Appendix — Peoria Tribe of Indians v. United States

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APPENDIX “A” |

OPINION OF THE COURT OF CLAIMS

IN THE UNITED STATES COURT OF CLAIMS

_ Appeal No. 8—6

Ind. Cl. ies Docket No. 65

- .11 Ind. Cl. Comm. 171 ©

15 Ind. Cl. Comm, 123, 488

(Decided December 16, 1966)

THE PEORIA TRIBE OF INDIANS OF OKLAHOMA,

° ET AL. v a UNITED STATES

‘Jack J oseph, attorney of ook for. ore Louis

L. ‘Rochmes, of counsel.

Craig A. Decker, with whom was yon Sibieiais .

General Edwin L. Weisl, Jr., for appellee. Ralph A. ~°

Barney, of counsel.

- Before Cowen,. Chief pas * LanaMone, DuRBFEE, Davis

and pore Judges. '

OPINION

Cowen, Chief Judge, delivered the opinion of the court:

The Peoria Tribe seeks review of two adverse portions

of a decision of the Indian. Claims Commission which

was generally favorable to the tribe. Two separate issues

are involved on the appeal. The first concerns the pay-

ment given the Indians in place of certain annuities

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which they relinquished in 1854. Before ‘that year, the ’

Weas and the Piankeshaws were the beneficiaries of

permanent annuities coming to $3,800-per year. By the

. Treaty of May 30,1854, 10 Stat. 1082, these groups joined

with others to form the single Peoria Tribe (see Peoria

ribe 6f Indians of Oklahoma v. United States, 169 Ct.

~ 1009 -(1965)), and all agreed to give up those an- —

nuities' (Art. 6). “[I]n consideration of the relinquish-

ments and releases aforesaid”, the United States agreed

to pay the united ,fribe a total of $66,000 in six install-

ments from 1854 to 1859, “and also to furnish said tribe

with an interpreter and a blacksmith.for five years, and

supply the smith shop with iron, steel, and tools, for a ~

like period.” The Indian Claims Commission found: that

the United States ‘actually. paid a total of $70,830 in ©

discharge of these obligations, and appellants do not

1 Article 6 provided: “The said Kaskaskias and Peorias,

and the said Piankeshaws and Weas, have now, by virtue

of the stipulations of former treaties, permanent an- .

nuities amounting in all to three. thousand eight hundred .-

dollars per annum, which they hereby relinquished and,

release, and from the further payment of which they for-

ever.absolve the United States; and they also release and

discharge the United States from all claims or damages

of every kind by reason of the non-fulfilment of former

Stipylations, or of injuries to or losses of stock

operty by the wrongful acts of citizens of the

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_United States; and in consideration of the reliiquish-

ments>and releases aforesaid, the United States agree to

pay to said united tribe, under the direction of the Presi-

dent, the sum of sixty-six thousand dollars, in sixannual

_ imstalments, as follows::In the morith of October, in each -

of the years one thousand eight hundred and fifty-four,

one thousand eight hundred and fifty-five, and one thou-

sand eight hundred and fifty-six, the sum of. thirteen

thousand dollars, and in the same month in each of the

years one “thousand eight hundred and fifty-seven, one

thousand eight hundred and fifty-eight, and one thon- .

- sand eight hundred -and fifty-nine; nine thousand dol-

lars, and also to furnish said tribe with an interpreter

and a blacksmith for five years, and supply the smith

shop with iron, steel, and tools, for a like period.”

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. now on that Seiire. The Ciieninaion then found that

the commuted value, ds of 1854, of the released annuities

(computed at a 5 percent interest rate) would be $76,000.

Appellants also agree with this ¢onclysion. But the Com-

mission refused to award:the tribe the difference between

$76,000 and $70,820 (i.e., $5,180), ruling that the con-

sideration paid was not unconscionable even though it

fell short: by $5,180 of the true value of. the released

annuities. Appellant urge that this was ‘error,’ and that

they are entitled to a judgment for the $5, 180. 3 os

‘ We agree with the Commission that in the circum-'

stances. the payment of $70,820 for annuities. worth

$76,000: did not represent an unconscionable consideration,

or indicate something less than fair and honorable deal-

ings. The amount ultimately paid was 93 percent of the

full value. This-is a small discrepancy, both in percent.

and in, absolute figures. Moreover, as the Commission

pointed out, the consideration, according to the treaty, .

was to be $66,000. in. eash plus the supplying of certain

‘goods and: services.for 5 years; “it may well have been

that the United States anticipated that the materials and

services would amount to. $10,000.00 thereby requiring

the total of $76,000.00: to satisfy the obligations under

Article 6.” 11 Ind. Cl. Comm. 171, 178 (1962). At, the

time of the signing of the treaty this would have been

a ‘reasonable forecast, and it is’ proper to 4258e8s the

worth of the consideration at that date rather“ than upon

the basis of’ what may actually have occurred during the

_ ensuing 5-year period from 1854 to 1859.

The Miami Tribe of Oklahoma v. United States, 150 Ct.

Cl. 725, 140-42, 281 F. 2d 202, 211-12 (1960), cert: denied,

366 U.S. 924 (1961), does not require reversal of the

Commission’s determination. The court held that the con-

sideration for a commuted annuity must be adequate, but

in that instance the United States paid only 78 percent

of the value and the difference in monetary terms was

the large sum of $118,136.50; in addition, Miami Tribe

did not have the factor of promised supplies and services

which could reasonably be valued, prospectively, as mak-

ing up the difference.

