Appendix — Iowa Tribe of the Iowa Reservation v. United States

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Supreme Court, U.S.

. FILED

Supreme Court of the Anited States

Ocrosze Tze, 1971

nw. ¢L- D114

THE IOWA TRIBE OF THE IOWA RESERVATION

IN KANSAS AND NEBRASKA, et al.,

Petitioners,

THE UNITED STATES OF AMERICA,

Respondent.

SEPARATE APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

George B. Pierson

231 South La Salle Street

Chicago, Illinois 60604

Attorney for Petitioners.

La Salle Street Press-—Chicago/PrintecLink

INDEX TO APPENDIX

Findings of Fact of Indian Claims Commission in The

Iowa Tribe of the Iowa Reservation in Kansas and

Nebraska, et al. v. United States, 6 Ind. Cl. Comm.

PEE Std Si deensaunsnd Cbdceutaunit es

Opinion of Indian Claims Commission in The Iowa

Tribe of the Iowa Reservation in Kansas and Ne-

braska, et al. v. United States, 6 Ind. Cl. Comm. 464

OM sei wok ied bsyacdsoseeeios cucadeee ae,

Opinion of United States Court of Claims in The Sac

and Fox Tribe of Indians of Oklahoma et al. v.

United States, 179 Ct. Cl. 8 (1969), 383 F. 2d 991 .-.

Opinion of Indian Claims Commission in The Jowa

Tribe of the Iowa Reservation in Kansas and

Nebraska, et al. v. United States, 22 Ind. Cl. Comm.

EE cic nue tegackbarde ea a erat.

Opinion of United States Court of Claims in The Iowa

Tribe of the Iowa Reservation in Kansas and

Nebraska, et al. v. United States, Appeal No. 3-70,

Slip Opinion July 14, 1971 ......................

PAGE

Berore THE Inpiaw Ciams Commission

The Iowa Tribe of the Iowa Reservation

in Kansas and N ebraska, the Iowa

Tribe of the Iowa Reservation in Okla-

homa, et al., the Sac and Fox Tribe of

Indians of Oklahoma, the Sac and Fox

Tribe of Missouri, Sac and Fox Tribe

of Mississippi in Iowa, ot al., > Docket No. 135

Petitioners,

The United States of America,

Defendant. )

Decided: July 2, 1958

FINDINGS OF FACT

The Commission makes the following findings of fact:

Petitioners

1. The Iowa Nation of Indians is comprised of peti-

tioners (1) the Iowa Tribe of the Iowa Reservation in

Kansas and Nebraska and (2) the Iowa Tribe of the Iowa

Reservation in Oklahoma. Both of the petitioner tribes

are residing within the territorial limits of the United

States and are the sole successors in interest to the Iowa

Nation of Indians, and, pursuant to the provisions of the

Indian Claims Commission Act (60 Stat. 959) and on behalf

of said nation and all its members, are entitled to present

these claims, relative to the title and ownership of lands

set forth in Finding 4 herein. (Iowa petitioners proposed

finding 1; Defendant’s finding 1) [464]

2. The Sac and Fox Nation, referred to in the petition

as the “Confederated Sac and Fox” is comprised of three

bands, petitioners herein, and, residing within the terri-

torial limits of the United States, are the successors in

interest to the rights of the Sac and Fox Nation. These

bands are: The Sac and Fox Tribe of Indians of Oklahoma,

represented by individual member peiitioners Edward

Mack, Pauline Lewis and William Newashe; The Sac and

Fox Tribe of Missouri, represented by individual peti-

tioners Charles \’. Robidoux, John Connell, Dorothy Gil-

fillian, Thomas Green, and Thomas Herrick; and the Sac

and Fox Tribe of the Mississippi in Iowa, represen.ed

by individual member petitioners, Kenneth Youngbear,

Charles Davenport, Percy Sear, and Columbus Keahna.

The petitioner tribes as weli as the individual member pe-

titioners, on behalf of the Sac and Fox Nation and all its

members are entitled under the provisions of the Indian

Claims Commission Act to present these claims relative

to the title and ownership of those lands as described and

set out in Finding 4 (Tr. 3-7).

Subject Matter

3. The lands involved in this proceeding are situated

in north central and northeastern Missouri and south-

eastern Iowa and were a part of that vast territory, which

was acquired by the United States from France by virtue

of the “Louisiana Purchase” in the treaty concluded on

April 30, 1803 (8 Stat. 200), such acquisition being subject

to a right of occupancy in favor of the Indian tribes due

to their original and previous possession.

4. Petitioners ceded all their right, title, and interests

in the lands involved in this proceeding by virtue of sep-

arate treaties, each [465] concluded on August 4, 1824. Each

cession included all of those lands officially designated as

Royce 69 and 120, and the total area ceded as set out in

“Article 1st” of each treaty reads as follows:

A a a i emt Ait ce Be et

The (“Sock and Fox tribes .. .” “Ioway ...”) ... do

hereby agree, in consideration of certain sums of

money, eic. to be paid to... by the Government of the

United States, as hereinafter stipulated, to cede and

forever quit claim, and do, in behalf ef their said tribes

or nations, hereby cede, relinquish, and ‘orever quit

claim, unto the United States, all right, title, interest,

and claim, to the lands... within the limits of the state

of Missouri, which are situated, lying, and being, be-

tween the Mississippi and Missouri rivers, and a line

running from the Missouri, at the entrance of Kansas

river north one hundred miles to the northwest corner

of the state of Missouri and from thence east to the

Mississippi...” (7 Stat. 229; 7 Stat. 231)

(a) Excepted from those lands ceded under the separate

treaties of August 4, 1824 is that portion Officially desig-

nated as Royce 50, which was ceded under the provisions

of the purported treaty of November 3, 1804 between cer-

tain members of the petitioner Sac and Fox Nation and the

United States, and described generally in sc far as pertinent

to these proceedings as lying between the Mississippi River

on the East, and the Missouri River on the South, and

bounded on the west and north by a line running north from

a point on the Missouri River at the south of the Gas-

connade River to a point on the Jefferson River thirty

miles from the mouth, thence down the Jefferson River to

the Mississippi. (Iowa Pet. Finding 5; Sac and Fox Find-

ing 5; 7 Stat. 84).

.b) Cession 69 lies wholly within the State of Misscuri;

while Cession 120 is located in the extreme southeastern

portion of the State of Iowa and is described in Article

1st of the Treaty of August 4, 1824 concluded with the

petitioners Sac and Fox Nation as that land lying between

the Des Moines [466] and Mississippi Rivers and south of

that line running from the northwest corner of the State of

Missouri east to the Mississippi River. (7 Stat. 229; Eight-

eenth Annual Report of the Bureau of American Ethnol-

ogy 1896-1897, Part II “Indian Land Cessions in the United

States,” Charles G. Royce—My Missouri I, My Iowa I.)

5. The petitioner, Iowa Nation of Indians, seeks to

establish a compensable interest in those lands, or a portion

thereof, ceded under the Treaty of August 4, 1824 (7 Stat.

231) by showing that said nation held (1) aboriginal Indian

title at the time of cession, or (2) a “recognized title” to

the area so ceded. (Iowa proposed findings of fact, p. 2,

199)

6. The Commission finds and concludes as a matter of

law that the defendant did not recognize or intend to rec-

ognize either under the Prairie du Chien Treaty of 1825

(7 Stat. 272), or any other treaty, statute, or agreement,

any compensable interest, title, or legal right to the lands,

or any portion thereof, in Royce cessions 69 and 120 as

described in Finding 4.

7. The petitioner lowa Nation of Indians limits its pres-

ent claim based on aboriginal use and occupancy at the time

of the treaty of 1824 (7 Stat. 231) to those lands within that

portion of Cession 69 lying west of the watershed between

the Grand and Chariton Rivers.

(a) Iowas Ex. 183—a map introduced by the petitioners

Iowa Nation to “show the situation with respect to exclusive

use and ownership of Cession 69 and 120 as of the year

1824” (Iowa proposed Finding 22; see Sac and Fox pro-

posed Finding 17). [467]

(b) Dr. Wailace, vetitioners’ expert witness, testified

_ that he prepared Iow., Exhibit 183 and that this map rep-

resents: “. ... the territory described in the Treaties of

1824 involving the cession of the Sac and Fox and the Iowa,

however, excluding the territory covered by the Missouri

section of Cession 50. The area to the west is colored pink

and represents the region predominantly used by the Iowa.

The area to the east is colored green and represents the

area predominantly used by the Sac and Fox... .” (Tr. 20

and 21).

8. The Iowa Nation of Indians are classified as of the

Siouan linguistic stem of the Chiwere subdivision, which

includes the Otoe and Missouri Indians. See:

(a) Indian Tribes of North America—Swanton, p.

267. “Tradition assigns to this tribe a single origin

with the Winnebago, Oto and Missouri, and it is borne

out by the close linguistic relationship between them.”

(b) Iowa Introductory Exhibit I.

“Traditional and linguistic evidence proves that the

iowa sprang from the Winnebago stem, which appears

to have been the mother stock of some other of the

southwestern Siouan tribes; but the closest affinity

of the Iowa is with the Oto and Missouri, the difference

in language being merely dialectic.”

9. Sometime toward the middle of the eighteenth century

the Iowa Tribe or Nation moved southwardly from about

the Okoboji Lake region ia the northwestern part of Iowa

along the Missouri River where ther finally settled just

south of the present city of Council Bluffs, Iowa. There they

remained until about 1765. This location is northwest of

the boundaries of Cession 69. .

(a) Lewis and Clark reported in 1804 the location of the

old Iowa village on the Missouri River as being 30 miles

above the entrance to the [468] River Platte (Iowa Ex. 21;

Def. Ex. 9). i

(b) Auguste Chouteau referring to this period in notes

he had written on the Iowa in 1816 states “The Iowas

formerly had their village on the right bank of the Missouri

about eighteen miles above the river Piatte on the lands

of the Mahas.”

‘(e) In the “Iowa Journal of History and Politics 1938,”

Mildred Mott Wedel stated: “To sum up, then, the Ioway

Village was on the east side of the Missouri River about

seventeen miles above the mouth of the Mosquito River,

and three miles below the present day Indian Creek, just

south of a high bluff. This would be just south of the City

of Council Bluffs below a bluff that stood out noticeably.”

(Def. Ex. 5)

(d) Dr. Wallace, petitioners’ expert witness, testified as

follows:

“They (lowa) apparently were under pressure from

the Sioux people in this region who surrounded them

to the north, to the east and also to the west, and

drifted southward along the Missouri River, appar-

ently stopping for a time somewhere in the neighbor-

hood or somewhat north of the Little Sioux River; they

moved down to a site, village on the east bank of the

Missouri River, a mile or two south of Council Bluffs.”

(Tr. 21 and 22)

Questioned on the date of the movement to the Council

Bluffs area and its relative location to Cessions 69 and 120,

Dr. Wallace stated : “Council Bluffs is northwest of Cession

69 and 120. The precise date at which they arrived at

Council Bluffs I do not know. It was probably about 1725;

somewhere in the early part of the Eighteenth Century.”

(Tr. 22) He further stated that: “They remained in the

Council Bluffs area until about 1765, so they remained in

the Council Bluffs area from 1730 to 1765.” (Tr. 244)

(e) Dr. Zachary Gussow, who was called as an expert

witness by the defendant substantially corroborated Dr.

Wallace’s testimony on this point [469] when he stated that

the Iowa Tribe started to move slowly out of the Spirit Lake

and Lake Okeboji region and started to hunt further south

from the northwestern corner of Iowa, around 1700, and by

1721 had moved down to a location near Mosquito Creek,

near the Missouri, in approximately the vicinity of Council

Bluffs, where they remained until about 1757. (Tr. 296)

10. During a period from about 1755 to 1765 the Iowa

Tribe abandoned their village site at Council Bluffs and

moved slowly eastward in a body and established their

principal village on the Des Moines River approximately

40 leagues up this river near the present site of Selma,

Iowa. There they remained until approximately 1812. A

second Iowa village was established during this period on

the Iowa River and there are reports of two lesser Iowa

townsites across the Mississippi River in Illinois, which

were abandoned around 1803 or 1804. All of these village

locations are outside of Cession 69 and northeast of the

area claimed by the Iowa Tribe or Nation in this proceeding.

(a) “An Account of Louisiana”—1803. An abstract of

documents in the offices of the Secretaries of State and of

the Treasury:

“Returning toe the Mississippi and ascending it from

the Missouri, about 75 leagues from the mouth of the

latter, the River Moingona, or Riviere de Moine enters

the Mississippi on the west side and on it are situated

the Ayoas, a nation originally from the Missouri, speak-

ing a language of the Otachatas; it consisted of 200

warriors before the smallpox lately raged among them.”

(Iowa Ex. 19)

Earlier accounts from Spanish sources take notice of this

Iowa Des Moine River location as witness the report of

Francis Gouget to de Galvez in 1777. In describing the

various Indian sites from the trading post at St. Louis

Couget wrote: [470]

“They (Iowa) are located eighty leagues from this

village (St. Louis) by water by the Misisipi river on the

shores of the Muen River.” (Iowa Ex. 13)

Lewis and Clark wrote in 1805:

“Their village is 40 leagues up the River du Moin,

their country join the Sious lands and extends to the

Missouri River...” (Def. Ex. 9)

Thomas Andersen, a British trader, reported in 1801-1802:

“T ascended the Des Moines about fifty miles, to the

Ioway tribe of Indians... .” (Iowa Ex. 18)

(b) Colonel Auguste Chouteau, who spent many years

during the iatter part of the 18th and early part of the 19th

centuries among the Missouri Indians, and according to

William Clark he was partly responsible for the Iowa

migration from Council Bluffs to the village sites on the

Des Moine in the 1869's,

According to Chouteau:

“The Iowas formerly had their village on the right

bank of the Missouri about eighteen miles above the

river Platt on the lands of the Mahas.”

He then sets out the extent of country while they were

living at the Missouri site:

“They (Iowa) however pretended to claim that smell

tract of land upon which necessity had compelled them

to settle; but their country was bounde’ on the north

by the dividing ridge that separated the waters of the

Grand & Des Moins rivers, east by the Otos, south by

the Missouri river which separated them from the

Mahas & west by the Sioux their most inveterate

enemies. .. .”

and then Chouteau speaks of their leaving the Council

Bluffs area:

“Afraid to hunt on their own lands lest they might be

attacked by the Sioux, and constantly threatened by

(illegible) Mahas & Otos who wishes to drive them from

(illegible) small tract of country on which they had

established (illegible) they determined on a removal

to the country of the river des Moins which had long

before been abandoned by the Moingonas a band of

Sioux who formerly inhabited it. And for that purpose,

in 1765 they sent a deputation to Mr. de Leclede of

St. Louis who then had the exclusive trade of the

Missouri requesting to know whether in case of their

removal [471] he would send braves among them in the

new situation which they proposed to occupy, his

answer being favorable about one-half of the Tribe

moved in the same year to the country they had

designated being about a hundred and fifty miles up the

river des Moins, .... the balance of the tribe all

removed te the same place in the course of two or

three years.” (Def. Ex. 12)

Stephen Long in Thwaites “Early Western Travels,” Vol.

15, 1819-20, recounts the Iowa leaving the Missouri site as

a complete detachment from this area. He states:

“The loways, after having resided in a village on the

lower part of the Missouri a considerable space of

time, were rejoined by the band above mentioned;

when they abandoned their position, and returned to

the waters of the Mississippi and erected a village on

the Moyene, where it still remains.” (Iowa Ex. 62)

Governor William Clark, who participated in the treaties

of cessions involved in this proceeding, relying upon

Choutean’s notes, stated in a letter to the Secretary of

War, dated February 20, 1821:

“.... This Tribe (loways) had been induced by Col.

Chouteau to abandon their country near the Council

Bluffs on the Missouri and settle on the River de Moin

to be more convenient to trade with them.”

being in Illinois, one located opposite the mouth of the

Io. a River and the other opposite the mouth of the Des

Moines. (Tr. 22)

He states further that they were abandoned in the early

1800’s and that:

“The main Iowa village during this period, lets say

roughly 1800 was probably on the Des Moines.” (Tr.

22)

Morse’s “The American Gazetter” from 1798 lists a “Lower

lowa Town” on the east side of the Mississippi River

some 61 miles below the mouth of the Iowa River, and an

“apper Iowa Town” on the east side of the Mississippi [472]

River. (Def. Ex..16). Pike’s report of 1807 indicates the

Iowa lived in two villages, one on the “De Moyen” and the

other on the “Iowa.” (Iowa Ex. 30)

11. Governor Clark sought to remove the Iowa Nation

from under the influence of the British during the War of

1812 by directing them to move south and west from their

Des Moines River village across to the Missouri River.

Some of the tribe made the effort and moved into the Chari-

ton-Grand River area where about 1816 the first Iowa vil-

lage was reported to be located somewhere on the Grand

River. Later in 1823 a permanent Iowa village was built

somewhere on the Grand River in which eventually the

whole Iowa Nation lived for a period. From about 1812 to

1827, because of the hostilities between Great Britain and

the United States and a certain friction among themselves

and with the Sac and Fox Indians, the Iowa Nation as a

tribal unit became greatly divided, some returned to their

old village on the Des Moines River, some moved over to the

Missouri River west of Cession 69 and joined up with the

Otoes and others scattered themselves about the Chariton-

Grand River area in undetermined numbers and at unknown

locations both within and without the area embracing the

western portion of Cession 69.

