# Brief in Opposition to Certiorari — Adams v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0689%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Certiorari - **Published:** January 1, 1959 - **Citation:** 359 U.S. 934 ## Text ‘ GURRKEee ~~ oe ae Wourk Usm | gee \ 7 af rfp 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 _ o HaNNanvILLe Inpian ComMunITy, ET AL., Petitioners a ae ; 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 eo > 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 4 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 a : 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. 4 "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). We 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 a - 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 ; - \ - 6 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 7. 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 | 8 -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 /9 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: 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 7 / “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, N : 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- ig 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° Py 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 {- =) Q 16 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 h 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).” ; — ‘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- | 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 3 ee Pena . a 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 - é ye _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 G 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 34 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 ~ 30 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 v7 36 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. a 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. | 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 - r = ! 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. © ad 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 ae 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. aR 47 _ ‘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 48 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 rs 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 - { ~S eee SNS OT Te iT ee See Tasers anes ene ° -— ~ ‘ . o 51° tundé of the Pelgnasee Natign rer one in the ‘Treasury © 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, 8 . 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. > “A large number of applicants. were examined who, © : 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 ancestor came from.southern Wiscongin or Michi- © 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. : : a 54 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 ee 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 ka Ohio Lae ee 11. . Ohio: 53; 54° Ohio’ i SC Michigan 1 - Illinois 1 - 78 2 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 - Putawatamees of Huron © “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 ( 54 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 6 . oe gunn e ? ¢ @ . re ‘ a —s 5 yt ’ 4: ¢. 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 11 Putawatames of the River. Saint _ Joseph . 63, 54 66 78 87, 88 98 117 : 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 ey ’ , | " an e ee Oo 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. Tr 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: oe , 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 4 na Qe oe ees en Ie errr - s 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 vv 7 7 . . = *. . . a ~ ate ith a : - . : . ers . é ~ & 5 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. ns P%ur. M: Nrepeut Of Counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0689%3A3. Public record. Not legal advice.