-ste hhnee ck etme

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Nez Perce Tribe a Indians v. United States, 176 Ct.

Cl. —— (July 1966), is distinguishable on comparable

grounds. The court’s opinion points out the significantly

different elements supporting that claim; a minimum

discrepancy of 331% percent depriving the claimant of at

least $566,045.77, with a consequent probable loss of in-

terest of $200, 000, thus raising the minimum discrepancy

to about 50 percent—a large figure. The court carefully

declared that it was not departing from the rule that,

before a price disparity can be labeled unconscionable, it

must be “very. gross”. In the present case we cannot call

the small disparity “gross”, let alone “very gross”.

_ The second claim involves another provision of the .

1854 treaty. Under Article 4, 10 Stat. 1083, the Federal

-Government agreed to sell some land owned by the In-

dians in Kansas at public auction, and “to pay to the

said Indians, as hereinaftef provided, all. the moneys

arising from the sales.of said lands after deducting there-

from the actual cost of surveying, managing, and selling

the same”. Tlie Commission held that the United States

breached these obligations by allowing ‘white “settlers” to

buy the lands at an appraised price, rather than. selling’

’ the property in a freely competitive market at”higher

levels. The difference between the apprdised values and

_ the fair market value was found to be $172,726.04, and

recovery was ordered in that amount.’ Neither side ques-

tions this figure. The appellants urge, however, that. the

Commission erred in refusing to grant interest on saad

award from 1857 to the date of payment.

Appellants concede that the Government, absent its

PR ici has always been immune from an ‘obligation. to

_ pay interest. “The right to claim and recover interest

from the United States is purely a matter of grace * * *.” -

Richmond, F, & P. R.R. Co. v. United States, 95 Ct. Cl.

-?The Commission found the fair market value of the |

land to have been $2.50 per acre in June-July 1857 (the

time of sale). Since 207,758.85 acres were involved, the

tribe should have received $519,397.13.. The sum it. actually

received was $346, 671.09. The difference is waite 726.04.

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244, 259 (1942). The recovery of interest must be ex-

- pressly provided for in a statute, treaty, or contract. ;

Moreover, the consent necessary to waive governmental

immunity from~iterest “must be affirmative, clear-cut,

and unambiguous”. United States v. Thayer-West Point

Hotel Co., 329 U.8. 585,590 (1947). As the Supreme Court

stated in Umited States v. N.Y. Rayon Importing Co., 329

U.S. 654, 659 (1947) :

[T]here can be no consent by implication or by use

of ‘ambiguous language. Nor can an intent on the

part of the framers of a statute or contract to permit

the recovery of interest suffice -where the intent is

- not translated into affirmative statutory or contrac-

tual terms. The consent necessary to waive the tradi-

* tional immunity must be express, and it must be

strictly construed.

See also Uhited States v. Alcea Band of Tillamook, 341

U.S. 48 (1951); Cherokee Nation v. United States, 270:

U.S. 476 (1926).* ,

There is no éontention that. there was a: eodistikatiael |

taking of appellants’ land. However, more than 100 years

after the treaty was entered into and on“the basis of a

statute enacted many years later, :the Indian Claims Com-

mission’ determined that appellants are entitled to

$172,726.04, an. additional-sum that would have been

paid for the Indian lands if the Government had not

*For an example of how: stcietly such a waiver of im-

munity has been construed, see Anglin & Stevenson v.

‘United States, 160 F. 2d 670 (10th Cir. 1947), cert. denied, —

. 331 US. 834, (1947), in: which Rule 25 of ‘the Cireuit -

Court, in conformity with the related statute and having

the force of law, provided that when a lower court judg-

ment. is affirmed “interest ‘thereon shall be calculated and -

levied from the date of the judgment *-* *.” Jd. at 672.

The court held that this’ allowance of interest did not

apply to a judgment against the United States, since

ongress had not expressly consented: to the payment of |

interest’ by the United States. Cf. Nez Perce Tribe of |

Indians v. ite States, supra, slip op. pp. 12-13.

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breached its agreement to sell the lands at public auction.

. As a result of these events, appellants maintain that if |

' the additional proceeds now ‘determined to be due had

. been ‘realized when the lands were sold, the language of

the 1854 treaty would -have required the United States

to pay interest on the $172,726.04 and, therefore, that

_ they are now entitled to such interest. The claim is based

solely on. that portion of Article’ 7 of the 1854 treaty

which reads: | Co |

And as the amount of the’ annual receipts from: the

. Sales of their lands, cannot now be ascertained, it is

agreed that the President may, from time to time, .

~ and upon ‘consultation with said Indians, determine .

how muclr of the net proceeds of said sales shall be

_ paid them, and how much shall be invested in safe _

and profitable stocks, the interest to.be annually: paid

to them, ‘or expended for their benefit and improve-

ment. [Emphasis added.]

“Whether .we consider the foregoing language ‘of the

- treaty separately and apart from the remainder Of that

document or whether we construe it in connection with:

other articles’ of the treaty, we arrive inescapably at the

same conclusion: Article 7 of the treaty conferred discré-

- tion upon the President to invest the proceeds or not,

as he saw fit. There is neither agreement nor consent

by the United States to’ pay interest upon the proceeds.