(a) By letter, dated September 12, 1813, Clark outlined

his proposal to the Secretary of War to move the Iowas

and Sac and Fox tribes from the Mississippi across to the

Missouri River in order to prevent them from joining the

English. He states therein:

“T have therefore thought it a correct measure to draw

off these tribes from the Mississippi and place them

on the Missouri and send the United States factory

which formerly supplied them at [473] Fort Madison,

up the Missouri to supply them on that River at a point

I shall assign for those Indians to remain during the

present Indian war.”

and further:

“T have sent also to the Ioways directing them to pass

across to the Missouri and a trader will be there to

trade with them.” (Iowa Ex. 42)

(b) The first reference to an Iowa village on the Grand

River is contained in an official report from Governor

Clark in 1816. (Def. Ex. 5). Dr. Gussow, defendant’s

expert witness, commented on this village site with refer-

ence to Clark’s letter:

“Some of the Iowa were divided on the question of

alliances between the two countries at war, Britain and

America .... the first documentation I have is about

1816, when the Iowa became divided at this period,

and some of the Iowa leave the Des Moines River

village...

It is at this time when they establish a site on the

Grand River, but where on the Grand River I don’t

know.

The first reference I have in a letter from Clark, ....

this is dated November 4, 1816, ....

The Grand River village is mentioned in a number

of documents post dating 1815 or 1816. In none of

these documents can I identify the location of that

village.” (Tr. 316)

Dr. Wallace, on cross examination refers to the same

Iowa village on the Grand River in the following manner:

The village of the Iowa on the Grand River which is

being talked about there, was established during the

War of 1812 to draw the Sac and Fox and Iowa away

from British influence and from contact with pro

British Indians in the upper Missouri.

As a consequence, the Iowa left their village on the

Des Moine and the Sac and Fox left their village at

Rock River and presumably other villages further up

came down.” (Tr. 170)

Earlier Dr. Wallace in a similar vein stated on direct

examination that: [474]

“During the War of 1812 the Iowa were brought down

from their village on the Des Moines and located tem-

porarily in settlements on the Grand River, on the

Osage River and on the La Mine River in order to

prevent contact with British agents.” (Tr. 31)

Dr. Wallace indicated that after the war the bulk of the

Iowa went back to their old village on the River des Moines.

(Tr. 32)

that one of the principal Iowa chiefs by the name of “Hard

Heart,” left the main body of the Iowa Nation at the Des

Moine River and moved westward and joined the Otoes

across the Missouri. Hard Heart did not approve of the

pro-British sentiments of his nation. His defection ac-

cording to Long resulted in a subsequent westward move-

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ment of the rest of his nation “. . . so that the Otoes, Mis-

souries, and Ioways were then united.” (Def. Ex. 26)

Apparently these followers of Hard Heart returned to

their village on the Des Moines River about 1820. (Def.

Ex. 5, 26; Sac and Fox Ex. 185.) George Sill by writing

from Fort Osage on October 1, 1820 confirms the divided

and meandering aspects of the Iowas. He states:

“This tribe (lowa) is about as numerous as the Kan-

sas. They are latterly much divided, so that I am un-

able to state precisely how many v'i'lages they occupy,

or where they are located. Abc half the tribe I

understand joined the Ottoes, near the Council Bluffs,

last year, with the intention of remaining there. I am

not sure whether they still remain there or not. The

other part of the tribe remains in two villages, I be-

lieve, on the Des Moines and Grand Rivers.”

Dr. Wallace attributes the Iowa migration to join the

Otoes in 1819 as stemming from a dispute with the Sac and

Fox. (Tr. 194) This fact seems to be confirmed by a letter

written to Secretary of War from Benjamin O’Fallon,

Indian Agent, dated September 25, 1819, which reads, in

part: [475]

“A misunderstanding having lately taken place between

the Sockees and the Ioways has induced the latter to

abandon their original residence (on the Domoin and

Mississippi) and locate themselves on this river; they

are now living vith the Ottres and Missouris who were

all once one nation.” (Iowas Ex. 61)

Thomas Forsyth, reporting on the Indians within his

agency, stated on May 12, 1822:

“The Ihowais have hereofore been a lost sheep, living

in two or three different villages, and the principal

chiefs with some few fcllowers living with the Ottos

whose language is similar to that of the lhowais. I

sent last fall a talk to the lhowais advising the whole

of that nation to live together in one village up the

River de Moine.” (Iowa Ex. 78)

(d) According to Forsyth the Iowa established a new

village somewhere on the Grand River in 1823, in which

the whole Nation was located. He states in his letter of

July 7, 1823:

“T have been informed that the Thowai Indians for-

merly residing during the summer months on River

de Moine have all removed and built a new village on

the Grand River which falls into the Missouri River

some distance above Chariton.” (Iowa Ex. 84)

Dr. Wallace spotlights the existence of the Iowa Grand

River village on his map introduced as Exhibit 183:

“Well, as we have said many times, this village which

is symbolized by that red dot was built in 1823, and at

that time according to Forsythe, it held ell or almost all

of the Iowa tribe, which would be at the top limit a

thousand or probably I would say of Iowa who did not

live there. But it would be the main village at that

time.”

Thomas Forsyth confirmed the fact of the Iowa with-

drawal from the Des Moines River site to the Grand River

village since they were now outside of his agency in 1824.

(Iowa Ex. 91)

According to Dr. Wallace the Iowa Nation remained at

their Grand River village for four years until 1827 and

then moved over to Little Platte River west of Cession 69

in 1827. (Tr. 57) [476]

12. As the frequency of white contact with the Indians in-

creased in this area, the activity of the Indian trader as-

sumed a more important role in the red man’s economy.

Hunting for the fur bearing animal, while eatisfying the

immediate wants, nevertheless provided the necessary

means of exchange for Indians to trade for the white man’s

goods.

(a) Dr. Wallace summed up the importance of hunting to

the Indian of this day in the following manner:

“Hunting would be extremely important to an Indian

tribe, not merely for the sake of the value of the meat

which a hunter could get for himself and his family

or for the skins and furs, and bone, which they could

use for making articles of clothing and other valuables,

but particularly because it gave them furs and pelts

which could be traded to Europeans for hardware and

dry goods which were regarded by the Indians as

essential elements of their standard of living at this

stage. So that the Indian currency system if we can put

in this phrase was made up of skins and furs.” (Tr.

42, 44)

Dr. Wallace also testified that with the increase of Indian

trading activity the production of agricultural products de-

clined. (Tr. 154-156) According to Dr. Wallace, Indian

agricultural activity centered about growing “. . . large

quantities of corn, beans, squashes, those things in several

varieties.”

(b) Dr. Gussow, in his report (Def. Ex. 114) confirmed

the importance of hunting to the Iowa Indians after the

coming of the whites. He states the following in his opening

paragraph under sub-title “Iowa Hunting Grounds”:

‘The Iowa lived a semi-nomadic life, hunting for sub-

sistence, for reasons of economic exchange with Euro-

pean traders, and augmenting their diet by planting

«mall quantities of corn, beans, squash, and other crops.

Iv is no exaggeration to state that with the coming of

the Europeans, hunting for exchange became the dom-

inant economic activity of the Iowa, as with other

Indians. The Iowa not only spent more time in hunt-

ing for exchange than in any other economic activity,

but their way of life was to become dependent upon

European articles of manufacture [477] to the point

where a failure to obtain trade goods could mean star-

vation.’

13. Delimitation of Iowa hunting grounds can be made

only in general terms. Documentation is practically nil.

Such questions, as intensity and frequency of use of a given

area and the relative size of an Iowa hunting party are

strictly matters of inference or even mere conjecture. At

the time the Iowa Nation was located at its village site near

the present town of Council Bluffs up until approximately

1765, the Iowas hunted close to the Missouri River area,

ranging eastward to the Des Moines and southwardly to

the Nisnabotna River, but the area primarily lies within

what is now southwestern Iowa, being generally north and

west of Cession 69. After the Iowa Nation moved eastward

(cirea 1765) to their Des Moines River village site they con-

tinued to hunt westward then to the southwestern part of

Iowa to the Missouri River in the general region of the

headwaters of the Grand and Chariton Rivers, and dipping

into the northwestern portion of Cession 69.

(a) Dr. Wallace’s testimony in reference to the Iowa

hunting area, circa 1765, refiects the difficulty in delimiting

the area. He states:

“By the time they reached Council Bluffs, still under

pressure from the Sioux, t-.-ir hunting probably .. .

and this again is inference . . . was southward along

the Missouri and eastward towards the Des Moines.

“T would think that by . . . well, from 1765 they prob-

ably were making use of the territory south of Council

Bluffs and in the general region south of the Des

Moines and between these two points (1) of the Mis-

souri river, which would include the pink area, Cession

69 and 120, although this as their hunting ground, isn’t

specifically delineated.” (Tr. 24)

Dr. Gussow in his report on the Iowa hunting grounds

during this period states: [478]

“The Iowa must have hunted in what is now western

Iowa, east to the Des Moines, south to the Nishnabotna,

and northward at least to the Boycr and perhaps to

the little Sioux River.” (Def. Ex. 114, p. 19)

Dr. Gussow cites Chovieau’s notes as outlining the Iowa

territory in 1760, and he concludes that the entire area lies

outside of Cession 69.

(b) In his notes written in 1816, Auguste Chouteau, re-

ferring to the period, circa 1760, attempted to delineate

the hunting areas or territory claimed vy the various tribes

in this region. Besides the Iowas, he noted the Otos, Mis-

souri, Sioux and Kansas, among others. His outline of the

Iova’s claim to the lands in this area has previously been

* set out in Finding 10(b).

1765, the Iowas continued to hunt westward to the Missouri

River. Thomas Anderson, an Indian trader, who spent the

years 1801-1802 with this tribe, stated in his report:

“T ascended the Des Moines about fifty miles, to the

Ioway tribe of Indians . . . These Indians hunted near

the Missouri, about ninety miles across the country

where we were located.” (Iowa Ex. 18)

In his report in 1807, Pike reported “The Iowas reside on

the river De Moyen, and westward to the Missouri.” (Iowa

Ex. 30) Stephen Long noted in recalling his early travels

“The Sauks, Foxes, and loways, hunt in the plains toward

the sources of Grand River, where elk and deer are still

numerous, and the latter dispose of their ‘pelfries’ to

traders on the Missouri.” (Iowa Ex. 63) Lewis and Clark

reporting on their expedition in 1805 place the lowa country

next to the Sioux: [479]

“Their (Iowa) village is 40 leagues up the River

Deemoen, their country join the Soues Lands and

extend to the Missouri River .... They are descendants

of the ancient Missouris, and claim the country west

enn

of them to the Missouri; but as to its precise limits, or

boundaries, between themselves and the Saukees and

Foxes, I could never learn.”

(d) After the War of 1812, when the Iowas for the most

part, had moved generally from their Des Moines River site

to locations on the Grand River and across to the Platte

River, Agent Sibley, who was stationed at Fort Osage,

reported in 1819 to Governor Clark that he believed the

Iowas had as just a claim to the lands northwest of the

Missouri as did the Osage who had ceded all their interests

to the lands north of the Missouri River in the 1808 treaty

with the United States. His report states, in part:

“I confess myself an advocate for the Ioways in this

matter .. . The claims of our Indian Tribes to lands

are so extremely vague and undefined, so conflicting

and intermixed, that I cannot conceive a much more

difficult task, than to assign to each tribe its proper

limits . . . Therefore I think it would much better

comport with the liberal views and benevolent policy

of our Government toward these poor creatures, to

satisfy them all by annuities, in proportion to their

numbers, for such lands we desire to add to our domain,

used as the hunting grounds of any Trit> or Tribes.”

and further, indicating use of the same area by neighboring

tribes,

“Perhaps, it would be just to say, that the forests and

wilds of Missouri belong in common to those Nations

of Indians who lived contiguous to them, and hunt thru

them. And that when our Government thinks proper

to reclaim those wilds for the use of one People, re-

numeration ought to be made in common to those

tribes whose natural pursuits are thus interfered with.”

(Towa Ex. 57)

In a subsequent report dated October 1, 1820, Sibley stated

in reference to the Iowa hunting grounds: [480]

-“The Ioways hunt principally between the Missouri

north of it, and the Mississippi river, from the heads

of the two Chacatons (Chariton), up to the Nodoway

and sometimes further up.”

(e) Dr. Wallace, petitioners’ expert, is of the opinion

that the Iowa traditional hunting grounds to which the

Iowas claimed “exclusive” control from 1800 to 1824 were

bounded by a line

“running up from the Missouri River along the water-

shed between . . . the Grand and Chariton Rivers, to a

point on the Des Moines and possibly across the

Des Moines for some small distance, then turning up

the Des Moines and westward to meet a line which

I believe I referred to in earlier testimony between

the Nottoway and Nishnebottonna Rivers which flow

southward into Missouri through the Platte Purchase.”

(Tr. 153)

In reference to the permanency and location of the Iowa

hunting villages or camps, Dr. Wallace confessed lack of

knowledge and consequently he was unable to determine

how frequently the Iowas returned to their hunting spots.

(Tr. 134, 158)

(f) Dr. Gussow states in his report that after the Iowa

had located themselves at the Des Moines River site,

“. .. the Iowa hunted in the Des Moines valley, prob-

ably ranging as far as Farebault’s trading post two

hundred miles up river, southwest into cession 69

towards the headwaters of the Grand and Chariton

rivers, and beyond, west to the Nishnabotna.” (Def.

Ex. 114, p. 20)

He states further that after 1810 and presumably until

the treaty of cession in 1824,

“The Iowa continued to hunt in the plains toward the

sources of the Grand river and in the western part of

Cession 69, but largely for secondary animals, elk

and deer.”

14. From about 1700 to 1824, the population of the en-

tire Iowa Nation averaged approximately 1,000 persons.

(Iowa Proposed Finding 30) [481]

15. The Commission finds from all the evidence that the

petitioner Iowa Nation of Indians and the petitioner mem-

bers thereof, are the successors in interest to the Iowa

Tribe or Nation which ceded under the Treaty of August

4, 1824 (7 Stat. 231) all its interest to those lands described

in Finding 4; and the Commission finds further that at the

time the defendant acquired title to the aforesaid lands

by purchase from France in 1803 until the Treaty of 1824,

the Iowa Tribe or Nation held original Indian title to those

lands described within the following boundaries:

“Commencing on the present Missouri-Iowa line at a

point which under the call in the Treaty of 1824

formed the ‘northwest corner of the state of Missouri’

due east along said line to the northwest corner of

Putnam county, Missouri; thence due south following

the western line of Putnam county and the western

line of adjoining Sullivan county, Missouri to the

southwest corner of Sullivan county; thence on a line

due west to thé southwest corner of Gentry county

Missouri; thence due north along the western line of

Gentry county to the place of beginning.”

Sac and Fox Claim

16. The petitioner, Sac and Fox Nation seeks to establish

a compensable interest in those lands or a portion thereof

ceded under the Treaty of August 4, 1824 (7 Stat. 229) by

showing that said Nation held (1) aboriginal Indian title

at the time of cession, or (2) a “recognized title” to the

area so ceded. (Sac and Fox Proposed Finding of Fact,

p. 2)

rai aaa eas Ni aa te

17. The Commission finds and concludes as a matter of

law that the defendant did not recognize or intend to

recognize either under the Treaty of 1804 (7 Stat. 84), or

| any other treaty, statute or agreement, any compensable

interest, title or legal right to the lands, or [482] any

portion thereof, in Royce Cessions 69 and 120, as described

in Finding No. 4.

18. The petitioner, Sac and Fox Nation limits its present

claim founded upon aboriginal use and occupancy at the

time of the Treaty of 1824 (7 Stat. 239 [229]) to those

lands within Cession 120 and that portion of Cession 69

which lies east of the watershed between the Grand and

Chariton Rivers. (Sac and Fox proposed Finding 17; see

Commission’s Finding 5).

| 19. Around the middle of the eighteenth century, the

| individual Sac and Fox tribes of Indians became closely

| allied due to their mutual difficulties with the French. They

subsequently began to move as a body southwestward from

the State of Wisconsin toward the Mississippi River where

they finally settled in individual village sites along and on

both sides of the Mississippi. These separate Sac and Fox

villages remain fairly consistent dering the years that

followed up to the Treaty of 1824 (7 Stat. 239 [229]). These

villages range along the Mississippi River area as far

north as the Turkey River and Prairie du Chien region,

and as far south as the mouth of the Des Moines River.

Generally the Fox Tribe occupied the upper villages and

the Sac Tribes the lower village sites. The small Sac vil-

lage at the mouth of the Des Moines River was the only

village of consequence that lay within the ceded area, it

being located in Cession 120.

(a) Dr. Gussow, defendant’s expert witness, states in his

report that the Sac and Fox established a village some

pte

place on the Rock River about 1760. (Def. Ex. 114, p. 28)

Auguste Chouteau in his notes [483] written in 1816 refers

to a similar occurrence when he states that the Allied Sac

and Fox Tribes, “ ... left their village on the Ouisconsin,

gradually descended the Mississippi and in 1764 settled on

Rock River.”; and he states further:

“The Foxes, or rather a band of them, also removed,

in the same time, to a place called Spanish Mines

(Dubuque’s) and no other tribe having opposed them

they have for a long time continued in uninterrupted

possession of that tract of country... .” (Def. Ex. 12)

Francisco Cruzat reported in 1780 that the Sac Nation

was on the Mississippi, “forty leagues” from St. Louis

(Sac and Fox Ex. 5). A later report made in 1797 by

Howard states that the Sac and Fox “. . . have three

villages in the vicinity of River Ana Indes (the Des Moines)

....” (Sac and Fox Ex. 14)

(b) in 1804 Amos Stoddard wrote to Governor Dearborn

concerning the Sac Tribes;

“T believe an opinion has generally prevailed that the

Sacks mostly resided on the East side of the Mississippi

whereas the contrary appears to be the fact. A trader

who has resided among them for upward of 20 years

lately informed me that he now resides among them

on the west side of that river... .” (Sac and Fox

Ex. 19)

In a subsequent letter to Dearborn also written in 1804,

Stoddard had this to say:

“How far the whites have encroached on them I cannot

learn—nor am I informed how far the claim of the

Saucks and Reynards extend down the Mississippi.

