Brief in Opposition to Certiorari — Adams v. United States

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GURRKEee ~~ oe ae Wourk Usm |

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BRIEF IN OPPOSITION TO CERTIGRARI:*> 3 3%

: es | IAMES 5 patie NG, Clerk

. In Tue: eae,

| Spree Court of the Auited States a

_. October Term,1958 _

HaNNanvILLe Inpian ComMunITy, ET AL.,

Petitioners

; v.

Tae Pram Banp of Potawatomi Inpians, ET AL,

_Tue_CrrizexBANp OF OF Potawatomi INDIANS, ET ae oy

. Respondents

and .

Tue Unirep States or AMERICA 3

: , lg Dan ae et : : - v.-

On Petition for Wéit, of Certiorari to the United States .

- Court of or rief of ce in Opposition

|. Oi Meee >

af Southern Building .

Washington > ig oie

Of Counsel: ee. Attorney for Prairie Basia

: Rosert Stone. JOHNSON of. Potawatomi Indians

Columbian Building - ' Howanp D. .

Topeka, Kansas Moses

. 231 South LaSalle Street

Ivy Lez BucHanan . Chicago, Illinois

je = area ang Attorney for Citizen Band

ashington 5, D.C. 4+ Potawatomi Indians —

‘Louis L.-Rochmgs — oa fe SS ey :

- T11 14thStreet, N. W. ee ee ee

': Washington 5, D. C.

WILSON - Epgs PRINTING Co. - RE 7-6002 - WASHINGRON 1. D. C.

a INDEX

| | ; ° PAGE

I Opinions below EEA Rene) eee Ne: Ln

eT ee

‘III Question veiented signin seine cca oe a.

: Statutes involved . spasagatiins as Pree ee ey we ys dh

‘V. Statement Ree Reems EIS ie

VI Argument ......... ' Se NOY sno 2

(1) There is no conflict of decisi6n............: es @

* ° .(2) The opinion and judgment of the Court. —

below are clearly correct.........1......0.. 6

Conclusion Se ede Meas ce ate ea a

+ Appeniia Fos. UL MEST Ac Noite ee iis a

: Appendix IT . saeaage ae Rceaaass Goals LL ET, ;

Cases sete . | oh ry.

~ Cherokee Trust. Funds, 117 U. Ss, I cciniessinye ok, 6.

_ -Halbert v, United States, 283 U.S. 753.................... «6

Oakes v. United States, 172. Fed. 807.00... o> Be)

~ Potawatomie Indians v. United States, 27 Ct.

Cls. 403, aff’d Pam- a Pee v. United States, 148

: Oa EG it SAG, Me 6

-_— Prairie Band of Putawaitioanie Indians, et.al. v.

' United States, et al., 165 Fed. Supp. 139.......... 1, 6,9

Statutes |

' Indian Claims een a a August 13,1946, PJ,

60 Stat. 1049 shies Ma akcaale dec hia cas htc adie abana cau tealacios ae

28 US.C.A. See. 1255... eee candice ai oe

> dn teas | ee a

Supreme Court of he Hated rae

October Term 1958

No. 627

, 7

mS e . . :

HanNAHVILLE CoMMUNITY OF INDIANS, ET AL.,

Petitioners |

ae Vv. :

Tar Pram Banp or Potawatomi INDIANS, ET AL.,

Tye Crrzen, Banp or Porawatomi INDIANS, ET AL., |

~ ka Respondents

and.

‘Far Unrrep States or AMERICA

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION |

. FOR CERTIORARI TO THE UNITED STATES

Mt —— OF —

Cate

"OPINIONS BELOW

‘The opinion of the Court. below’ is is ‘dated July 16, 1958, ©

«x and reported as Prairie Band of Potawatomi Indians et al.,

v. United States, et al.,.in 165 Fed. Supp. 139 to 154, in-

elusive. At this writing this Opinion has.not been printed .

. ° in a volume éommon to the reports. of the Court of

Claims. This opinion was written by Mr. Justice Reed

(retired from this Court) but the usual: statement. as | to

the writer of the: opinion was omitted from the copy “of

the opinion printed by the. petitioners in. their appendix.

(1: A) The Court-of*Claims opinion was eo

Saw

The Indian Claims aniastuaieis wrote both Pindings e

Fact:dnd an dpinion, dated September 19, 1956, (€ Indian .

Claims Commission, 515, 539).: As this Court may -be

aware, the findings of fact and opinions of this? Commis-

sion are mimeographed and: not printed. A copy of the

Commission’s opinion-has, been printed in the appendix of

petitioner’s brief (A-25:47A). The Findings of Fact by

‘the Commission in this matter have not been printed by

the. petitioney: ‘Counsel for respondents ee such 1 find-

“4

ings of fact most, material.and a part of the Opinion of

the Commission. They have printed the said fPindings 0 of

Fact in the appendix to this brief.

II.

J URISDICTION

The Indias Claims Commission entered Findings - of.

act and an opinion dated:-September 19, 1956 (4 Indian

Claims: Commission 515, 539), sustaining the motion of

the respondents to diamias the intervening petition of the

petitioners because of the failure of the .petitioners to |.

establish that they had any. interest in the principal case,

in which, on the same day, the Commission filed Findings

of Fact and an ‘opinion, (4 Indian .Claims Commission).

Petitioners filed « motion for rehearing of the allowance

_ of the motion dismissing. their intervening petition. Upon —

- the denial of said motion, petitioners filed-an appeal to_

the United States Court of Claims under Section 20 (b)

of the Indian Claims Commission Act of 1946:- The Court

_ of Claims decided the case adversely to the petitioners in’

_ this. opinion entered July 16, ‘1958, ‘which has been re-

ported as above stated. Petitioners filed’ a motion fér

_ reheari shortly . before..the lower Court adjourned for ,

hn ‘months, ‘The motion was denied on Qc-'

tober 8,.1958, after the judges of the Court returned. —

ve of this — a certiorari followed.

aeninmconny camrnsennenreeme’ sac

‘fA

: In a proper Indian case, this Court certainly has dis-”

cretionary ' ‘jurisdiction to grant or deny certiorari under —

.28-U. S.C. 1255, and Section 20(c) of the ‘Act of August

, 13, 1946, 60 Stat. 1049. ee

Respondents wsihlond that die case is not a "proper

case in which to grant certiorari.

m =:

: _ QUESTIONS ‘PRESENTED

ThefIndian. Claims Commission mafle Findings ot Fact, |

sustained by the. Court of i o the effect that the

petitioners were not as a matter of histori¢. fact, tribal

custom or Federal law, members of, or occupants of ‘the

lands. of the Potawatomi Nation which in 1846 made a’

treaty ceding such lands to the United States (9 Stat.

- 853): The: question, is whether subsequent Congressional

legislation appropeiating funds for the petitioners’ bene-

_ fit must be construed as making them a part of the Poja- |

watomi Nation; and entitled to share with the acknowl-

edged bands of that Nation the sii of compensation

_ «for the lands ceded ‘in 1846.

No: question is involved as .to the. power of. the ‘Court:

below, or -the Indian Claims Commission to “modify”

(Pet.-p. 5) an Act of Congress. The appropriations-made

from general. funds in .the’ Treasury, (not from tribal

funds) were, so far as’ appears, expended by the Secre-

tary of the Interior, as intended, for the petitioners, or .

for their. benefit. ne

STATUTES INVOLVED

. The statute primarily involved is the Act -of August |

“13, 1946, 60 Stat. 1049, generally known as the Indian

Ciaiins Commission Act, particularly Section 20 thereof.

"Also, there are involved certain extracts from statutes

enacted by the Congress from time to time during the

period of 1906 to 1928 which are printed in the aun

to this brief. (App..: 12-17).

STATEMENT

The dniiliiie Indians all originally lived east of the

Mississippi River, organized - in different autonomous

groups and occupying various tracts of land in what we.

now know as the States of Ohio, Indiana, Michigan, Tlli-

“nois and Wisconsin. (165 Fed. Supp., pg 143). .Westward

removal of the majority of the Potawatomi. Indians was

effected in large measure by two treaties. By a treaty

2 made in 1833 actract in South Western Iowa was granted

to’ Potawatomi Indians and @ few Chippewa and Ottawa

Indians, referred to as the “United Nation of Chippewa,

Ottawa and Pothwatoniie Indians” (7 Stat. 439). By a\

second treaty made in 1837 a tract of land’in eastern’

Kansas, in the Osage River area, was granted to “The

Pottawatomies of Indiana”. Both tracts were reconveyed

to tlie United States by a ‘treaty made in..1846, which

treaty also consolidated the Indians on both tracts, for-

merly autonomous Potawatomi groups or bands of said

Indians into the “Potowatomi Nation” of Indians. None ~

of the petitioners’ ‘ancestors were included among the

- groups consolidated. This 1846 treaty also provided

that the consolidated bands, forming the Potowatomie

- Nation were to be. removed to the Kaw River Valley in

: Kansas and they were so removed. .

The Potowatontie Nation of Indians Silt ionieg di-

vided into the Citizen Band and Prairie Band of Pota- °

watomie Indians. The Prairie Band was allowed to retain

a small reservation of Kaw River land to be held in

‘eommon. The. Citizen Band received its share of the Kaw ©

River land ‘in severalty. The balance of the Kaw River

Land was sold to one. of the western railroad companies

” Stance ane a

and the proceeds- were divided only among the members

of the said Prairie and Citizen bands of Indians, respond-

ents here. | .

Petitioners here are descendants of individual Indians

' wha remained east of the Mississippi, some with Govern-

ment consent and some without such consent. Some had

“formerly ‘been connected with bands consolidated under

the 1846 treaty, but none of them lived on the ‘western

lands. ;

Respondent brought this stit under the Act of August

13, 1946 to recover adequate compensation for the lands

- eeded by the Potawatomi Nation of Indians under the

. treaty of 1846. Petitioners intervened, with leave of the

Indian Claims Commission. Following a trial on the

+ merits, the Commission. made Findings of Fact and

wrote an able opinion. The Commission then dismissed the

intervening petition. A motion. was filed by the petitioners

fora rehearing i the Commission denied the.motion:

The petitioners Yhen appealed to the United States

Court of Claims and that court has affirmed the findings

of fact’ and opinion of the Indian Claims Commission.

Petitioners filed a motion for rehearing as the motion.

was denied. Be

The opinions of the Court of ‘Claims and’ of the In-

dian Claims Commission are both such that counsel for

respondents are unable’ to improve on théir statements

of the case. The opinion written by Mr. Justice Reed,

. particularly, stated the contentions of the petitioners and

very clearly arf ably answered =

2 ; - \

ee ae

“. + ARGUMENT.

21% % ;

There is no Senflict of decision

.The petitioners have offered no citations in support

of their assertion that’ “there is a conflict of decision

which this Court should settle” (Pet. p. 32). Actually,

the decision of the Court below makes it, plain that both

that Court and the Commission are in accord with all the

decisions of this Court, going back to the Cherokee Trust

Punds case, 117 U. S. 308. Moreover,-as pointed out by

the ‘court below, a similar claim to that of the petitioners

was long ago rejected_by the Court of Claims in Pota-

_watomie Indians v. United States, 27 C. Cls, 403, aff’d

sub. nom. Pam-to-pee v. United States, 148 U. Ss. 691. .

The principle of these decisions has been since con-

_‘sistently followed. This principle was stated and applied

by the Court dnd Commission below (165 Fed. oo 139,

147; see Pet. p. 13-A):

.“Since it was only members of the tribe who ere

entitled to the use and benefit of the tribal property,

land or annuities, membership in the tribe is the

touchstone to. the right of individuals or groups. to

articipate.”

citing| Halbert v. U nited ‘States, - 283 U. S. 753; Oakes v.

Unite States, 172 Fed. 307.

On ‘this issue: we know: of no conflict of decisions ‘tie

tween the opinions-and judgments of either the Commis-

sion or the Court below, and the opinions and judgments

of this Court. - | :

/ ae a 2. oe So

The opinion and judgment of the Court below

are clearly correct.

Ro)

The Wetitioners have cited no cases which hold, or even .

by implication suggest, that the Court below may be in

error.. The petitioners’ main argument: is that the Con- .

gress of the United States has recognized the present

day so-called Wisconsin Band .of Indians as entitled to

share in all the assets, including recoveries of the Pota-

. watomi Nation for western lands under the Indian ‘Claims

Commission Act. ‘Both the Court below ‘and the Indian:

Claims Commission carefully examined this contention

and found it to be entirely without merit.

The: appropriations made by the several statutes és.

tween 1906 and 1928 relied upon do not in. terms, or by

implication, determine that: the Wisconsin Potawatomi |

Indians have, or should be given, any recognized status as

members of the Potawatomi Nation which moved west of

the Mississippi River, or to share with the members of:

‘such Nation or their successors ‘in recoveries under’ the

Indian Claims Commission Act. The YLourt helow de-

termined that the evidence supported :

_¢ ee Commission’ s final sinelnaalin that the ¢ ap-

pellants [petitioners here] lrad dissolved: ‘their con-

nections and their rights to share’ in-the proceeds of

the Westeyn lands before the treaty. of Council Bluffs

and Osage River.” (165 Fed. Supp. 153) |

Petitioners quote from a’report of the ncactavy of the

Interior which they assert shows a determination by him:

of ‘their rights (Pet. p..19). The quotations: omit signifi-

cant phrases! The Secretary was discussing, and by di-

rection of Congress reporting, on what would have been

“due” the so-called Wisconsin Band “assuming that all.

_ members of the Tribe should share equally” (Pet. p. 90-A).

With respect to lands west of the Mississippi, the report

discusses what the alleged Wisconsin Potawatomi, “would : .

have been entitled to .. . had they removed there” (Pet.

- p. 94-A) -or “had they emigrated with their brethren”

(ibid).

The Court selon epectiioalty agreed with the Commis-

‘sion that as to the making of these appropriations to be |

-used bythe Secretary of the. ‘Interior, as above stated,

. for the benefit of the petitioners:

c “We conclude that the Indian Claims Commission

correctly held that these apprepriations were not and

were not intended to beia recognition of a right in

the non-emigrant Wisconsin Indians to share in the

proceeds of the Western — ” (165 Fed. Supp. |

146)

It has been stated in many cases in this ‘Court, nn

. Numerous to mention, that this Court does_notsit-as~a

_-court for the correction: of error.

