Page images
PDF
EPUB

Opinion of the Court

124 C. Cls.

to the Act of March 3, 1875 (18 Stat. 420, 448), appropriated the sum of $6,000 for that purpose. The Commission notes that when the Pawnee reservation lands were appraised for sale under the Act of April 10, 1876 (19 Stat. 28), the appraised values ranged from $1.25 to $6.00 per acre, with many tracts appraised at $1.25, $1.50, and $2.00 per acre. The Commission then states that, not knowing the location of the 4,800 acres taken, it is impossible to determine whether such land was of the $1.25 an acre or $6.00 an acre quality.

In essence, this claim failed through failure of proof. Under the usual standards applied to a taking claim, a claimant certainly has the burden of proving precisely what land was taken, the time of taking, and the then value of the land taken. This the claimant has not done. However, by the use of its investigatory powers, the Commission could easily have ascertained the basic facts of this claim. As to the location of the land taken, Executive Document 42, 43rd Congress, 1st Session, 1873-74,2 provides considerable information. Defendant placed in evidence two letters printed in that document. The first letter, dated January 5, 1874, from the Secretary of the Interior to the Speaker of the House of Representatives, suggests that $6,000 be appropriated to indemnify the Pawnees in Nebraska for 4,800 acres of land excluded from their reservation by an error in the survey of the boundary lines. The letter refers to enclosures consisting of a letter of December 20, 1873 from the Commissioner of Indian Affairs, and a letter of June 11, 1873 from the Superintendent of Indian Affairs, Northern Superintendency, "giving the facts in the case." Defendant's exhibit contains the letter of December 20, 1873, but does not contain the other enclosure, printed in Executive Document 42, and dated June 11, 1873. That letter, appearing on pages 2 and 3 of the Executive Document, reads as follows:

NORTHERN SUPERINTENDENCY,

OFFICE OF SUPERINTENDENT INDIAN AFFAIRS,

Omaha, Nebr., Sixthmonth 11, 1873. RESPECTED FRIEND: Having been informed that white settlers along the eastern line of the Pawnee reservation were incroaching upon its limits, I addressed a letter to

House of Representatives Executive Document (Serial No. 1606).

324

Opinion of the Court

the Hon. Commissioner of Indian Affairs, dated eleventhmonth 2, 1872, suggesting the propriety of a resurvey of the boundaries of said reservation.

I have recently been informed by Richards and Brother, surveyors, that they were duly commissioned by the proper authorities at Washington, to make said resurvey, and have now completed it, and find the reservation, as laid out and marked by previous Government surveyors, to be twenty-nine and one-half miles long from east to west by fifteen miles wide from north to south, whereas the treaty between the United States and the four confederated bands of Pawnee Indians, made September 24, 1857, provides for a reservation thirty miles long from east to west by fifteen miles wide from north to south, leaving a deficiency of land in the present reservation of 4,800 acres.

The surveyors informed me that they would mention the error in their official report to the superintendent of the land office, and point out the place where it occurred.

The original survey commenced at the proper initial point, and the error was made on the southern line going westward, the Indians are thus entitled to a strip of land west of their reservation half a mile wide, and in length the width of the reservation, or fifteen miles. Said land, I am told, is all settled by whites, and is much more fertile than the land south of the Loup about being sold under an act of Congress.

The Indians already have an excess of land, and there appears to be no occasion for interfering with the settlements on said strip of land.

I would respectfully ask on behalf of said Pawnee Indians, that proper steps may be taken to obtain from the United States Government a full and just consideration for the deficiency of land mentioned, for the use and benefit of the Pawnee Indians, and that the amount so obtained may be expended only in such manner as will advance the tribe in civilization.

Very respectfully, thy friend,

BARCLAY WHITE, Superintendent Indian Affairs.

Hon. EDWARD P. SMITH,

Commissioner Indian Affairs,
Washington, D. C.

According to the above letter, the land taken was a strip "of land west of their reservation half a mile wide, and in length the width of the reservation or fifteen miles." If the Commission does not wish to rely on the Superintendent's location

Opinion of the Court

124 C. Cls.

of the land erroneously omitted from the original survey, it can resolve any doubts it may have by a comparison of the outer boundaries established by the original survey with the boundaries established by the resurvey. The resurvey was made by William A. Richards, Deputy Surveyor, under Contract No. 69, dated December 14, 1872. The field notes of the resurvey are among the records of the General Land Office, Department of the Interior, in Nebraska Volume 64, Field Notes. The resurvey was commenced on April 29, 1873, and completed May 8, 1873.3

Once the land is located, as we believe it may readily be from the material alluded to above, the time of taking should be possible of determination.

Inasmuch as we believe that it was the intent of Congress that claims under the Indian Claims Commission Act should only be determined on the most complete record possible, we shall set aside the Commission's determination and findings, and remand this claim for further proceedings and findings on the matter of the location of the land, the time of taking, and the value of the land taken.