One thing is certain their claim extends back to the

Missouri where some of the whites have settled. They

conquered the lands on the Missouri from the little

Osages. ...

ap spepeeeemmeaaeea deaminase aaa

I believe an opinion has generally prevailed that the

Sauks and Reynards mostly live on the East side of

the Mississippi. This indeed was formerly the case

.... but they now mostly inhabit a large island formed

by a lake on the west side of that river just above

the mouth of the De Moine, only 258 miles above this

(St. Louis)” (Sac and Fox Ex. 20). [484]

In 1804 the Sac and Fox Nation ceded all its right, title

and interest to those lands described in Royce Cession 50

by the purported Treaty of November 3, 1804. (7 Stat. 84)

See Commission’s Finding No. 4(a). The ceded area ap-

parently includes the territory referred to by Stoddard.

Louis to begin his expedition up the Mississippi River. On

August 20, 1805 he arrived at the foot of the rapids de

Moyen which extend some eleven miles to the Sac village.

Pike encampted opposite this village and on the following

day addressed the chiefmen of the village. (Sac and Fox

i Ex. 29) This village at the confluence of the Des Moines

: and Mississippi Rivers is in Cession 120. In 1810 the re-

port was published as an “Ethnography of the Mississippi”

in which Pike set out in detail the locations of the various

Sac and Fox villages he had encountered. It reads in part:

“The first nations of Indians whom we met with in as-

cending the Mississippi from St. Louis were the Sauks

who principally reside in four villages . . . The first

at the head of the De Moyen on the W. shore consist-

ing of 13 log lodges (at Montresse, Lee County, Iowa) ;

the second on a prairie on the E. shore about 60 miles

above; the third on the Riviere de Roche, about three

miles from the entrance (Milan, Rock Island County,

Illinois), and the fourth on the river Iowa.

FPP SH POSSESSES SE SOG SES SS SOOHDTECOH HOHE OOOO 0 66068 66K 646%

The Reynards reside in three villages—The first is on

the W. side of the Mississippi, six miles above the

rapids of River de Roche (Rock River—Le Claire, Scott

County, Iowa) ; the second is about 12 miles in the rear

of the lead mines (Dubuque, Iowa) ; and the third is on

Turkey river half a league from its entrance. (Sac

and Fox Exs. 125, 136) [485]

(d) On February 19, 1806, President Jefferson sent to

Congress a statistical report prepared by Captain Merri-

wether Lewis relative to the Indian tribes of the Loui-

siana Territory. Lewis places the Sac Indians at 2,000

souls, living “on the west side of the Mississippi, 140 leagues

above St. Louis”; he remarks that the Sac and Fox Indians

“are so perfectly consolidated, that they may in fact

be considered as one nation only; they speak the same

language; they formerly resided on the east side of

the Mississippi.” ;

Lewis numbers the Fox Tribe at 1200 souls located in one

village near the Sacs. (Sac and Fox Ex. 30) Other ref-

erences to the Des Moine River village are: Dearborn, April

10, i806, “(Sac villages) at the Rapids of the Mississippi

above the mouth of the River De Moin.” (Sac and Fox

Ex. 31); Governor Lewis, July 1, 1808,

“.... immediately after the delivery of these horses

they (Sacs) returned from their village at the rapid

demoin, situated on the S. west bank of the Mississippi

15 miles above the entrance of the river De Moin...

if . . . the Saucs return to their old village . . . that it

will be best to establish a factory at the rapid demoin

on the S. West side of the Mississippi near their

village .. .” (Sac and Fox Ex. 36)

and Indian Agent Johnson’s report to Governor Clark,

July 25, 1813;

“... The Sac Nation has seven hundred men, six hun-

dred of them live at the mouth of the river De Moin

friendly disposed . . . Fox nation four hundred men,

two hundred fifty live at the mouth of Demoin River,

one hundred near Prairie du Chien, fifty at their lead

mines on the Mississippi.” (Sac and Fox Ex. 38)

(e) Dr. Gussow in his report in reference to the Sac Des

Moine River village comments as follows:

“Of these settlements the Des Moines river site was

the only one within cession 120. The Des Moines site

was also one of the smallest of all the Sac villages. [486]

Pike mentions 13 lodges. Forsyth in letters written in

1819 and 1820 refers to the Des Moines site as a ‘small’

village, ... The Des Moines site was abandoned in 1821

when the inhabitants moved to the mouth of the Iowa

river, but was resettled a year later by a few families

(who are related to a half blood [trader] named Blon-

deau). These latter families were still there, accord-

ing to Forsyth, in 1824. The main body of the Sac num-

bering 800-1000 warriors, continued to live, during this

period, at the large Rock River settlement.” (Def. Ex.

114, pp. 31, 32) '

According to Gussow there were never any Fox villages

in Cession 69, but nevertheless, “The general history of the

Fox Indians, their migrations, hunting grounds, wars and

alliances after 1733 were closely linked with those of the

Sac.” (ibid p. 32)

20. During the War of 1812, portions of the Sac and

Fox Nation who claimed some allegiance to the United

States moved down from their Mississippi River sites and

were found at various locations on the Salt, Missouri, Osage

and Chariton Rivers on lands within Cession 69.

(a) John Campbell reported to Governor Clark on March

10, 1812:

“...-I have an interview with some of the Sac Indians

who claim protection from the Americans. I told them

I had no instructions to protect them.

teh tails eine de ee ee ee

The chief informed me that there were a number of his

nation on the Mississippi above the Salt River and

that they were all friendly toward the whites.” (Tr.

370, 371)

According to Dr. Gussow these Indians came down to the

Fort Mason area to escape those persons who were pro

British. (Tr. 371)

(b) As reported in the journal of Jules de Mun, mem-

bers of the Sac Tribe were on the Osage River committing

depredations against the Osaze Indians and the white

settlement at the mouth of the ' ‘sage River: [487]

“There were Sacs belonging to the village which has

been established in the last three years, by permission

of the government, on the Osage River, and who under

the appearance of peac, commit all sorts of depreda-

tions which they pretend are attributable to the Sacs

of Mississippi.” (Tr. 373; Def. Ex. 36)

March 24, 1820:

“It would appear that Sac and Fox Indians had a

camp near a white settlement located on the Missouri

River below the mouth of Grand River—This or the

Boone’s lick Settlement.” (Sac and Fox Ex. 65)

21. Having established their village sites along the Mis-

sissippi River in 1760, the Sac and Fox proceeded to hunt

the area on both sides of the river from as high up as

Prairie du Chien and the Wisconsin River to as far south as

the mouth of the Dlinois River. The Sac hunting grounds

east of the Mississippi River below the Des Moines River to

the Missouri lay principally in Cession 50 and the north-

eastern part of Cession 69. After 1810, since the quantity of

game and fur-bearing animals had greatly diminished in

eastern Iowa and Missouri, the Sac and Fox were com-

pelled to extend their hunting trips toward the headwaters

of the Iowa and Des Moines River, and toward the head-

waters of the Grand and Chariton Rivers across to the

Missouri River. As a result many of the Sac and Fox

gave up extended hunting trips because of the distance

Pe en Ore SO Is ter EE TS eet oe nen ee eee TE Sn) ae ene eee ge OT OORT Tee

involved and concentrated upon the lead mining activity

in Dubuque, Iowa region. After 1812 Sac and Fox excur-

sions southward to the Missouri for the most part consisted

of raiding parties bent on committing depredations upon

both the white and Indian settlements in the area.

(a) As early as 1795 the Sacs were reported to be hunt-

ing in as far down the Mississippi as the Missouri River.

Trudeau reported in [488] 1795 that: “The Sacs, who are

very numerous, hunting on the Missouri, killed ten or

twelve Osages .. .” (Sac and Fox Ex. 10)

(b) Dr. Gussow states that during the latter part of

the eighteenth century the Spanish trading policy was to

encourage the neighboring Indian Tribes to come to St.

Louis to trade with the Spanish. Such tribes as the Osage,

Iowa, Kickapoo, Mascoutins, Potawatomi, Ottawa, Sac and

Fox regularly made trips to St. Louis (Def. Ex. 114,

p. 39) According to Thomas Hutchins in 1776, the Spanish

traders,

“. .. have drawn all the Indian trade of the Missouri,

part of that of the Mississippi (northwards) and of the

tribes of the Indians residing near the Quisconsing

and Illinois rivers to this village (St. Louis) .. .” (Def.

Ex. 82)

period and into the early 1800’s were intermittently en-

gaged in tribal warfare with each oiher throughout the

entire area embraced in the southeastern portion of Cession

69 and in Cession 50 at the confluence of the Missouri and

Mississippi Rivers. (Def. Ex. 114; see “Black Hawk’s”

biography, Def. Exs. 63, 71, 105)

After the United States acquired this area in 1803, Lewis

and Clark explored the Louisiana Territory beginning in

1804. As to the Sac and Fox hunting grounds Lewis re-

ported:

ir:

“.... they sometimes hunt in the country west of them

towards the Missouri, but their principal hunting is on

both sides of the Mississippi, from the mouth of the

Ouisconsin to the mouth of the Illinois River.” (Sac

and Fox Ex. °0)

Amos Stoddard reported to Governor Dearborn on June

22, 1804: [489]

‘... . How far the whites have encroached on them

I cannot learn—nor am I informed how far the claims

of the Sauks and Reynards extend down the Mississippi.

One thing is certain their daim extends back to the

Missouri where some of the whites have settled. They

have conquered the lands on the Missouri from the )

Little Osages.” (Sac and Fox Ex. 20)

Zebulon Pike reporting on his expedition to the head-

waters of the Mississippi in 1805-1807 had this to say

about the Sac hunting grounds:

“They hunt on the Mississippi and its confluent streams,

from the Illinois to the river des Iowa and on the

plains west of them, which border the Missouri. They

have for many years past made war on the Santeaux,

Osages and Missouris. .. .”; |

and as to the Fox hunting grounds he states:

“... They hunt on both sides of the Mississippi from

the river lowa below Prairie due Chiens to a river

of that name (Upper Iowa river), above said village.”

(Def. Ex. 18)

(d) In his biography written about 1833, Black Hawk,

the legendary warrior chief of the Sac speaks of the “Two

River” country as their deer hunting country which area

was on the north boundary of Cession 50 in Cession 69.

He states that the Sac Rock River village

“had stood for more than a hundred years, during

all of which time we were the undisputed possessors

of the valley of the Mississippi, from the Ouisconsin

sedi ay doer yerng ben dh ot sy maf oh ay

souri, being about seven hundred miles in length. . .

(Def. Ex. 63)

When the constructio.. of Fort Mason was being considered

by the United States during the War of 1812, Black Hawk

felt that “.... I did not want a fort in ovr country, as we

wished to go down to the Two River country in the fall

and hunt, it being our choice hunting ground, and we

concluded that if this fort was bui! ii would prevent us

from going [490] there... .” (Def. Ex. 63) Dr. Gussow

eastern part of Cession 69 up until this time.” (Def. Ex.

114, p. 56)

(e) As the Sac and Fox hunting grounds became de-

pleted along the Mississippi about 18), they turned their

attention to working the lead mize at Dubuque, Jowa.

John Bradbury wrote circa 1810:

“These lead mines are of great value to the Saukee

and Fox nations. As the game on the Jancs which they

claim is nearly destroyed, they have therefore been

compelled to commence the business of or

rather digging, but the operation of smelting is done

by the squaws.” (Def. Ex. 71)

And Nicholas Boilvin, en Indian agent, wrote on February

2, 1811:

“The Sacs, Foxes, and Iowas ce. be as well supplied

they

at the latter place as the former particularly as

have mostly abandoned the chase, except to furnish

Thomas Forsyth, in 1821, confirmed the scarcity of game

along the Mississippi River and necessity of the Sac and

Fox Indians to work the lead mines, “for means to feed

their families during the summer months,” and further

“indeed I cannot see how the major part of the Foxes and

some of the Sauks could exist without those mines... .”

75, 114) Stephen Long reported in 1820 “The Sauks,

Foxes, and loways, hunt on the plains toward the sources

of Grand River - -” (Iowa Ex. 63; Def. Ex. 26) Long

Sec and Fox were

22. The population of the combined Sac and Fox Tribes

from earliest times is difficult to estimate but at the time

of the Treaty of August 24 [4], 1824 approximated 4,400 to

6,500 souls. [492]

(a) In 1806 Merriweather Lewis estimates the Sace at

2,000 souls and the Foxes 1,200. (Sac and Fox Ex. 30)

(b) Forsyth on May 2, 1821 puts the combined Sac and

Fox at 5,600 souls. (Sac and Fox Ex. 71)

by Forsyth in 1824, the population of the Sac and Fox is

given as 6,400 persons... .” (Tr. 62)

23. The Commission finds from all the evidence that the

petitioner Sac and Fox Nation, and the petitioner members

thereof, are the successors in interest to the Sac and Fox

Indians who ceded by the Treaty of August 24 [4], 1824 (7

Stat. 239 [229]) all their right, title and interest to those

lands as described in Finding 4; and the Commission

“Commencing at & point corresponding to the north-

west corner of that cession known as Royce 50 and

proceeding north on that line which would form an

extension of the western boundary line of Royce 50

to that point where such extension intersects the Mis-

souri-lowa line; thence east along said line to its inter-

section with the Des Moines River; thence following

along the south bank of the Des Moines River to its

confluence with the Mississippi river, thence down the

west bank of the Mississippi to a point corresponding

to the northeast corner of said Royce 50; thence west

along the northern boundary line of Royce 50 to the

place of beginning.

The ‘‘Half-Breed’’ Tract

24. The Commission finds that by the Treaty of August

24 [4], 1824 (7 Stat. 239 [229]), Congress intended and did

80 recognize and confer upon [493] the Sac and Fox for the

benefit of their half breeds a reservation title to those lands

lying within and officially described as Royce Cession 120.

By the Act of Congress of June 30, 1834 (4 Stat. 740), the

United States relinquished its reversionary interest in the

reservation to the Sac and Fox half breeds.

(a) In the second paragraph of “Article ist” of the

Treaty of August 24 [4], 1824 (7 Stat. 239 [229]), the

United States from the lands ceded thereunder, reserved a

tract of land to the Sac and Fox for the benefit of their half

breeds. Said paragraph reads as follows:

“It being understood, that the small tract of land

lying between the rivers Desmoin and the Mississippi,

and the section of the above line between the Mississippi

and the Desmoin, is intended for the use of the half

breeds belonging to the Sack and Fox nations; they

holding it, however, by the same title, and in the same

manner, that other Indian titles are held.”

(b) That Congress intended to create a reservation is

amply demonstrated by its subsequent act of relinquishing

its reversionary interest in said reservation back to the

Sac and Fox half breeds, by the Act of June 30, 1834

(4 Stat. 740):

“An Act to relinquish the reverstonary interest of the

United States in a certain Indian reservation lying

between the rivers Mississippi and Desmoins.

Be it enacted by the Senate and House of Representa-

tives of the United States of America, in Congress

assembled, That all the right, title, and interest which

might accrue or revert to the United States to the

reservation of land, lying between the rivers Desmoins

and Mississippi, which was reserved for the use of the

half-breeds belonging to the Sacs and Fox nations, now

used by them, or some of them, under a treaty made and

concluded between the United States and the Sacs and

Fox tribes or nations of Indians, at Washington, on the

fourth day of August, in the year one thousand and

eight hundred and twenty-four, be, and the same are

hereby relinquished and vested in the said half-breeds

of the Saes [494] and Fox tribes or nations of Indians,

who, at the passage of this act are, under the reserva-

tion in the said treaty, entitled, by the Indian title, to

the same; with full power and authority to transfer

their portions thereof, by sale devise or descent,

according to the laws of the state of Missouri.

Approved June 30, 1834.”

8/ Edgar E. Witt

Chief Commissioner

8/ Louis J. O’Marr

Associate Commissioner

s/ Wm. M. Holt

Associate Commissioner [495]

BEFORE THE InpIaAN CLaims CoMMISSION

(Caption is same as precedes findings)

(Decided July 2, 1958; 6 Ind Cls Comm 464)

OPINION OF THE COMMISSION

Witt, Chief Commissioner, delivered the opinion of the

Commission.

The petitioner, the Iowa Tribe or Nation of Indians and

the member petitioners thereof, and the petitioner, the Sac

and Fox Nation and the member petitioners thereof, seek

additional compensation for their interests in those lands

which each petitioner ceded to the defendant [496], United

States, under separate but substantially identical treaties.

Both treaties were concluded on August 4, 1824 in the City

of Washington, D. C., and under each treaty the defendant

took a cession with one exception of all the right, title,

and interest of the respective petitioners to the same lands

located in north central and northeastern Missouri. (7 Stat.

229, 231) Officially these lands are designated Royce 69 and

120, a more complete description of which is set out in

Commission’s Finding 4.

The exception referred to above is found in that treaty

concluded with the Sac and Fox Nation (7 Stat. 229),

whereby the United States reserved to the Sac and Fox

Nation for the use and benefit of the Sac and Fox half-

breeds the entire area included within Cession 120. This

relatively small area is generally referred to as the “Half-

breed” tract, and will be discussed in more detail in dis-

posing of the petitioner Sac and Fox claims.