The. scope of judicial review hy this. Court - of findings ;

of faet and opinions of the United States Court of Claims .

in Indian cases is stated in Seciion 20¢c) of the Indian

Claims Commission ‘Act, approved niiousaak 13, 1946, as. |

follows:

Claims under. this section shall be subject to review

by the Supreme Court of the United States in’ the

manner prescribed by Section 3 of the act of Febru- . |

ary 13, 1925 (43 Stat. 939; 28 USC see. — as

amended.” (Italies supplied)

There is thus no provision for thé review of, the facts.

by the Supreme. Court of the United ‘States in Indian

- cases ar isIpg under the Indian Claims Commission ‘Act of

1946. A*“limited review of the facts in Indian cases is

vested in the United States Court of Claims, in pertinent

part, by Section 20(b). of the Indfan Claims. ‘Commission

Act of August 13, 1946,.as follows: . “

“At any time within three’ einths ‘from the date. of

filing of the determination of the. Commission with

the clerk either pakty may appeal from the determi-

_ nation of the Vaeeeany to the Court of Claims,

_ By revisions of. the Federal Code, this Section 288 oe Section

28 is now Section 1255 U. 8. —

> c

“Determination of questions of law by the Court of

which Court shall have exclusive jurisdiction to af-

firm, modify, or set aside such final determination. ©

On said appeal the Court shall determine whether

' the findings of fact of the Commission are supported

by substantial evidence, in which event, they\shall be

conclusive,.and Also whether the conclusions vf law,

including any SS ‘fair and honor-

able’ dealings’, where applicable, stated by.the om-

- mission, as a basis for-its final determination, are |

____—.— valid-and supported by the Commission’s findings of ~~

- fact. .In making the foregoing determinations, the

~ Court shall review the whole record or such portiéns

thereof as may be cited by any party, and due ac- —

count shall be taken of the rule of prejudicial error.

The Court may at any time remand the cause to the _.

Commission for such further proceedings as it may .

direct, not inconsistent: with the foregoing provisions

of this section.” | Sh ar

Mr. Justice Reed, in this case, was quite careful to

_ point out in his opinion dated July 16, 1958, reported. in

165 Fed. Supp. 139, at page 153, that:) © /

“Our review of this record leads to’the conclusion .

reached by the Commission. We think thé. Commis-

sion’s: findings of fact, material to the conclusions °

.« “séached by us as to the claims of appellant, are: suyp- -

-- ported by substantial evidence in -the record as a

whole in aécordance with this Court’s interpretation

of the Indian Ctgims Commission Act in Osage Na- |

tion-of Indians v. United States, 119 Ct. Cls., 592, 602

and support the Commission’s final conclusion that

> the appellants had dissolved ‘their connections and

_ = their rights to. share’ in the proceeds of the’ Western

a ae a the Treaty o uncil Bluffs and Osay:<

- River.” ... 7

. “The judgment of the Indian Claims Commissson

dismissiag the ‘petition for intervention is affirmed.”

‘There is not involved here any important question of

Federal Law. The assertions of the . petitioners to the

- eontrary have been: made notwithstanding the unanimous

eo ee,

. ‘Pailin of Fact mr the unanimous opinion of the . hres 2

man Indian Claims Commission, which are both d ted

September 19, 1956. Also, the said Commission unani-

mously denied petitioners’ motion for a’ ‘rehearing’ in the

case. ’

The assertions of. petitioners are also in the face of

the unanimous opinion and judgment of the Court of

' Claings, a retired member of this Court writing the opin-

ion *

the ies below. A motion’ for a further hearing by the

said court was denied on October 8, 1958. .

Thus three members of the Indian Claims Commission

and Mr.-Justice Reed and three sitting members of the —

Court of Claims, or a total of seven. members & the Coim-

nimously concurred in by the sitting judges of .

mission and the Court helow, have decided: the issues in * |

the case which petitioners now assert were erroneously

decided!

Counsel for the respondents are satisfied that the

learned Findings of Fact prepared by the Indian Claims

Commission and its opinion as well as the learned opinion

of the Court below constitute a complete answer to the

petition for certiorari. . _/ >

Instead of an important question of Federal law being

involved, all that is involved is whether the petitioners

are entitled under uncontested facts to a share of any

recovery the respondents may collect for the cession: by

the Potawatomi Nation of Indians. in 1846 of their land _

in southwestern Iowa and. in, eastern Kansas in the Osage

- River area! The Commission and the Court betow have

answered in the negative and we believe the Court helow

-to be entirely correct. :

Conetusion

Respondents believe that the opinion and fatiquient of

the Court of Claims are entirely correct in affirming the

ee a2 11

— . -

Findings of Fact and Opinion of the Indian Claims Com-

mission. The petition for certiorari should be denied for

‘the reason that it can not be properly granted in view

_ of the terms. of Section 20 {c) of the Indian Claims Com-

mission Act of 1946 and the correctness of the opinion.

. ’ and judgment of the Court below. .

Respectfully submitted, . Ree

O. R. McGuire ; Bie

Attorney for Prairie Band.

-.0f Potawatomi Indians

‘ Llowarv D. Moses _

oie Attorney for the Citizen

- Band of Potaivatomi Indians

e = Of Counsel: i a | =y : nae

Lotis L. Rocumes |

(711 14th Street

Washington, D. C.

, Ivy Lez Bucnaxaxn Wea tele

a, _Southern Building Ate )

beeen? Washingfon mt.

Ronert Stoxe JOHNSON

‘Columbian Building

Topeka, Kansas

“APPENDIX I

Act. of ™ une ‘21, 1906, 34 Stat. 380:

“That the Secretary of ‘the Interior be, and he is,

hereby, directed to cone an investigation to be made

of the claims of the Pottawatomie Indians of W)js-

consin, as set forth.in their. memorial to Congré

printed in Senate Document Numbered One Hundred

and Eighty-five in Fifty-Seventh Congress, Second

Session, and to be reported thereon. to. Congress at

- the beginning of the last session thereof, showing on

the best information now olétainable what number. of ©

said Indians continued to reside in the State of Wis-

. eonsin ‘after the Treaty of September 26, 1833,. their’:

proportionate share of the- annuities, trust ‘funds, and ©

other moneys paid to or expended for the tribe to

which they belong, in which the claimant Indians. have ©

not shared, the amount of such moneys retained in

the Treasury of the United States to the credit of the

claimant Indians as ‘directed by the provision of the -

Act of Congress approved June 25, 1864; if none have

been so. retained the amount that should have been

‘annually. so retained’ under said law, showing. also

what disposition has been made of the annuities, trust

funds, and other moneys of said tribe, with the

amounts and the status of any now remaining to coe

credit in the Treasury: or otherwise. ,He will als

‘ cause an enrollment to be made of said *Pottaw ratonfi

Indians.”

Act of June 30, 1913, 38. Stat. 102:

“For the portion of allgtments for: the. individual

members. of that portion “of the Wisconsin Band of

Pottadhtediie Indians now residing in the States of .

Wisconsin and Michigan $150,000: said sum _ to: be

reimbursed to the United States ‘out of appropriation,

when. made, of $447,339, the said sum last named

being the proportionate share of the said Indians in

nifuities and moneys of the Potawatomie , Tribe, in

which’ they have not-shared, as set forth in House,

: Document Eight Hundred and Thirty, Sixtieth Con- ,

gress, ‘First Session, and the Secretary of the In-

-_ A ‘ . . a

r :

. . . ¥

r e F ‘

= Rosse:

siete is hereby authorized to expend the said sum of

- $150,000 in the purchasgagt Spd within the States

of. Wisconsin and MicQigi, te title of such land

to.be taken in trust by¥ ai vamernment for the use .

mid land to be situated |

in organized yo: dist#

3 and to be purchased in

bodies of not madre than one section, which. said

bodies shall.not adjoin each other: Provided, that

.the lands so purchased, except such part thereof as

may be necessary for administrative purposes, shall

be divided ‘equitably among the Indians entitled

_ tgereto, and paterits therefor shall be issued in ac-’ .

coWdance’ with the general allotment laws of the |

United States: Provided further, That The Secre-

tary of the Interior ‘may, in his discretion,=¥ithhold

allotments from any Indian or Indians belonging to

. this Band who, owing to advanced age or other in-

firm}tgs, are deemed by him incapable -of making

benefial use thereof, and in lieu of similar allot-

. ments to Indians falling within this class tentative

allotments of land may be made to such Indians for

oecupaney and use during the ‘remainder . of their

natural lifetime.”

-Act.of August 1, 1914 (38 Stat. 607)

“The money: appropriated in section twenty- four

of the Indian Appgopriation Act of June thirtieth,

nineteen hundred and thirteen (Public Numbered.

four), for the purchase of allotments for the indi-

_ vidual members’ of that portion of the Wisconsin

. Band‘! of/ Pottawatomie Indiaus now residing in the

| States of Wisconsin and Michigan,’is hereby reap-

__-propriatéd and. made available for the purpose for

> which appropriated : ‘and shall remain available until

expended.” | f :

Act of. May 7 916 (39 Stat. 156-1 57)

“Fo support and civilization of those portions |.

of the consin Band of Pottawatomie Indians re-. |

siding in WMacongn B of Wisconsin and Michigar, and’

to aid said Indians in establishing homes on th lande

purchased. for them under the provisions of the Aet

of Congress sient June thirteenth, : nineteen hun-

e e ,

» 14, [ae

dred: and - thirteen, $100,000, or so anal thereof as

may. be necessary, said sum to be reimbursed to the

- United States’out. of the appropriation, when made, of

the principal due as the proprotionate ‘share of said

Indians in annuities. and: moneys of the Pottawatomie

Tribe in which they have not shared, as set forth in\

House Document Numbered Fight Hundred and

thirty | (Sixtieth Congress, ‘first. session), and the ~ .

Secretary of the Interior is hereby authorized to ex-

pend the‘said sum of $100,000 in the clearing of land

_and the purchase of houses, building material, seed,

‘animals, machinery, tools, implements, and other

_equipment and supplies necessary to enable said In-

dians to become self-supporting: Provided, That in

order to train said Indians in the use and handling

of money, not exceeding $25,000 of the above appro-

priation may be paid to” them per capita, or be de-

pasited to their credit subject to exppenditure in such .

manner and under such rules and regulations as. the

Secretary of the Interior may ,prescribe.”

Act of March. 2, (1917 ( 38 Stat. 991)

3 “For the support and civilization of these portions

of the -Wisconsin Band of Pottawatomie ‘Indians re- .

siding in the States of Wisconsin and Michigan, and

to aid said Indians in establishing homes on the lands

. purchased for them under the provisions of the Act

of Con#ress approved June -thirtieth, nineteen hyn-

_ dred and thirteen, $100,000, or se. much thereof as

may be necessary, said sum to be reimbursed to’ the

United States: out. of the. appropriation, when made,

of the principal due.as the proportionate share of

said Indians in annuities and moneys of the Potta-

* watomie Tribe in which they have not: shared, as set

forth:in House Docuntent Numbered Eight jHundred

and thirty (Sixtiéth Congress, first session), and the.

‘Secretary. of .the Interior is hereby authorized to.

expénd. the said sum of $100,000 in the clearing of

“end and the purchase ef homes, building material,

seed,‘ animals, maghiner¥ Fools, implements, and other ;

equipment and sfpplies poser des to enable said In-

dians to become self-supporting : Provided, That in

e. order to train said Mindians in the use and handliag

—

A . ‘

rear 13°

of money, nat ‘acini $25,000. of the eis ap-

_gpropriation may be paid to them per capita,.or be -

depogited to their cgédit’ subject: to expenditure in

such mannersand under such rules and regulations

-as the Secretary of ‘the Interior may prescribe.”

_. Agt.of May 25, 1918 (30 Stat-589)" ,

= @,

“For thé support and-eivilizdtion of those portions

‘of. the Wisconsin Band of Pottawatomie . Indians

residing in. the States of Wisconsin and Michigan,

- and to aid said Indians in establishing homes on. “the

land purchased for them under the. provisions of fhe

Act of Congress approved Juné. thirtieth, nineteen ..

hundred and thirteen, $75,000, or so much thereof as

‘may’ be necessary, said sum to be reitithyrsed to the -

United States out. of the. appropriation, when made,

of the principal due as the proportionate sharé of

said Indians in annuities and moneys of the Potta- -

watomie Tribe in which they have nat shared as set _

forth in House’ Document Numbered. Fight ‘hundred:

and thirty (Sixtieth Congress, first sessjon), and.the .

' Secretary of the Interior is hereby .auth zed to .

‘ expend the said sum of $$75,000, in the clearing of

land and the purchase of houses,. building material,

seed, animals, machinery, tools, implements, and

‘other equipment and’ supplies necessary to enable said

Indians to become’ self-supporting: Provided, That

from the sum herein appropriated for said Potta-

watomie. Indians the Secretary of the Interior, is

hereby authorized to pay to the legal representatives

of R. V. Belt (Mrs. Jena Belt ‘and William O. Belt),

such sum, not exceeding $25,000, as he, after a proper

- hearing, may fix as compensation justly - ‘and equit- .

‘ably due the said Belt and associates on a quantum

meruit for their services in: recovering for the. said

_ Pottawatomie Indians ‘the annuities withheld from

‘them, under contract with representatives of said

Indians approved by the Commissioner of .Indian

Affairs November first, nineteen hundred and two.”

Act of June 30, 1919 (41° Stat. 29)

“For the Support and civilization of those portions

of the Wisconsin Band of Pottawatomie Indians

residing in the States of Wisconsin ‘and Michigan,

and to aid said_Indians.in establishing homes on the |

- lands-pu hased-for them under the provisions of the |

Act of Congress approved June 30, 1913, $15,500, or

so much thereof as may be necessary, said sum: to be

reimbursed to the-United States out of the appropria-

tion, when made, of: the principal. due as the propor-—

tionate share of said Indians in annuities and moneys

of. the Pottawatomie Tribe: in .which they have not

shared as set forth in.House Document Numbered

830 (Sixtieth. Congress, first session), and the Secre-

tary-of the Ifterior is hereby authorized to mnake per.

capita payment uf $40 to said* Indians out of said

funds: “Provided, That no further expenditures he

- authorized or made under appropriations : heretofor¢

enacted inaking provisions for the purchase of land

and, the clearing of same for said Potawatomie’ In-

dians: Provided further, That from the sums. here-

tofore appropriated for said Pottawatomie Indians the

ne Secretary of the Treasury is cote authorized and

directed to pay, to Erik ‘O. Morsta

. consin; in. person and in full satisfac tion for services

of Laona, Wis-

rendered, the sum of $2,000.”

