672, 696 (1962); United States v. Certain Lands, 45 F.

Supp. 126 (S.D.N-Y. 1942). ‘We note, however, that while

‘‘fair market value’’ is the applicable standard of measure-

ment, it may be'more or less than the Government’s statu-

tory. minimum price for land. Miami Tribe of Oklahoma,

| - supra, at 451. ‘(Emphasis supplied. )

We have found that the Commission erred i in a Silo .

ing Article 2 of the Treaty of 1816, swpra.: In light of its

interpretation, the Commission erroneously failed to. con- .

sider evidence showing how the- lead deposits would in-

fipence, at least to some extent, the total fair market value.°®

> We should not try to — the correct fair market value a

6 pS Aut 148 eoutelns no — deposits and although the

_ title of the United Nation to Area 148—A has a diffetent origin,

there should be no difference in the legal standards used in valuing

“Area 147 and all of Area.148. Minnesota Chippewa Tribe, et al.

- United ‘States, 161 Ct. Cl. 258, 269 (1963).

1

. *

Babes

"i

19a

but should remand the case to the Commission to perform

that function. eae Se =

“In the federal system it has been the usual rule that,

' where the reviewing court: exposes the legal error in the

decision of an administrative agency, it should not decide ~

‘for itself those remaining issues within the agency’s special

competence, unless there could be only one answer; if the

agency would have room, to choose, the court should remit °

| Spokane Tribe of Indians v. United States, 163 Ct. Cl. 58,

<

thg case to allow that discretion to be exercised.’? The

70 (1963), and see cases collected therein.

‘This court has followed that standard on factual or dis-

-cretionary questions brought here from the Indian Claims

Commission.”” The Spokane Tribe of Indians v. United °

States, supra, at 70, and see cases collected therein. ‘‘Con-

gress has designated the Commission to ‘hear and deter-

mine’ the claims (25 U.S.C. section 70a) ; this court’s func-

tion is that of review (25 U.S.C: section 70s).’” The

Spokane Tribe of Indians v. United States, supra, at 71,

‘and cases collected therein at footnote 12. - |

In this case a remand is cléarly in order. We think it

incumbent upon the Commission to answer the following

~~ questions: (1) what is the fair market value of Royce Area

‘1487 (2) what is the fair market value’ of Royce Area

147, including, not just the value of the land without mineral

deposits, but also whatever -énhancement “‘known’’* min-

* By “‘known”’ we do not mean only those deposits that had ac-

tually been discovered as of July 29, 1829, nor are we requiring

that there must have been firm proof at that time that lead was

Present within a given tract. The test as to whether mineral de-

_-— posits are.“‘known”’ to exist is an objective one, ‘‘* * * based on

> i

the known and observable conditions as they should be evaluated

by practical, prudent, informed business men.”’ Estate of Charles

_ .O- Fairbank v. United States, 164°Ct. Cl. 1, 13 (1964). ‘f[T]he

' over-riding standard is the reasonableness of a belief that the land

contains [lead] which can be developed commereially.”’ ¢bid.

erals might add?* and (3) what, then, is the total fair mar-

ket value of Royce Areas 147 and 1481 The Commission

must note that since the $0.70 per acre value figure it deter-

mined was supported by substantial evidence, as far as the

‘ collection of such evidence went, said figure is the minimum

- . valuation it can now find. See Nez Perce Tribe of Indians - -

v. United States, 176 Ct. Cl. (1966). ‘We agree, however,

with the Commission’s determination that from the award

granted to the United Nation is to be subtracted $375,691.28,

representing allowable gratuitous offsets and the considera-

‘ tion paid ‘by the United States in 1829. In redetermining

the value of Area 147, the Commission must also note that

the existing record contains substantial evidence showing

the value of the ‘‘known’’ but unselected lead deposits as ..

of 1829 to be more than negligible. Of course, it is the

Commission’ 's function to determine exactly what that value

was and we do not‘pretend to make a determination of that

issue.