Of prime concern at this stage of the hearing are the

respective claims of the petitioners that each had perfected

aboriginal Indian title and/or recognized title to ajl_the

lands involved herein, or at least to defined portions there-

of. The capacity of each of the petitioner claimants

also in issue. The Commission looks upon the petition filed

herein as one stating separate and distinct claims, since

the petitioner’s predecessors ceded their lands under sep-

arate treaties, and each petitioner has chosen to establish

its title to separate portions thereof.

We shall first consider the claims of recognized title,

noting that each petitioner bases his claim on a different

theory. [497]

Prior decisions of the courts and this Commission have

established the principle that Congress is the sole source

of “recognized” or reservation title, so that when Congress

acts whether by treaty, statute or agreement, it accords

legal rights to those Indians who previously held their lands

under permissive occupation. (Tee-Hit-Ton Indians of

Alaska v. United States, 348 U.S. 272; Hynes v. Grimes

Packing Company, 337 U.S. 86; The Miami Tribe, et al. v.

United States, 5 Ind. Cls. Comm. 180)

Since recognized or reservation title is a legislative

product, the answer to the present question calls for a legal

determination as contrasted with proof of aboriginal title

which involves primarily a question of fact. In any event,

should petitioners’ claims of recognition prevail, it would

dispose of the present controversy over title and dispense

with the question of aboriginal use and occupancy.

The Commission has thoroughly considered the respec-

tive claims of recognized title as ably presented by the

Iowa and Sac and Fox petitioners, and finds them to be

without merit.

Briefly, the petitioner Iowa argues that by virtue of

certain language in the Prairie du Chien Treaty of 1825

(7 Stat. 272) in which the Sac and Fox Indians agreed that

the “Ioways” would “have a just claim to a portion of the

country between the boundary line, described in the next

preceding article, and the Missouri and Mississippi. . . .”

and “.... the United States agree to and recognize the pre-

ceding boundaries ... .”, the United States recognized title

to be jointly in the Sac and Fox and Iowa Indians to the

entire area [498] lying south of the “Sioux and Sac and

Fox” line between the Missouri and Mississippi Rivers,

which includes the area designated as Cession 69.

This argument, of course, ignores the plain fact that the

Iowa petitioner had already ceded any interest it had in

Cession 69 one year before the Prairie du Chien Treaty,

and that the stated purpose of the Prairie du Chien Treaty

of 1825 called for the establishment of distinct tribal bound-

aries upon unceded Indian lands. In this connection the two

treaty Commissioners, Lewis Cass and William Clark, in

a letter to the Secretary of War, dated September 1, 1825,

stated:

“We had nothing to ask of them . . . . neither the con-

firmation of old or the grant of new cessions. . . .” (Sac

and Fox Ex. 104)

Of interest in connection with the Prairie du Chien

Treaty of 1825 is an excerpt from the records of the Bureau

of Indian Affairs dated January 9, 1837, which indicates

that the Government viewed the joint Iowa-Sac and Fox

claim under the 3rd Article of the treaty extended south-

ward between the Missouri and Mississippi Rivers to the

Missouri state line which coincides with the north boundary

line of Cession 69.

This excerpt reads in part:

“The Sac and Fox are one nation and jointly with the

loways, claim an interest in the lands north of the

State of Missouri. . . . The claim of the Ioways to a

portion of this tract was admitted by the Sacs and

Foxes in the 3rd Article of the treaty with them and

other tribes of the 19th of August 1825... .” (Iowa Ex.

127)

oe ee ee

Later, in 1842, T. Hartley Crawford, Commissioner of

Indian Affairs, stated unequivocally in discussing the

Prairie du Chien Treaty of 1825. [499]

“This treaty attached ownership of the Sacs and Foxes

and Ioways to ali the land south of the line fixed

by the treaty of 1825 between the Sioux and Saes

and Foxes, North of the Northern boundary of the

State of Missouri as that line then existed, and between

the Mississippi and Missouri rivers.” (Underscoring

supplied) (Sac and Fox Ex. 121)

Also of interest is a letter of April 12, 1834 from Andre

Hughes to Lewis Cass in which he states:

“The Ioways, Sacs and Foxes of the Missouri river

desire to cede to the United States a large tract of

land lying west of the river Desmoines and north of and

adjoining the State of Missonri... .” (lowa Ex. 119)

In order to sustain the petitioner’s Iowa claim of recog-

nition it is necessary to declare null and void the Iowa

Treaty of 1824, and thus effectively erase the boundary line

describing the ceded area therein. This we are not disposed

to do in the absence of strong definitive language in the

Prairie du Chien Treaty, or any other treaty or statute,

which would point us in that direction. In fact the Prairie

du Chien Treaty of 1825 makes no mention or reference

to the Iowa Treaty of 1824.

The petitioner Sac and Fox Nation seeks to impress a

reservation title upon the ceded lands involved in this pro-

ceeding by virtue of the language contained in the opening

statement in Article 2 of the Sac and Fox Treaty of 1804

(7 Stat. 84) which reads:

“The general boundary line between the lands of the

said Indian tribes (Sac and Fox) shall be as follows:

” .

There then follews a description setting out the bounda-

ries of the ceded area. The petitioner Sac and Fox alleges

that by implication this language constitutes a recogni-

tion by the United States that title [500] to the unlimited

area lying outside and adjacent to the ceded portion rests in

the Sac and Fox Nation.

Generally speaking, we know that the setting of boundary

lines in a treaty of cession is somewhat arbitrary. The

Government’s main concern in establishing these lines is

to be doubly sure that every conceivable claim asserted by

the Indians, regardless of merit, is included within the

ceded area; so that it is quite immaterial what portion of the

ceded area the Indians may have exclusively occupied and

controlled as long as it passes under the terms of the

treaty.

What the petitioner Sac and Fox Nation is now urging

upon us is nothing more than the converse of the old rec-

ognition argument advanced and rejected by the Commis-

sion in case of The Quapaw Tribe of Indians, et al. v. United

States, (1 Ind. Cls. Comm. 409). In that case the Quapaw

unsuccessfully argued that the setting of boundary lines in

a treaty of cession is recognition by the United States of the

Indian’s title to the ceded area.

The Commission therefore rejects as untenable the pe-

titioner’s Sac and Fox claim of recognition to Cession 69

or any portion thereof and concludes that there is no lan-

guage in the Sac and Fox Treaty of 1804, or any other

treaty or statute, which would demonstrate a Congres-

sional intent to award to the Sacs and Foxes in 1804 a

greater interest in their unceded lands than in those lands

which passed under the treaty of cession.

Before turning our attention to those claims founded upon

aboriginal use and occupancy, this comment may be in

order. By virtue of [501] the Louisiana Purchase of April

30, 1803 (8 Stat. 200), the United States acquired from

France, subject to the present Indian right of occupancy, a

vast expanse of territory which includes the lands in contro-

versy. The bulk of evidence introduced by the petitioners

in support of their claim of title cites events occurring

just prior to and subsequent to the 1803 date. As we view

the evidence in this case, the 1803 date is critical to the

issue of aboriginal title, since, in the absence of govern-

ment recognition (which we have just rejected), these In-

dians were powerless to increase their aboriginal holdings

after 1803. Therefore, each petitioner must satisfy the

Commission that it owned in Indian fashion the claimed

subject lands or any portion thereof as of 1803, and that it

reasonably maintained such ownership until the treaties

of cession in 1824.

The petitioner, the Iowa Nation of Indians, comprises

two tribes, petitioner, Iowa Tribe of the Iowa Reservation

in Kansas and Nebraska and the petitioner, Iowa Tribe of

the Iowa Reservation in Oklahoma. Each of these tribes is

an identifiable group of Indians residing within the terri-

torial limits of the United States, and both are the succes-

sors in interest to Iowa Nation of Indians which partici-

pated in the Iowa Treaty of August 4, 1824, and as such are

entitled to institute the present action against the United

States for and on behalf of the Iowa Nation of Indians

and all its members pursuant to the provisions of the

Indian Claims Commission Act. (60 Stat. 1049)

The Iowa Nation of Indians, one of the “Chiwere” groups

of the Sioux linguistic stock with a close affinity to the Oto

and Missouri [502] Indians originally came from east of the

Mississippi. Early reports place the Iowa in the late seven-

teenth century around the Lake Okeboji region in North-

western Iowa and southwestern Minnesota. Sometime

around the middle of the eighteenth century they departed

this area and moved in a southerly direction down the

Missouri River into the southwestern part of .owa where

they estaolished a village just south of the present city

of Council Bluffs, Iowa. From this village site, which is

located northwest of Cession 69, the Iowa hunted the

area southward along the Missouri River and east toward

the western boundary of Cession 69. During this period

this same area, which for the most part lies west and north

of Cession 69, was utilized for hunting purposes by other

Indian tribes such as the Omaha or Mahas, the Otoes

and Missouris.

Sometime between 1755 and 1765 the Iowa Nation aban-

doned the village site at Council Bluffs, and moved slowly

eastward across the southern part of Iowa to the Missis-

sippi River, where eventually it chose to settle at a more

permanent village site on the D<s Moines River approxi-

mately 120 miles from the mouth of the Des Moines. This

village lying north of Cession 69 is the best documented

of all the Iowa village locations and the one which remained

a principal Iowa village site during the years that fol-

lowed until about 1823.

Two principal factors are attributed to the general exo-

dus of the Iowa Nation from the Council Bluffs area. In

the first place, the lowas were being constantly harassed by

their inveterate enemies from the north, the war-like Sioux,

who were pressing from the northern (503) plains and con-

ducting extended forays into the western part of Iowa. Of

greater moment was the fact that the Iowas desired closer

contact with their Spanish and French traders whose opera-

tions were centered primarily in St. Louis. With the rapid

growth of Indian trading activity, those tribes, including

the Iowas, who inhabited this regien became more de-

pendent for the simple necessities of life upon what they

could barter with furs and skins. Thus, the period through-

out the latter part of the 1700's and into the nineteenth

century was marked by an awesome exploitation of many

fights among competing tribes in search for new and more

fertile hunting spots.

Having adapted themselves to the use of the horse, the

lowas hunted extensively west and southwest of their Des

Moines River location across the southern part of Iowa to

the Missouri and down into their old Council Bluffs hunting

grounds, and in the plains between the Grand and Chariton

Rivers toward their headwaters. These hunting forays fre-

quently carried them into the northwestern portions of

Cession 69. They continued to hunt in this area dnto the

1800's even after the United States acquired title to the

entire area in the Louisiana Purchase of 1803. However,

the bulk of Iowa hunting activity during this period was

north and west of Cession 69, principally in the southern

and southwestern part of Iowa.

At the outbreak of the War of 1812 with Great Britain,

the United States, through the offices of William Clark,

Governor of this territory, invited the Iowas, as well as

the Sac and Fox Indians, to leave their Mississippi and

Des Moines River sites, and travel (504) south and west

across to the Missouri River. The obvious purpose of

Clark's move was to place these Indians outside of the scope

of British influence and separate them from their pro-

English brethren. Shortly thereafter, the lowas temporarily

removed from their Des Moines River site and filtered down

to the south and southwest toward the Missouri River.

Thus, we begin to find first reference to new Iowa village

locations principally on the Grand River within Cession 69.

The first of these apparently was established, but only

temporarily, in 1816, its exact whereabouts being unknown.

Other members of the Iowa nation moved across to the

Iowa Nation rarely exceeded 1,000 persons. (505)

Considering the resume of the Iowa History and move-

ment during the critical period in this case as set ovt above

and as supported in more detail by the Commission's

Findings 7 thra 14, we find thai the evidence in this case

does not justify the extent of petitioner's Iowa claim to

those lands situated in the western half of Cession 69.

Instead, we find that at the time the United States acquired

the area in controversy in the Louisiana Purchase of 1803

and up to the time of the Iowa Treaty of August 4, 1824,

the Iowa Nation held a good Indian title to those lands

situated in the northwestern portion of Cession 69 as

described in the Commission's Finding 15.

The petitioner, Sac and Fox Nation, or Confederated Sac

and Fox, is composed of three tribes or bands who are

petitioners herein. They are, the Sac and Fox Tribe of

Indians of Oklahoma, The Sac and Fox Tribe of Missouri,

and the Sac and Fox Tribe of Mississippi in Iowa. Each

petitioner tribe or band is adequately represented by indi-

vidual member petitioners, and each tribe or band is an

identifiable group of Indians living within the territorial

limits of the United States, and all are the successors in

interest to all the tribes and groups of the Confederated

Sac and Fox who participated in the Sac and Fox Treaty

of August 4, 1824, and, as such, are entitled to maintain

this present action against the United States for and on

behalf of the Sac and Fox Nation or Confederated Sac

and Fox and all its members, pursuant to the provisions

of the Indian Claims Commission Act. (60 Stat. 959)

Originally the Sac and Fox Nation consisted of two

separate and identifiable tribes of Indians belonging to

the Algonquin stock. [506] Around 1735, due to their mutual

hostility and conflict with the French, they formed a close

and intimate alliance, politically and socially, so that from

thence forw=rd they have been dealt with and referred

to as a single nation both in their relationship with the

other Indian tribes and in treaty negotiations and other

matters with the United States.

It was shortly after this merger that the members of

the Sac and Fox Nation began to establish themselves in

Iowa. They maintained for many years and on into the

1800’s several separate but permanent villages constructed

along and on both sides of the Mississippi River, from as

far up as the Prairie du Chien and Turkey River area, to

as far down as the mouth of the Des Moines River in

Cession 120. For the most part the Fox Indians occupied

the upper villages and the Sac Indians the lower villages,

including the small village near the mouth of the Des Moines

River. The principal Sac and Fox village sites during this

period were located on the Rock River which is considerably

north of the lands in controversy. Auguste Chouteau places

the establishment of the Rock River location as 1764, while

first references to the Sac village on the Des Moines River

occur around 1780. All of these village sites are confirmed

in subsequent reports, and in 1810 Debulon [Zebulon} Pike

sets them out specifically in a report on his 1805 Mississippi

River expedition. (See Commission’s Finding 19)

During the War of 1812 with Great Britain, those mem-

bers of the Sac and Fox Nation, who claimed allegiance to

the cause of the United States departed their Mississippi

River villages, and began to move [507] down into Cession

69. There, during the years that followed, they were located

at various places, and at times in the company of the

Iowas. Reports have placed them on the Salt, Missouri,

Osage, Grand and Chariton Rivers. Best estimates as to

the termination date of the Sac Des Moines River village

fall within the period of 1821 to 1833, when after abandon-

ing this location, the Sacs resettled on the Iowa River.

Having established their villages on the Mississippi

around 1760, the Sac and Fox began to hunt the adjacent

area on both sides of the river from as far north as Prarie

[Prairie] du Chien to as far south as the mouth of the Illi-

nois River. The principal hunting grounds of the Sac

Indians west of the Mississippi River stretched southward

below the Des Moines River to the Missouri River, and in-

cludes generally the northeaste.n part of Cession 69 and

all of Cession 50. Cession 50 lies immediately east of

Cession 69 and west of the Mississippi, and embraces

all those lands which were ceded to the United States

by the Sac and Fox Treaty of 1804 (7 Stat. 84). The

evidence contains many references to the Sac and Fox

hunting in this vicinity which show consistent use from

about 1780 to at least 1810. Black Hawk, the intrepid

Sac and Fox warrior, was quite specific in stating that

the “Two River” country, during this period was the choice

hunting ground of his people. This reference points to

the northeastern part of Cession 69.

During the entire period in which the Sac and Fox

inhabited this Mississippi River area, they found them-

selves involved in [508] perpetual warfare with their Osage

neighbors from the South, who had their villages just below

the Missouri River outside of Cession 69. Black Hawk, in

his biography, speaks of his many engagements with the

Osages who were a constant threat to the Sac and Fox

hunting grounds. This habitual agitation and fighting

between these two nations created a veritable “no man’s”

land of southeast Cession 69 and the southern portion of

Cession 50 until at least 1808, when the Osage Nation by

treaty ceded to the United States all its right, title, and

interest to those lands north of the Mississippi (7 Stat.

107).

After 1810 the Sac and Fox hunting grounds adjacent to

the Mississippi River became so depleted that the quest

for new and more productive areas compelled these Indians

to extend their hunting expeditions over great distances

west and northwest to the headwaters of the Grand and

Chariton Rivers, and even further north to the headwaters

of the Des Moines and Iowa Rivers. Because of the hazards

and hardships involved, many of these Indians, particularly

the Foxes, abandoned these long treks and concentrated on

mining lead at their mines near Dubuque, Iowa.

In the years that followed the close of the War of 1812,

and up until the Sac and Fox Treaty of 1824, this Nation

can only be pictured as a wandering nomadic group, scat-

tered in all directions, and challenging the other Missouri

River Indians for control of the few remaining hunting

areas near the Missouri River and its northern tributaries.

During the period in question, the best population esti-

mates of the combined Sac and Fox tribes range between

4,400 and 6,500 persons. [509]

The Commission therefore concludes from all the evi-

dence and the facts as set out in the Commission’s Findings

18 thru 22, that, at the time the United States acquired the

area in controversy by virtue of the Louisiana Purchase of

1803, and up to the time of the Sac and Fox Treaty of 1824,

the Sec and Fox Nation held Indian title to those lands

situated in the northeastern part of Cession 69 as described

in the Commission’s Finding 23.