Act of May-29, "1928 (45 Stat. 901)

ee Payment ‘to Pottawatomie Indians of Wisconsin

Ra Michigan : For the. Wisconsin Pottawatomie In-

dians‘ of Wisconsin and Michigan, $6,839, this sum

“being the unappropriated balance. found. due said

Indians under the treaty of September 27, . 1833

Seventh Statutes at Large, page 442), and the Act

of June 25, 1864 (Thirteenth Statutes at Large,: page

172); and the unexpended balances of appropriations

made for the purpose by the Act of May 18, 1916

_(Thirty-ninth Statutes at Large, page 156) May 25,

1918 (Fortieth Statutes at -Large, page 589.), and

June, 30, 1919 (Forty-first Statutes at. Large, page

29), aggregating $37,044.55, together with the un-

a i balance of $4,847.73 of the appropriation

for the purchase of Jand for said Tidians contained in ——

the Act of June 30, 1913 (Thirty -eighth Statutes at -

Large, page 102), vhicli have been’ carried. to the

surplus fund, of the Treasury, are hereby reappro-

| priated; and the fotegoing amounts aggregating

$48,231.28 shall remain available until June ‘30, 1929,

and be subject to expenditure for the benefit of said

Indians, or payment to them, in the discretion’ of the -

Secretary of the Interior, as authori by the Act -

_ of February 29, 1928. ” | ;

Act of February 14, 1920 (41 Sta

“The unexpended balance of the appropriation fot it

-the fiseal year 1918, -approximating $55,057.37, is

hereby: reappropriated and made available until ex-

“* pended for the support and civilization of -those por- -

ties of the Wisconsin Band of Pottawatomie In-

dians residing in the States of Wisconsin and Michi-

gan; Provided, however, That the abovewnentioned

sci 2 of used only for the purposes set forth in

section.25 of the Act approved May 18, 1916 (Thirty-

ninth Statutes at Large, pages 156 and 157), and sec-

tion 24 of the Act approved March 2, 1917 (Thirty-

ninth Statutes at Large, page 991).” ;

—<*F

_ APPENDIX I

BrEroreE THE © |

Budi Claims Commission

_ Docket No. 15- J

THE Prairie Bax OF ) Porawaroat INDIANS, ET AL.,

Plaintiffs, .

UnItTEb STATES oF AMERICA, °

| Defendant.

Docket No. 71-A -

Tue Citizen Banp or Porawatomi InpIANs, ET AL.,

¢ Petitioners,

: ¥; ; :

Unirep States or AMERICA,

Defendant.

_ HANNAHVILLE InpIaN CoMMUNITY, ET AL.,.

suber eneg Petitioners.

Decided September 19, 1956

FINDINGS OF FACT RELATING TO MOTION TO z

DISMISS INTERV ENING PETITION .

The Commission makes the following findings of fact:

1. The claims presented in this suit involve questions

4 adequate compensation | for. two tracts of land. One,

~ located in Iowa, was granted by treaty in 1833 to the

“United Nation of Chippewa, Ottawa, and Potawatomie

Indians”. which by the same treaty. ceded ‘to the. United

States certain lands in Illinois and Wisconsin. This.

group, hereinafter referred to as the “United Nation”,

an entity comprising a dominant group of Potawatomi:

- 19

inten, with which Indians of Chippewa. walt Ottawa

- ancestry were affiliated, is further, described and identified

below in Findings 1}-14.

The other tract, located. on the Oshge River in ‘Kansas,

was granted by treaty in 1837’ to the “Potawatomies of

Indiana”, who are identified below in siete Ml, and

23-24.

EVIDENCE

See petitions, 71-A and 15-J; treaty of saclaieihie

26, 1833, 7 Stat. 431; treaty of February 11, 1837, 7

Stat. 532; and treaty of June 5 and 17, 1846, 9 Stat. -

£853.

2. By a treaty with the Inited States made at Council |

Bluffs, Iowa, on June -5, 1846, and on the Osage River in

Kansas on June 17, 1846, all the Indian bands on the two —

tracts were united to form the Potawatomi’ Nation and

the Nation ceded the two tracts to the United States and

removed as a unit-to another tract, on the Kansas River

in Kansas. The term “Potawatomi Nation” hereinafter

refers to this entity.

Subsequently the Potawatomi -Nation was divided into -

two bands: the Prairie Band. of Potawatomi Indians,

which is still located in Kansas onaa.reserve carved out

of the Kansas River tract, and the. other, the Citizen

Band of Potawatomi Indians of .Oklahoma, which, sub-

_ sequent to 1867, removed to Oklahoma and is still located

there. The Prairie Band and the Citizen Band have been

recognized by the Government as successors of the Pota-

watomi Nation. |. . | ;

The Prairie Band is: the petitioner in No. 15-J, and»

"the Citizen Band is the petitioner in No. 71-A.

EVIDENCE

The .division of the Potawafomi Nation’ into the

Citizen .Band and the Prairie Band followed. the

treaties of November 15,- 1861, 12 Stat. 1191, and

° a . oo?

February 97, 1867, 15 Stat. 531. That the Citizen

and Prairie ‘Bands are successors in interest of the

Potawatomi Nation which.moved to the Kansas River

in Kansas has been conceded by the defendant in

Docket Nos. 15-B and 111, consolidated for trial.

In Docket Nos. 15-B and 111 see petitioners’ findings

1-23, and defendant’s brief, at page 2. This conclusion |

has been conceded in this case (Tr. aS) and is not

disputed by any of the parties.

3. Both the Prairie Band and the Citizen Band | are —

organized bands of American Indians having capacity to

present claims sunder. the Indian Claims Commission Act.

EVIDEN CE

This is not in dispute. See citations under Finding 2.

4. The intervenors, two organized Indian communities,

the Hannahville' Indian’ Community located in northern

Michigan and the Forest: County Potawatomi Community

located in northern Wisconsin, and-six individual Indians

joined with. them,. all assert an interest in the claims.

On of the individual ‘intervenors, ‘Elijah Petonquot, has

not been identified. The other five have ia seinem

as follows:

Frank Wandahsego, Sr., a member of the Hannahville

Indian Community, and Valentine Ritchie and Ike-(Isaac).

~ George, members of the Forest County Potawatomi ’Com- -

munity, claim descent from Potawatomi Indians who in

1833 were members of the United Nation, but who did not

move to Iowa with ‘the. United Nation. Michael Williams

élaims descent from members of the Pokagon Band, ‘a

group of Potawatomi Indians for whom special provision

-was ‘made in the 1833 treaty. Albert Mackety claims.

descent: from members of the band known as the Pota-

watomi of Huron.

EVIDEN CE

’ See depositions of the intervenors, hat: Ex. I-96,

1-97, I-98, ‘I-99, I-106; testimony: of Albert. Mackety,

Tr. 820-827 : testitiiony of Michael —— Tr. 1112-

‘ 6

gh, | | en tt

1113; and testimony of. Harry Ritchie, Tr. 1182-

1193. ‘Harry Ritchie’s testimony was endorsed by his

brother, Valentine Ritchie, Tr. 1212.

5. -{he two communities referred to in Finding 4 have

‘onan no claims in their own right. The intervenors’ °

claims are. that they represent Indians whose ancestors

were members of the Potawatomi Nation whicl* owned

the lands for which additional compensation is sought, »

and that they are entitled to participate in the suit and in

any recovery.. The evidence discloses that the interveners

are members of three distinct classes : (1) descendants )f

Potawatomi Indians who resided in Wisconsin in 1833 and

who did not move westward; (2) dggeeridants of members

_of the Pokagon band; (3) desvenda@hts of members of a —

band known as the Potawatomi of Huron.

The tw communities referred to may include some

members of the first class. The individual intervenors

appear to include members’ ‘of all three classes. The first

class will be referred tp hereinafter as the Wisconsin ;

‘Indians. The second class will be teferred to hereinafter

as the Pokagon band. “Phe third class will’ be referred

to hereinafter as the Huron band.

EVIDENCE

The evidence relating to the Wisconsin Indians is

set out below under Findings 49 to 58; that relating

- to the Pokagon band under Findings 40 to 48; and.

ae ns i to’ the Huron band under Findings 30°

to 39. °

6. In their various pene including the holding and

use of land and their dealings with respect thereto, the

Potawatomi Indians during the period 1795-1833 were

divided into various separate tribes or bands, residing in

different areas, and acting politically as independent units.

‘References to ‘the Potawatomi tribe which appear to re-

late to all the Indians of Potawatomi ‘ancestry, apply the

word “tribe” in its ethnic connotation, as describing a

a group sharing a a common naie and language, and having

many customs in common. A “tribe” in the political sense

was a group, generally occupying an unbroken geograph-

ical area, and having some central authority which may

‘have acted either continuously or intermittently as the

need arose. Treaties and land cessions, were made, and.

various political and.economic activities were carried out,

by the Potawatomi bands, which were “tribes” in the

ee sense of that word.

EVIDENCE a eee,

See testimony of Dr. Wallace, Tr. 934.

7. In the years 1795 to 1833, the Potawatomi Indians °

resided in two areas geographically separated from each

other. One group, known as the Forest Potawatomi, re-

sided in-northern Wisconsin and northern Michigan, o only:

as far south us L’Arbre Croche.. The other group, at one

time known as the “Mascouten” or “Prairie” Potawatomi,

‘comprised the great majority of the Potawatomi Indians

who had séparated from the Forest Potawatomi in the

course of an earlier southward migration, and: resided —

between 1795. and 1833 around the southern part of Laker

Michigan. quince the word “Prairie” was part of various

names applied .at various fimes to different. groupings

without regard necessarily tq the characteristics of their

contemporaneous or earlier médes of life, the Potawatomi.

Indians who resided around Lake Michigan in the period

specified will be referred to as the southern Potawatomi.

The areas in which the southern. oe pee resided,

in terms of the ‘states which were eve ly formed from

those areas were: southern Michigan northwestern Ohio,

‘northern Indiana, —— Illinois, and southern. Wis-

consin. -—si(«‘(‘ re * “Se

The Forest Heiewstndl and the southern Petewatend

spoke different. dialects of the Potawatomi —

EVIDENCE. 7 } ‘

-See testimony .of: Dr. Wallace,. Tr. 936-942; Pet.

S “1 -A) Ex. A-55, and Pet. (15-J Ex. 31 at page 16).

With respect to the en areas inhabited, by the

“various bands of the ‘southern Potawatomi bee also

citations under Finding 11, below.

8. The Forest Potawatomi resided among: a larger

population of -Indians,—other than .Potawatomi,—and

made no treaties with. the United States in which the

group was identified as an entity. _Bétween the areas in

which the’ Forest Potawatomi resided and the areas in

‘which the southern Potawatomi resided lay the lands of

the Menominee and Winnebago tribes.

‘The Forest Potawatomi: had no political connections ©

| with. the southern Potawatomi, and- oe. groups did

not share any lands in common. ’

EVIDENCE

The Forest Potawatomi lived in an area also.oec-

cupied by Chippewa, Ottawa, Menominee and Winne.. —

bago Indians (Tr. 979), and were not politically con-

nected with the southern Potawatomi (Tr. 941).

Alanson Skinner’s “monograph on the Potawatomi, -

_- published in 1924 by the Public Museum of the. City

; of Milwaukee, identifies this group as the Na’nosi or

“Between” people; whose culture resembled thet of

‘the Ottawa, Ojibway [Chippewa] and Menominee

more than that of tlie southern Potawatomi (Pet.

(15-J) Ex. 31, p. 16). Another authority dates the:

separation <of the Forest Potawatomi from the south-

ern Potawatomi as of the fime of the American Revo- -:

lution (Def. Ex. 82, at p. 230).

_ An examination of Rovce’s maps of Michigan and.

Wisconsin discloses that fhe northern limits of ces-

sions made or participated in by the bands which.

made up the southern Potawatomi (See Finding 11)

were a line south of Saginaw in southeastern Michi-

. gan (No. 66, Reyce’s map Michigan, 1, treaty of Nov.

17, 1807, 7 Stat. 105): the Grand River in south-

western Michigan (No. 117, Royee’s map Michigan 1,

- treaty of Aug. 29, 1821, 7 Stat. 218): the southern

tip of Lake Winnebago in southeastern Wisconsin

(No, 187; Royee’s map Wisconsin 1, treaty af Sept.

96, 1833, 7 Stat. 431); and the Wisconsin River in

southwestern Wisconsin (No. 147, Royce’s map Wis- -

consin 1, treaty of July 29 , 1829, 7 Stat. 320.) .

_ Both the treaty of hoes 19, 1825 (7 Stat. 272),

which fixed boundaries (See Articles 7, 8, and 9) and

the 1833 treaty cited (See Article ist) show the

Winnebago and Menominee to be the northern neigh-

_ bors of the Potawatomi in Wiscensin. Cessions to the

_ United States of: the lands in central \and northerr

Michigan and Wisconsin were made as follows [The

numbers identify tracts shown on Royce’s maps,

Michigan 1 and Wisconsin 1}:

Tract ~ - :

No. Loestion Ceded by 3 & Treaty

111 Michigan Chippewa —- Sept. 24, 1819,.7 Stat. 203

205 ’ Michigan. . Ottawa and

Chippewa $$ March 28, ivsé, 7 Stat. 491 .

219 Michigan & Menominee Sept. 3, 1836, 7 Stat. 506

Wisconsin ‘0

261 . Michigan & -

Wisconsin Chippewa Oct. 4, 1842, 7 Stat. 501

158 & ; . a)

160 Wisconsin Ménominee Feb. 8, 1831, 7 Stat. 342 ©

174. _Wiaconsin Winnebago Sept. 15, 1882, 7 Stat. 370

242° Wisconsin “ Chippewa July 29, 1837, 7 Stat. 536

271- .. Wisconsin - Menominee Oct. 18; 1848, 9 Stat. 952 -

9. The southern Potawatomi shared a common lan .

guage, culture, religion and secial customs: Politically, _

however, the southern Potawatomi between 1795 and 1833

were divided into five organized units, which are- referred

‘to herein-as bands. Each band acted as an entity, par:

ticularly with respect to transactions with the United .