We have alsa head that the Commission was correct in

- finding that the reservation of a maximum of 144,000 acres .

out of the area ceded to-the United Nation in 1816 did not

have to be exercised in order to be valid, but, the Commis-

sion erred in finding that the President could pick and

choose mineral lands, whenever and wherever located, so as

to have such acreage include all-the lead lands within Area

147, up to the specified maximum. Accordingly, the Commis-

sion should find what number of acres within-Area 147 had

® For example, the probability that roads would be built to pass

through mining areas would cause an increase in the value of the

land containing lead ‘and its neighboring tracts beyond the. increase

occasioned by the lead itself; even if-the Government could choose

its tracts under the reservation at random, the value of the Indian

lands neighboring those tracts would also’ increase even if they

did not contain lead de Parenthetically, we’ may observe

that for this reason the ex of all mineral enhancement from

the award would have been improper even if the Government’s

random selection method had been authorized by the treaty.

21a

actually been selected by the United States as of July 29,

1829 (through the town-site reservation and the granting

of mining leases and permits) and-should subtract the fair

market ‘value thereof from the fair market value of Area

147 as a whole. The fair market value of this remainder

of Area 147 is to be allocated to the United Nation’s suc-

_ cessors im the ratio that the acreage ceded to the United

States bears to the total acreage of Area 147 less that

acreage actually selected by the United States. The “acre-

age ceded to the United States”’ is the total acreage of Area

147 less the 144,000 acre reservation and that part, if any,

' of the 16,640 acres reserved and granted under Articles 3.

and 4 of the Treaty of 1829 situated within Area 147. The

United Nation’s successors are also to receive:the value of

Area 148, less that part, if any, of the 16,640 acres situated

therein.’ | :

We may suppose that the United States might have done

better for itself than this if it had made a timely selection

‘of its 144,000 acres, including mineral lands, in a: propér .

manner, but to reconstruct such a hypothetical, selection.

now would involve guesswork and be purely speculative.

The United States must bear the consequences of the im-

_ proper and dilatory way it went about the selection. Our

method, however, does.allow it the benefit of its actual selec-

tions, even though not properly made. The intervention

of the ‘‘Eastern Potawatomie’’ and their claim to share

in this award represent issues which are severable from the

liability of the United States herein. We have servered

them, and suspend judgment thereon pending our. deci-

sion in Appeal"No. 5-65. With respect to the liability of

the United States, the findings and order of the Indian

Claims Commission are affirmed in part and reversed in

part, as indicated in this opinion, and the case is remanded

to the Commission for further proceedings consistent: with

this opinion. . ?

Affirmed im part, reversed in part, and remanded.

‘ 22a

APPENDIX

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o,9,0,9,9. @0@ Arees ceded by United Trites tn 1816

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Sa hs siiisis Remeinder ef cree ‘received &

hb %.* ssesege United Tribes Te 1816. J -

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wl AGdttione) eree ceded by United

i Wee im 1629

Cee ‘Bountery of Moyce Ares SO, coded

; by Sec end Fea in 1804

Unabrecasted cree aumbers ere from Reyce

Map 1.—Areas ceded, 1804; ceded and received, 1816; ceded, 1829.

NOTE.—This map is taken from the Government’s brief. Appar-

ently, the correct scale is 35 miles to the half-inch.

=

a

23a

APPENDIX B

Pertinent Portion of ‘the Opinion of the Indian Claims

Commission, 11 Ind. Cl. Comm. 693, 705-710

(The opinion is divided into five numbered sections, each

dealing with a- separate i issue. There is set out below the

section on the issue involved in this petition. The entire

opinion is contained in the Appendix to Appellants’ Brief,

which is part of the record certified to this Court by the /

Count of Claims.) @ ae

saree THE INDIAN CLAIMS COMMISSION _

Docket No. 217

Crrizen Bann or PorawaTom1 INDIANS OF OKLAHOMA

‘and

. Ponswasens Nation REPRESENTED By Crtizen Banp oF

Potawatomi InpIaNs oF OKLAHOMA, ET AL,

Docket No.15-K .

‘Tue Pram Banp or THE PorawaTomis

Taiwe or INDIANS, ET AL,

Docket No. 29-J

/(Hawanvas InpIan CoMMUNITY, ET * ALL, Petitioners,

‘ ,

Tux Unrrep States or AMERICA, Defendant

Decided: Nov. 29, 1962

Appearances :

Howard D. Moses and Robert Stone J ohnson, with whom

were Giddings Howd, O. BR: McGuire and Louis L.