‘The word “may” in: Article 7 denotes that the sig-:

natories to the treaty vested in the President the disere-

tion to pursue alternative courses of action. He could

pay the proceeds directly to the Indians; he could in-

vest them in “safe and profitable stocks”; or he could do

both. There is no mandate that the President act in a

single specified manner, and nowhere in the-entire treaty’

may there be found an explicit promise by the Govern-

ment to pay interest.‘ ; i

‘Such a promise cannot, of course, be implied. United

States v. N.Y. Rayon Importing Co., supra. :

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* ‘When we turn to other provisions of the same treaty,

‘it is apparent that the framers of the treaty. knew how

to: impose a duty or to express a promise, and for such —

purposes they used clear and explicit: language such as.

“shall” and “agree’*, The. framers also know how to

confer. discretion; and when particular powers or actions

called for discretion, the treaty spoke in terms of “may”." |

Thus the parties to the treaty knew how to express an

“affirmative, clear-cut” obligation. United. States v.

Thayer-West Point Hotel Co., Supra. They did not do so

in Article 7 concerning disposition of the proceeds.®

In pressing their claim for interest, appellants rely .

mainly upon the decision of the Supreme Court in United

_ States v. Blackjeather, 155 U.S. 180 (1894). However, an

examination of that decision demonstrates quite clearly

that the treaty there ‘considered contained a direct and

unequivocal promise by the United States to pay five per-.

cent per annum on the proceeds of the .sale of Indian ~

lands. In the seventh article of the treaty before the —

Supreme Court in that case, it was agreed that. the pro-

ceeds of..the sale of Indian lands, after certain deduc-

tions had been made, “shall yeonstitute’a fund for the

future necessities of said tritf, parties to this compact,

on which the. United States agree to pay. to the chiefs, .

for the use and general benefit of their people, annually,

five per centum on the amount of said balance, as an

* See, e.g., Articles/ 3, 4, and 5:

' *See’ Article Jae

"See, e.g., Articles 3, 4, 9, and 11.

*Therefore, we do not consider appellants’ argument.

that Congress in the years immediately preceding the

signing of the treaty construed a promise to invest in

safe and profitable stocks as equivalent to a promise by

the United States to pay interest on the sum to -be “in-

vested”. Our concern here is solely with what. the United

States obligated’ itself to do; and as shown above, the

' United States did not even obligate itself to invest the

proceeds. To invest or not was discretionary; hence, even

if we were to find the claimed equivalency, we could find

no promise to pay interest. a :

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annuity”. [Emphasis supplied.] 155 U.S. at 188. Although

the- promise of the United States to pay five percent

annually on the fund was denominated in the treaty as

an annuity, the Supreme Court held that the unqualified

promise of the United States to pay an annuity of five.

percent. was substantially the same as an agreement to

pay interest in.the same amount. That decision cannot be _

made to fit the case at bar, because in the treaty involved

hére there was no equivalent affirmative obligation to

pay the Indians interest or to make any other type of

payment on the proceeds of the sale of their-lands, no

matter how such payment may be denominated.

‘Mille Lac Band of Chippewas v: United States, 47 Ct.

Cl. 415 (1912), rev’d, 229 U.S> 498 (1913), which ‘is also .

relied upon by appellants, is equally inapplicable, because ~

. that case arose under the Act of January 14, 1889, 25

Stat. 642, which expressly provided for the payment of

‘interest at the rate of five percent per annum _,on sums

received from the sale of the Indian lands. 4% Ct. Cl.

at 462. By .

In summary, the 1854 treaty clearly specified that the

_ disposition of the proceeds of the land sales was. left to

- the discretion of the President. Therefore, it would he

- judicial treaty-writing for us to read into that agree-

ment, an express promise: by the: Government to pay in- .

terest.’ . :

° Admittedly no interest: is allowable for the breach of

an obligation to pay over money to the Indians. Con-

federated. Salish and Kootenai Tribes v. United States, .

175 Ct. Cl. —— (May 1966), cert. dented, 385 U.S. 921.

and Ramsey v. United States, 121 Ct. Cl. 426, 431-32, 101

F. Supp. 353 (1951), cert. denied, 343 U.S. 977 (1952).

Any argument that the President was implicitly precluded

from paying over more than was necessary to maintain

the reasonable wants of the Indians is without merit. If

such a limitation had been desired, it’ would have been

expressly so provided in the treaty. Cf. Treaty with the

Delawares, May 6, 1854, Art. 7, 10 Stat. 1048, 1050.. _

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- For the reasons stated shove, we hold that enssitladtn ;

are not entitled to prevail on either of the issues raised - -

in this appeal, and we therefore affirm the determinations

of the Indian Claims Commission. |

. Affirmed.

Davis, Judge, conéurring in ‘part and dissenting in part:

I join in the court’s opinion on the first claim, but

dissent from the disposition of the demand for interest

on the $172,762.04 awarded by the Indian Claims Com-

‘Mission.