. States involving lands. —

EVIDEN CE

- See testimony of Dr. Wallace, Tr. 949-944, 953-959,

965. 967, 969-970. See also evidence cited under Find-

ing 11. :

10. The ‘Potawatent rr were i, of the

particular bands with which they resided. By their own

custom, Potawatomi Indians who made a permanent

Fong.

fA}

™~

Ton

° ; 25

change in residence from the lands of one band to the

lands of another Potawatomi -band, or of another. ethnic

tribe, made a corresponding change in membership and

- affiliation. In the same manner, Indians’of other ethnic

tribes became affiliated with particular Potawatomi bands -

by residence and adoption.

According to Potawatomi custom, descent fr rom mem-_

_ bers of the band was/a sufficient condition for membership

~~ if’ accompanied by continued residence with the band. _

‘ The Potawatomi followed the general. Algonkian custom

of tracing descent in. the paternal line. Thus, an Algon-

kian Indian born of ‘a-mixed marriage, would consider

himself, and. would be considered, as descended ” rom. - the

a | or band of his father.

EVIDEN CE

See testimony of ‘Dr. Wallace, Tr. 935. 938, 946. 947,

_ 950-952, 985.

. Intervenor Michael Williams in his testimony iden- ©

tified Leopold Paul Pokagon, the chief whose follow-

ers became knowr™as the Pokagon band as “not a.

Potawatomi bv birth, nor blood; rather n ma Chip-

pewa than Ottawa. = ( Tr. 1117). The witness referred —

to he oo s “naturalization as a Potaw atomi.” (Tr.

1118). The presence among the Potawatomi in IoWa

of members of non-Potawatomi ancestry was noted

by Government officials ( Report of Ageiit Richiard S.

Elliot, July 24, 1845, Def. ‘Ex.:51).

"11. The five bands into which the southern Pianist 7

were divided, and their general locale, were the following :

| ¥ "- The United Nation of Chippewa, Ottawa and.

_ * ~ Potawatimi, residing on the west side of Lake Michi-

* gan im Illinois and southern Wisconsin, and particu-

larly on the Hlinois, Milwaukee and Monitowoc Rivers

and their tributaries. This band is hereinafter re-,

ferred to as the “United Nation”.

: (2) The Potawatomi of the Prairie and Kankakee,

_ residing south of Lake’ Michigan. in the vicinity of the

i o

Kankakee River and the Illinois-Indiana border. This

band is hereinafter referred to as the Kankakee band.

(3). The Potawatomi of the Wabash, residing south-

east of Lake Michigan, in northwestern Indiana, north:

of the Wabash River. This band is hereinafter re-

ferred to.as the Wabash band. ~

(4) The Potawatomi of St. Joseph, —more com-

monly known from: about: 1830 on,. as the Potawatomi

of Indiana and Michigan,—residing. in the general |

vicinity of. the St. Joseph River on the east side of —

Lake Michigan, in southwestern Michigan and north-

ern Indiana. This band is hereinafter referred to as .

* the St. Joseph band. —

(5) The Potawatomi of ieee residing in the

. vicinity of the Huron and Raisin Rivers, in south-..

eastern Michigan and northwestern Ohio. This band

is hereinafter referred to as the Huron band.

és The United Nation was located farthest west, and the |

Huron band: farthest east, with the other three bands |

residing in the area between them. e 7

EVIDENCE

See testimony of Dr. Wallace, Tr. 943- 945, — Pet.

(71-A)_ Ex. 38. Each of the five bands named made

‘one or more treaties involving land in which the par-_.

ticular band was: identified!’ as the party to the’treaty.

United Nation. The United Nation made the trea-

ties ‘of August 24, 1816, 7 Stat. 146; July 29, 1829,

7 Stat. 320; and September 26, 1833, 7 Stat. 431: by

which contiguous’ tracts of land i in. Illinois and Wis-

consin were ceded to the United States. The United |

Nation also participated with other tribes in two

treaties relating to the same lands and adjoining .

lands of the other participating: tribes. -These were

the treaties of August 19, 1825, 7 Stat. 272; and

August ~29, 1828, 7. Stat. 315. For a further discus-

sion of these treaties, see Findings 13-14 and 17-1

and evidence cited, below.

_ Kankakee band. ' The treaty of October 20, 1832,

7 Stat, 378, whs made with the Potawatmie Tribe

of Indians’ of the Prairie - Kankakee. _ land -

97 ae ae *

e- 8 2-

ceded’ was located. south of Lake Michigan on the

» . Kankakee River in northeastern Illinois, No. 177 on

Royce’s map Illinois \e ae | 7

_ Wabash band. Six'days after the Kankakee band

treaty cited, on October 26, 1682, an adjoining tract

in northwestern Indiana (Royce No. 180) was ceded

by “the Pottawatomie Indians”. (7 Stat. 394). How-

_ ever, the first appropriation act, appgoved March 2,

1833, for carrying out the Government’s obligations _

_under this treaty, was made for the benef of “the

Pattawatamies of the Wabash”, (4 Stat. 636, 638).

St. Joseph band. On the day following the treaty

wit the Wabash band, a ‘treaty was made with “the

Potowatomies of..the State of leditun and Michigan

- Territory” for the. cessfon of- lands identified. by

Royce as No. 181 on his map of Indiana. (Treaty

of October 27, 1832, 7 Stat. 399). The: village of

-To-pen-ne-bee,, identified as principal chief (see Ar-

ticle III) was located on the St. Joseph River in,

. southwestern Michigan. (see . Roy¢e’s map, Mich gan

1), Topenebee (spelled© Thu-pe-ne-bu) signed the

‘Greenville treaty for the “Putawatdines of the River

— Joseph.” (See the treaty, 7 Stat. 49, at page

Huron band. By the treaty of July 4, 1805 (.Ar-

chives. No. 44) lands in northern Ohio (Royce No. 53)

- were sold to two Connecticut land companies by vari-

ous Indian groups including a_ so-called “Potta-

watima Nation.” Another treaty of the same daté —

- (7 Stat. 87) provided for ‘jpayment of a share of |

‘the consideration to “such of the Pottawatima nation. ~

as reside on the’ river Huron of lake Erie, an] ‘in

the neighbotirhood thereof .. .” The treaty of No-

vember 17, 1807 (7 Stat. 105) by which lands in |

rthwestern Ohio and southeastern Michigan (Royce

'. No\66) were ceded to the United States by a num-

ber jof tribes, provided for payment of. a permanent

arfiuity to “such of the Pottawatamies, as now reside

on the river Huron of. lake Erie, the river Raisin, .

and ‘in the vicinity of the said rivers.” (See Art. H).

Other evidence relatiig to the Huron, band-is set out

below under Findings 30-39. |

A number of’ treaties, involving lands ,in Ohio,

. ‘Indiana -and Michigan, do not identify particular

Potawatomi groups but describe. the treaty party as

the Potawatomi “tribe” or: “nation”. It is unneces-

sary for a determination of the issues now before —

the Commission to identify the Indian groups which

made these treaties. A full list of the treaties is ‘set

out in the appendix.

12. The. United Nation was.a band of hetawateni .

Indians, with which individuals or small groups of Ottawa

and Chippewa ancestry were affiliated ar federated. . -

EVIDEN CE

The organization of Potawatomi, Ottawa and Chip-

- pewa Indians in a unified tribe or band followed the

. tradition of the three ethnic groups, once having. been

-one people. (Pet. (71-A) Ex. 38). The Chippewa and .

Ottawa Indians in the United Nation were, polit-

ically, Potawatomi (Tr. 943). Governor Edwards of

Illinois Territory. referred. fo this. group in 1815 as

& Ottawas” (Pet. 71-A) Ex.-6) and in 1816 as “the

_) wotomen Tribes of Ottawas, Chippawas & Potto-

) wotomies of thé Illinois river, and western side of

Lake Michigan” (Pet. (71-A). Ex. 7). Phe lands ceded

by fhe United Nation in 1833 were described by vari-

out Government officials, as “the land of these Potta-

> ‘watomies” (Governor Porter of Michigan Territory

“Pottowotmies intermixed with band of Chippewas °

(Pet. (71-A) Ex. 11)); “the Potawatimies . . their —

territory” (Commissioner Herring (Pet. (71- A) Ex.

. - 9)); “the Potawatamie Tribe ... their lands” (Agent

\ Owen (Pet. (71-A) Ex. 10)). The United Nation was

_ \ under the jurisdiction of Indian Agent Thomas J.V.

‘Owen at Chicago. The “Indians of his agency” were

“identified as “Pottawatamies” (Pet..(71-A) Ex. 11).

ry ~The five treaties coneluded between the United States

and \ pr United Nation described .the latter variously

as: “the united tribes of Ottawas, Chipawas, and

‘

~ Pottow tomees, residing on the Illinois and Melwakee __

rivers, and their waters, and on the southwestern

" parts “of Lake Michigan” (1816; 7 Stat. 146); “the

_Ottaw a, Chi ditied -and Potawatomie. tribe of the Tii-

i. oe — eo vets

nois“ana the “Illinois. Indians” .(1825, 7 Stat. 979.

“Art. 9); “the United Tribes of. Potawatainie, Chip-

pewa and Ottawa Indians” (1828, 7 Stat. 315); the

United Nations of Chippewa,..Ottawa; and Pota-

‘ watamie Indians, of the .waters of the Illinois, Mil-

waukee, and Manitoouck Rivers” (1829, 7 Stat. 320);. °-

“the United Nation of Chippewa, Ottowa and Pota- °

- watamie Indians” (1833, a tat. 431).

With reference to the 1816 treaty, sometimes re-

ferred to as the Edwardsville. treaty, it’ was observed

by a- Government official in 1822 that “the Indians

are in fact almost. all Potawatomies” (Def. Ex. 78).

A: census of the Indians unde he Chicago agency in

1833 showed 4,489 Potawator' » B64 Ottawa and 453.

Chippewa (Def. Ex. 54).

In August 1825, the United States ee at ae, ;

‘du Chien a number of Indian tribes residing between Lake

Michigan and the Missouri River. A treaty was concluded

,August 19, 1825, in‘which the. boundaries of the lands .of

* neighboring tribes were described; including lands of

‘the United Nation in northeastern Illinois and south-.

eastern Wisconsin west side of Lake Michigan.

EVIDENCE

; Article 9 of the Prairie ie Chien treaty li 19,

- 1825, 7 Stat. 272), which deals with the boundaries of

the lands of the. United Nation, refers back to the

treaty of Aug.: 241816 (7 Stat. 146) which had set-

tled a disputed land claim -between the United States

and the United Nation (see preamble to 1816 treaty).

. The 1816 and 1825 treaties establish the United Na-

tion as an entity in the area shown on Royce’s maps,

Illinois 2 and Wisconsin 1, as Nos. 147, 148 and 187.

- That the 1825 treaty was dealing with the boun- <3

daries of politicglly organized groups rather than_

99:

with ethnic “tripes is clear from the fact that the

Chippewa “t

ie treaty, thgt the boundaries of the

Chippewa “tribe” and of the United Nation were

’ distinct and separated by the lands of other Indian:

rie,” and the United Nation which in-.

cluded Chippewa Indiags, were different and distinct —

parties to Ri

pene (see Articles 5, 6, 1, 8, and 9). Note that the

United Nation’ “was also "referred to .on occasions as

“the Illinois Indians” (see .Art. 9 of Prairie du Chien

treaty, Aug: 19, 1825 (7 Stat. 272), and Def. Ex. 78).

14. In 1829, \the’ "United Nation ceded. to the United

States Royce Areas 147 and 148, referred to above in ©

Finding 13. In. 1833, the United Nation still held its -

interest in Royce Area 187, also referred to in Finding

‘ 13. Royce Area 187, ‘bordering on Lake. Miehigan, -in

- northeastern Illinois and, southeastern Wisconsin, was

estithated by United States officialefo comprise five

million acres.) | > | S , saat /

_ EVIDENCE Sue ;

‘ . See treaties of J uly. 29, 1829, Psat 320, and Sept.

26, 1833, .7 Stat. 431. | ie

15. In Cetubier 1832, . three Fe freaties were .

. .. made respectively with the Kankakee, Wabash” oot

‘ Joseph bands whereby their respective lands south.pf

Lake Michigan, in Illinois on the border of Indiana and” “

in northern Indiana, were ceded to. the United States.

The treaties with ‘the Wabash and St. Joseph bands pro-

vided for a‘number: of small. tracts including the Indian

villageS: to be-reserved to the village ‘chiefs and the in- |

habitants. of the villages.

‘EVIDEN CE

See treaties- of Oct. 20, 1832, 7 Stat. 378: Oct. 26,

1832, 7 Stat. 394; and Oct. 27, ‘1832, 7 Sagan ‘399; and

- evidence cited under Finding 11.

- 36°: In 1833, some of the Potawatomis _— still o¢-

_ _ eupied small. reservations comprising_approximately 104,-

960: acres, in southern Michigan. The residents on these

reservations included - some members ‘of. the St. Joseph

_ band and of the Hurongpband. The villages of. the prin- ie

~ cipal chief. of the St. Joseph-band, To-pen-e-bee, and of:

another chief of that band, Pokagon, were located within

- these reservations.

sah

Pena

EVIDENCE | -

_ The acreage in the reservations was computed from |

the description in Article lst of the “Articles Supple-

mentary” to the 1833-treaty, 7 Stat. 431, 442. Nego-

tiationg for the sale of the reservations were had

with the “chiefs and headmen of the St. Joseph and

Notta-wa-se-pe bands.” (See Journal of the Proceed-.

ings of September 27, 1833, Pet. (71-A) Tx. 14, type-

written copy at page 10). Leading. chiefs who signed

the Supplementary Articles, headed by To-pen-e-bee, .