Claims 6 and 7

These claims are for the value of two tracts of land in the Pawnee reservation in Oklahoma. Claim 6 relates to

The circumstances which occasioned the resurvey of the reservation are revealed by correspondence in the records of the Bureau of Indian Affairs and of the General Land Office in the National Archives. On October 29, 1872, Pawnee Agent Troth wrote to Superintendent White informing him that in his opinion the white settlements had extended over the eastern boundary line of the Pawnee Reservation (Bureau of Indian Affairs, Letters Received, Pawnee-1872). Apparently the original monuments and stakes had become indistinct or had been destroyed and Troth asked that the lines be remarked to avoid future difficulty. On November 2, 1872, Superintendent of Indian Affairs White wrote to Commissioner of Indian Affairs Walker, enclosing Troth's letter, and recommending that a resurvey be made and the boundary lines thoroughly marked. (Letter and enclosure, No. 485.) On November 8, 1872, Commissioner Walker wrote to the Secretary of the Interior referring to the above letters from White and Troth, and recommending that the Commissioner of the General Land Office be asked to have the exterior boundary lines of the Pawnee reservation resurveyed and plainly marked. On November 11, 1872, the Acting Secretary of the Interior wrote to the Commissioner of the General Land Office transmitting the letter of Commissioner of Indian Affairs Walker, and recommending that the resurvey be made (Misc. Letters Received, No. 22673, Records of the General Land Office, National Archives). A contract for the resurvey was let to William A. Richards (Contract No. 69) on December 14, 1872, and the contract and the instructions to the surveyor are in the records of the General Land Office at the National Archives.

324

Opinion of the Court

88.43 acres of land which appellant alleges were sold in 1907 without its consent to the Town of Pawnee for an inadequate consideration ($110.55) credited to its account in 1921. Claim 7 relates to 25.54 acres of land which were patented by the United States to the Home Mission Board of the Southern Baptist Convention on June 3, 1920, without any consideration having been paid to the Pawnees. Both plots were included in a 755 acre tract which had been reserved for Indian school and agency purposes. It is the opinion of the Indian Claims Commission that the whole 755 acre tract was ceded to the United States and became public lands pursuant to the Agreement of November 23, 1892, between the United States and the Pawnee tribe, ratified and confirmed by Congress on March 3, 1893 (27 Stat. 612, 644). According to that Agreement, the Pawnees were entitled to allotments of land in severalty, and to have credited to their account $1.25 per acre for each acre of so-called surplus land ceded to the United States. Since the land involved in these claims was not allotted to individual Indians, the Commission concluded that it was surplus land and that the Pawnees were entitled to have credited to their account as of March 3, 1893, $1.25 for each acre of such land. The Commission accordingly determined that appellant was entitled to interest on the $110.55 actually paid to the Pawnees for the 88.43 acres sold to the town of Pawnee pursuant to the Act of March 1, 1907 (34 Stat. 1015, 1044), from March 3, 1893, to March 17, 1921, the date on which the $110.55 was finally credited to the Pawnee account, since the Agreement of 1892 provided that the consideration to be paid for the surplus land should bear interest at five percent per annum. With respect to the 25.54 acres patented to the Home Mission Board of the Southern Baptist Convention, the Commission determined that the tribe was entitled to $1.25 per acre, or a total of $31.90, for such land under the terms of the 1892 Agreement, plus interest at the rate of five percent per annum from March 3, 1893.

It is appellant's contention that the Commission was in error in holding that the portion of the "reserved" lands so disposed of were "surplus lands" for which the tribe agreed in 1892 to accept only $1.25 per acre. It is appellant's

Opinion of the Court

124 C. Cls. position that the whole 755 acre tract on which these lands were located had been reserved for school and agency purposes and remained tribal property, not subject to allotment under the 1892 Agreement, and not passing to the Government as surplus lands under that agreement, and that accordingly the Pawnees are entitled to judgment for the fair market value of the lands at the times of taking, which values appellant alleges are greatly in excess of the $1.25 per acre agreed upon for the surplus lands.

In a suit by this tribe under a special jurisdictional act (56 C. Cls. 1), this court found that whereas the Government had agreed in 1892 to pay the Pawnees $1.25 per acre for all the surplus lands ceded under the Agreement, only $80,000 had been so paid and that the tribe had a good claim for the balance due. In computing the amount due, the court deducted the 755 acres of unallotted land which had been reserved for school and agency purposes on the ground that title to such land remained in the tribe. The Indian Claims Commission does not agree with this court's holding in that respect, and believes that under the terms of the 1892 Agreement all the unallotted land was ceded to the United States, including the 755 acres reserved for school and agency purposes. If the Commission's interpretation of the Agreement is correct, then its determinations on claims 6 and 7 must stand.

The Act of February 8, 1887 (24 Stat. 388), entitled “An Act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes," provided that where a tribe had been located on a reservation created for its use by treaty or otherwise, the President might cause the reservation to be surveyed and the land allotted in severalty to any Indian located thereon in a prescribed manner and amount unless a treaty or act of Congress provided for allotments in quantities in excess of those provided in the subject Act, in which case the allotments should be in the larger amounts as provided in the treaty. Section 2 of that Act provided for the selection of the allotments by the individual Indians. Section 3 provided that the allotments selected should be made by special agents appointed by the President, under

« PreviousContinue »