The sole ground for this claim is Article 7 of the 1854

Treaty, 10 Stat. 1084, which provided:

- And as the amount of the annual receipts from the

sales of their lands, cannot now be ascertained, it is

agreed that the President may, from time to. time,

‘and upon consultation with said Indians, determine

_ how much of the net proceeds of said sales shall be

paid them, and how much shall be invested in safe

and profitable stocks, the interest to be annually paid ..

to them, or — ‘for their benefit and improve-

ment. .

It is agreed that if this is read as snentalniiie an express

provision for interest appellants can recover, otherwise

not. See United States v. Alcea Band of Tillamooks, 341

» U.S. 48, 49. (1951); Confederated Salish and Kootenai

'. Tribes v. United States, 175 Ct. Cl. 7 (May 13,

1966), cert. denied, Oct. 24, 1966. It is also settled that

the mere fact that the United: States did not pay the ad-

ditional $172,000 in the 1850’s, as it should have, would

not, in itself, bar the Tribe from now collecting interest ;

to which it would otherwise be\entitled. See United States

v. Blackfeather, 155 ‘U.S. 180, 192 (1894); Mille Lac Band

of Chippewa v. United St: ates, 51 Ct. Cl. 400, 407-08 ©

(1916); Pawnee Tribe v. United States, 56 Ct. Cl. 1, 15

(1920); Menominee Tribe v. United States, 107 Ct. Cl.

23, 33, 67 F. Supp. 972, 975 (1946); Nez Perce Tribe v. -

United States, 176 Ct. Cl. ~, - (July 15, 1966).

a ie i in has th Gti Nakc ak cies nice sa aiei biabias enree

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These decisions ang that if the treaty had said in

precise terms that tHe sums received from the sales

should be deposited in the treasury at interest, there

‘would be. no question that appellants’ position was cor-

rect. The issue for us is whether the actual words of

_ the agreement gave the Peoria Tribe the same right to

’ interest. oe ; 4

In resolving this -question, we must remember that

Indian treaties “are not to be interpreted narrowly, as

sometimes may be writings expressed in words of art

employed by conveyancers, but are to be construed in the

sense in- which naturally the Indians would understand

them.” United States-v. Shoshone Tribe, 304 U.S. 111,

116 (1938). “[T]hey are to be construed, so far as _pos-

sible, in the sense. in which the Indians understood them,

and ‘in a spirit which generously recognizes the full

obligation of this nation to protect the interests of a

dependent people.’ Tulee v. Washington, 315 U.S. 681,

684-85.” Choctaw Nation: v. United States, 318 U.S. 423,

432 (1948). )

The 1854 treaty contemplated that ‘the proceeds of the . .

land sales would either be paid to the Indians, from time

to time; or be invested by the Government so as to bear

fruit.* There are two problems with the phrasing. The

The Supreme Court has often indicated that, where.

possible, such treaties are to be interpreted liberally in

favor of the Indians. See The Kansas Indians, 5 Wall.

72 U.S.) 737, 760 (1866); Choctaw Nation v. United ©

tates, 119 U.S. 1, 27-28 (1886); Jones v. Meehan, 175

U.S. 1, 11 (1899); Minnesota v. Hitchcock, 185.U.S. 373,

et Pah United States v. Wimans, 198 U.S. 371, 380-81

1905). , _

- It would be wholly inadmissible, in my view, to read

the treaty as | sige sew thé President simply to retain -

_ the ‘money in

e treasury without interest, instead. of

turning it over to hay the Pre or investing it. The court

. does not suggest that the President had this do-nothing

option, which undoybtedly would have ‘contravened the

Indians’ understanding.

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first is that the directive to invest referred to “safe and

profitable stocks”, with “the interest” to be paid over to

or expended for the Tribe (emphasis added).:To borrow

the language of the Supreme Court in. the Blackfeather

ease, supra, 155 U.S. at 172, “while ‘this is not literally

an. agreement to pay interest, it has substantially that.

effect”. In Blackfeather the provision was in the form of .

an annuity measured by five percent on the Indians’

money, but the Court looked through this shell- to see.

that the treaty,parties intended the Indians to receive

the normal prgceeds from. theif funds. Here the treaty

refers to “stocks” and “interest” from those stocks, but

it seems clear -that the signatories likewise desired the |

Indians to receive the increment normally earned (if they |

were hot to have the money in their own hands). For

some years before this 1854 treaty, the Federal Govern-

ment construed similar agreements calling for invest-

ment in “safe and profitable stocks” yielding “interest”

of not less than five per cent as being satisfied by an

appropriation, from year to year, of a sum equal to five

per cent interest. See Annual Report~of the Commis-

sioner of Indian Affairs, Nov. 30, 1852, p. 10 (H. Doe.

1, pp. 300-01); Annual Report of the Commissioner of

‘Indian Affairs, 1853, pp. 10-12 (H. Doe. 1, p. 263).° The

only change in the 1854 treaty was the deletion of the

spécific reference to five per cent; the reason for this

change seems to have been the wish to assure the Indians

‘the possibility of a greater amount obtainable from pri- .

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*In recommending that such appropriations\no Jonger

_ be made, but that the principal be invested, the Commis-

sioner of Indian Affairs said that the prior practice had

- “failed to execute” the treaty stipulations, but it is clear ©

to me from the context that he was complaining of the

_ costly drain on the treasury of the practice of continual-

-ly x (Sy miner. the interest without .any money geen

into the treasury through investment of the principal, and —

that he well understood the past practice to. be in sub-—

stitution for the payment of the proceeds of investment.