‘were those who had negotiated the treaty of October

2%, 1832 with the St. Joseph band (7 Stat. 399). The

“Notta- wa-se-pe band” is obviously a.term applied to ..,

the Indians residing at or near the village of ‘Notta-_

wa-se-pe. That they included members of the Huron

_ band is’ inferred. from the fact that three reserva- —

tions retained by the Huron band out of the cession .

made by the. treaty of Nov. 17, 1807 (7 Stat. 105)

were exchanged for other lands in. the vicinity «of

Notta-wa-se-pe ‘under. tlie treaty of Sept. 19% 1827

(7' Stat. 305).. The reservations acquired under ' the

-1827 treaty were ceded under the 1833 treaty. |

£8 In April 1833, treaty commissioners were directed

to negotiate with the United Nation for the purpose of

. obtaining a cession of the remaining lands of that band,

and for the retnoval of the band west Of the Mississippi

River. At the same time thé treaty commissioners. were

instructed . to.invite the Potawatomi Indians residing on |

the resérvations.in. southern Michigan .to the treaty, so

as to obtain also the cession of these reservations, and °

the removal of ie Indians inereen west of ad Mississippi:

' EVIDENCE ;

See Letter, Secretary of War. Chee, April 8, 1883,

~ Pet.:(71-A) Ex. 13, in which, after giving instructions

to, the treaty commissioners to obtain the cession '

‘which was eventually made by the treaty of Sept. 26,

1833, he instructed the commissioners to obtain a

cession of their reservations from the Potawatomi

bands.in Michigan ‘ ‘if they, can be induced to attend

- to the treaty.” ” -It is clear that the presence of these -

_bands in Michigan was‘ not considered necessary to

_ effect the main, cession contemplated.

os 18. Negotiations were conducted: at Chicago, Illinois,

in August and September 1833, between the United States

treaty commissioners and representatives of. the United

‘Nation which resulted. in a treaty concluded September —

involved in this suit.

26, 1833, for the cession to the United States of the lands

west of Lake Michigan, shown on Royce’s maps, Illinois

2 and Wisconsin 1, as Area 187. The treaty provided for

a grant to the United Nation. of five million acres in what

is now the State of Iowa. The tract so granted, with

boundaries subsequently amended; is one of the tracts

This gtant was: made pursuant to a promise of the

treaty commissioners that in addition to paying the full

value of the lands ceded, the United States would grant

the United | Nation ‘an equivalent quantity of land ‘west ©

- ofthe Mississippi River for the United Nation to remove

to and occupy as its new home.

EVIDENCE

See treaty of. Sept. 26, 1833, 7 Stat. 431, ‘and the

Journal of Treaty Proceedings, Pet. (71 -A) Ex. 14.

During the course of the negotiations Governor

Baiehenl made the aa statement to the United

vation: ~~

“If you deterthine to sell. your re the Com- -

-- missioners now before you are authorized by

instructions from your Great father to give you

- the full value of them. Moreover, you shall have

. as much and as good a country beyond the Mis-

sissippi_ as that which you now possess.” [Pet.

(71-A).Ex. 14. See typewritten copy at page 6.]

“19. Representatives of the St. Joseph band were pres- °

ent during the negotiations, but the band was ‘not a party

to this treaty. However. the principal chief of the St.

. Joseph band, .To-pen-e-bee;: ut his mark to the treaty,

although none of the other ygesentatives of that band.

did so. . | ee :

_ ud

EVIDEN CE

Bed Negotiations for the sale of the Wisconsin and

« Illinois lands were had with the representatives of

-the United Nation and only these representatives,

apart from To-pen-e-bee, signed the treaty on Sep-

tember :26, 1833. (See: Journal of. Proceedings, Pet.

(71-A) Ex.’ 14, typewritten copy at pp. 1-40, and ©

testimony of ‘Dr. Wallace, Tr. 980; see'7 Stat. 431,

at p. 434, for United Nation. signatories of treaty

- concluded’ Sept. 26th, and Id. at page 443 for sig-

wth). of “Articles Supplementary” concluded Sept.

)

20. On Sept. 27, 1833, the representatives of the In-

dians occupying the Michigan reservations were advised

by the treaty commissioners that a treaty had ‘been, con-

_ eluded on the preceding day by which the United Nation

had. ceded its lands and that if.the Indians inhabiting _

the reservations were willing ‘to sell their reservations —

‘they would be permitted, with the consent of the United

Nation, to participate in the benefits of the treaty con- .

. cluded the. preceding day. |

At the same time-a group of the Indians who had been

converted to the Catholic religion were advised that their

desire to move to northern Michigan instead of west of

the Mississippi would bé gratified and that their annuities

would be paid in a ”

EVIDENCE >

See Journal of Proceedings, Pet. (71-A) Ex. 14,

ty. pewritten copy at page 42, .

21, By an agreement concluded September: 27, 1833,

designated “Articles Supplementary” to the treaty of

September 26, 1833, it was provided that the Michigan

reservations be ceded to the United States and that the ‘

groups of these reservations “shall be .considered as par-

ties to the said tréaty to which this. is supplementary, and

be entitled ‘to participate in all the’ provisions - therein

contained, as a part of the United Nation. x

These “Articles Supplementary” were subscribed on ‘be-

half of the Indians on the Michigan reservations. —

EVIDENCE

See Articles Supplementary to 1833 iaetadd 7 Stat.

431, 442.

22. -A special provision ‘appended to the “Articles

epienney provided as follows:

“And, as since the: ‘signing of the - a a part

‘ of the band residing 6n the reservations in the Ter-

‘ritory of Michigan, have requested, on ,account of

their religious creed, permission to remove te the

northern part ,of the peninsula of. Michigan, it is

‘agreed that in case.of such. removal the just pro-

portion of all annuities payable to them under former

treaties and that arising from the sale of the reserva-

‘tion on which they now reside shall be paid to them

at, L’arbe, Croche.” [7 Stat. 431,. 445).

The group which was authorized to. remain in Michigan

was subsequently known as the Pokagon band. Pokagon

was one of the chiefs of the criginal St. Joseph band.

His" village was located in’ Michigan -near the Indiana

border.

EVIDENCE ~

Pokagon’s village | is shown on Havos's map of,

Michigan. In the treaty of Oct. 27, 1832, 7 Stat. 399,

Pokagon (spelled Poch-a-gan) was "identified as “sec-

ond Chief” (See Art. III.). He was chief. of those

- - who remained in Michigan for religious reasons (Int.

-. Ex. I-66).

23. In the -years 1834, 1835 and 1836, a , wedjer of

treaties were concluded by which the’ réservations in-In-

diana retained by the village communities of the Wabash

and St.. Joseph bands under the treaties made in October

1832 were ceded to the Government. The first three of

these treaties, concluded respectively on December 4,

“

1834, December 10,’ 1834, and December 16, 1834, made _

no reference to the removal of the Indians westward.

they

o% i, me oor °

The last-cited’ treaty provided for the cession of the two

sections on the Tippecanoe River where the Potawatomi

mills were located, and by this treaty it was agreed that

the United States was to be relieved of its aiid obli-

gation 3 support a miller.

Betwesn December 1834 and September 1836 ten ny

ties were concluded for the cession to the United States

of lands reseryed under the two 1832 treaties in Indiana,

Each of these ten treaties contained HRGUAG? substantially

as follows :: 7

“The above named chief and his band agree to yield

peaceable possession of the above sections of land and.

remove to the country. west of the Mississippi pro-

‘vided for the Pottawatomy nation by the United

‘or within two years from this date.” bd Stat.

EVIDENCE

\ The 13 treaties cited appear in 7 Stat. respectively

pp. 467 (2), 468, 469, 490, 498, 499, 500, 901, 505,

513. 514 and 515.

24. On February 11, 1837 a treaty .was - concluded at

Washington, D.°C: by which the United States agreed

to convey by patent to “the ‘Pdtawatomies of Indiana” a -

tract of Jand on the Osage River southwest’ of: the Mis-

sour? River in.what is now the State of Kansas. This

treaty was made with representatives of village bands .

for which reservations had been made under the treaties

of October 26 and 27, 1832, with the Wabash and St.

Joseph bands respectively.

This tract on the Osage River i is ihe second of the two

tracts involved in this suit..

EVIDENCE

See trekity of Feb. 11, 1837, 7 Stat. 532.

95. Between 1836 and‘ 1842, the United Nation and —

the gréat majority of its members were removed to 4

band’s | new home in Iowa. The Kankakee eal: closest

neighbor of the United Nation, was also removed to the

F Towa tract. Sheila e oe tg

_ During the same penind the. Wabash and St. Joseph

bands and the great majority of their members were re-

moved to the tract on the Osage River. Some members

of the Kankakee: band moved to that tract with them.

EVIDENCE ! ;

Proportions moving west. Contemporary official

. population estimates of the United Nation ranged .

- from 5,806 (Def. Ex. 54) to 6,734 (Pet. (71-A) Ex. .

*'-20). ‘The latter figure probably included Potawatomi

| of Indiana (Pet.; (71-A) Ex. 20). An estimate of sthe

| total Potawatomi population was 8,521, but that esti-

"mate, as reported by the Commissioner of, Indian

Affairs in 1840, apparently included a double count

of the. Potawatomi of -Indiana (Pet. (71-A)- Ex. 20).

Contemporary figures for the numbers who removed

westward range from 5,297 (Def. Ex. 27, Pet. (71-A)

_ Ex. 20) to 5,930 (Def. Ex, 34, Int. Ex. T- 154).. Those

remaining in. Wisconsin were "described in 1841 as “a

remnant of the United Nation :.. about two hundred

and fiity in number” (Int. Ex. 1-29). The Potawatomi

were “much diminished by death” (Pet. (71-A) Ex.

_ 20). At the time of the 1846 treaty there were “some-

what upwards of 2000” on the Towa tract (Int. Ex.

I-38) and about the same number on the Osage River

tract (Int. Ex. 1-50-A). :

Potawatomi bands in the west? All four bands are

named in the preamble to the treaty of 1846, 9 Stat.

853, and were specifi ally referred to during the 1845 |

negotiations at Wash ogton (1845 Journal, Pet. (71. .

A) Ex. 33, typewritten copy at pp. 6, 9). Part of the.

Kankakee band was located on the Osage River with

the St. Joseph and Wabash bands (Int. Ex. I-50-A)

- and part, under Wah-bon-seh (alternative spellings, |

Wah-pon-seh, Wau-bun-see), a Kankakee band chief

(treaty of Oct. 20, 1832, 7 Stat. 378, 380; testimony

. of Dr. Wallace, Tr. 945), was located in Towa (1845

Journal, Pet. (71-A) Ex. 33, typewritt *n copy at p. 9).

Ina talk to the U. 8. treaty commissioners at Wash-

./.

' | gy

ington, delivered on behalf of the Indians by. Agent

R. S. Eliot, he said, . . . the People who, made the

treaty at Chicago, are at Council Bluffs.” Id., p. 14.

26. Huron band, the Pokagon band, and some

members gf the United Nation, referred to in Finding 4 |

as .tlhe Wisconsin Indians, did not remove westward.

Findings 30 to 39, 40 to 48, and 49 to 58, relate respect-

tively to these groups in the order named.

« EVIDENCE ?

The evidence as to each group is set out under the

findings specified. eras

27. -On June 5, 1846, a treaty was concluded at Council —

Bluffs, Iowa, with ghe representatives of the bands then

residing in Iowa, which provided for a cession of the Iowa

tract and of the Osage River tract and the purchase by

.the Indians of a new tract of land on the Kansas River

_in Kansas. On June 17, 1846, this treaty was ratified by

the bands then residing on the Osage River in Kansas.

The treaty provided for a union df the four bands: the. -

United Nation, -the Kankakee band, the Wabash: band,

and. the St. Joseph band, under the name of the Pota-.

--watomi Nation. The treaty provided for that Nation and

its members to “receive their annuities and other benefits

in common, and to abolish all minor distinctions of. bands °

by which they have heretofore been divided. . .”

EVIDENCE _ oe |

See treaty, 9 Stat. 853. kisi

28. - Subsedtent to the 1846 treaty and in accordance

therewith the annuities payable under the various tregties

_theretofore made with the individual bands united by the’

1846 treaty, were combined and paid to the Potawatomi

_. Nation. These included all outstanding annuities under

“Potawatomi treaties except those payable to the Potawa-.

tonti of Huron under the 1807 treaty made with that. band.

EVIDENCE |

Prior to the 1846 treaty, appropriations for annuity —

.. obligations were made in terms of the ‘groups as

‘ identified by the language of the treaties.. The last .

on appropriation act prior to ratification of the

846 treaty, the Act of June 27, 1846 (9 Stat. 20),

appropriated for “the Chippewas, Ottowas, and Pot-

tawatomies” (at #3 22) amounts due under the treaties

of 1829 and 1833; for “the Pottawatomies of the

Prairie” (at p. 28), “the Pottawatomies of the Wa-.

bash” (at p. 29), and “the Pottawatamies of Indiana” -

(at p. 29) payments due respectively under the trea-

ties of Oct. 20, 26, and 27, 1832; for “the Pottawa-

tomies of Huron” (at p. 28), fot the 1807 treaty: an-

nuity; and for “the Pottawatomies” (at p. 28), pay-

ments due under various other treaties in which the

rticipating band or bands had not been identified.

he first general appropriation act which folldWed

ratification of the 1 treaty, the Act of March 1,

1847 (9 Stat. 132), appropriated the. 1807 treaty

annuity for the Potawatomi of Huron (at pp. 141)

”

and all the other annuities for “the Pottawatomies

(at pp. 140-141). This was continued until 1869, when —

the division of the assets of the Potawatomi Nation

_. between. the Citizen and Prairie bands was begun.

(See 9 Stat. 259; 389; 551. 10 Stat. 49; 233; 324;

693; 694. 11 Stat. 73, 74: 178, 179; 281; 396, 397.

12 Stat. 53; 228, 229; 520; 782, 783. 13 Stat. 169;

548. 14 Stat. 262; 505, 506. 15 Stat. 212, 213.)

With respect to a Jater division among the Citizen

and Prairie bands and the Potawatomi of Huron, of

-.monies due and unpaid under treaties, see Finding

34, and evidence cited. .

29. As a conseyuence of treaties concluded in 1861 and

1867 with the Potawatonfi Nation, then residing on the |

Kansas River in Kansas, the Potawatomi Nation. was —

divided into two bands: one known thereafter as the

Citizen Band, Petitioner in. Docket No. 71-A;: the other

-_known‘as the Prairie Band, Petitioner iff Docket No. 15-J.