Rochmes, Attorneys for Petitioners i in Dockets 217

and 15-K.

Walter H. Maloney, Attorney for Petitioner in Docket

29-J.

Sim T. Carman, with whom was Mr. Assistant Attorney

General Ramsey Clark, Attorneys for the Defendant.

&

24a

Opinion of the Commission

Watkins, Chief Commissioner, delivered the opinion of

‘the Commission.

This case is now before the Commission for a determina- _

tion as to: 2

Iv. The validity of petitioners’ ‘claim of title to the lead |

nee lying within Royce Area 147.

IV—THE Vaurry OF, PerrrionErs’ Ciams or Trriz To

9 Leap Lanps Lying Wiruin Royce Anza 147,

The Treaty of August 24, 1816 (7 Stat. 146) between the ©

United States and the Chiefs and warriors of the United

Tribes of the Ottawas, Chippewas, and Potawatomies pro-

vided that the United States relinquish to the Ottawas,

_Chippewas and Potawatomies all of Royce Area 147 and

that part of Royce Area 148 lying west of the Fox River.

Said relinquishment contained the following language:

. except three leagues square at the mouth of the

Ouisconsing river, including both banks, and such

other tracts, on-or near ‘to the Ouisconsing and Mis-

sissippi rivers as the president of the United States

‘may think proper to reserve: Provided, T’ « such

other tracts shall-not in the whole exceed the 9u atity

that would be contained in five leagues square.

Petitioners state that the reservation of 5 leagues square

in the 1816 Treaty gave the President a right to reserve a

maximum of 144,000 acres out of the area relinquished to

the United Nation under Article 2 of the 1816. Treaty,.

tHlat this reservation in order to be effective had to be ex- -

ercised; that it was exercised only with respe@t to the

towtiaite of Galena, said townsite consisting of 640 acres.

Petitioners therefore state that as of July 29, 1829, the

PARR AIRES OM TERRE ee eS =

25a *

United Nations et al., still held all the area then ceded ex-

cept for the 640 acres reserved for the townsite. —

_ Petitioners also take an alternative position to the one

stated in the preceding paragraph alleging that as of J uly

_ 29, 1829 the United Nations et al., Indians still held the

Same area subject to an unexercised right of the Govern-

ment to acquire in addition to the section reserved for its

townsite a further 143,360 acres taken from the area as.a

whole. (Pet. Brief p.-6): sil

The defendant contends that Article 2 of the Treaty of

1816 provided that lands to the extent of 144,000 acres

were exceptéd from the relinquishment in the Treaty of 1816 |

and were retained by the United States. Defendant further

states that the. retained 144,000 acres were lead lands and

were within Royce Area 147 and that said right to reserve

Said lead lands was not terminated by lapse of time nor

‘failure to select them before the Treaty of July. 29, 1829.

In support:of their position Defendant submits the follow-

. ing argument and evidence: - —

The report-of the Treaty Commission. for the Treaty of

. August 24, 1816 states in part, ts eee

Within the boundary which we were directed to re-

cede are contained those immensely valuable lead lands

which for some time past had attracted and occupied

much public attention; * * * knowing the universal

¢lamour that would have been excited by the entire -

' relinquishment of those objects; and not: being certain

that it was contemplated or intended by our instruc-

tions, we thought it advisable to endeavor to introduce

into the Treaty a stipulation which would: authorize

the President to make such reservations as would in-

clude all those mines, and we fortunately succeeded in

it. ,

_ Corresporidence from Lt. Martin Thomas on September

30, 1827, who at that time was the Agent of the President

26a

for the selection of the United States lead reserves and

Superintendent of. the Upper Mississippi Valley Lead. —

- Mines, directed to his superior officer, Lt. Col. George Bom-

ford, at Washington, D. €., clearly indicates it was Lt.

Thomas’ opinion that the United States had. retained 144,-

000 acres of lead land within Royce Area 147 and that the

U.S. Government location of, the reservations in detached

parcels was at the discretion of the Government. (Def.