Finally, we shall dispose of the title question surrounding

Cession 120, the aforementioned “Half-breed” tract. While

the petitioner, Iowa Nation, disclaims any interest concern-

ing Indian title to these lands, the petitioner, Sac and Fox,

is asking this Commission to treat these lands as part and

parcel of Cession 69 insofar as determining the question

of title. We fel, however, that in accord with the plain

and unequivoexl language of the Sac and Fox Treaty of

1824 coupled with subsequent Congressional action, the

question of Indian title has been determined. (Commission’s

Finding 24)

Under the terms of the Treaty of 1824 a reservation was

given outright to the Sac and Fox half-breeds, and this

reserve was never ceded back or purchased by the United

States, although requested to do so by the Sac and Fox.

Instead, Congress by the Act of June 30, 1834, released its

reversionary interest therein to the Sac and Fox half-

breeds, granting them the full power and authority to trans-

fer and convey a full fee. Petitioner, Sac and Fox, would

now challenge the defendant’s motive in setting up this

particular reservation, but this in no way attacks the au-

thority and power of Congress to act in this regard in

the manner it chose. [510]

On the proofs before us the Commission finds no basis

upon which to aitach either legal or moral liability to the

defendant, if we deal with Cession 120 as we would in the

ordinary title case involving lands ceded to the United

States. However, we shall reserve final judgment in the

matter of Cession 120 and afford an opportunity to the pe-

titioner Sac and Fox, if it so desires, to present any addi-

tional evidence, covering the period of 1824 to 1834, which

would demonstrate to the satisfaction of the Commission

that the defendant’s conduct relative to the “Half-breed”

tract worked such an injustice or injured the petitioner Sac

and Fox in such a way as would oblige and compel the de-

fendant to respond in measurable damages under the pro-

visions of the Indian Claims Commission Act.

Having determined the question of title in favor of the

petitioners to those portions of Cession 69 as set out in the

Commission’s Findings No. 13 and No. 21, we shall in like

fashion reserve judgment on the question of defendant’s

liability until proof has been offered on the questions of the

consideration paid to the Indians for the ceded lands, the

total acreage, and the value at the time title thereto passed

to the defendant.

We note that the lands described in Findings Nos. 15 and

23 herein are within the area claimed by the Osage Nation

of Indians in Docket No. 105, now pending before the Com-

mission, and for which the Osage are claiming additional

compensation for lands including those described in Find-

ings 15 and 23. No request for consolidation for trial, be-

cause of the conflict of interests, has been made by any

party to the claims [511] set forth in Docket No. 135 or

Docket No. 105. It may, therefore, be necessary to withhold

the final determination in Docket No. 135 until the claim

of the Osage is determined.

s/ Edgar E. Witt

Chief Commissioner

We Concur:

s/ Louis J. O’Marr

Associate Commissioner

s/ Wm. M. Holt

Associate Commissioner [512]

Is THE Untrep States Court or Clams

Appeal No. 9—65

Ind. Cl. Comm. Docket No. 135

6 Ind. Cl. Comm. 464 (1958)

12 Ind. Cl. Comm. 487 (1963)

15 Ind. CL. Comm. 248 (1965)

(Decided March 17, 1967)

THE SAC AND FOX TRIBE OF INDIANS OF OKLA-

HOMA, ET AL., THE IOWA TRIBE OF THE IOWA

RESERVATION IN KANSAS AND NEBRASKA,

THE IOWA TRIBE OF THE IOWA RESERVATION

IN OKLAHOMA, ET AL. v. THE UNITED STATES

Srziton, Judge.

The appellants, the Iowa Tribe of the Iowa Reservation

in Kansas and Nebraska, and the Iowa Tribe of the Iowa

' 5O

Reservation in Oklahoma (hereinafter called the “Iowa”),

are the sole successors in interest to the Iowa Nation of In-

dians and bring this suit on behalf of said nation and all

its members. .

The appellants, the Sac and Fox Tribe of Indians of Okla-

homa, the Sac and Fox Tribe of Missouri, and the Sac and

Fox Tribe of the Mississippi in Iowa (hereinafter called the

“Sac and Fox”), each represented by individual members of

the respective tribes, are the sole successors in interest to

the rights of the Sac and Fox Nation. They maintain this

suit on behalf of said nation and all of its members.

This is an appeal from decisions of the Indian Claims

Commission ' which held that:

(1) The Iowa held original Indian title to 1,551,200 acres

of land in northwestern Misscuri in what is designated on

Royce’s maps of Indian land cessions as Area 69 (sometimes

called Cession 69),? which was part of the area ceded to the

United States pursuant to the Treaty of August 4, 18245

and the sum of $19,846.23 paid to them by the Government

was an unconscionable consideration for the land; and the

fair market value of the ceded Indian lands as of January

18, 1825 (the effective date of the treaty) was 45 cents per

acre or the total sum of $698,040, which the Iowa were en-

titled to receive, less allowable offsets in the sum of $45,000

and less the amount of $19,846.23 already paid, making the

net amount to be paid the sum of $633,193.77.

(2) The Sac and Fox held original Indian title to

1,241,700 acres of land in northeastern Missouri in Area 69,

which was part of the land ceded to the United States in the

*6 Ind. CL Comm. 464 (1958); 12 Ind. Cl. Comm. 487 (1963); 15 Ind. Cl.

Comm. 248 (1965).

*18th Annual Rep., BAE., 1896-1897, Part II.

*7 Stat. 231.

Treaty of 1824; and the $27,799.61 paid to them by the Gov-

ernment was an unconscionable consideration for the land;

and the fair market value of their aboriginal lands as of

January 18, 1825 (the effective date of the treaty), was 80

cents per acre or the total sum of $993,360, and accordingly,

they should be paid such amount less the sum already paid,

making the amount due the sum of $965,560.39.

(3) The Sac and Fox did not have recognized title to any

of the land hy reason of the Treaty of 1804 (7 Stat. 84) or

any other treaty or act.

(4) The claims of both tribes that they held original title

to additional lands in Area 69 were rejected.

(5) The Iowa were not entitled to a higher market value

than 45 cents per acre for their aboriginal land.

(6) There was no “constructive trust” existing in favor

of the tribes because of an alleged fiduciary relationship be-

tween them and the Government, or for any other reason,

which entitled them to be paid whatever profit it made when

it later sold the land.

(7) The tribes were required to prove they had aboriginal

title to their lands in 1803, and held such title until the date

of the Treaty in 1824; and no evidence of Indian title ac-

quired after 1803 could be considered because the Govern-

ment acquired the sovereign title to all of the lanu in that

year from France by the Louisiana Purchase {992}

The claims of both the Iowa and the Sac and Fox were

tried together by the Indian Claims Commission and will be

disposed of together in this appeal.

In this case both the Iowa and the Sac and Fox contend

that: they held aboriginal title to more iand than was

awarded to them and consequently they were entitled to

larger awards ; because of the fiduciary relationship existing

between them and the Government, a “constructive trust”

was created under clause (2), section 2 of the Indian Claims

Commission Act * which entitled them to the profit made by

the United States wher it later sold the land, or, in the

alternative, clause (5), section 2 of the Act relating to fair

and honorable dealings entitled them to such profits ; and the

Commission erred when it required them to prove aborig-

inal title as of 1803, the date of the Louisiana Purchase,

instead of 1824, the date of the Treaty.

In addition, the Iowa say that the land awarded to them

should Lave been valued at 80 cents per acre instead of 45

cents; and the Sac and Fox allege that their award should

be based on their title which was recognized by the United

States in the Treaty of November 3, 1804,° instead of on

aboriginal title.

Before discussing the issues, perhaps it would be well to

describe briefly the background history, way of life and

geographical locations of the Iowas and the Sac and Fox

tribes. This should be particularly helpful in connection

with their claims to land based on Indian or aboriginal title.

Accordingly, for the sake of brevity, we set forth below the

background description, location, and movements of these

tribes prior to 1824, as made by the Indian Claims Com-

mission, with such changes and additions as the record

justifies.

The Iowa Nation of Indians, one of the “Chiwere” groups

of the Sioux linguistic stock with a close affinity to the Otoe

*Indian Claims Commission Act, 60 Stat. 1049, 1050, 25 U.S.C. § 70a

(1964).

*7 Stat. 84.

*A map is appended to this opinion for the sake of clarity.

saat tna densa nll

& « ee de ee ad

and Missouri Indians originally came from east of the Mis-

sissippi. Early reports place the Iowa in the late seventeenth

century around the Lake Okeboji region in northwestern

Iowa and southwestern Minnesota. Sometime around the

middle of the eighteenth century they departed this area

and moved in a southerly direction down the Missouri River

into the southwestern part of Iowa where they established

a village just south of the present city of Council Bluffs,

Iowa. From this village site, which is located northwest of

Cession 69, the Iowa hunted the area southward along the

Missouri River and east toward the western boundary of

Cession 69. During this period this same area, which for the

most part lies west and north of Cession 69, was utilized for

hunting purposes by other Indian tribes such as the Omaha

or Mahas, the Otoes and Missouris.

Sometime between 1755 and 1765, the Iowa Nation aban-

doned the village site at Council Bluffs, and moved siowly

eastward across the southern part of Iowa to the Mississippi

River, where eventually it chose to settle at a more permanent

village site on the Des Moines River approximately 120 miles

from the mouth of the Des Moines. This village lying north

of Cession 69 is the best documented of all the Iowa village

locations and the one which remained a principal Iowa vil-

lage site during the years that followed until about 1823.

Two principal factors are attributed to the general exodus

of the Iowa Nation from the Council Bluffs area. In the first

place, the lowas were being constantly harassed by their in-

veterate enemies from the north, the war-like Sioux, who

were pressing from the northern plains and conducting ex-

tended forays into the western part of Iowa. Of greater

moment was the fact that the Iowas desired closer contact

with their Spanish and French traders whose operations

[993] were centered primarily in St. Louis. With the rapid

growth of Indian trading activity, those tribes, including the

Iowas, who inhabited this region became more dependent for

the simple necessities of life upon what they could barter

with fars and skins. Thus, the period throughout the latter

part of the 1700’s and into the nineteenth century was

marked by an awesome exploitation of many choice hunting

grounds coupled with bloody and indecisive fights among

competing tribes in search for new and more fertile hunting

spots.

Having adapted themselves to the use of the horse, the

Iowas hunted extensively west and southwest of their Des

Moines River location across the southern part of Iowa to

the Missouri and down into their old Council Bluffs hunting

grounds, and in the plains between the Grand and Chariton

Rivers toward their headwaters.

The Indian Claims Commission found as a fact in a prior

case as follows:

32. During the period from approximately 1765 to

1812, the Iowa Nation hunted for furs in their tradi-

tional hunting grounds to the southwest of Cession 175

and these traditional hunting grounds were bounded as

follows :

On the east by the watershed between the Grand and

Chariton Rivers; on the south by the Missouri River;

on the west by the Missouri River up to the western

watershed of the Nodoway River and then by the water-

shed between the Nodoway and Nishnabotna Rivers ; and

on the north by the Des Moines River. [The Sac and

Fox Tribe of Indians of Oklahoma v. United States,

Docket No. 158, 5 Ind. Cl. Comm. 367, 379 (1957).]

The record is replete with evidence that during the period

from 1800 to 1824, the Iowas hunted over the entire western

part of Area 69 (Cession 69) extending from the watershed

between the Grand and Chariton Rivers on the east to the

Missouri, Nodoway and Nishnabotna Rivers on the west,

and from the Des Moines River on the north to the Missouri

River on the south. Much of the evidence indicates they

had villages scattered throughout this area during this pe-

riod, although some of them were moved about from time to

time. By 1800, they had driven the Missouris, Osage and

Kansas Indians out of this entire territory and were in com-

plete control of the land north of the Missouri River. Much

of this evidence was obtained from statements, records and

quotations from explorers, generals, governors, historians

and others who visited or lived in the area during this

period.

At the outbreak of the War of 1812 with Great Britain,

the United States, through the offices of William Clark,

Governor of this territory, invited the Iowans, as well as

the Sac and Fox Indians, to leave their Mississippi and Des

Moines River sites, and travel south and west across to the

Missouri River. The obvious purpose of Clark’s move was

to place these Indians outside of the scope of British influ-

ence and separate them from their pro-English brethren.

Shortly thereafter, the Iowans temporarily removed from

their Des Moines River site and filtered down to the south

and southwest toward the Missouri River. Other members

of the Iowa nation moved across to the Missouri where they

joined with the Otoes and the Missouris. With the influx

of these Indians into Cession 69, there developed agitation

and hostility between the red men and the white settlers who

were spotted along both sides of the Missouri River west of

the Mississippi. Roving bands of Iowas and Sac and Fox -

found occasion to renew hostilities with the Osage. It was

not until after the War of 1812 that the Iowas, who were

now greatly divided, began to reassemble as a nation.

Around 1820, they were reported back at their old Des

Moines River site but then abandoned it and built a new

village on the Grand River in 1823, where the whole nation

was reported to be living at one time. After negotiating the

Treaty of August 4, 1824, the Iowas remained within Cession

69 only a short period and in 1827 they finally moved to a

new village site [994] on the Little Platte River, west of

Cession 69. Throughout the period of their known history,

the estimated population of the Iowa Nation rarely exceeded

1,000 persons.

These facts would seem to justify an examination of the

evidence to determine whether or not at the time of the

Treaty of 1824, the lowa had actually, exclusively, and con-

tinuously used and occupied for a long time the western

part of Cession 69 described above.

Originally the Sac and Fox Nation consisted of two sepa-

rate and identifiable tribes of Indians belonging to the Al-

gonquir stock. Around 1735, due to their mutual hostility

and conflict with the French, they formed a close and inti-

mate alliance, politically and socially, so inat from thence

forward they have been dealt with and referred to as a

single nation both in their relationship with the other Indian

tribes and in treaty negotiations and other matters with the

United States.

It was shortly after this merger that the members of the

Sac and Fox Nation began to establish themselves in Iowa.

They maintained for many years and on into the 1800’s

several separate but permanent villages constructed along

and on both sides of the Mississippi River, from as far

up as the Prairie du Chien and Turkey River area, to as

far down as the mouth of the Missouri River. For the most

part the Fox Indians occupied the upper villages and the

Sac Indians the lower villages, including the small village

near the mouth of the Des Moines River. The principal

Sac and Fox village sites prior to 1800, were located on the

Rock River which is considerably north of the lands in con-

troversy. Auguste Chouteau places the establishment of

the Rock River location as 1764, while first references to

_ the Sac village on the Des Moines River occur around 1780.

All of these village sites are confirmed in subsequent re-

ports, and in 1810, Zebulon Pike sets them out specifically in

a report on his 1805 Mississippi River expedition.

During the War of 1812 with Great Britain, those mem-

bers of the Sac and Fox Nation, who claimed allegiance to

the cause of the United States departed their Missisippi

River villages, and began to move down into Cession 69.

There, during the years that followed, they were located at

various places, and at times in the company of the Iowas.

Reports have placed them on the Salt, Missouri, Osage,

Grand and Chariton Rivers.

Having established their villages on the Mississippi a-

round 1760, the Sac and Fox began to hunt the adjacent area

on both sides of the river from as far north as Prairie du

Chien to as far south as the mouth of the Illinois River. The

principal hunting grounds of the Sac Indians west of the

Mississippi River stretched southward below the Des

Moines River to the Missouri River, and includes generally

the northeastern part of Cession 69 and all of Cession 50.

Cession 50 lies immediately east of Cession 69 and west of

the Mississippi, and embraces all those lands which were

ceded to the United States by the Sac and Fox Treaty of

1804. The evidence contains many references to the Sac and

Fox hunting in this vicinity which show consistent use from

about 1780 to at least 1810.

During the period from 17395 to 1824, the Sac and Fox

hunted extensively the area in the eastern and southern

parts of Cession 69 from the Mississippi on the east to the

Grand and Chariton Rivers on the west and from head-

waters of such last-mentioned rivers on the north to the

Missouri River on the south, and even beyond this area on

the west and south. They were friendly with the Iowa and

frequently hunted in the same area with them. ‘lhe early

explorers, traders, and military people supplied much of

this evidence and information. For instance, in his 1806

Report to the Congress, Captain Lewis said that the Sac

and Fox Nation sometimes hunted toward the Missouri and

Lieutenant Pike in 1810, based on his explorations made in

1805, stated that the Sacs hunted on the Mississippi River

and its tributaries from the Lllinois [995] River norti: to the

River Iowa “and on the plains west of them which border

the Missouri.”

Captain Lewis in 1808 described the Fire Prairie, which

is located near the southwest corner of Cession 69 as con-

venient to “the principal hunting grounds of the Ioways and

Saucs.”

The Missouri Gazette informed its readers in 1813 that

more than 1500 Sac and Fox Indians had gone to their

“wintering grounds, * * * besides those contained in 155

cances which ascended the Missouri on Monday last, near

500 warriors crossed over by land.”

Two years later, General Clark reported that members of

the Sac and Fox Nation resided west to northwest of St.

Louis on both sides of the Missouri River. In 1819. Major

Long who had recently explored the Missouri River, stated

that the Sac and Fox and Iowa Nations hunted on the plains

towards the sources of the Grand River. Indian Agent

Sibley in 1820, reported that the Sac and Fox and Iowa

Indians regularly made a fall hunt on the Missouri River. |

Sac and Fox Agent Forsyth mentions the presence of Sac

and Fox along and near the Missouri River and in the vicin-

ity of the Grand River in the years 1817 to 1820. In an ex-

tensive report concerning the Sac and Fox Nation which

Agent Forsyth originally wrote in 1822, and later revised in

1827, he says that-the members of the Sac and Fox Nation

would hunt “on the waters of the Missouri River and its

tributaries” and sometimes further west.