Thereafter assets of the Potawatomi Nation were divided

between the two bands in accordance with proportidhs,

—3y

1400 parts to the Citizen Band and 780 parts to ‘the .

Prairie Band, which had ‘been determined by ae census

and agreement between the bands. |

EVIDENCE

Note that this finding, ‘sida for the Poe 1400

and 780, .is set out in greater detail as Petitioners’ |

findings’ 3-15. in Dockets 15-B and 111; to which De-

fendant has made no objections (See Def. Br., Docket :

Nos. 15-B and 111, at p. 2).

The 1861 treaty (12. Stat. 1191) effected. a diviniie

of lands by individual allotments (to the Citizen

Band) and’ by creating ’a diminished reserve (for'the .

Prairie Band). It also provided-for a pro rata per -

capita distribution of assets- of the Potawatomi Na-

tion amonng those allattees who qualified and became -

citizens. The 1867 treaty (15 Stat. 531) provided for

the acquisition by the Citizen Band of a new tract in’

Oklahoma. Lands in Oklahoma were re-ceded to the

United States bythe Citizen Band undef the agree:

ment of June 25, (26 Stat. 989, 1016).

The proportionate division of assets was deter. .

mined by census: and agreement between the bands. -

ee Def. Ex. 33. in consolidated dockets 15-B and

11). 5

Ciguniobcini 3 in 1869, funds were appropriated for

the Citizen Bang,-wiile the annual appropriations for

annuities wey gradually reduced to the fractionate :

share of thé Prairie Band. (See: 16 Stat. = 348 ;

558. 17 Stat: 178; 451. 18 Stat. 162.

The 1867 treaty also provided for & commission to

-“sascertain Potawatomi claims for insufficient payments

under earlier treaties. .The Commission made its re-

port on Jan. 18, 1869 (House Ex. Doe. 61, 40th Cong

3rd Sess., Int, Ex. I-62). ‘By-the Act of March 2, .

1889, 25. Stat. 988, 989, Congress directed that the —

amount found due ‘by the Commission be distributed.

‘per capita, 1400/2180 a to the Citizen Band and

780/218 parts to the Prairie Band. (With reference

to the share in the award pay. able to the: Huron Band,

‘see Finding 34 below. )

lan . . :

30. The thises’ tend was first identified in a treaty :

with’ the United States in the Greenville treaty of August

- 3, 1795, made between the United States and twelve named

“Indian “tribes.” This treaty; which established a general

‘boundary line betweerf the lands of the United States and

the lands of the Indians, was subscribed separately on

' . behalf of the St. Joseph /band and on behalf: of the Huron

band: The treaty provided for a payment ‘of a cones

annuity of $1,0v0 ” the. “Putawatimes.”4 |

EVIDENCE - oe

‘See Greenville Treaty, 7 Stat. 49, at pp. 53, 4. '

“31. Subsequent to the Greenville treaty | the United

States made three tréaties: in which various Indian tribes

or bands participated and by which lands adjoining Lake .

Erie in: northern Ohio. and southeastern Michigan wer

_ ceeded, to the United States. In two ‘of these treaties,

made at Fort Industry, July 4; 1805, and at Detroit,

November 17, 1807, the Huron hand was -identi-

fied as the particular band of Potawatomi Indians which

was one party to the treaty and which ‘was entitled

to payment forits interest in the land cessions involved.

These two treaties ‘provided for the cession to the United |

_ States of the lands which are identified as Areas 53 -and

_ 54 on Royce’s map of Ohio and as Area 66 of which part

~ is shown on Rok -ce’s map of Ohio — part on Royce’s map,

| Michigan A : |

EVIDENCE. R

See treaties of July 4, 1805 (7 Stat. 87 and Andidwes

No. 44) and Nov. 17, 1807 (7 Stat. 105). See also

Royce’s maps,- Ohio and Michigan 1. The 1805 |

treaty, captioned as having been made with “the

Wyandot, Ottawa .. . and Pottawatima nations”,

provided (Art, V. 7. Stat. 88) for certain payments

to be made to “the Ottawa and Chipawa nations, and

such of the Pottawatima nation as reside on the river /

Huron of laké Erie, and in the neighborhood thereof /

as ae 1807. treaty (Art. — proviaee for pa yf

ment of $1,666.66 to “the Pottawatomie nation” and

of a perpetual annuity of $460 “to.such of the Potta-

watamies, as now reside on -the river Huron of lake

Erie, the river Raisin, and in the vicinity of the said —

rivers.” | . ,

32. The Fort Industry treaty of July 4, 1805 provided.__

for a payment of the sum of $16,000 to be divided among

the Huron.band and “the Ottawa and Chipawa nations.”

Subsequently, the Huron band asserted its’ interest ex-

clugive of any other Potawatomi band in the payment

provided for under the 1805 treaty, and at the same

time the. Huron band relinquished any interest it might

have in the permanent annuity provided for by the Green-

ville treaty. The United States recognized the exclusive —

interest asserted by the Huron. band to the 1805 treaty

‘payment. = pe “oes Jake take

EVIDENCE °

See evidence. cited: under Finding 31. See also, Pet. |

(71-A) .Ex. A-43, Int. Ex, [-151, and Int. Ex. 1-153.

33.. The Detroit treaty of. 1807 provided for the pay-

ment of a. permanent annuity of $400 to the Huron band

exclusively. The annuity @as paid to the, Huron, band in

- Michigan. until it was commuted for the suin of ‘$8,000, arid

that sum, appropriated under the Act.of June 29, 1888

(25 Stat. 225), was paid to the members.:of the Huron’

band. — aos

EVIDENCE | : a a ;

As noted above under Finding: 31, the treaty pro-*

vided for the payment of $1,666.66 to the “Pottawa-

tamie nation.” In 1808 this sum was divided, half

being paid at Detroit to the Huron band, the other

half being paid at Chicago to other-Potawatomi, who .

cannot be identified from the present record. The

permanent annuity, however, was all ‘paid at Detroit

to the Huron band (Int. Ex. 1-150 and 1-153). The

Huron band still claimed this annuity after the west-

ward removal of. the other. Potawatomi bands (Def.

a 42.

Ex. 29) and the Sianeli continued to list it as

33 one of the annuities payable in the Michigan Super-

intendency (Def. Ex. 89). After‘the 1846 treaty with

the Potawatomi Nation, this annuity was separately -

appropriated for the Hurort band (Sge Finding 28 and.

- evidence cited). Payment under the 1888 appropria-

tion was made in 1889 (Int. Ex. I-71).

34. In accordance with a provision of the 1867 treaty

referred to above in Finding 29, a commission. was ap- .

pointed bythe President td investigate a claim. that the

obligations. of the United/ States under various Pota-

watomi treaties had not een carried out in full. \ This |

commission studied -all of the Potawatomi treaties\ be

tween 1795 and 1846 and computed the obligations of Yhe

United States through’ the year 1861. .The Commissigh

reported $178,953.43 due under the stipulations of trea-°

ties, which had-not been fulfflled, after deducting over- —

payments made under.some treaties. Of this toéal, the

sum of $5,000 was reported to bé due and unpaid under -

, the treaty of July 4, \1805, and the sum of $4,400 was re-

' “ported to be due anid unpaid under the treaty of Novem-

"’ ber 17,.1807. By the Act of March~2, 1889 (25 Stat. 988)

Congress appropriated the total sum so reported and.

directed payment out of that.sum of $9,400 to the Pota-

watomi of Huron, and payment of the balance in the‘pro-

portions stated in Finding 29 above to the Citizen Band ©

and the Prairie Band. Payment of $9,400 plus interest _

was made to the Huron -band.,

EVIDENCE - Re ete eae

* See “Recapitulation” in report of the President's

commission, p. 30 of House Ex. Doc. 61, 40th Cong.,

3rd Sess. (Int. Ex. I-62); and Int. Ex. 1-72. Note

_ that the 1805 and 1807 treaties are identified in the —

7 A _ . Teport ‘cited by their proclamation dates, April 24,

= 1806 and Jan. 27, 1808, respectively.

35. The-claim of. the Pokagon band to a. “just propor:

, tion of all annuities” pursuant to the special provision of

the 1833 treaty referred to above in Finding 22, as pre-

‘

sented to Congress and eventually to the i of Claims,

and as determined by the Ca Court of! Claims (Potawatomie

. Indians v. ©. 8., 27 C. Cls. 403), did not include a share

in the permanent annuity of- the Huron band under the

1807 treaty, but included shares in all the permanent. -

annuities and al! the short term annuities continuing

_ beyond 1833 under the treaties with the other four Pota-

watomi ao...

- EVIDENCE | | ae

Proc sedings of the .President’s commission, cited in

‘Findin

1795. e claim of the Pokagon band involved obli-

gations subsequent to 1833 and consequently were

_’ limited to- permanent annuities or short terin obliga-

tions continuing beyond 1833. This-excluded the Fort

Industry treaty of July 4, 1805, but included the 1807

_ treaty. All treaties in which annuities. had not

yet expired, except the 1807 treaty, .were included im.

the reports of Congressional Committees considering

the Pokagon band claim (Sen. Rept. “No. 111, 38th

Cong., 2nd Sess., Def. Ex.36 and Int. Fx. I-61; House °

Rept. No. 19, 38th Cong., Ist Sess., Int. Ex. 1-60) ; in

the \petitions filed in the Court of Claims (Int. - Hxy

I-73 and I-74); and in the decision of the Court of\

Claims (27 C. Cis. ace ‘See particularly the’ Court’s

Finding VIII.

36. The claim of the Wisesnide Indians, presented in

& memorial to Congress in 1902, of a right to share in

the annuities paid to the Potawatomi Nation lskewise

excluded the 1807 treaty with the Huron band but in-

cluded all other treaties providing for payments beyond

1833 to the four Potawatomi bands. The report of the

Secretary of the Interior in 1908 relating ‘to this claim —

‘also exeluded the 1807 ‘treaty - but ‘ineluded the. other

treaties. a-

__pvipencé) ras | yi > a :

€ See Memorial, Def. Ex. 40, also contained in“nt. —

_ Ex. 179, at p. 20 et seq. See ‘list of. treaties at p. 30.

: Stee bss

34, involved treaty obliga:ions going back to

= !

cue * also, Table No. 2.at p. 3 of the Secretary’ s report |

_(House Doe. No. 830, 60th. Cong., 1st Sess., Def. Ex:

- 41, duplicated by Int. Ex. 1-85). “ |

37. The Huron band has at all times since “1795 been

a-group politically distinct from and independent i" the ©

_ United Nation, the Kankakee band, the Wabash ba

d, the

' St. Joseph band, and the Potawatomi ——

EVIDENCE al

See Findings 6, .9- il, 30-36, and ‘yidene cite 1

Tio

38. The Huron band did not have, and never claimed,

any interest in the lands which have been identified as

Royce Area 187 and which were céded.to the United

States by the United Nation by: the treaty of September ~

26, 1 33.. The Huron: band never had, or claimed, any

interest’ any lands: on ‘the west side of Lake Michigan.

“ EVIDENCE.

Sée Findings 9, “LL: 14, 16- 18, arf evidence ‘cited. ©

39. The Huron band never acquired any interest in the.

lands ceded by the Potawatomi Nation’ in 1846.

EVIDENCE 7

- See Findings 11-14, 16-18, and evidence cited. The

U..S. Indian Agent at Detroit, describing the Indians °

under his, jurisdiction in his annual report for- 1860, ©

referred to. the “Pottawatoinies: of Huron, who have

not. participated i in any ian’ asin them lands.”

(Int. Ex. I- 56).

40. Subsequent to the treaty of September 27, "1833,

the Pokagon band sought to obtain a residence among, and.

% . amalgamation with, the Ottawa Indians at L’Arbre Croche

in northern: Michigan. Permission to: reside among. them

- was refused by the Ottawa Indians and: the bapd returned

to southern Michigan, where ‘they ere. ee from

the United States.

° /

. ; /

+ 4 ‘ ) et

. it A ; j

o™

tled for the s

oe : ; Ul ean

P ee ee ee

EVIDENCE AD, Sate cece S

- See memorial of the Pokagon band and extract of

letter of Acting Caperteenne Stuart,’ -both in Int.

Ex. I-66, at p. 7.

- 41. Pursuant to’ the special provision inaiionieit in

the treaty negotiated September 27, 1833, the United

States. made some payments to the Pokagon band. How-

ever, the band claimed that it had not received all the

payments to which it~ “was entitled. In 1866, an agree-

ment was reached between the Pokagon band and the \

Potawatomi Nation, -wit the ‘approval of the’ United”

States, whereb é claj

‘of the Pokagen band was set-

of $39,000. Payment df this sum was

made to- the band pursuant to «the Jojft Resolution of

July 281866, 14 Stat. 370. 7 a

EVIDENCE |

See Def. Ex. 37 and Ex, 39. we

42. In a subsequent memorial to Congress . in 1874,

signed by Simon -Pokagon, as chairman of the band’s

business committee, the Pokagon band challenged the

adequacy of the settlement, but expressly disclaimed any

interest ‘in treaties made with the United States subse- |

quent td 1833.. The memorial stated :.“By the treaty dated

September 27, 1833, these Indians became separate peo-

ples, with distinet, separate rights, by. the treaty.” With

reference to payments made to the Potawatomi: “Nation |

under the 1846 treaty, the mémorial stated: “The eastern

Indians had no right to participate in these funds, and -

now make no claim to.”

EVIDENCE | /

See ‘memorial, House Mise. Doe. 5, 43rd Cone. 2d "

Sess., Int. Ex. 1-66, at pp. 4 and 6. ae

hal ee

43. By the Act of March 19, 1890 (26 Stat. 24), juris-

diction was vested in the Cotirt of Claims to-determine _

_ the claims of the “Pattawatomie Indians of Coa te and

4 46 |

: Indiana,” or the group which has been referred to here

as the Pokagon band. The act provided that the payment - Ta

referred to above i in — 41, was not to constitute an

estoppel.

Under: this Act, two groups of Indians in Michigan filed

petitions. in the Court of, Claims. One petition (Court of

Claims ‘No, 16743) alleged a claim to a pro rata payment

under all treaties with Potawatomi bands, other than the

Huron band, which provided for annuities extending be-

‘yond 1833.. This included a claim to a pro rata share in -

a permanent annuity of $300, ‘which the United States e

had agreed to pay under the 1846 treaty/with the\ Pota- —

watomi: Nation, in lieu of certain goods and services. pro-

vided for under a treaty made September 20, 199p.

