Appeal No. 4-64
UNITED STATES COURT OF CLAIMS
174 Ct. Cl. 550; 1966 U.S. Ct. Cl. LEXIS 166
February 18, 1966, Decided
PRIOR HISTORY: [**1]
Ind. Cl. Comm. Docket Nos. 317 and 314-C; 10 Ind. Cl. Comm. 279.
DISPOSITION: Affirmed.
SYLLABUS: ON APPEAL FROM INDIAN CLAIMS COMMISSION
Indian claims; appeal from Indian Claims Commission; title; recognized title. --
The United States appeals from the decision of the Indian Claims Commission
holding that the Peoria Tribe, suing on behalf of the Wea Nation, and the Kickapoo
Tribes of Kansas and Oklahoma, had recognized title to Royce Areas 73 and 74
in western Indiana and eastern Illinois when those tracts were ceded to the
United States in 1809 and 1818, 10 Ind. Cl. Comm. 279 (March 2, 1962), and
from the order of the Commission dated March 10, 1964, amending its findings
of fact and interlocutory order of March 2, 1962, concluding that the Kickapoo
Tribe and the Wea Tribe had an undivided one-half interest each in the two
Royce Areas. It is held that the Commission was correct in ruling that
the tribes signing the Treaty of Greenville, 7 Stat. 49, acquired recognized
title, later confirmed by the Treaty of Grouseland, 7 Stat. 91-92, and the
fact that the Kickapoos did not sign the Treaty of Grousland is immaterial
since the signatories on both sides were acting on their [**2] behalf.
It is further held that the Commission correctly exercised its discretion
to accept the tribes' position that they had undivided one-half interests in
the Areas and the determination of the Indian Claims Commission is accordingly
affirmed.
Indian claims; appeals from Indian Claim Commission; title; recognized
title; what constitutes. -- Where, as in Article IV of the Treaty of
Grouseland, 7 Stat. 91-92, it is provided that three tribes considered themselves
as one nation and had determined that they would not dispose of the country
which they held in common and that the United States therefore agreed to
consider them as joint owners of all the country on the Wabash and its waters
above the Vincennes tract not ceded to the United States, and that the United
States would not purchase any part of the country without the consent of
the three tribes, and further that nothing in the section should weaken or
destroy the claim of a fourth tribe not represented at the Treaty to country
which they then occupied on the Vermillion River, the tribes mentioned in
the Article acquired recognized title to the areas mentioned. Such a provision
does not amount to a mere recognition [**3] by the United States
of the existence of the tribes named as one nation but also recognizes their
title to and ownership of the designated lands. As to the fourth tribe, the
parties intended to preserve them on the same plane as the Indians signing
the Treaty and thus that tribe was also accorded recognized title.
Indian claims; appeals from Indian Claims Commission; title; recognized
title; how acquired. -- Indians may acquire recognized title to lands
which they formerly held by aboriginal use and occupancy title. They
may also acquire recognized title to lands which they never occupied
previously but which the Government conveyed or granted to them. Occupancy
of the land at the time of recognition is not necessary to the acquisition
of recognized title.
Indian claims; appeals from Indian Claims Commission; title; recognized
title; joint ownership or occupancy. -- Joint ownership or occupancy
of recognized title to Indian land by friendly tribes is possible and
where it is impossible to divide the territory into segments occupied
by each tribe, it is proper for the Commission to rule that both parties
had undivided one-half interest in the entire area.
COUNSEL: Bernard [**4] M. Newburg, with
whom was Assistant Attorney General Ramsey Clark, for appellant.
Louis Rochmes for appellees; Allen Hull, attorney of record
for the Kickapoo Tribe of Kansas, et al. Jack Joseph, attorney
of record for the Peoria Tribe of Indians of Oklahoma on behalf of the
Wea Nation, et al.
JUDGES: Cowen, Chief Judge, Laramore, Durfee, Davis and
Collins, Judges.
OPINIONBY: PER CURIAM
OPINION: [*552] The Indian Claims Commission held
that the Peoria Tribe (suing on behalf of the Wea Nation) (Docket No.
314-C) and the Kickapoo Tribes of Kansas and Oklahoma (Docket No. 317)
had recognized title to Royce Areas 73 and 74 (in western Indiana and
eastern Illinois) when those tracts were ceded to the United States in
1809 and 1818. 10 Ind. Cl. Comm. 279 (March 2, 1962). n1 The Commission
later determined that the two groups (Weas and Kickapoos) each had an
undivided one-half interest in these areas (Order of March 10, 1964).