He thought, too, that the Indians would be advantaged by

investing the money.. on ney :

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vate investments, not to cut off the Indians’ right to the

fair proceeds of their moneys which were retained by

the Government and not handed over to _— Ibid. That |

right was preserved.

The other problem—the one with whieh the court’s

opinion treats—arises from the possibility that the Presi-

dent. might have immediately turned over the whole

$172,000 to the Indians, if it had been paid i in 1857, with-

out retaining any for ‘investment. * This is, of course, a

theoretical possibility, but it seems very ‘unlikely as &

practical matter. The President would not hand over to

these dependent Indians more than they needed or could

properly use for day-to-day expenses; nor could the Tribe

expect to receive more than this. The comparable article

of a contemporaneous treaty with the Delawares, 10 Stat.

'- 1048, 1050 (1854), says expressly that the amounts to be

paid over were to meet “current wants” and “reasonable

wants”,’.and the Peoria Treaty would probably be in-

terpreted in the same way. Thus, the President’s discre-

tion was.not at large, but was to be exercised in consulta-

tion with the Indians and according to the standard of

their need. On that basis, it is most unlikely that the -

large sum of $172,000 would have been paid over rather

than invested. Only a minimum of speculation is needed,

in my opinion, to -find that the money would have borne

*See footnote -2, supra.

® Article 7 of the Delaware treaty provided : “Tt 5 is ex-

pected that the amount of moneys arising from the sales

herein provided for, will be greater than the Delawares

‘will need to meet their current wants; and as-it is their

duty, and their desire also, to create a permanent fund -

for the benefit of the Delaware people, it is agreed that’

all the money not necessary for the reasonable wants of °

the people, shall from time to time be invested by the

President of the United States, in safe and profitable

stocks, the -principal to remain’ unimpaired, and the -in-

terest to be’ applied annually for the civilization, educa-

tion, ‘and religious culture of the Delaware people, and

such other objects of a beneficial character, as in his

~ judgment, are proper and necessary.” ©

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fruit if the United States had accounted for it in the

1850's.

The Treaty’s use of “may”, rather than “shall”, should

not be given the weight the court. puts on it to show the

unlimited character of the President’s discretion, This ©

was not a carefully-drawn business contract between

equals or even a Congressional enactment, but an Indian

treaty. “[F]riendly and dependent: Indians are likely to

’ aecept without discriminating scrutiny the terms proposed.”

United States. v. Shoshone Tribe, supra, 304 U.S. at 116.

“The treaty must théreforé be construed, not according

to the technical meaning of its words to learned lawyers,

but in the sense in which they Would naturally be under- —

stood by the Indians.” Jones v. Meehan, ra, 175 U.S.

at 11. To the Peoria Tribe, Article 7 would. have meant

the same if it had sai@\{that the President “shall”, in

stead of “may”, determine the way the funds were to be

allocated. Their understanding, as I judge it, was that

the ‘monies turned over to them would be ‘enough to

satisfy their current wants, and the rest was to be in-

vested for profit, with the increment accruing to their

benefit. That was “the substance-of the right without

regard to technical rules.” United . States v. egasas

supra, 198 U.S. at 381.

- Phe Supreme Court’s decision in . oe supra,

155 U.S.. at 188, 192-93, supports, I think, this practical

and nontechnical reading of the appellants’ treaty. In.

that case the agreement calling for a five percent “an-

“nuity” on a fund composed of proceeds of Indian land

‘sales provided further that the fund was to continue .

“during the pleasure of Congress, unless the chief of the

said tribes or band, by and with the consent of their

people, in general council assembled, should desire that

the fund. thus to be, created, should be dissolved and paid ©

over to them; in which case the President shall cause

“the same to be so paid, if in his discretion, he shall believe

the happiness and prosperity of said tribe would be

promoted thereby.” Under this stipulation the fund was

dissolved and paid over in 1852. But when the Supreme

‘originally accounted for the whole amount for which

court below held it.to be liable, it would have paid five -

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Court agreed in 1894 with this- court that judgment

should be entered against the United States for certain

sums not credited the Indians at thé time of the sale (in

1840), the Court ruled that interest on that amount should

_ Ke paid, not only until 1852, but until the judgment was

paid (sometime after 1894). “Tf the govérnment had

per cent upon this amount until the whole fund wa

over. The fund ds to this amount being not yet distributed,

the obligation to ‘pay ‘the five per cent annuity continues

until the money is paid aver.” 155 U.S. at 193;-This, I

take it; was a refusal to hold that the Indians| were barred

from collecting in nterest from 1852 to 1894 because they

could not prove that the: omitted sum would not have

been distributed in 1852 along with the other monies.

Similarly, in the present ease, the appellant Tribe, which

did not in fact receive ‘the, $172,000 in the 1850’s should

not be precluded from obtaining interest because it can-

not prove conclusively that that sum ‘would have been

invested, rather than paid over at. once, if the United

States had sold the lands at a auction as it should

have.