‘The other petition (Court of Claims No. 16842) Pies :

‘the same claim, and in addition alleged a claim to a pro-

rata share of the monies paid by the United States to

the Potawatomi Nation for the lands i in lows and Kansas

ceded in 1846.

Neither of the petitions aileked a claim to any propor-

tion of the permanent annuity payable to:the Huron band. —

EVIDENCE ~ -

Intervenors’ Exhibits. I. 73 and I-74, —— copies ‘@

. petitions in Court. of Claims cases Nos.. "16743. and:

: 16842, respectively, of which the ‘Pompnisston takes

_ > Judicial notice. _ -

_* 44° The two ‘petitions were consolidated for trial. The !

court found that the 7 of. Tridians authorized by the

ber

Potawatomi. Indians had remained in Michigan Territory

who were not beneficiaries of the special provision of the

treaty made .September 27, 1833. The court°was unable

to ‘identify ‘the Indians who had rights under that pro-

vision.

_ ‘The court allowed a’ recovery based upon: its ‘i |

of the proportion the number of Indians authorized to-re- |

main in Michigan bore to the number of Indians who had ~

-removed west, making an average of the variations in

population. which urred through the years during which

' payments were n t made: to the —- band or were

insufficient. | ,

EVIDENCE mae

' See Potawatomie. Indians v. U. S., 27 C. Cls. 403.

: 45. The céurt’s allowance was based on all the treaties

made with the Potawatomi bands, other than the Huron

tok band, through 1833. It did not include any part of the

monies payable to the Potawatomi .Nation under the 1846

- treaty, but it did include ‘in its allowance the proportion-

ate share of the annual payment 6f $300 which by the

1846 treaty was td be made in lieu of the goods and .

services provided for under the treaty 'e September 20, 3.

1828 (7 Stat. 317).

EVIDENCE ee ee or

See 27 C. Cls. at p. 407.

46. The court held that the or oe Indians

who were not members of*the Pokagon band had no

- rights. With Tespect to the — band the tourt de-

- + elared:

sé

- Under the terms of this supplement a portion

severed its connection with the united nation, and

thereby lost its identity with the Pottawatomies as a

_ -tribe, in order that it might avail itself of the privilege

of rethaining in the Territory of Michigan. In ceas-

ing to be a part of the united nation, it did not retain

any part of the political or corporate power of the

tribe, that was undivided and still inherent in the

-body which emigrated beyond the: Missigsippi pursu-

ant to the terms ‘and requirements of thd treaty. The

portion remaining may -have acquired a right to share. .

in the annuities, but the corporate power of the tribe

remained. tae and, incident to. the larger oily which.

emigrated.” ;

EVIDENCE, °

See 27 C. Cls. at p..412.

47. The Pokagon band did not have any. interest’ in .

- the lands which have- been identified as Royce Area 187

and which were ceded to the United States by the United

Nation by: the treaty of September 26, 1833.

EVIDENCE | | ‘

See Findings 9, 11-14, 16-18, ani evidence cited.

7a “48. The Pokagon band never acquired any interest: in

the lands ‘ceded by the Potawatomi Nation in 1846. —

- EVIDENCE, 5

. See Findings 40-47, and iliac cited.

49. A small. minority. of the members of the United

Nation were unwilling to emigrate westward after the.

1833 treaty, and instead moved northward, into northern

- Wisconsin, northern Michigan and Canada. Some of them

went to live with the Menominee tribe in Wisconsin.

EVIDENCE Ae 7

‘In 1837, it was reported by Schoolcraft that about .

300 members of the United Nation, “disinclined to

emigrate” had gone north (Def. Ex. 86). In 1842, it

was reported that, .as of 1840 a number remained who

- “manifested an unwillingness to émigrate at that time”.

_ (Int. Ex. I-31). These were “a remnant of the United

Nation .... about two hundred and fifty in number”

(Int. Ex. 1-29). Some of these Indians attempted to

’ join the Menominee tribe in northern Wiseensin (Def.

Ex. 96 and Int. Ex. I-36). In 1870, the Commissioner

of Indian Affairs reported to the Secretary of the

: ‘Interior, with* reference to “stray bands” of Pota-

watomi in Wisconsin:

“These bands are remnants of their tribes that

were removed years ago to the west of the Mis-

sissippi River, and comprise those who avoided

the efforts of the governnient ~ remove them, or

those who refused to accompany their tribe, ‘and

_ ‘some who, after being removed, returned to their

| En home. It is understood they are averse to

n ary to use force to-accomplish their re-

. . 2” [In Honse Ex. Doe. No. 216, a

,Cong., ond Sess.,. Int. Ex. I-67, at p. 2).

50. In. accordance with Potawatomi ' customs, recog-

nized and adhered ‘to by the United States, Potawatomi

Indians- who voluntarily separated themselves from their

band were considered to have given up their membership

and their interest in the assets of the band.

EVIDENCE -

ae Wallace tentitied as to ili of the Pota:

’ watomi riage 3 the period 1795-1846 with which he

- . Was dealing (Tr. 946-947, 951-952, 955-956).

Congress recognized this common practice when in .

the Act of June 25, 1864, 13 Stat. 161,172, it referred

to annuities to which stray bands of Potawatomi and

g: Wisconsin; and it might perhaps be

Winnebagoes in Wisconsin “would be cntitled if thev’ -

were settled upon their reservations with their re-"

spective trues". 5.”

Persgns who left the Prairie Band in Keneas and

went to Wisconsin gave up their membership in that -

band and were denied the rights of members both by

» the Band and the Government. They were reinstated as

' members only by action of the Prairie Band Council.

See, in Pet. (71-A) Ex..A-57), letters: Superintendent

‘ Williams to Commissioner, March 17, 1906, and-Sept.:

15; 1906; Acting Commissioner to Secretary, Nov. 15,

1906, and Jan: 8, 1907.

51. The appropriation act of June 25, 1864, 13 Stat.

161, contained: ‘the following provision: :

: . to enable the Secretary of the lteter to take

ian of certain stray bands of Winnebago and Pot-

3 tawatomie Indians, now in the State of Wisconsin,

With a view to prevent any further depredations by

‘them upon :the citizens of that state, and for provi-,.

sions and subsistence, ten thousand dollars : Provided,

That the proportion of annuities to which said stray

- bands ‘of Pottowatomies and Winnebagoes would be

“entitled if they were settled upon their reservations

with their respective tribes shall be retained in the

: treasury to their credit, from year to year, to be

. paid to | them when they: shall unite with their said

tribes, or or .to be used by the Secretary-of the Interior ——

in defraying the expenses of their removal,.or in-set-

tling and subsisting them on any other. Teservation

which may hereafter " nee for. them.”

EVIDENCE

( 13 Stat. 161, 172.

*52. No funds were retained in the Treasury earmarked

to the credit of Indians of. Potawatomi ancestry residing

in Wisconsin. “

_ EVIDENCE |

” See Int. Ex. I-85, at p. 3. exper a Te

53. At various times subsequent to 1864 Congress con-

ay ued to authorize payment to the Citizen Band and the

. Prairie Band of funds dye tothe Potawatomi Nation

under various treaties inéluding the 1833 and 1846 trea-

ties. Pursuant to the 1861 treaty referred to above in

Findinng .29, between the years 1870 and 1875 Congress.

authorized payment to,the members of the Citizen Band,

per capita, of that. Band’s pro rata share of the funds.of

the Potawatomi Nation held by the United States and of

. the capital value of the permanent annuities payable un-

- der the vagious treaties made originally with the four -

bands who were united to form the Potawatomi Nation

in 1846. :

Congress simian to nian for the Prairie Band |

its pro rata share of the permanent annuities until the .

annuities were capitalized, and commuted as set out below

in Finding 54. In additi Oy pCongress continued to appro- °

. priate for. the Prairie Band the: interest on the capital

. ,

co?

_ .

EBS EAD AE AEA al PEE, TP 8

Lest pp tne 6 Se

- {

eee SNS OT Te iT ee See Tasers anes ene

° -—

~ ‘

51°

for the Prairie’ Band after payment to the members of

the Citizen Band of their pro rata share-of suchi funds.

EVIDENCE

See evidence cited under Finding 29. — also, Int.

___ Ex. 1-85 at p. 4. hic

Bae: By the Act of April 30, 1908, 35 Stat. 70, 73, Con-

gress authorized negotiations to be held with various In- |

dian tribes for the commutation of thej rpetual .annu-

ities'due under treaties. Subsequentfy, egotiations were

held with members of the Prairie Band\whereby it was.

agreed that they be paid, per capita, the capital value of

the annuities then being paid to the band.

By Act of April 4, 1910, 36 Stat. 269, 288:289, the an CS.

of $187,058 was appropriated for payment to the members

| of the Prairie Band in accordance with that agreement.

EVIDENCE

See Pet. (71-A) Ex. A-49 to’ ‘A 5A inclusive.

” 55. In 1902, Indians in Wisconsin claiming Po watomi

descent asserted a right to share in the annufties: te

ted

nths

funds of the Potawatomi Nation. This claim was r

by the Commissioner of Indian Affairs. Some

watomi bands and requesting relief. By the Act of June

later the Indians presented a memorial to Congress as- |

serting rights under the various treaties with the Pota- .

21, 1906, 34 Stat. 380, the Secretary of Interior was. di-_

rected to investigate the claims and to make an enroll- |

ment of the Indians.

EVIDENCE 2 ; ee

See Int. Ex. 1-79. . »

56. Acting under the 1906 statute the ‘Secretary of the

each of whom claimed at least one-ancestor,.on either side,

having» Potawatomi blood, and who swere/ not enrolled: :

_ Interior caused to be eurolled 457 Indians in Wisconsin,

. 52

with any tribe then pr benefits from the United

States. In addition, the Secretary caused to be enrolled

1,550 Indians in Canada, who claimed at least one ancestor

with Potawatomi blood, regardless whether or not these

- Indians were enrolled with groups recognized by the Cana-

~ dian Government. The ancestors of the Indians so en-

rolled included Menominee, Winnebago, —— and

Ottawa. Indians. oe

The agent who prepared this roll for the i a

' Walter M. Wooster, excluded those Indians whose Pota-

watomi ancestors resided in southern Wisconsin or Michi-

gan. He also » excluded Indians-whose-ancestors had re-

————+qnoved west vest of the » Mississippi.

EVIDENCE —

_ Wooster explained in his report:

“In order to be enrolled a claimant was: required

to prove satisfactorily (1) that he or. one of his an-

estors was a member of the Wisconsin Pottawato

tribe or band at the time of the making of the soe

- of 1833, but did not move west of the Mississippi

‘River, as. required by that treaty, and consequently

did not receive any of the benefits accruing: there-

under; and (2) that neither he nor the ancestor

through whom he claimed was or had been enrolled

_ with any other tribe or band in the United States.

by. their own admissions, were clearly shown to be

without. Pottawatomie blood. They were refused en-

rollment and told why. In many cases where Wis-

consin Pottawatomie descent was claimed a searching

inquiry disclosed that their ancestors, while Pottawat-

omies, belonged 4p southern Wisconsin or to the: Mich-

igan branch kn itn as Pokagon’s band of Pottawato-

mies. They also were rejected.” [House Doc. 830,

tae) Cong. -y- Ast Sees, at p. 14. Def. Ex. 41; Int. Ex.

1-85

The Indians eet in Canada inched those re-

ceiving “full rights as Canadian Indians” and those

A Oe

sip

: receiving: no benefits from the Canadian Government

(Id., pp. 17-21). a

+ —W r was dearestell b the. Cominissi ioner of’.

Rae awe ws y sioner 0

Affairs to adopt the Churchill roll made the

‘preceding year (Pet. (71-A) Ex. A-56). That roll had

414 names. Churchill reported that these Wisconsin

_ Potawatémi were intermarried with Menominee, Win-

nebago, Chippewa and Ottawa (Churchill to Hitch-. —

cock, Nov. 10, 1906, part of. Pet. (71-A) Ex.:A-57).

Writing to one of the Indians on whom he was Tely-

ing for help Wooster stated:

“Of comrse, you are aware that no Indiaris or

“” descendafts of any Indian are desired. where the

gan. Only those who: are related to the band or

‘tribe of Indians who participated in the treaty of

1833—to which you, belong—are to be included.” |

[Wooster to Wemigwa 8 Nov. 22, 1907, part of -

Pet. (71-A) Ex. A-57].

’ 57.. Commencing with the* ‘Act of June. 30, 1913, 38 .

Stat. 77, Congress made a series of appropriations for the

benefit of the Indians on the Wooster roll, who then

resided in Wisconsin and Michigan. None of the funds |

appropriated were taken from the assets or funds of the

Citizen Band or the Prairie Band.

EVIDENCE at }

See 38 Stat. 102; 39 Stat. 156; 39 Stat. 991; 40

Stat. 589; 41 Stat. 29 ; 41 Stat. 432; 49 Stat. 159.

58. The Hannahville and Forest: County Communities

which have intervened in this suit, comprise Wisconsin

Indians enrolled as set forth in Finding’ 56, or descend-

ants of Indians so enrolled. : :

EVIDENCE |

“—~ ‘These communities have “a natty” ‘been identi- is

fied by ‘evidence in the record, but the iritervenors’

‘petition appears to relate the intervenors. to the bene-

ficiaries of thé appropriations referred to in Finding —...

57. . | ae

—"\ Epoar E. Wirt |

| ' Chief Commissioner _

, : i ; - =

Louis J. O’Marr 7

Associate Commissioner —

Wm. -M. Horr

Associate Commissioner ei

Sate

‘Date wah citation , Map

. 55

APPENDIX {Commission]

“ Potawatomi Land Cessten Treaties

ROYCE AREA ‘

(Greenville)

y. Aug. 8, 1795

7 Stat: 49

July 4, 1805

7 Stat. 87 —

Archives No. 44

Nov. 17, 1807 - -

7 Stat. 105

_ Aug. 24, 1816

7 Stat. 146

Sept. 29, 1817

7 Stat. 160

Oct. 2, 1818

7 Stat. 185

Aug. 29, 1821

7, Stat. 218

Oct. 16, 1826 _

7 Stat. 296

Sept. 20, 1828

7 Stat. 317

July 29, teho

7 Stat. 320

Oct. 20, 1832

7 Stat. 378

Oct. 26, 1832

7 Stat. 394. ,

Oct. 27, 1832

Sept. 26, 1833

7 Stat. 431

Note:

Nos. . Description of Deieoaiias

Ohio Lae ee 11.