From about 1812 to 1825, the Sac and Fox Nation had a

Village on the north side of the Missouri River between the

Chariton and Grand Rivers and therefore on the west

boundary of the lands claimed in this appeal. An early

settler reported that the Sac and Fox had a village in: 1818

east of the Chariton River in present Randolph Vounty,

Missouri, near the present town of Yates. In 1819, there was

a Sac camp on the Missouri River below Fort Osage and

also near the mouth of the Grand River. For a iime (1815-

1818) there was also a Sac village south of the Missouri

River near Jefferson City, Missouri.

During the period under consideration, it is estimated

that the combined populations of the Sac and Fox tribes

was between 4,400 and 6,500 persons.

It appears from all the facts that there was some basis for

the claim of the Sac and Fox Nation that it had actual exclu-

sive and continuous use and possession of the east and south

portions of Cession 69 for a long time prior to the Treaty

of 1824.

The United States made two separate but similar treaties

with the Iowa and the Sac and Fox on August 4, 1824, 7 Stat.

229 and 7 Stat. 231, by the terms of which both tribes ceded

to the United States all their right, title, interest, and claim

to the lands in northern Missouri which are designated on

Royce’s maps of Indian land cessions as Area 69 (18th

Annual Rep., B.A.E. 1896-1897, Part II). Both tribes later

filed a joint petition in this case with the Indian Claims

Commission under the Indian Claims Commission Act,

supra, seeking additional compensation for the cession of

their respective tracts of land within Area 69 for all of the

reasons set forth above.

Til

We will consider first the issue raised by the Iowa and

the Sac and Fox as to whether or not the Indian Claims

Commission erred in making 1803 the cutoff date in estab-

lishing Indian title to the lands in question. Both tribes

offered much evidence bearing on their acquisition of ab-

original title after 1803, and up to 1824, but the Commiss’on

refused to consider it, saying:

Before turning our attention to those claims founded

upon aboriginal use and occupancy, this comment inay

be in order. By virtue of the Louisiana Purchase of

April 30, 1803 (8 Stat. 200), the United States acquired

from France, subject to the present Indian right of oc-

cupancy, a vast expanse of territory which includes the

lands in [996] controversy. The bulk of evidence intro-

duced by the petitioners in support of their claim of title

cites events occurring just prior to and subsequent to the

1803 date. As we view the evidence in this case, the 1803

date is critical to the issue of aboriginal title, since, in

the absence of government recognition (which we have

just rejected), these Indians were powerless to increase

their aboriginal holdings after 1803. Therefore, each pe-

titioner must satisfy the Commission that it owned ia

Indian fashion the claimed subject lands or any portion

thereof as of 1803, and that it reasonably maintained

such ownership until the treaties of cessj#in in 1824.’

[Emphasis supplied.] .”

“It will be obsexved that the Commission fself states that

the bulk of evidence offered by the taibes in support of

Indian title cites events occurring just prior to and subse-

quent to 1803. The record supports this statement by the

Commission. The sole question then, on this point, is,

whether or not the Commission should have considered such

evidence as proof of Indian title of the tribes to the land

"6 Ind. Cl. Comm. 464, 501-02 (1958).

a ali la ie Wall | 2 SICH a

i tial eh

claimed by them in Cession 69. We think the Commission

should have done so.

In refusing to consider the post 1803 evidence, the Com-

mission appeared to have confused Indian title with sover-

eign or legal title, although there is a great difference be-

tween them. At any rate, the Commission took the position

that once sovereign title attached to land, Indian title could

not thereafter be established. We do not agree.

Chief Justice John Marshall thoroughly discussed sov-

ereign title and Indian title in the early case of Johnson &

Graham’s Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543, 570-

603 (1823). He pointed out that when the various parts of

the new world were discovered by explorers of the nations

of Europe, a principle of international law was developed

and recognized by all the nations to the effect that discovery

of new land carried with it the right of sovereignty or sover-

eign title to the discovered land which vested immediately

in the sovereign of the nation whose explorer discovered it,

subject to the right of use and occupancy by Indians living

on it. Of course, the boundaries of discoveries were many

times vague and indefinite, and this led to disputes and even

wars between the nations over the sovereign or legal title or

ownership tu a given area of land. But the basic principle

of sovereign title was recognized by all. It gave the sov-

ereign the absolute right to sell, give or grant the legal

title to another person or to another nation. No one ques-

tioned this right once suvereignty was established over land.

It was inevitable such a system would develop in the scheme

of things as it existed at the time of the new world discover-

ies. Obviously sovereign or legal title to land could not be

in two differen’ nations or persons at the same time, as no

sale of it could ever be made under such circumstances.

However, the right of sovereignty over discovered land

was always subject to the right of use and occupancy and

enjoyment of the land by Indians living on the land. This

right of use and occupancy by Indians came to be known as

“Indian title.” It is sometimes called “origina! title” or

“aboriginal title.” It is not the same as sovereign or legal

title. Land owned by Indian title is owned by the tribe and

not by an individual Indian. It must be used within the

tribe and subject to its laws and customs and cannot be sold

to another sovereign government nor to a citizen of any

sovereign government. Johnson & Graham's Lessee v. Mc-

Intosh, supra.

This system of right of discovery and its inclusion of

sovereign title subject to Indian title held by Indians living

on the land was accepted by the United States and became

a part of its laws. Johnson & Graham's Lessee v. McIntosh,

supra; Worcester v. State of Georgia, 31 U.S. [997] (6 Pet.)

515 (1832). It has been observed and applied through the

years by the Government in its acquisition and sale of land

where Indian title existed. In cases involving these situa-

tions, the courts have held that sovereign or legal title to

land, as distinguished from Indian or aboriginal title, may

be obtained (aside from discovery or the purchase from the

sovereign of a discoverer) by treaty, statute or an agree-

ment. Otoe and Missouria Tribe of Indians v. United States,

131 F. Supp. 265, 275, 131 Ct. Cl. 593, 608, (1955), cert.

denied, 350 U.S. 848, 76 S. Ct. 82, 100 L. Ed. 755.

Indian title has likewise been defined many times by the

courts. For instance this court defined it in the case of Sac

and Fox Tribe of Indians of Oklahoma v. United States,

315 F. 2d 896, 903, 161 Ct. Cl. 189, 201-02, (1963), cert. denied

375 U.S. 921, 84S. Ct. 266, 11 L. I'd. 2d 165, as follows:

* * * To be accepted under the Indian Claims Com-

mission Act, aboriginal title must rest on actual, exclu-

sive, and continous use and occupancy “for a long time”

prior to the loss of the property. (Cases omitted.)

See also Confederated Tribe of the Warm Springs Reser-

vation of Oregon v. United States, App. No. 2-64, decided

October 14, 1966, slip op. p. 6, and cases collected therein.

The courts have also construed the terms “use and oceu-

pancy” requirement of Indian title to mean use and occu-

pancy in accordance with the way of life, habits, customs

and usages of the Indians who are its users and occupiers.

In the case of Mitchel v. United States, 34 U.S. (9 Pet.) 711,

745, 9 L. Ed. 283 (1835), the Supreme Court said:

Tadian possession or occupation was considered with

reference to their habits and modes of life; their hunt-

ing-grounds were as much in their actual possession as

the cleared fields of the whites; * * *.

See also Confederated Tribes of the Warm Springs Reser-

vation of Oregon v. United States, supra.

It is a matter of common knowledge that in the course of

years, and especially during the early years of the United

States, the use and occupancy of land by Indian tribes

changed continuously. New tribes would appear and old

ones would disappear or move on to new territories. Some-

times land of one tribe would be exchanged for that of an-

other, or one tribe would acquire the land of another as the

result of an Indian war or by right of conquest.

In the case before us, the Indian Claims Commission ap-

proved and recognized the right of discovery doctrine with

its attribute of sovereign title to land by holding that the

United States acquired sovereign title to the lands in ques-

tion in 1803, by virtue of the Louisiana Purchase from

France. In other words, it held that France had sovereign

title by right of discovery, subject to the right of use and

occupancy by Indians living on it, and we purchased that

title in 1803. Inferentially, if there had been any change in

Indian title among the Indians using and occupying the land

between the time of the French discovery and the French

sale to our Government in 1803, such change would have

been recognized. But the Commission froze all changes in

Indian title as of 1803, and refused to consider any changes

between that date and 1824, the date of the Treaty of Ces-

sion. If the Commission had been consistent, it would have

frozen the date of changes of Indian title as of the date of

discovery of the iand by the French instead of 1803. The

Louisiana Purchase only gave us such title as the French

had and there was no addition to the validity of the sov-

ereign title to the lana by our purchase of it in 1803—there

was no magic to th». date.

It would not be in accordance with facts nor history to

freeze all Indian titles as of the date of the discovery of

America, nor with our own Declaration of Independence in

1776. We know that [998] there was considerable change in

such titles after these dates. Consequently, it is not possible

to fix any cutoff date for the establishment of Indian title,

except the date the Indians lose the land through treaty or

otherwise. In this case, that date is 1824, the date of the ces-

sion of the land to the United States by treaty.

By refusing to consider evidence of Indian title acquired

after 1803, the Commission took the position, in effect, that

since the United States acquired sovereign or legal title

from France in 1803, no one—not even the Indians—could

acquire any kind of title—not even Indian title—after that

date except by grant from the Government itself. Such a

position would be correct as to sovereign or legal title, but

not as to Indian title.

We think the Commission committed error in refusing to

consider the evidence of the tribes as to Indian title acquired

by them between 1803 and 1824. Use and occupancy of a

portion or of all of the land in question by them between

these dates, especially when connected with use and occu-

pancy immediately prior to 1803, could well have been use

and occupancy “for a long time” and sufficient to constitute

Indian title to the land.

Accordingly, we remand this case to the Commission for

its consideration of Indian title evidence between 1803 and

1824, so that it may determine from such evidence whether

or not the land awarded to the Iowa or the Sac and Fox, or

either of them, should be increased or changed in any way,

and, if changed, to determine the change, if any, of the

award to be made to them and to each of them, all in ac-

cordance with this opinion.

We hold that there is substantial evidence to support the

decision of the Commission that the fair market value of the

Iowa land as of January 18, 1825, was $0.45 per acre and the

fair market value of the Sac and Fox tract as of that date

was $0.80 per acre. However, upon remand of this case,

should the Commission determine that the amount of land

due either or both tribes should be changed or enlarged, the

Commission will at the same time determine whether or not

the per acre valuation of either or both tracts should be

changed, and if so, the amount of such change.

We agree with the Commission that the United States did

not recognize the title of the Sac and Fox to any of the land

claimed in this case by the Treaty of November 3, 1804.

The alternative theory of recovery advanced by the tribal

claimants is founded upon a purported “constructive trust”

that existed between the United States and the appellants’

ancestors with respect to the defendant’s acquisition of the

two subject tracts. This theory is not concerned with fixing a

fair market value to the lands involved, but the amount of

any recovery is to be-measured by the value of the consid-

eration that the defendant received in disposing of these

lands through public sale or otherwise.

The main thrust of appellants’ argument is that by virtue of

certain legislative enactments such as the Trade and Inter-

course Act of 1802, 2 Stat. 139, a [999] certain fiduciary rela-

*Section 12 of the Act of March 30, 1802, 2 Stat. 139, 143, entitled “An

Act to regulate trade and intercourse with the Indian tribes, and to pre-

serve peace on the frontiers” is as follows:

“Sec. 12. And be it further enacted, That no purchase, grant, lease or

other conveyance of lands, or of any title or claim thereto. from any In-

dian, or nation, or tribe of Indians, within the bounds of the United States,

shall be of any validity, in law or equity, unless the same be made by

treaty or convention, entered into pursuant to the constitution: and it

shall be a misdemeanor in any person, not employed under the authority

of the United States, to negotiate such treaty or convention, directly or

indirectly, to treat with any such Indian nation, or tribe of Indians, for

the title or purchase of any lands by them held or claimed, punishable by

fine not exceeding one [999] thousand dollars, and imprisonment not ex-

ceeding twelve months: Provided nevertheless, that it shall be lawful for

the agent or agents of any state, who may be present at any treaty held

with Indians under the authority of the United States, in the presence, and

with the approbation of the commissioner or commissioners of the United

States, appointed to hold the same, to propose to, and adjust with the In-

dians, the compensation to be made, for their claims to lands within such

state, which shall be extinguished by the treaty.”

Appellants also rely upon the following passage of the Northwest Ordi-

nance originally adopted in 1787, and reenacted and confirmed on August

7, 1789, 1 Stat. 50, 52:

“Art. III. * * * The utmost good faith shali always be observed towards

the Indians; their land and property shall never be taken from them with-

out their consent; and in their property, rights and liberty, they never

shall be invaded or disturbed, unless in just and lawful wars authorized

by Congress; but laws founded in justice and humanity shall from time to

time be made, for preventing wrongs being done to them, and for preserv-

ing peace and friendship with them.”

Appellants place emphasis on the ‘ollowing articles of their respective

treaties:

tionship was placed on the United States with respect to

appellants and that the defendant’s payment of an uncon-

scionable consideration for the lands involved worked a

fraud upon the Indian tribes resulting in the imposition of

a “constructive trust.”

In summary then, appellants contend that the defendant

finds itself in the position of a constructive trustee because

of its guardian-ward, or other fiduciary relationship to the

tribal claimants; that the defendant breached its fiduciary

duties when it acquired the subject tracts for an unconscion-

able consideration; and that this necessitates a recovery in

a sum equal to the consideration received by the defendant

from its disposition of their lands.

Appellants’ reliance on the Trade and Intercourse Act of

1802, is prompted by our recent decision in Seneca Nation v.

United States, 172 Ct. Cl. 917 (1965) which construed a

prior version of this same Act. In that case, the Senecas

“Treaty of August 4, 1824, 7 Stat. 231 (Iowa Tribe);

“Seaticte 4th. The undersigned Chiefs, for themselves, and all parts of

the Ioway Tribe, dv acknowledge themseives and the saia Ioway Tribe, to

be under the protection of the United States of America, and of no other

sovereign whatsoever; and they also stipulate, that the said Ioway Tribe

will not hold any treaty with any foreign powers, individual state, or with

individuals of any state.

“Treaty of November 3, 1804, 7 Stat. 84, 85 (Sac and Fox);

“Anticte 1. The United States receive the united Sac and Fox Tribes

into their friendship and protection, and the said tribes agree to consider

themselves under the protection of the United States, and of no other

power whatsoever.

“Art. 4. The United States will never interrupt the said tribes in the

possession of the lands which they rightfully claim, but will on the con-

trary protect them in the quiet enjoyment of the same against their own

citizens and against all other white persons who may intrude upon them.

And the said tribes do hereby engage that they will never sell their lands

or any part thereof to any sovereign power, but the United States, nor to

the citizens or subjects of any other sovereign power, nor to the citizens

of the United States.”

sought to charg the United States for four sales of their

lands by them, at allegedly inadequate prices, to private

parties. Ast three of the sales (those which occurred after

the passage of the Act) we concluded that the Indian Claims

Commission erred in failing to hold that, through the Trade

and Intercourse Act, the United States had a special, a fidu-

ciary, responsibility over sales to third parties to see that a

proper and conscionable consideration was paid. We said

that wherever the Act applied the United States would be

liable under either clause (3) or clause (5) of section 2 of

the Indian Claims Commission Act,® [1000] supra, as a fidu-

ciary for an unconscionably low consideration received by

the Indians.

The question, if there was one, of the measure of damages

was not reached since the case was remanded to the Commis-

sion for a determination of whether consideration paid by

the vendees was unconscionable.

From that case the appellants stride to the proposition

that if the defendant can be held liable as a fiduciary to an

Indian tribe for an unconscionable sale of tribal lands to a

third party by the Indians, obviously the defendant should_

be fully accountable as a fiduciary to the Indians where it

was a party to the unconscionable transaction.

Although we agree that the appellants should be compen-

sated for their land, it does not follow in the circumstances

of this case that the remedy for payment by the defendant

of an unconscionable consideration is the imposition of a

“constructive trust” compelling the defendant to disgorge

* Clauses (and (5) of section 2 provide: “The Commission shall hear

and determine the following claims against the United States on behalf of

any Indian tribe, * * *: (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, unconscionable consideration,

* * *; (5) claims based upon fair and honorable dealings that are not

sesogniced by any existing rule of law or equity.

whatever profit it made from subsequent sales to home-

steaders.

As previously mentioned, we were not faced with that

issue in Seneca Nation, supra, but it should be noted that

section 12 of the Trade and Intercourse Act of 1802, related

to transactions between Indian tribes and third parties and

requires the consent of the Federal Government to any dis-

position of Indian lands to third parties. That Act adds

little to judicial expressions that the Government, in its deal-

ings with the property of Indians, is a trustee. Cf. Oneida

Tribe v. United States, 165 Ct. Cl. 487, 493 (1964), cert.

denied, 379 U.S. 946 85 S. Ct. 441, 13 L. Ed. 2d 544.?° But the

label attached to the relationship by the courts, whether it

be trustee, fiduciary, or guardian is unimportant alone and

does not control the measure of acconntability. We must look

to the language contained in the treaty, agreement, order,

or statute under which the claim is brought to ascertain

whether there exists, (1) a legal relationship wherein the

United States is in fact and in law a trustee, fiduciary or

guardian, or (2) a general relationship without any of such

attributes or obligations, but which is described in the same

terms by the courts. United States v. Seminole Nation, 173

F. Supp. 784, 790, 146 Ct. Cl. 171, 181 ((1959) ; Gila River

Pima-Maricopa indian Community v. United States, 140 F.