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‘To construe the 1854 aa as providing. for interest

would -not conflict with: any decision of this: court. In

Confederated Salish and Kootenai Tribes v. United States,

supra, 175 Ct. Cl. , ¢May 13, 1966), cert. denied,

Oct. 24, 1966, the opinion assumed that a statute requir-

ing deposit in the treasury of “all sums’ received on ac-

count of salés of Indian trust lands”, and declaring that

. interest was. to be paid on these. deposits, would. have. .

applied to monies improperly withheld from the. Indians;

if it were not for a later act partially modifying the

earlier legislation. In Nez Perce Tribe v. United States,

supra, 176 C. Cl. ( July 15, 1966), the partic-

ular. treaty specified a precise sum to bear interest

($1,000,000), and “did not make the trust open-ended.

* * * The Agreement here specified a sum to bear in- ©

terest, and that sum apparently was paid and did bear

et ee E

| 15a - aS bck |

interest; the sum claimed ‘here’ is over and above the.

amount Stead in the Agreement. In short, the Agree-

r

ment has reference only to the amount that was actually -

agreed upon [i.¢., $1,626,222] and gives no warrant for

reading in a requirement that any sum determined in

the futyre to be the fair market value. should bear in-

terest.” 'Rhe present treaty, in contrast, is open-ended in

-its terms; ‘it covers, not a specified sum, but all the net

proceeds and receipts from the sales. The $172,000 rep-

resents a major part of the proceeds which should have

- been set apart for the Tribe and invested. ;

Durrer, Judge, joins in the foregoing opinion. con- -

curring in part and dissenting in part.

f

.

*It is irrelevant that an award of interest, pursuant

to the 1854 treaty, could increase the award ‘to - plaintiff

by five or six times. If the treaty so provides, we cannot

refuse interest because the amount is relatively large.

Articles of agre

—16a—

APPENDIX “B”

2

TREATY OF MAY 30, 1854, 10 Stat. 1082

_ FRANKLIN: PIERCE, |

PRESIDENT OF THE UNITED STATES

OF AMERICA:

TO ALL AND SINGULAR TO WHOM THESE

PRESENTS SHALL COME, GREETING: ©

Whereas a treaty was made and concluded on the thir- +

tieth day of May, one thousand eight hundred and fifty-

four, by George W. Manypenny, Commissioner on the part

of the United States, and the following named delegates

of the united tribes of Kaskaskia and Peoria, Piankeshaw ~

and Wea Indiana, viz: Kio-kaw-mo-zan, David Lykins; Sa-

wa-ne-ke-ah, or Wilson; Sha-cah-qua,. or Andrew’ Chick;

_ a-co-nah; or Mitchell; Che-swa-wa, or Rogers; and Yellow

-. Beaver,. thereto duly authorized by said tribes; which

treaty is in the wor following, to wit:

ent and convention made and concluded

of Washington this thirtieth day of May

one thousand eight hundred and fifty-four, by. George

W. Manypenny, Commissioner on the part of the United -

States, and the following named delegates representing © |

: the united tribes of Kaskaskia and Peoria, Piankashaw

"and Wea Indians, viz: Kio-kaw-mo-zan, David Lykins;

Sa-wa-ne-ke-ah, or Wilson; Sha-cah-quah, or Andrew

‘Chick; Ta-ko-nah, or Mitchel; Che-swa-wa, or Rogers;

and Yellow Beaver, they being duly authorized thereto

by the said Indians.

. Article 1. The tribes of Kaskaskia, and Peoria Indians,

and of Piankeshaw and Wea Indians, parties to the two

: treaties made with them respectively by William Clark,

_ Frank J. Allen, and Nathan Kouns, Commissioners on the.

part of the United States, at Castor Hill, on the twenty-

seventh and twenty-ninth days of October, one thousand

eight hundred and thirty-two, having recently in joint -

. council assembled, united themselves. into a single tribe,

and having expressed a desire to recognized and regarded

as such, the United States hereby assent to the action of

said joint council to this end, and now recegnize the dele-

gates who sign and seal this instrument as the authorized

representatives of said consolidated tribe. }

Article 2. The said Kaskaskias and Peorias, and the

said Piankeshaws and Weas, hereby cede and convey to

the United States, all their right, title and interest in and ‘

_to the tracts of country granted and assigned to them,

_ -Tespectively by the fourth article of the treaty of October

twenty-seventh, and the second article of the treaty of

October twenty-ninth, one thousand eight hundred and

thirty-two, for. a’ particular description of said tracts,. |

reference being. had to said articles; excepting and reserv-

ing therefrom a quantity of land equal to one hundred

and sixty acres for each soul in said united tribe, accord- .

ing to a schedule attached to this instrument, and ten ‘

sections additional, to be held as the common property of

the said tribe,—and also the grant to the American Indian

Mission Association, hereinafter specifically set forth. |

Article 3. It is agreed that the United States, shall as

soon as it can conveniently be done, cause the lands hereby |

. ceded to be surveyed as the public lands are surveyed;

and, that the individuals and heads of families shall, with-

in yinety days after the approval of the surveys, select

83] the quality of land therefrom, to which they may |

be respectively entitled as specified in the second article

A of ; ; ;

. ,

asian St onl gy,

sa GDS bts

asia

oT seed ee ne” Se eg,

— 18a —

‘hereof; and that the selections shall be so ‘abe as to

‘tabula: in each case, as far as possible, the present. resi-

dences and improvements of each—and where that is not

practicable, the selections shall fall on lands in the same:

-néighborhood; and if, by any reason of absence or other-

-wise*the above mentioned selections shall not all‘be made

. before the expiration of said period, the chiefs of the said -

pada tribe shall proceed to select lands for those in

default ; and shall.also, after completing said last named

selettions, choose’ the ten sections reserved to the tribe;

and: said chiefs, in the execution of the duty hereby as-

~ signed them, - shall select lands lying adjacent -to or in

the vicinity ‘of. those that have been “previously ehosen’ by -

individuals. All. selections in this article provided ‘for,

_ shall be made in conformity with the legal subdivisions

of the United States lands, and shall be reported immedi-

ately in. writing, with apt descriptions of the same, to the

* agent for the tribe. . Patents for. the lands selected by

_or for individuals or families may ‘Be ~issued subject to

a>

such restrictions representing leases and alienation, as the

President or Congress of. the United States may prescribe.

‘ When selections are so made or attempted to be made,

as to produce injury to, or controversies: between individ-

‘ uals, which cannot be settled by the parties, the matters of |

difficulty shall be investigated, and decided on equitable

‘terms by the council of the tribe, subject to appeal to the

agent, whose’ decision shall be firial and conclusive.

Article, 4. After the aforesaid selections shall have been

. made, the President shall..immediately cause the residue

of the ceded lands to be offered for sale at public auction,

being governed in all respects in conducting such sale, by

the laws of the United States for the sale of public lands,’

ai@l such of said lands as may not be sold at public sale,

y shall be’ subject to private entry at the minimum price

es

J

—ita—

_ of United States lands, for the tem of three years; and

should any thereafter remain uns qd, Congress ‘may, by

law, reduce the price from time. to time, until the whole

of said-lands are disposed of, proper regard being had

in making the reductions, to the interests of the Indians, °

and to the settlement of the country.. And in consideration

of the cessions hereinbefore made, the United States agree .

:. to pay to the said Indians, as hereinafter provided, all the

; moneys arising from the sales of said lands after deduct-

ing therefrom the actual cost of surveying, managing, and

selling the same. | eo ae ,

- Article 5. The said united tribe appreciate the import-

ance and usefulness of the ‘mission established in their ©

country by the Board of the American Indian. Mission

Association, and desiring that it shall continue with them,

they hereby grant-unto said board a tract of one’ section

of six hundred and forty acres of land, which they, by

their chiefs, in connection with the proper agent: of the

-* board, will select; and it is agreed ‘that after the selec-

tions shall have been made, the President shall issue to

such person or persons as the aforesaid board may desig-

nate, & patent for the-same. wy pte

. Article’ 6. The said Kaskaskias and Peorias, and the

said Piankeshaws and Weas, have now, by virtue of the

- stipulations of former treaties, permanent arinuities

amounting in all to three thousand eight hundred dollars

per annum, which they hereby Telinquish and release, and

from ‘the further payment of which they forever absolve

the United States; and they also release and discharge

the- United States from all claims or damages of every

‘Kind by reason of the non-fulfilment of former treaty

. stipulations or‘ of injuries to or losses of stock or other

- property by the wrongful acts of citizens of the United

_ States; and in consideration of the relinquishments and

‘ = oe

ORE, Rete

Corp oe

enttn

—%a—

releases aforesaid, the United States agree to pay to said

united tribe, under the direction of the President, the sum

of sixty-six thousand dollars, in six, annual installments,

as follows: In the’ month of October, in each of the years —

one thousand eight hundred [1084] and fifty-four; one

: thousand eight hundred and fifty-five, and one. thousand

eight hundred and fifty-six, the sum of thirteen thousand

dollars, and in the same nonth in each of the years one

thousand eight hundred and fifty-seven, one thousand eight

hundred and fifty-eight, and one thousand .eight hundred

and fifty-nine, nine thousand dollars, and also to furnish

said tribe: with an interpreter and a-blacksmith for five

years, and. supply the smith shop with iron, steel, and -

tools, for a like period.

Article 7. The annual payments provided for in article

six are designed to be expended by the Indians, chiefly '

in- extending their farming operations, building houses,

purchasing stock, agricultural implements, and such other -

‘things as may promote their improvement and comfort,

and shall be so applied by them. But at their request it

is agreed that from each of the said annual payments —

the sum of five hundred dollars shall be reserved for the

support of the aged and_infirm, and the sum of two thov- |

sand dollars shall be set off and plied to the education of

their youth; and from each of the first three there shall

also be set apart and applied the further sum of two

thousand dollars, to enable said Indians to settle their

affairs. And as the amount of the annual receipts from

the sales of their lands, cannot now be ascertained, it is

agreed that the President may, from time to time, and

upon consulfation with said Indians, determine how much

of the net proceeds 6£ said sales shall be paid them, and

how much ae be invested in safe and‘ profitable stocks,

SS eee

4 _ —2la—

the interest to be annually paid to them, -or expended for

their benefit and improvement.

Article 8. Citizens of the United States, or other per-

sons not members of said united tribe, shall not be per-

mitted to make locations or settlements in the country

herein ceded, until after the selections provided for, have

been made by said Indians ; and the provisions of the act

of Congress, approved March third, one thousand eight

. hundred and seven, in relation to lands ceded to the United. .

- States, shall, so far as the same are applicable be extended _

to the lands herein ceded.