. Ohio: 53; 54°

Ohio’ i SC

Michigan 1 -

Illinois 1 - 78

Ohio - 87, 88.

Michigan 1

Indiana * . 98.

Illinois 1

‘Michigan 1 117

‘Indiana

Indiana 132, 133

Indiana 145, 146

Michigan §

Illinois 2 .

Wisconsin ‘1

Illinois 1

Indiana 180

Indiana 181.

‘Minois 2 187

Wisconsin 1

147, 148.

177.

‘Putawatames of the River Saint

Joseph o

“such of the Pottawatima nation

as reside on the river Huron of

Lake Erie” °

“such of .the Pottawatamies as

now reside on the-river Huron of

lake Erie, the river Raisin, and

in the vicinity of the said rivers”

“united tribes of Ottawa, Chipa-

was, and Pottowotomees, residing

‘on the Illinois “and Melwakee riv-

ers, and their waters, and on the ,

southwestern parts of Lake .Mich-

‘igan”

Potawatomee tribe

Potawatamie nation of Indians

Pottawatamie Nation

Potawatami- tribe

. Potawatomi ; tribe

“United Nations of Chippewa, Ot-

tawa, and Pottawatamie Indians,

he waters of the Illinois, Mil-

of the Prajrie and Kankakee .

Pottawatimje ‘Indians .

iheiiiaimias of the State of In- |

diana and Michigan Territory

-“United Nation of Chippewa,

- Ottowa and Potawatamie Indians” .

‘The foregoing list is intended only to identify’ the various tracts ceded -

by Potawatomi bands to the United States: It does not include treaties later

ceding reserves retained out of these tracts. For Potawatomi treaties’ not listed

above, see ra 12, 16 -“_ 23.

3 oe

(

EVIDENCE =. - - | -: coe

These communities have not actually been identi-

.fied by evidence in the record, but the intervenors’

«petition appears to relate the intervenors to the bene-

ficiaries of the appropriations referred to in Finding

97... ;

Epoear E. Wrrr. ee:

' Chief Commissioner

an - ae

Louis J. O’Makr

Associate Commissioner |

‘ - Wu. M. Horr §&

: *. Associate Commissioner,

‘ he . . c on

Pa: >

s 7

. oe gunn

? ¢

@ .

‘ a

—s

’

¢.

ms)

_APPENDIX [Commission]

Potawatomi ‘Land Cession Treaties ait

Date and citation. Map .

(Greenville)

Aug. 3, 1796

7 Stat. 49

July 4, 1805"

7 Stat. 7

Archives No. 44

Nov. 17, 1807

7 Stat. 105

Aug. 24, 1816

7 Stat. 146.

| Sept. 29, 1817

7 Stat..160 *

Oct. 2,. 1818 -

7 Stat. 185

Auge 29, 1821

7 Stat. 218

Oct. 16, 1826 .

7 Stat. 295 .

Sept. 20, 1828

7 Stat. 317

.. Fuly 29, 1829

7 Stat. 320 ©

* Oct..20, 1832

7 Stat. 378 ©

Oct. 26, 1882 -.

7 Stat. 394

Oct: mM, 1832 *

Sept. 26, 1833

7 Stat. 431

' Note:

. Ohio

Ohio

Ohio’

Michigan 1

Tllinois 1

’ Ohio ’ ,

Michigan 1

Indiana

Illinois 1

Michigan 1

Indiana

Indiana -

; \

Indiana,

Michigan’ 1 —

Illinois 2,

-Wisconhsin 1

Illinois 1

Indiana

- Indiana

“ininois 2

Wisconsin 1

ROYCE AREA _—

Nos.

Description. of ‘ameieiai

Putawatames of the River. Saint

_ Joseph

. 63, 54

87, 88

117

: 182, 133

145, 146

147, 148

Potawatamie tribe

Putawatamees of. Huron .

“such of the Pottawatima nation.

as reside on the river Seren of |

Lake Erie” 3 :

“such of the Satnaneteniion as .

now reside on the river Huron of

lake Erie, the river. Raisin,, and.

in the vicinity of the said rivers”

“united tribes of Ottawa, ‘Chipa-

_was, and Pottowotomees, residing

on the Illinois and Melwakee riv-

ers, and their waters, and on the

southwestern pares of Lake Mich- :

igan”

Potawatomee tribe

€

Potawatamie nation of Indians

Pottawatamie Nation

Potawatomi tribe . AX

“United Nations of Chippewa, Ot-

tawa, and Pottawatamie Indians, ~

' of the waters of the Illinois, Mil-

7 187 .

waukee, and Manitoouck Rivers”

Potawatamie Tribe of Indians

of the Prairie and Kankakee

. Pottawatimie Indians

Potawatamies of the State of In- -

diaha and Michigan Territory

“United. Nation of Chippewa,

Ottowa*and Potawatamie. Indians” ;

The fotegoing list is- intended only to identify -the various tracts ceded.

by Pojgwatomi bands td the United States. It does not include treatjes later

_ ceding reserves retained dut of these tracts. _For Potawatomi treaties-not listed

Rcncrachatdites tac 12, 16 and 28. ;

LIBRA! FILED.

ee w= COURT: ;

suRREME CO re ee FEB 10 1959

pa aes | JAMES R. BROWNING, Qlerk

= E Ix Tue

Srprene Court of the Hnited Stas i

Octobef Term, 1958 | S

Number 627.

* Hanwanviiie Solas Comets , Er. At, |

Petit itioners. |

vs.

THE Prarrie Bann or Potawatomi Inpians Et: AL.;

= THe. Crrizen- Bap or Potawatomi INDIANS Er. AL. ;

ee _ + Respondents.

| a 3

Unrrep States or AMERICA.

REPLY OF PETITIONERS TO BRIEF OF Be eae

_ RESPONDENTS Sea

Water H. Matoney, .—

James N, Beery re

.. 839. Investment Bldg: abe.

| Washington 5,D.C. -« ~

; ¢ Attorneys for Petitioners.

Pau M. Nimset. 4 204

| Of Counsel. cd

» © - :

z * a D

‘Wis0on - Eres Paurrme Co. - RE 77-6008 - Wasmmeton 1. D.C. ‘ seer ;

* INDEX

| | | re | PAGE

Reply under Rule 24(4)............0........- iicitnasainsbinta eine

Conflict of Decisions.......... eels A Re LEO 2

Issue stated in affirmative................ Judlepaihonipipcianssaninconenieh . 2

= Government’s -position............. a EN rn oh I 3

Conclusion. ........ Kies hehe Nee oe PENTEL SOR OOP 5

| | Cases Cited == N

Lone Wolf VS Hitchcock, 187 U.S. 544.00 2

United States VS Holliday, 70 U.S. 419.000. . 2

_ United States VS Kagaman, 118 U. S. 375... g «2

' ° ie

& G i - | “3

’ , | " an e

In Tue :

: | Supreme Court of the Yuited States |

Riegel Term, 1958

| Number qa7 |. pee eran

HAN NAHVILLE renner Communrry, Er. AL.,

. eneees.

) Tee vs.

THe Pratrte Bann or Potawatomi Iypians Er. AL. ;

Tue Citizen Banp oF Potawatomi INDIANS Er. AL. ;

: Respondents wh

- and

UNITED STATES OF AMERICA.

REPLY OF PETITIONERS TO BRIEF OF

RESPONDENTS.

This reply of Petitioners is timely filed within the -

meaning of Section 24 (4) of the Rules of this Court.

“The question here for*this: Court to settle is of general —

and public importance with respect to the plenary and

constitutional right of Congress to legislate with respect

- to Indians, Indian Tribes-and their property without in- |

.terference by. the. Judiciary.

The‘ question at issue ix (as stated on page 5 of -the

petition and brief)—can the Court of Claims or the In-

dian Claims Commission by their own analysis, conclu- - |

>sions or inferences, “inquire into, question .or modify”

the action of, Congress (Acts of 1864, 1906, 1913) in the

% 2

exercise of its ‘plenary and. constitutional power . over

Indian affairs?

Respondents have not discussed or even mentioned the

-question presented by the petition herein. ~Respondents —

~ have studiously avoided discussing the legal issue and thé '’

decisions of this Court cited (infra) m support. of Peti-.

tioners’ answer to this question.’ Therefore it is deemed

admitted tha: despondents have. no answer to the ques-

tion here invelved. '

Respondents resort, to a’ discussion of issues and auv-

thorities that might be relevant if the plenary power of

Congress. were not here involved.

CONFLICT OF DECISIONS.

‘Respondents state on page 6 of their brief:

“Petitioners have offered no citations in support of

their assertion. that ‘there is a‘ conflict of decisions

* which this Court must settle’.” .

- The attention of the Court is respectfully directed to

pages 12 to 17 of Petitioner’s brief, where Petitioners re-

assert that the decision of the Court of Claims and the.

Indian Claims Commission are in direct conflict with the |

decisions of this Court in~Bone Wolf v. Hitchcock, 187

U.S. 544; United Statés:v. Holliday, 70 U. a 419; —

States v. Kagama, 118-‘U..S. 375.

The\decisions of. this Court in the above cases require

the Court of “Claims and the Indian Claims Comission

to follow what this Court did and said in the above Cases.

ISSUE ST ATED IN THE AFFIRMATIVE

The United States C past of Clainis or the Indian Claims.

Commissién. were without authority to modify, inquire

into or question the: action of Congress (Acts of 1864,

1906, 1913, supra) in a the rights of Petitioners:

, Sect

3. |

*«

~ to share in the tribal assets of the tribe ‘to which they

belonged. The Act of June 30,1913 accorded to Peti-

-_ what the Court - of Claims’ is now genying them.

Every issue of law arid fact before the Indian Claiins .

Commission and the Court of Claimsewas in 1913 before

Congress and had been for many years. Congress, on

three. occasions, legislated with respect to: those , facts*

‘and the issue here (Acts of 1864, 1906, 1913). { Appx.

main Brief, pp. 48A and 49A. Acts set out in full. ):

On June. 30, 1913 (Appx. 49A) “Congress sett’ this

- issue and established the rights of Petitioners by paying

~The Court of Claims and the Indian Claims Commission .

the Indians (Petitioners and their ancestors) $447,339 as

“their. proportionate ‘shar: of said Indians in annuities

and moneys of the Potawgt omit Tribe in which they hare

not shared.” (Emphasis ours,) That payment as theif

“share” of the tribal property ‘was an accomplished fdct

that definitely fixed the interest and right of Petitioners.

* may not disturb that action of Congress.

~The jlanations, the illogical reasons’ given by the

. ’ p ;

Court’ of Claims and the Commission in: voiding those

enh

Commission may do to destroy the power of Cong

over ‘Indian affairs if this Court does. not yeview what

the Court of Claims and the Indian: “laims Commission

have done herein. :

Acts of Congress ax. indicative of what the Court ne)

Every case cited by Respondents ‘in their briefs finds its .

origin in a jurisdictional. Act of: Congress authorizing:

the action of the Court, On the contrary, in the instant

case, Congress itself decided the issue. This important

distinction is not discussed by Respondents, the Court of:

Claims nor, the Indian Claims Commission.

NT’S POSITION

Of this issue And situation, the United States Govern-

ment, Defendant herein, although having no interest in

na Qe oe ees en

Ie errr -

b—

4 rs

the ps between Petitioné+s and Deenendnihe, joined —

Petitioners. before thé Indian Claims Commission .and

stated (Brief of Gov. before Indian Claims Commission -

opposing motion to dismiss, page 45) (copy in. Record) :

“The authority and power to recognize the ight,

of the ancestors and. predecessors (Petitioners )* a

being. in’ Congress supreme, and having been here.

tofore exercised by. that legislative body, the courts

are powerless to ignore, or strike down such recog-

nition, | but are acne tg follow such Confressional

action.”

- The Government (main Brief ‘p. 252) after reviewing -.

‘the facts | before sf’ ongress at the time (1864, 1906, 1913)

further states: ~~ ss Wie

“For many years subsequent to 1833, the United

States saw fit to withhold the payment of .all Pota-

watomi annuities, assets and funds to the Potawatomi

. Indians who failed to comply with the removal pro-

visions/of the }833 Treaty. However, in 1908, the

‘ Government relented in this respect (this was after

the Supreme Court struck down claims of forfeiture

against non-emigrant Indians, New York Indians v.

United. States, 170 U. 8. 25- 26), and Congress has

_ since corrected this. situation by fully recognizing the

members of the Wisconsin band of Potawatomi In.

dians as full: fledged members of the Potawatomi

Tribe, and entitled-a@s such to share fylly on a pro.

-—-rata basis in. all tribal annuities, assets and funds

accruing to the tribe subsequent to 1833, including

_ specifically the proceeds arising from the sale of the

ceded lands. As there were no Potawatomi tribal

funds then available, Congress from time ot ftime has

appropriated public. funds for that purposel.. ..”"

“The Government's appeal brief before the Endiaf Claims —

(‘ommission, page. 44, contains statement: to

effect and cites the Lone Wolf case and_otl

above. +

cases cited

If Acts of Congress that deal with Indian affairs can’

he subjected..to theoretical, superficial or personal opin-

leks

7 7 .

. = *.

. . a

~ ate ith a : - . :

. ers .

é ~

ions, the constitutions’. -and plenary power of Congress

will be surrendered to the Courts and the plenary ret

of Congress over Indian affairs will come to an end.

_ CONCLUSION

A Writ of Certiorari should he andi herein. to settle’

this issue and prevent the establishment of a precedent

. that will encroach upon the security of ‘Congress in deal-

ing with Indians and Indian property and tp corrett the

errors of the Indian ( laims (‘ommission and the Court.

of Claims: with respect to the power of Congress: over

Indian Affairs.

Respectfully ratenitted,

WALTER MALONEY

Jawes N. Beery

Attorneys for Petitioners

$39 Investment Building, «.

‘Washington 5, D.C.

P%ur. M: Nrepeut

Of Counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.