Before any determination of the value of the lands at the time of cession,
the United States took an interlocutory appeal to this court, attacking
both the ruling of recognized title and the finding of an undivided one-half
interest in each [**5] petitioner. We affirm.
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n1 The two dockets had been consolidated by the Commission for the purpose
of determining whether the petitioners (or their predecessors) had compensable
interests in the land.
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Areas 73 and 74 lay on the Indian side of the region covered by the Treaty
of Greenville of August 3, 1795, 7 Stat. 49, which set a general boundary line
between the territory of the United States and the lands of the signatory tribes
in the then Northwest Territory. The Indians ceded their claims to the territory
east and south of that line; the Federal Government gave up, in consideration,
all claims to Indian lands (with exceptions) north of the Ohio River, east
of the Mississippi, and west and south of the Great Lakes and the waters uniting
them. In Miami Tribe of Oklahoma v. United States, 146 Ct. Cl.
421, 175 F. Supp. 926 (1959), the court, upholding the Commission (2 Ind. Cl.
Comm. 617, 645, Docket Nos. 67 and 124), decided that the Treaty of Greenville, [*553] together
with its "follow up" [**6] agreements, granted recognition
of the legal right and title of the signatory tribes to the lands relinquished
by the United States. See Sac and Fox Tribe v. United States,
161 Ct. Cl. 189, 194-95, 315 F. 2d 896, 898-99 (1963), cert. denied,
375 U.S. 921. Both the Weas and the Kickapoos signed the Greenville treaty.
The Commission reiterated its conclusion that the Greenville signatories possessed
recognized title in Miami Tribe of Oklahoma v. United States,
5 Ind. Cl. Comm. 180 (Docket No. 253) (1957).
Appellant urges that these prior rulings did not embrace signatory Indian
tribes which were not occupying, in 1795, areas within the treaty limits,
and that
the claimant tribes did not then live in Areas 73 and 74. Appellees insist
that the earlier decisions bar the Government, under the doctrine of collateral
estoppel, from litigating that issue now. It is unnecessary for us to consider
whether the appellant is so estopped because we agree with the Commission and
the appellees that, even if the question is technically open, the principles
of the earlier rulings, correctly applied in the light of the present record,
lead convincingly to the conclusion that the [**7] appellee-tribes
did have recognized title. Before the cession of 1809 a number of treaties
had ensued upon the Treaty of Greenville. One was the Treaty of Grouseland,
August 21, 1805, 7 Stat. 91-92, which provided in Article IV:
As the tribes which are now called the Miamis, Eel River, and Weas, were formerly
and still consider themselves as one nation, and as they have determined
that neither of these tribes shall dispose of any part of the country which
they hold in common; in order to quiet their minds on that head, the
United States do hereby engage to consider them as joint owners of all the
country on the Wabash and its waters, above the Vincennes tract, and which
has not been ceded to the United States, by this or any former treaty; and
they do farther engage that they will not purchase any part of the said country
without the consent of each of the said tribes. Provided always, That
nothing in this section contained, shall in any manner weaken or destroy any
claim which the Kickapoos, who are not represented at this treaty, may have
to the country they now occupy on the Vermillion river. [Emphasis added.]
[*554] Areas 73 and 74 were admittedly [**8] included
in "all the country on the Wabash and its waters, above the Vincennes tract,
and which has not been ceded to the United States, by this or any former treaty";
also, the country occupied by the Kickapoos "on the Vermillion river" included
at least part of these Areas. By its terms this treaty-article was a clear recognition
-- if recognition had not already been granted by the Treaty of Greenville --
that the Weas held and owned Areas 73 and 74 (together with others). (As the
Commission found, thereafter the Weas, Miamis and Eel Rivers partitioned the
territory so that the Weas acquired separate title to the region involved in
this proceeding.) Appellant answers that all that the United States recognized
was the existence of the Weas, Miamis, and Eel Rivers as "one nation",
but the treaty language is much broader and plainly recognizes title to and ownership
of the designated lands. There is nothing in the treaty background to overturn
this reading. As for the Kickapoos, the proviso, in its full context, was more
than an acknowledgment of the mere existence of their claim; the parties
obviously intended to preserve the Kickapoos on the same plane as the signatory
Indians; [**9] since the latter were accorded recognized title, the
former had it too. The fact that the Kickapoos did not sign the Grouseland Treaty
is immaterial in this instance; the signatories on both sides (especially the
Federal Government) were acting on their behalf and in their interest, unlike
the situation in Sac and Fox Tribe, supra, 161 Ct. Cl. at 195-96, 315
F. 2d at 899-900. Nor is it critical whether the Weas and the Kickapoos were
or were not occupying Areas 73 and 74 in 1795 or 1805 (though it does plainly
appear that at the latter time, at least, they were living in and using the areas). "The
lands which Indians hold by recognized title may be lands formerly held by them
under mere aboriginal use and occupancy title or may be lands which they never
previously occupied and which the Government conveyed or granted to them." Miami
Tribe of Oklahoma, supra, 146 Ct. Cl. at 445, 175 F. Supp. at 939-40. On
the whole record it is clear to us that by the Treaty of Grouseland, if not before,
Congress recognized or confirmed title in both appellees to the land in dispute.