Supp. 776, 780-81, 135 Ct. Cl. 180, 189 (1956). Compare

Ottawa Tribe v. United States, 166 Ct. Cl. 373 (1964), cert.

denied, 379 U.S. 929, 85 S. Ct. 324, 13 L. Ed. 2d 341; Navajo

Tribe of Indians v. United States, 364 F. 2d 320, 322, 176 Ct.

Cl. 502, 504 (1966); see Oneida Tribe, supra. When this is

done in this case, we are required to hold that the relation-

ship between the parties was a general one in which there

was no legal guardianship or resultant constructive trust.

* This statement is equally applicable to the provisions of the treaties

and other acts the appellants rest upon for support.

Appellants can point to no language in the Trade and

Intercourse Act, their treaties, or other legislation which

would justify imposition upon the defendant oi a liability

greater than that which is ordinarily exacted in comparable

situations, namely, the fair market value of the lands at the

date of acquisition by the defendant. United States v. Emi-

grant New York Indians, App. No. 2-65, decided October 14,

1966, slip op. p. 19; Sac and Fox Tribe of Indians of Okla-

homa v. United States, supra, 315 F. 2d at 897, 161 Ct. Cl. at

199; Miami Tribe of Oklahoma v. United States, 175 F.

Supp. 926, 954, 146 Ct. Cl. 421, 470 (1959) ; United States v.

Kiowa, Commanche and Apache Tribes, 163 F. Supp. 603,

608, 143 Ct. Cl. 534, 541-42 (1958) ; Nooksack Tribe v. United

States, 162 Ct. Cl. 712, 718 (1963), cert. denied, 375 U.S.

993, 84 S. [1001] Ct. 633, 11 L. Ed. 2d 479; see Otoe and

Missouria Tribe of Indians v. United States, supra, 131 F.

Supp. at 290, 131 Ct. Cl. at 632-33.

In cases much stronger than the present where this court

held that prices paid to the Indians for surplus unallotted

reservation lands were unconscionable and that duress was

exerted upon them by the defendant to complete the trans-

action, there was no suggestion that recovery of the net pro-

ceeds received by the defendant from white settlers would be

proper. In fact, the court valued these surplus lands as of

the date of ratification of an agreement with the Indians for

the purchase of their lands for white settlement. Sac and

Foz Tribe of Indians of Oklahoma v. United States, 340 F.

2d 368, 167 Ct. Cl. 710 (1964).

We are not persuaded by the appellants’ attempt to cir-

cumvent this rule by channeling their claim through clause

(2) of section 2 of the Indian Claims Commission Act.”

™Ciause (2) of section 2 provides: “The Commission shall hear and de-

termine the following claims against the United States on behalf of any

Indian tribe, * * *: (2) all uther 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; * * *.

The defendant properly points out and the appellants do not

contest that the rule they argue for would entirely eliminate

the requirement that lands must be valued as of the date of

acquisition.

Moreover, it has been recognized that not only is the meas-

ure of recovery the date of acquisition by the defendant

under clause (3), but it is also the date of acquisition under

clause (4), Nooksack Tribe v. United States, supra; Sac and

Fox Tribe of Indians of Oklahoma v. United States, supra,

315 F. 2d at 897, 161 Ct. Cl. at 199, and under clause (5).

United States v. Emigrant New York Indians, supra; United

States v. Kiowa, Commanche and Apache Tribes, supra.

Appellants’ contention that claims involving payment of

an unconscionable consideration asserted under clause (2)

of section 2 of the Indian Claims Commission Act, are not

the same as claims based solely upon unconscionable consid-

eration under clause (3), lacks merit. We are of the opinion

that a different rule of damages cannot be applied to a claim

predicated upon payment of an unconscionable considera-

tion which is cognizable under different clauses of section 2,

merely by the caption affixed to the pleadings.

We are satisfied that our prior standard of recovery

under the Act does not at all restrict the legislative objec-

tives, indeed, the briefs of the appellants in the instant .

matter make no such argument. W> are content, therefore,

to rest upon the principles of stare decisis and legislative

acquiescence in the judicial interpretation of statutes. See

United States v. South Buffalo Ry. Co., 333 U.S. 771, 774-75

(1948) ; Electric Battery Co. v. Shimadzu, 307 U.S. 5, 14,

59 S. Ct. 675, 83 L. Ed. 1071 (1939) ; United States v. Elgin,

J. & E. Ry. Co., 298 U.S. 492, 500, 56 S. Ct. 841, 80 L. Ed.

1300 (1936). To the extent that these principles afford a

measure of stability and predictability in our legal sys-

tem, they are of great value. Accordingly, the measure of

recovery to be accorded the appellants in the circumstances

of this case is the fair market value of their Indian title

lands at the date of acquisition by the defendant, less allow-

able offsets and payments already made as determined by

the Commission.

The decision of the Indian Claims Commission is 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 in part, reversed in part, and remanded. [1002]

SACO AND FOX TRIBE OF INDIANS OF OKLA. v. UNITED STATES

Cite as $83 F.2d 901 (1907)

APPENDIX

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100:

Berore THe Inpuan CLams Commission

The Iowa Tribe of the Iowa Reservation )

in Kansas and Nebraska, the Iowa Tribe

of the Iowa Reservation in Oklahoma, et

al., the Sac and Fox Tribe of Indian:

of Oklahoma, the Sac and Fox Tribe of

Missouri, and Sac and Fox Tribe of Missis-

sippi in Iowa, et al.,

Plaintiffs,

The United States of America,

Defendant. ,

. Docket No. 135

Decided : December 10, 1969

(22 Ind. Cls. Comm. 232)

Pierce, Commissioner, delivered the opinion of the Com-

mission.

The Commission has previously issued opinions in this

docket on July 2, 1958 (6 Ind. Cl. Comm. 496) and August

29, 1963 (12 Ind. Cl. Comm. 487), justifying awards of

$678,193.77 to the Iowa plaintiffs and $965,560.39 to the

Sac and Fox plaintiffs as additional compensation for

portions of the lands which the plaintiffs ceded to the de-

fendant under the treaties of August 4, 1824 (7 Stat. 229,

7 Stat. 231). The additional compensation, which was sub-

ject to determinable offsets, if any, was for the portions of

the ceded lands which the Commission found to be held by

the plaintiffs under aboriginal title, i.e. Indian title, at the

time the United States acquired the lands from France on

April 30, 1803 as part of the “Louisiana Purchase” (8

Stat. 200), and so held by the plaintiffs until the cession

treaties of August 4, 1824.

Specifically, the Iowa plaintiffs were found to have

aboriginal title to the northwest portion of Royce Area 69,

otherwise referred to as Cession 69, being those lands

within the State of Missouri described within the following

boundaries :

Comencing on the present Missouri-Iowa line at a point

which under the call in the Treaty of 1824 formed the

“northwest corner of the state of Missouri” due east

[233] along said line to the northwest corner of Put-

nam county, Missouri; thence due south following the

western line of Putnam county and the western line of

Similarly, the Sac and Fox plaintiffs were found to have

aboriginal title to the northeast portion of Cession 69, being

lands within the State of Missouri described within the fol-

lowing boundaries:

Commencing at a point corresponding to the northwest

corner of that cession known as Royce 50 and proceed-

ing north on that line which would form an extension

of the western boundary line of Royce 50 to that point

where such extension intersects the Missouri-lowa

line; thence east along said line to its intersection with

the Des Moines River; thence following along the south

bank of the Des Moines River to its confluence with the

Mississippi river; thence down the west bank of the

Mississippi to a point corresponding to the northeast

corner of said Royce 50; thence west along the northern

boundary line of Royce 50 to the place of beginning.

(Comm. Finding 23, 6 Ind. Cl. Comm. 464, 493)

The plaintiffs appealed to the United States Court of

Claims contending inter alia, that they held aboriginal title

to more land than was awarded to them and consequently

were entitled to larger awards; that the Commission erred

in requiring proof of aboriginal title as of the 1803 date of

the Louisiana Purchase instead of as of the 1824 treaty

date; and that the land awarded to the Iowa should have

been valued at 80 cents per acre instead of 45 cents (Ap-

peal No. 9-65, 179 Ct. Cl. 8, 383 F. 2d 991, cert. denied 389

U. 8. 900 (1967)). [234]

The matter is now before the Commission on remand

from the United States Court of Claims which stated:

We think the Commission committed error in refus-

ing to consider the evidence of the tribes as to Indian

title acquired by them between 1803 and 1824. Use and

occupancy of a portion or of all of the land in question

by them between these dates, especially when connected

with use and occupancy immediately prior to 1803,

could well have been use and occupancy “for a long

time” and sufficient to constitute Indian title to the land.

Accordingly, we remand this case to the Commission

for its consideration of Indian title evidence between

1803 and 1824, so that it may determine from such evi-

dence whether or not the land awarded to the lowa or

the Sac and Fox, or either of them, should be increased

or changed in any way, and, if changed, to determine

the change, if any, of the award to be made to them

and to each of them, all in accordance with this opinion.

(179 Ct. Cl. 8, 23)

The plaintiffs contend that immediately prior to the two

treaties of cession on August 24, 1824, they had Indian title

stemming from conquests and from exclusive use and occu-

pancy of all of those lands officially designated as Royce

Area 69 (sometimes referred to as Cession 69). The entire”

area lay within the limits of the States of Missouri, bor-

dered on the west by a line running from a point on the

Missouri River at the mouth of the Kansas River, north

100 miles to the northwest corner of the State of Missouri;

from thence along the northern border of the State of Mis-

souri east to the Des Moines River; thence southeast along

the south bank of the Des Moines River to its confluence

with the Mississippi River; thence south along the west

bank of the Mississippi to a point corresponding to the

northeast corner of Royce Area 50 at the mouth of the

Jeffreon River [235] (otherwise known as the North River) ;

thence west up the Jeffreon River (along the northern

boundary of Royce Area 50) to a point thereon thirty miles

from its mouth; thence southeast along a line from that

point to a point on the Missouri River at the mouth of the

Gasconnade River; thence westerly along the Missouri

River to the point of beginning. 6 Ind. Cl. Comm. 464, 465,

466.

The Iowa Tribe claims to have owned all the land in this

area west of the watershed between the Grand and Chari-

ton Rivers, and the Sac and Fox Tribe claims to have owned

all of the land in the area east of that watershed. The plain-

tiffs contend that the territorial boundaries which they

assert in this suit were well defined angAwvere recognized

by other tribes “from aboriginal times down to 1824.”

The defendant contends that those portions of Cession

69 which the Commission previously found were not held by

plaintiffs under Indian title when the United States pur-

chased the area from France on April 30, 1803, were not

used or occupied by any Indian tribe and became part of

the public domain in which no Indian tribe could thereafter

acquire aboriginal title, such title not being one that may

be established as against the United States by trespass or

adverse possession. Defendant urges that the plaintiffs in

order to prevail must not only establish that they had abo-

riginal title as of 1803 but that they reasonably maintained

such ownership until the treaties of cession were negotiated

in 1824.

In accordance with the order of remand of the Court of

Claims the Commission has carefully reviewed the evidence

of Indian use and [236] occupancy of Royce Area 69 be-

tween 1803 when the land was purchased from France and

1824 when the plaintiffs ceded all their rights to this land to

the United States, to determine whether or not the record

justifies the Commission in finding that either or both

plaintiffs exclusively used and occupied for a long period

of time prior to 1824 more land in Cession 69 than was

credited to them in the Commission’s previous decision.

After examining the record with particular attention to the

matters pointed out by the Court of Claims in its decision

on remand and after considering the new briefs and oral

arguments of the parties, the Commission concludes for

reasons which will be discussed in detail that the plaintiffs

have not met their burden of proving actual, exclusive and

ecntinuous use and occupancy of additional lands for a long

period of time prior to 1824 and that the areas of land

credited to the plaintiffs in our previous decision should not

be changed in any way.

The Commission makes no additional findings of fact.

Instead for the most part we shall limit our discussion to

evidence previously alluded to, especially that cited by the

plaintiffs in their appeal brief before the Court of Claims.

As will be explained herein, said evidence does not provide

a basis for the conclusions which the plaintiffs would have

us make.

Indian Title

To establish Indian title under the Indian Claims Com-

mission Act, the Iowa plaintiffs and the Sac and Fox plain-

tiffs each must prove by a preponderance of the evidence

that their forebearers had [237] actual exclusive and con-

tinuous use and occupancy of their respectively claimed

areas for “a long time” prior to August 4, 1824 when they

ceded Cession 69 to the United States. While we are of

course dealing essentially with a question of fact, the ele-

ments thereof which must be proved have legal connota-

tions which we will comment on herein.

Indefinite Early Territorial Claims and Boundaries

in order for the plaintiffs to prevail, the sum total of the

evidence must establish (or be subject to a reasonable infer-

ence), inter alia, that each plaintiff exclusively used and

occupied a definite area. Some general boundary lines of

the exclusively ocenpied territory must be shown. The Qua-

paw Tribe of Indians v. United States, Dkt. 14, 1 Ind. Cl.

Comm. 469, 481 (1951), reversed in part and remanded on

other grounds, 128 Ct. Cl. 45 (1954). Proof of Indian title

may fail where the territory claimed by a plaintiff’s ances-

tors circa the date of taking was but vaguely defined, was

the subject of conflicting claims of other tribes, and ap-

peared to differ substantially from the territory claimed

by the plaintiff.

In (ie instant case, during the period from April 30,

1803 to August 4, 1824, the Sac, Fox and Iowa Nations and

neighboring Indian tribes claimed diverse tribal territories,

the locations and boundaries of which were for the most

part contradictory, vague, indefinite, unknown, or unde-

fined. To the extent that boundaries to territory which the

plaintiffs’ ancestors claimec at that time (as distinguished

[238] from the boundaries which the plaintiffs claim in this

suit) may be ascertained, it appears that such territory

included the northeast corner of Cession 69 (credited to the

Sac and Fox by Commission Finding 23, herein), Cession

50 (which will be discussed more fully herein), and land to

the north, northwest, and northeast of Cession 69.

William Clark, Superintendent of Indian Affairs, wrote

on January 5, 1837 that upon his arrival in Upper Louisiana

34 years previously, i.e., in 1803, he found the lowa:

. . . in possession of an immense tract of country be-

tween the Mississipp: and Missouri rivers, their claim

to which so far as my knowledge extends, was un-

doubted and unquestioned, and which they have never

abandoned, living on it from that time to the present.

(Iowa Ex. 152)

This statement was accepted by the Commission as evidenc-

ing that the Iowas, (in common with the Otoe and Mis-

souria, the Omaha, and the Sac and Fox) occupied Cession

151 in the western portion of Iowa to the northwest of the

area in suit. (Findings 12 and 52, Dockets 11-A and 138,

Otoe and Missouria Tribe of Indians v. United States and

the Iowa Tribe of Reservation Indians In Kansas And

Nebraska, et. «i., 5 Ind. Cl. Comm. 136, 322-23 (1957), 13

Ind. Cl. Comm. 272, 274 (1964) )

Captain Meriwether Lewis’ 1806 report on Indian Nations

inhabiting the Territory of Louisiana located the “Ayou-

wais” (Iowa) 40 leagues up the river “Demoin” (Des

Moines), which was in Iowa north of Cession 69. Lewis

states that the Iowa

... are the descendants of the ancient Missouries, and

claim the country west of them, to the Missouri; but,

as to its [239] precise limits, or boundaries between

themselves, and the Saukees and Foxes, I could never

learn (Sac and Fox Ex. 30, p. 7. See to same effect

Lewis and Clark’s 1805 account, Def. Ex. 114, pp. 20,

31, Def. Ex. 9, pp. 2, 3, and Comm. Finding 69(c)

herein, 6 Ind. Cl. Comm. 464, 479, 480)

Lewis reported that the Saukees (Sacs) and Renars or

Foxes:

... formerly resided on the east side of the Mississippi,

and still claim the land on that side of the river, from

the mouth of the Ouisconsin to the [linois river, and

eastward towards lake Michigan, but to what particular

boundary I am not informed; they also claim, by con-

quest, the whole of the country belonging to the ancient

Missouries, which forms one of the most valuable por-

tions of Louisiana; but what proportion of this ter-

ritory they are willing to assign to the Ayouwais, who

also claim a part of it, I do not know. As they are at

war with the Sioux, who live N. and N.W. of them,

except the Yankton Ahnah, their boundaries in that

quarter are also undefined . . . (Id., p. 4)

He reported that the Missouries:

... are the remnant of the most numerous nation inhab-

iting the Missouri, when first known to the French.

Their ancient, and principal village, was situated in

an extensive and fertile plain, on the north bank of

the Missouri, just below the entrance of the Grant

[Grand] river. Repeated attacks of the small pox, to-

gether with their war with the Saukees and Renars,

have reduced them to their present state of dependence

on the Ottoes, with whom they reside, as well in their

village as on their hunting excursions . . . These peo-

ple are the real proprietors of an extensive and fertile

country, lying on the Missouri, above their ancient

village, for a considerable distance, and as low as the

mouth of the Osage river, and thence to the Mississippi.

(Id., p. 9)

Similarly he stated that the Ottoes “have no idea of an

exclusive possession of any country, nor do they assign

themselves any limits,” and that the limits of the country

claimed by the Kansas was unknown. (Jd., pp. 11, 17) [240]

Following his expeditions to the sources of the Missis-

sippi and through the western parts of Louisiana in 1805-

1807, Major Zebulon Pike recorded:

~The Iowas reside on the De Moyen and Iowa rivers in

two villages ... their wars and alliances are the same as

those of the Sauks and Reynards, under whose special

protection they conceive themselves to be . . . Their

residence being on the small streams in the rear of the

Mississippi, out of the highroad of commerce, renders

them less civilized than those nations.