_ Ex. 275, p. 523) ‘This opinion of Lt. Thomas is sub-

stantiated by a letter from Lt. Col. Bomford dated May

18, 1829, which date was just 2 months prior to the ‘treaty

of cession on July 29, 1829. This letter was directed to

Captain T. C. Legate, the newly appointed superintendent -

of the Fever (Galena or Bean) River lead mines within

Area 147.

It should be pointed out that at the time of said letter

Lt. Col. Bomford held the title of Supervisor of the Lead

‘Mines of the Upper Missisippi Valley.

‘This letter stated that by the Treaty of 1816 a right toa

portion of the lands described was retained by the United

States. The letter then continued with the —— lan-

guage:

. +. portion of the decattinil lands was are an by

the US.—namely, three leagues square at the mouth

of the Ouisconsin, and five league square in such other

tracts as the President might think proper té reserve.

The location and bounding of the reservation of .the

‘ three leagues square first mentioned was determined

upon and settled at the time of the making of the treaty,

(of 1816) ; but as to the. location of the other reserva-

tion, of five leagues square, that question was left open

.. by the treaty to be settled in the future by the President

of the U.S.; and the chief object of all the present —

measures is, to enable the Goverment to determine what

particular tracts or sections of land it will be most to

2a.

| the advantage of the Governsseit to talie possession of

under the right retained (by the 1816 treaty). ‘The “

. selection is left without instruction as to time or situa-

tion within those limits, and may be taken, either in one *

body or in as many detachments or . paenle, as was

thought proper. c

Up to and Secluding | the date of this opinion no ee

of the 5 leagues square retained im the Treaty of 1816 has

been retained in fee by the United States other than the

townsite of Galena, referred to above, which reservation

_ for said townsite contains 1 section or 640 acres.

Defendant further states that in the Treaty of August

18, 1825, (7 Stat. 272), in which the parties were the United

States and the United Nations et al., together with other

Indian tribes, said’ Indians in Article 10 of the Treaty con-

. firmed their lack of interest in the retention contained in

“the —— of 1816. Said Article 10 provided that: ’

It being, however, well understood that the reserva- _

tions at Fever River, at the.Ouisconsin, and St. Peters,

~ and the ancient settlements at Prairie Des Chiens and

Green Bay, and the land property thereto -belonging,

and the reservations made upon the Mississippi, for the

use of the half-bréeds, in the treaty concluded with the

Sacs and Foxes, August 24, 1824, are not claimed by

* either of said tribes.

The reservation not to exceed 5 leagues square provided

for in the Treaty. of 1816 was more than ‘sufficient to cover

all lead lands known in 1829 or since discovered within

Royce Area 147. Petitioners through their witness Charles

A. Behre, Jr., testified that the total lead bearing lands with-

in Royce Ares 147 which have produced lead would not ex-_—_-

ceed 40 to 50 thousand acres (Tr. pp. 488-489; Def. Find-

ings 15 to 19) or approximately 4% of the area provided for

28a

in the reservation of § leagues square in Article 2 of the

Treaty of 1816. ‘

‘The defendant through evidence contained in its Exhibit

275 showed that as of August. 1, 1827, estimates made by

Lt. M. Thomas, the duly appointed and acting agen of the

President of the United States, declared that the total

mining permits issued for the 320 acre leases granted to

miners amounted in 1827 to about 20,000 acres. Further,

ie

defendant’s exhibit 216 showed that as of July 29, 1829,

there had been issued by the President or his agents a total

of only 63 bonded and 320 approved lead mining and.

smelter leases within the entire Upper Mississippi Valley

Lead Region, which region: included all of Royce Area 147

: and other lands also. . od

It is the opinion of the Commission after considering the

pertinent evidence, that it “was the intention of the de-

fendant to reserve unto itself all the lead lands contained

in Royce Area 147; and that said lead lands were effec-

tively reserved by the Treaty of 1816 hereinbefore re-

ferred to. The Commission further finds: that the object

of the reservation was to enable the Government to de-

termine what particular tracts it wished to take possession

of ufder the right retained by the 1816 treaty, and

further that said reservation in the treaty was left with-

out instruction as to time or location and that said tract .

or tracts could be taken in as many parcels as the de- |

fendant should think proper. The Commission further finds

that the defendant exercised this right with a reservation

of 640 acres at the townsite of Galena and that the defend-

ant further partially exercised this right m7 yung 63,320

mining leases by July 29, 1829. P

As stated above, these: leases included lands within the

entire upper Mississippi Valley Jead region, which region

_ ineluded all of Royce Aréa 147 and other lands also. (Def.