See Minnesota [*555] Chippewa Tribe v. United States,
161 Ct. Cl. 258, 262, 267, 269, 315 F. [**10] 2d 906, 908, 911, 912
(1963).
At the end of its opinion declaring that the appellees had recognized title,
the Commission noted that "in view of the record it will be necessary
for further proceedings to determine the areas within Royce 73 and 74 which
each tribe possessed." n2 Thereafter the Indians informed the Commission
that they could produce no further evidence bearing on the division of the
territory and suggested that, because of the impossibility of establishing
separate segments for each petitioner, the Commission find that the parties
had undivided one-half interests. The Government did not argue that further
pertinent evidence could be introduced but contended, among other things, that
no award could be made at all unless there was proof of the lands occupied
by each petitioner. We think that, in the circumstances, the Commission's determination
to accept the tribes' suggestion was fully within its discretion. No evidence
was available to mark off the respective areas within Royce 73 and 74. Unless
the award was to fail utterly because of the unavailability of such proof,
the United States would have no interest in any particular division; the total
amount to be paid [**11] would be the same, however the two tribes
divided it. n3 And it cannot be the law that the entire award must fall simply
because, although it is known that both tribes owned (and occupied) the ceded
territory at or about the times of cession, there is now no way to prove which
tribe held which part of the whole. Joint ownership or occupancy by friendly
tribes has been acknowledged as possible (see the Treaty of Grouseland, supra;
Sac and Fox Tribe, supra, 161 Ct. Cl. at 202 (fn. 11), 315 F. 2d at 903),
and equal division has been utilized for offsets in comparable [*556] situations
(see, e.g., Peoria Tribe of Indians of Oklahoma v. United States,
169 Ct. Cl. 1009, 1010-11 (1965); 7 Stat. 410, Art. II (1832)). There is no
ground for refusing to apply the same formula here. The parties most interested,
the Indian tribes, offered this solution as the "only practicable division" and
remain agreeable to it. n4
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n2 The Commission's interlocutory order of the same date provided that "the
petitioners shall now offer proof of their respective interests as to those
lands within Royce Areas 73 and 74 which each tribe possessed by virtue of
the right of exclusive permanent occupancy conferred by the Treaty of 1795." [**12]
n3 In its brief to the Commission on the issue of division (subsequently struck
by the Commission, see fn. 4, infra) the Government stated (p. 35) that,
if the Commission by its original finding and order on title "is committed
to the proposition that, regardless of the true facts, the petitioning tribes
are entitled among themselves to the entire ownership of Royce Areas 73 and
74 upon the basis of recognition, the defendant has no place or function in
this phase of these proceedings. It is solely an issue between the petitioners
and the Commission as to the division of the acreage."
n4 Appellant also complains of the Commission's order of March 10, 1964, striking
the Government's objections to the appellees' supplemental findings and brief
(in which they put forth the equal division) and the Government's own requested
supplemental findings and brief. The stricken materials were, in large part,
an untimely petition to the Commission (filed without leave) to rehear and
redetermine its basic determination that the appellees had recognized title
to, and were to be compensated for, Royce 73 and 74. Insofar as the stricken
materials bear directly on the division of interest between the tribes -- the
issue which was still open before the Commission -- we have considered the
few pertinent parts (the document is physically in the record). The Commission
did not adopt most of appellees' proposed supplemental findings -- to which
appellant objected.
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The determination of the Indian Claims Commission is
Affirmed.
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