The Sauks, Reynards, and Iowas, since the treaty of

the former two with the United States [in 1804], claim

the land from the entrance of the Jauflioni, on the W.

side of the Mississippi, up the latter river to the

Des Iowa, above Prairie Des Chiens, and westward to

the Missouri; but the limits between themselves are

undefined. (Sac and Fox Ex. 136, Iowa Ex. 25)

With the exception of the portion of the Des Moines River

near its mouth, which borders the northeast portion of Ces-

sion 69, the Des Moines and Iowa rivers are situated prin-

cipally in Iowa, to the north of Cession 69.

“Janflioni” is one of several names apparently applied

to the Jeffreon River (also known as the Two Rivers, Jeffi-

son River, Jefferson River and the North River) which

forms the north boundary of Cession 50 and the south

boundary of the northeast corner of Cession 69 (cf. Def.

Pixs. 115, 116). In the early 1800’s there was great confusion

and discord over which of the various rivers actually

marked the boundary, as well as which name should be ap-

plied to the boundary stream. On June 14, 1812 Governor

Benjamin Howard wrote from St. Louis to the Secretary of

War: [241]

IT must apprize you of a question, which now exists be-

tween the United States and the Sacs & Foxes, under

the treaty as it respects the river Jefferson, made one

of the boundaries, I have taken much pains to ascertain

the river, to which this name properly belongs, but such

is the diversity of the opinion on this subject, that it

is impossible to decide, indeed it is urged by some that

it empties into the Mississippi on the East side. The

Indians, contend that the two rivers, about 15 miles

above Fort Mason, is the boundary under the call, for

the Jeffreon, some say that a stream called now, the

Fabion, has borne the name by a few it is said that the

Wyaconda is the river, so that it is a questicn unsettled,

and diffieult to decide. (Sac and Fox Ex. 42.)

Similarly on January 8, 1822 William Clark wrote to the

Secretary of War:

The River Jeffison called for, as the Treaty is not

known (a small lake is only known by that name)

though it is believed that one of the rivers called the

Two Rivers, is the one intended in the calls of the

Treaty. (Sac and Fox Ex. 78; cf. Sac and Fox Ex. 91)

It is apparent from the map exhibits, e.g., Iowa Ex. 183

and Def. Exs. 115, 116, that the Missouri River rises far

to the northwest of Cession 69 and flows through South

Dakota and southward between Nebraska and Iowa, all to

the northwest of Cession 69. and thence southeasterly be-

tween Kansas and Missouri to the west of Cession 69, and

thence eastward along the southern border of Cession 69,

and finally to the southeast of Cession 69 until it flows into

the Mississippi. The latter river forms the eastern boundary

of the northeast corner of Cession 69 but also flows to the

southeast of Cession 69 and ascends to the northeast there-

of. [242]

It would thus appear that Pike’s 1805-1807 description,

supra, would place the Sac, Fox and Iowa principally to the

north of Cession 69, in Iowa, and also in the northeast cor-

ner of Cession 69 (which the Commission in its Finding 23

herein, credited to the Sac and Fox).

On January 6, 1814 Governor Clark wrote to the Secre-

tary of War that about 400 families of whites ? were settled

on the northwest side of the Missouri river on lands claimed

by the “Socks ana Ioways”. (Sac and Fox Ex. 43) Although

it is impossible to tell from this whether the land in ques-

tion was in Cession 50 or Cession 69, counsel for plaintiffs

argue that it was near the mcath of the Grand River and

hence in Cession 69. (1958 Tr. 69) [243]

1Cf. Citizen Band of Potawatomi Indians of Oklahoma v. United Sictes,

Dkt. 146, 6 Ind. Cl. Comm. 442, 459 (1958), wherein an anthropologist’s

location of Chippewa Indians within a cession area based [242] upon the

location of members of the tribe on annuity rolls of a much later date and »

upon references to them along the Grand River (not to be confused with

the Grand River in the Instant case) which passed through the cession

area but also extended far eaat of that area was held to be speculative and

far short of that degree of positive or convincing proof of use and occu-

pancy, control or possession essential for Indian title.

?The theory that settlement and occupancy of land by whites, viz.,

Spanish, prior to Indian occupancy, or ejection of Indians from their

tribal lands by whites, operates in law to deprive Indians of possessory

rights in the land has been previously postulated but rejected by the

Commission on the facts without comment on the theory. The Jicarilla

Apache Tribe of the Jicarilla Apache Reservation, New Mezico v. United

States, Dkt. 22-A, 12 Ind. Cl. Comm. 439, 481 (1963). However, the fact

that Indians were greatly outnumbered in an area by Spaniards is not

proof that the Indians could not have held exclusive occupancy against

the Spaniards where lands claimed by the Indians were mountainous

and unfit for farming or sheep herding and therefore not preferred by

the Spanish and probably not used by them. Pueblo of Taos v. United

States, Dkt. 357, 15 Ind. Cl. Comm. 688, 697-698 (1965); Pueblo of Nambe

v. United States, Dkt. 358, 16 Ind. Cl. Comm. 408, 420-421 (1965). [243]

On February 3, 1819, George C. Sibley, the agent in charge

of Fort Osage, wrote to Governor Clark from Fort Osage

concerning claims by two Iowa chiefs to lands northeast of

the Missouri which were coded to the United States by the

Osage. Although Sibley confesses himself to be an advocate

of the “Ioways” in the matter, he states:

The claims of our Indian Tribes to lands are so ex-

tremely vague and undefined, so conflicting and inter-

mixed, that I cannot conceive a much more difficult task

than to assign to each Tribe its proper limits . . .

it would be just to say, that the forests and

them. And that when our Govt. thinks to reclaim

those wilds for the use of our remuneration

ee Oe Se Se a ee

Ir November, 1820, Major Morrell Marston at Fort Arm-

strong located in Iowa on the west bank of the Mississippi

River just above Rock Island, stated of the Fox:

Iowa River, which is above Prairie du Chien and follows

the Mississippi down as far as Des Moine River and

back towards the Missouri as far as the

dividing ridge, and some of them say quite to that

River—. (Def. Ex. 51, p. 147; Sac and Fox Ex. 137)

This area would include the east half of the northern edge of

Cession 69 and the area north of Cession 69.

On February 20, 1821, William Clark wrote to Secretary

of War, John C. Calhoun: [244]

pbse3a. $ PELE EPS ELEY:

i npinale ye afl Fn

eteggtl inl i

Bad if sla

anus Bit | ahr aqe3d

Paes, Gin

. abil} a eT : Fe tf

Hague TH i tei aus

blabla en

Bs fo agganent thet Pesayth considened the Ses end Fen

southern boundary to commence at the mouth of the Des

Moines River (in Cession 120) and that their land extended

northward from there into Iowa opposite Prairie du Chien,

* Bee note 2, rupra.

yas gee

i iE

a it i hi

mE hii TSH HE if ais

In his letter of January 8, 1822 to the Secretary of War,

te nee

encompasses Cession 50 and the northeast corner of Cession

69 (credited to the Sac and Fox by Commission Finding 23

herein), and the land to the north of Cession 69 in Iowa.

apparently felt that it extended still further north to the

consin River, and well above the Iowa River. The chiefs

Upper Iowa River.

which is on the Mississippi at the mouth [245] of the Wis-

On December 8, 1823 Clark again wrote to Secretary Cal-

houn about quieting the Sac, Fox, and Iowa claims to the

northeast corner of Cession 69. Reiterating his opinion that

such claims were unjustified and commenting on the am-

biguity of the southern boundary of the claims, he stated

that the Sac and Fox claims were:

. for lands within this State & below the River

des Moin—which I had not considered them j

entitled to; for reasons stated in a letter which I had

the honor of addressing to you the Sth of Jany 1822,

in which I took the liberty of euggesting the expedient

of quieting their claim & also the claim of the Ioways

to the lands in question, (which are situated between

the des Moin River and a river called Jeffreon, which

is not known but supposed to be one sixty miles below

the Des Moin) . . . (Sac and Fox Ex. 91)

It is evident from the above passages that during the

period from April 30, 1303, to August 4, 1824, the Iowa and

the Sac and Fox, far from maintaining separate and well

defined territorial claims, for the most part voiced con-

flicting, overlapping and contradictory claims to the same

ill-defined territory which appears to have included Cession

50 (to the southeast of the land in suit), the northeast

corner of Cession 69 (credited to the Sac and Fox by Com-

mission Finding 23, herein) and the land to the north, north-

west and northeast of Cession 69.

The primary goal of the Treaty of August 19, 1825 (see

lowa Ex. 94) and of the Council of Prairie du Chien on

July 7-16, 1830 (see Iowa Ex. 115) was to establish or

clarify tribal boundaries and to put an end to internecine

inter-tribal warfare over boundary disputes. Althongh Ar-

ticle 3 of the Treaty of Prairie du Chien of August 19, [247]

1825 provided that boundaries would be designated between

plied with. (Iowa Ex. 135, 1958, Tr. 14, 15)

Iowa Use and Occupancy: 1803-1824

Iowa Villages:

In its Opinion, the United States Court of Claims states:

The record is replete with evidence that during the

period from 1800 to 1824, the Iowas hunted over the

entire western part of Area 69 (Cession 69) extending

from the watershed between the Grand and Chariton

Rivers on the east to the Missouri, Nodoway and Nish-

nabotna Rivers on the west, and from the Des Moines

River on the north to the Missouri River on the south.

Much of the evidence indicates they had villages scat-

tered throughout this area during this period, although

some of them were moved about from time to time.

By 1800, they had driven the Missouria, Osage and

Kansas Indians out of this entire territory and were

in complete control of the land north of the Missouri

River.

and inferentially, that following the War of 1812 the Iowa

did not return to their old Des Moines River site until 1820.

(179 Ct. CL 8, 14-15) As we shall illustrate, these statements

are not substantiated by the record as a whole.

There is no evidence showing an Iowa village in Cession

69 prior to 1812. The evidence establishes that the principal

Iowa villages from 1803 to 1812 were on the Des Moines

and Iowa Rivers, north of Cession 69.

Thomas Anderson, a British trader, reported in 1801-1802

that he ascended the Des Moines about 50 miles to the

“Ioway” tribe. (lowa Ex. 18 and Finding 10(a), 6 Ind.

Cl. Comm. 464, 471; cf Tr. 23, 303, 314) [248]

In 1804 and 1805 the main Iowa village was reported by

Lewis and Clark to be 40 leagues up the Des Moines River

from its junction with the Mississippi. (Def. Ex. 9, p. 2;

Def. Ex. 114, p. 11; Finding 10(a), 6 Ind. Cl. Comm. 464,

471; and Tr. 36) Defendant’s expert, Dr. Gussow, equates

this distance to 200 miles (Def. Ex. 114, p. 11), whereas

plaintiffs’ expert, Dr. Wallace, equates it to 120 miles. (Tr.

23, cf. Def. Ex. 21) These experts also credit Lewis and

Clark with reporting the village as being located only 36

leagues up the Des Moines, which Dr. Gussow equates to

108 miles. (Def. Ex. 114, p. 11, Tr. 306-307) Dr. Wallace

testified that the 36 and 40 league distances would place

the village at or slightly above Selma, Iowa (Tr. 306-307),

and that this remained the main Iowa village until 1823.

(Tr. 61-62)

From 1800 to about 1805 there were two Iowa villages

in Illinois, one opposite the mouth of the Des Moines River,

and one opposite the mouth of the Iowa River where these

rivers flow into the Mississippi. (Tr. 22, 61, 207 and Find-

ings 10, 10(c), 6 Ind. Cl. Comm. 464, 470, 472) Plaintiffs’

expert, Dr. Wallace, testified to the effect that these villages

were founded about 1765 (Tr. 22), and that for a short

time, probably after 1800, there were Iowa villages on both

banks of the Mississippi opposite the mouth of the Iowa

river. (Tr. 207)

Dr. Wallace also testified concerning “an allusion to an

Iowa village or Iowa living on the upper waters of the

Chariton River” in 1804, which he considered would be in

Cession 69 (albeit in the portion thereof claimed by the

Sac and Fox plaintiffs), but stated he [249] didn’t consider

the reference close enough in time or substantial enough to

be included, and that he was not convinced that there was

actually a village there at the time. (Tr. 96)

In 1807 Pike reported the Iowa residing “on the De

Moyen and Iowa rivers in two villages” one of which was

“about 10 miles up the Iowa river on its right bank.” (Def.

Ex. 18, p. 339; Def. Ex. 114, p. 9; Iowa Ex. 30; Finding

10(c), 6 Ind. Cl. Comm. 464, 473; cf. Tr. 207, 307-308) The

Rev. John Todd, in his book of recollections, stated that

in the beginning of the nineteenth century the Iowa had a

village “on the right bank of the Iowa river, about ten miles

above its confluence with the Mississippi,” and another

“which was their principal village, on the Des Moines river

on the site of Iowaville in Van Buren county.” (Def. Ex.

19, Def. Ex. 114, p. 9)

During the War of 1812 the United States invited the

Towa, Sac, and Fox to move to temporary settlements on

the Grand, Osage, and Lamine Rivers, in order to remove

them from British influence and to prevent them from be-

coming allies of the British. (Tr. 31, 138, 139; Finding 11,

6 Ind. Cl. Comm. 464, 473) The differences between the

Iowa and the Sac and Fox, which were to culminate in

bloodshed in 1819, began during this period over divided

alliances with Britain and America. (Tr. 315) Some of the

Iowa moved to the Grand River, “north of the Missouri”

about 1813. (Tr. 139, 31) Inasmuch as the major forks of

the Grand River all originate in Iowa, not only north of

the Missouri, but north of Cession 69, it is imipossible to

state with any certainty what portion of the Grand River

or its forks such [250] vague reference may apply to or even

whether such settlement was within or north of Cession 69.‘

The bulk of the group which moved to the Grand River at

this time returned to the Des Moines River village after

the war. However, there is some reason to believe that at

least a portion of the Iowa who moved to the Grand River

during the War of 1812, settled in a small village near the

mouth of the Grand River where some of them remained

until about 1816. (Tr. 32, 170-171, 209, 251, Iowa Ex. 52)

The Osage and Lamine Rivers, and the settlements there-

on, lay south of Cession 69.

The Missouri Gazetie of February 19, 1814 informed its

readers :

*See note 1, supra.

The Sacks, Foxes and Ioways are with the United

States Factory agents on Grand river and on the south

side of the Missouri. (Iowa Ex. 44, and Plaintiffs’ 1968

Brief, p. 41; Tr. 176)

Although the plaintiffs’ expert, Dr. Wallace, sidietnninal

this as evidencing “some sort of settlement” (Tr. 251), the

defendant’s expert, Dr. Gussow, with greater reason, testi-

fied that it merely meant that the Iowas were at the trading

post. (Tr. 422) The presence of the Sac and Fox on the

Grand River at any rate tends to refute the claim of the

Iowa plaintiffs to exclusive use and occupancy of that area.

William Russell, in writing to the Secretary of War

from St. Louis on December 4, 1814, stated that he had

just returned from a military excursion up to the Missouri

as high as Grand River with four companies of rangers in

pursuit of a considerable number of [251] hostile Indians

(tribal identity undisclosed) believed to be from Rock River

and reported to be in the vicinity of the forts at and near the

Boone’s Lick settlement, and that he had “struck the grand

river nearly opposite to where the Ioways reside, but they

being considered friendly disposed towards our govern-

ment,” he dared not interrupt them. (Iowa ix. 45, Tr. 248)

The Boone’s Lick settlement was within Cession 69 along

the Missouri a short distance down stream from the mouths

of the Grand and Chariton rivers. It would thus appear

that in December, 1814 there was an Iowa camp or village

near the mouth of the Grand River in Cession 69.

Schooleraft’s map, drawn from a map (not in evidence)

drawn in 1848 by an old Iowa Indian, shows undated and

unverified locations of Iowa villages including a village

on the west bank of the Grand River some distance above

its mouth, a village much further up the Grand River, and

two villages on the Chariton River, one near its mouth

and one near its head. (Iowa Ex. A, Tr. 419-421) This

evidence may not be given great weight in establishing

Iowa occupancy during the subject period.

On September 20, 1815, William Clark sent a list of

Indian tribes to the Secretary of War, showing among the

numerous tribes residing or roving on the Missouri, 1000

“Toways,” “on the Missouri and Grand rivers.” (Iowa Ex.

48, Tr. 428) The ensuant 1816 War Department list of tribes

also showed 1000 “Ioways,” and under the heading “places

where the tribes reside or rove,” specified “on grand [252]

river near the settlement and a village on Lemoin” (Des

Moines). (Iowa Ex. 52, Tr. 429-431, Plaintiffs’ 1968 Brief,

41) The same list shows a Sac village and a Fox village on

the Grand River, evidencing that the lowa usage of that por-

tion of Cession 69 was not exclusive at that time.

A few of the Iowa who left the Des Moines area during

the War of 1812 went with Chief Hard Heart, about the

year 1812, to join the Otoe and Missouri on the Platte

River west of Missouri. Many more of Hard Heart’s fol-

lowers joined him there in 1818 and 1819. Some of this

group réturned to the Des Moines River in i820 although

some were still with the Otoe in 1822. (Tr. 319, 320; Def.

Ex. 114, p. 12; Finding 11(c), 6 Ind. Cl. Comm. 464, 474)

An 1815-1816 sketch map of portions of Missouri and

Iowa at the close of the War of 1812 (Def. Ex. 113) shows

an Iowa village some distance up the west fork of the Grand

River and another Iowa village on the Des Moines. A*:hough

the map is distorted, making it impossible to accurately

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