Article 9. The debts of individuals of the tribe, con-

tracted in their private dealings, whether to traders or

otherwise, shail not be paid out of the general funds. And

should any of said Indians become intemperate or aban-

doned, and waste their property, the President may with-

hold any moneys due or payable to such, and cause them

to be paid, expended or applied, so as to ensure the bene-.

fit thereof to their families, |

Article 10. The said Indians promise to renew their

efforts to: prevent the introduction and use of ardent

spirits. in their country, fo encourage industry, thrift, and

morality, and by every possible means to promote their

advancement in civilization. They desire. to be at peace

with all men, and they bind themselves not to commit.

depredation or wrong upon either Indians or citizens;

and should difficulties at any {time arise, they will abide

by the laws of the- United Stated in such cases made and

provided, as they expect to be protected and to have their

‘rights vindicated by those laws.

Article 11. ‘The object of the’ instrument being to ad-

vance the interests of said Indians, it is agreed if it prove

a)

Cs i it gcse as a ati i ata

°

.

ier cree

‘insufficient, ‘from causes which cannot now be foreseen,

- to effect these ends, that the President may, by and with

the advice and consent of the senate, adopt such policy

in the management of their affairs, as, in his judgment, .

may be most beneficial to them; or, Congress may, here- |

‘after, make such provisions by law as experience shall

prove to be necessary.

Article 12. It is agreed that all roads and highways,

laid out by authority of law, shall have right of way

~ through the lands herein ceded and reserved, on the same

terms as are provided by law, when roads and highways

are made through the lands of citizens of the United

_’ States; and railroad companies, when the: lines of their

; roads necessarily pass through the lands of the said

Indians, shall have the right of way, on the payment of a

just compensation therefor in money. 3

[1085]. Article 13. It is believed that all the persons

and families of the said combined tribe are included in

_ the annexed schedule, but should it prove otherwise, it is

hereby stipulated that such person or family. shall select

from. the ten sections reserved as common property, the

quantity due, according to the Tules hereinbeforé pre-

scribed, and the residue of said ten sections or all, of .

-them as the case may. be, may hereafter, on the. request

of the chiefs, be sold by the President, and the proceeds

applied to the benefit of the Indians.

Article 14. This instrument shall be obligatory on the

contracting parties whenever the same shall be ratified: by

the President and the Senate of the United States. .

In testimony whereof the said George W. Manypenny,

Commissioner as aforesaid, and the delegates of the said

combined tribe, have hereunto set their hands and seals, —

- at the place and on the day and year first above written.

George W. Manypenny, Commissioner - [L.S.] .

- - Ma-Cha-Ko-Me-Ah, or David Lykins.

Charles Calvert,

-Jas. T. Wynne,

Wn. B. Waugh,

ae

ee ae Ge

Kio-Kaw-Mo-Zan, his x mark.

Sa-Wa-Ne-Ke-Ah, or Wilson, his x mark.

Sha-Cah-Quah, or Andrew Chick, his x mark.

Ta-Ko-Nah, or Mitchel, his x mark.

Che-Swa,Wa, or Rogers, his x mark.

Yellow Beaver, his x mark.

- Executed in presence of—

Robert Campbell,

Ely Moore, Indian Agent.

Baptiste Peoria, ‘his x mark, U. 8. Interpreter. .

Wm. B. Waugh, witness-to signing of Baptiste Posria.

id 2 &

(Schedule 10 Stat: 1085-1087 omitted)

[1087] "And whereas the said treaty having been sub-

‘mitted to the Senate of the United States for its consti-

tutional action thereon, the Senate did, on the second day

_ of August, eighteen hundred and fifty-four, ratify the

same by a resolution in the words following, to. wit:

IN EXECUTIVE SESSION,

- SENATE OF THE sie STATES,

August 2, “1854.

Resolved, (two-thirds of the Senators present concur-

ring), That the Senate .advise and consent to the ratifica-

tion of the articles of agreement and convention made

and concluded at the City of Washington this thirtieth —

day of May, one thousand eight hundred and fifty-four,’

ae en

Bi inn

by George W. Manypenny, Commissioner on the part of

the. United States, and the following named delegates —

’ representing the united tribes of Kaskaskia and Peoria,

_Piankeshaw and Wea Indians, viz: Kio-kaw-mo-zan, David

_Lykins, Sa-wa-ne-ke-ah, or Wilson; Sha-cah-quah, or

Andrew Chick; To-ko-nah, or Mitchell; Che-swa,wa, or

Rogers;. and Yellow Beaver; they being oo, authorized

thereto by the said Indians.

Attest: aay

' Asbury Dickens, Secretary.

Now, therefore, be it known that I, Franklin Pierce,

President of the United States of America, do in pursu-

‘ance of the advice and consent of the Senate, as expressed

in their resolutian of August second, one thousand eight .

. hundred and fifty-four, accept, ratify, and confirm the said

treaty. .

In. testimony whereof, I have caused the seal of the

United States to be herewith affixed, having signed

_ the same with my hand.

Done at the City of Wodeaien, this tenth day

. of August, in the year of our Lord, eighteen

[Seal] hundred and fifty-four, and of the Independence

of the United States, the seventy-ninth.

Franklin Pierce.

By the President:

W. L. Marcy

Secretary of State. -

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&. 6 POST