Ex. 217) This Commission finally finds on this point that

~petin ° ; o

29a

the defendant did not exercise its right of reservation

as to the complete 144,000 acres retained in the treaty

of 1816, but that this right was not lost by reason of the

fact that no further specific reservations were or have been

made, Macias We | :

‘@ + *

Argtuur V. Warxrns .

Chief Commissioner

-I concur:

Wo. M. Hour am ae ;

Associate Commissioner . |

Commissioner Scott did not participate in this decision.

a

_ APPENDIX C :

Statutes and Treaties Involved

. Section 2 of the Indian Claims Gommission Act, ap-

. proved August 13, 1946, 60 Stat. 1050, 25 U. S. C. 70a,

» provides in part: 7 Sane: : So

_ The Commission shall hear and determine the fol-

lowing 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 Executive 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 a

court of the United States if the United States was

subject to suit, (3) claims which would result if the

treaties, contracts, and agreements between the claim-

’ ant and the United States were revised on the ground

of fraud, duress, unconscionable consideration, mutual

.

>.

q-*

4

Mh

—

or unilateral mistake, whether. of law or ‘fact, ‘or any

: other ground cognizable-by a court of equity; (4)

~ claims arising from thé taking by the United States,

! whether. as. the result of a treaty of cession or other-

wise, of lands owned or. occupied by the claimant

without the payment for such lands of compensation

7 agreed. to by the claimant; and (5) claims based upon -

fair and honorable dealings that are not recognized a

rae any existing Tule” of lay or equity. vem F 4

The treaty of po © 4, 1816, Siiewid the United eo

States and “‘the united tribes of Ottawas, Chipawas, and —

_ Pottowotomees”” ote. 7 Stat. we abt in Pertinent:

,_ Parti

, oe

“, y

-.

ment ‘and cession, the United. States have .this day de-

‘fivered to said tribes a considerable quantity of mer-

~ chandise, and do: agree: to pay them, ‘annually, for-the

term “of - twelve years, goods to. the value of “one —

. thousand-dollars, reckoning that value at the first cost *.

' of’ the goods in the city or place in-which’ they shall

- be purchased, without any ‘charge for transportation ;

which said goods shall be delivered to the said tribes

at some ‘placé on thé Illinois river, not lower down

than Peoria.“And the said United States do more-

* over agree to relinquish to.the said tribes all the land

contained in the aforesaid cession of’ the Sacs and

Foxes, which lies north of a due west line, from the

- southern ‘extremity of Lake Michigan to the Missis-

sippi river, except three leagues square. at the mouth

of the Ouisconsing river, including both banks, and

» such other tracts, on or near to the Ouisconsing: and

Mississippi - rivers, _as- the president of the United

States may think proper to reserye: Provided, That. Y

such other tracts shall not in ‘the whole exceed the

‘\, quantity that would be contained in five leagues square.

—ww

eee ~ a ii otisideration, of the; foressid’ relinguish-

|

" — P

31a

The treaty of July 29, 1829, between the United States. oo

«and ‘‘the United N ations of Chippewa, Ottawa, and Pota-

watamies Indians,”’ ete., 7 Stat. 320, provides in pertinent |

part: : . s . ;

The aforesaid nations of Chippewa, Ottawa, and _

_ Potawatamie Indians, do hereby-cede to the United

States aforesaid, all the lands comprehended within

“the following limits, to’wit: Beginning at the Win-

nebago Village, on Rock river, forty miles from its

mouth, and running thence down the Rock river, to

a line which runs dué west from the most southern

bend of Lake Michigan to the ‘Mississippi river, and —

with that line to the Mississippi river opposite to

Rock Island; thence, up that river, to the United

States’ reservation at the mouth of the Ouisconsing ;

thence, with the south and east lines of said reser-

_ vation, to the Ouisconsing river; thence, southerly,

passing the heads of the small streams emptying into

the Mississippi, to the Rock River aforesaid, at the

Winnebago Village, the place of beginning. * * ® -