CITIZEN BAND OF POTAWATOMI INDIANS OF OKL. v. United States, Appeal No. 6-65.

• Decision Date: 04 January 1968
• Docket Number: Appeal No. 6-65.
• Citation: 391 F.2d 614,179 Ct. Cl. 473
• Parties: CITIZEN BAND OF POTAWATOMI INDIANS OF OKLAHOMA, and Potawatomi Nation Represented by Citizen Band of Potawatomi Indians of Oklahoma et al., the Potawatomie Nation of Indians, the Prairie Band of the Potawatomie Nation of Indians et al., v. The UNITED STATES.
• Court: U.S. Claims Court

179 Ct. Cl. 473, 391 F.2d 614 (1967)

CITIZEN BAND OF POTAWATOMI INDIANS OF OKLAHOMA, and Potawatomi Nation Represented by Citizen Band of Potawatomi Indians of Oklahoma et al., the Potawatomie Nation of Indians, the Prairie Band of the Potawatomie Nation of Indians et al., v. The UNITED STATES.

Appeal No. 6-65.

United States Court of Claims.

April 14, 1967.

Certiorari Denied January 15 and March 4, 1968.

Louis L. Rochmes, Washington, D. C., attorney of record for appellant Citizen Band, etc.

Robert S. Johnson, Washington, D. C., attorney of record for appellant Prairie Band, etc.; Howard D. Moses, Chicago, Ill., and Giddings Howd, Englewood, N. J., of counsel.

Robert C. Bell, Jr., New York City, attorney of record for Hannahville Indian Community, etc., intervenor; Walter H. Maloney, Sr., Washington, D. C., of counsel.

Frank De Nunzio, Washington, D. C., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for appellee.

Before COWEN, Chief Judge, REED, Justice (Ret.) sitting by designation, and LARAMORE, DURFEE, COLLINS, SKELTON and NICHOLS, Judges.

Certiorari Denied January 15 and March 4, 1968. See 88 S.Ct. 771, 1046.

OPINION

NICHOLS, Judge.

This case involves, as its controlling issue, the interpretation of a treaty entered into on August 24, 1816 (7 Stat. 146), between the United States and "the chiefs and warriors of the united tribes of Ottawas, Chipawas, and Pottowotomees, residing on the Illinois and Melwakee rivers, and their waters, and on the southwestern parts of Lake Michigan," hereinafter referred to as the United Nation.

The United Nation's present successors¹ claim additional compensation for land ceded to them under the above treaty and receded by them to the United States under a later treaty of July 29, 1829 (7 Stat. 320). We must consider here what rights the United States reserved, and did not convey to the Indians, under the Treaty of 1816. The lands involved are located in northern Illinois and southwestern Wisconsin. For convenience we will refer to these cessions by the tract number used by Royce on his Illinois and Wisconsin Land Cession published in the 18th Annual Report of the Bureau of America Ethnology for 1896-97.²

Said areas are known and described as (1) Royce Area 147 on Royce Maps Wisconsin 1, Illinois 2, and (2) Royce Area 148, Illinois 2, and are more particularly described as follows:

Beginning at the Winnebago Village, on Rock river, forty miles from its mouth, and running thence down the Rock river, to a line which runs due west from the most southern bend of Lake Michigan to the Mississippi river, and with that line to the Mississippi river opposite to Rock Island; thence, up that river, to the United States\' reservation at the mouth of the Ouisconsing; thence, with the south and east lines of said reservation, to the Ouisconsing river; thence, southerly, passing the heads of the small streams emptying into the Mississippi, to the Rock River aforesaid, at the Winnebago Village, the place of beginning. And, also, one other tract of land, described as follows, to wit: Beginning on the Western Shore of Lake Michigan, at the northeast corner of the field of Antoine Ouitmette, who lives near Gross Pointe, about twelve miles north of Chicago; thence, running due west, to the Rock River, aforesaid; thence, down the said river, to where a line drawn due west from the most southern bend of Lake Michigan crosses said river; thence, east, along said line, to the Fox River of the Illinois; thence, along the northwestern boundary line of the cession of 1816, to Lake Michigan; thence, northwardly, along the Western Shore of said Lake, to the place of beginning.

A treaty was entered into by and between the defendant herein, the United States, and the chiefs and headmen of the United Sac and Fox Tribe, dated November 3, 1804 (7 Stat. 84), wherein the United Sac and Fox Tribe ceded to the United States the land making up Royce Area 50 (which, among others, includes Areas 147 and 148). Subsequently, the United States entered into the treaty dated August 24, 1816, with the United Nation, wherein the United States recognized title in the United Nation to part of the land contained in the cession of the Treaty of 1804. Said lands were described in Article 2 of the Treaty of 1816, the provision in question as follows:

* * * all the land contained in the aforesaid cession of the Sacs and Foxes, which lies north of a due west line, from the southern extremity of Lake Michigan to the Mississippi river, except three leagues square at the mouth of the Ouisconsing the "Ouisconsing" is the present Wisconsin River river, including both banks, and such other tracts, on or near to the Ouisconsing and Mississippi rivers, as the president of the United States may think proper to reserve: Provided, That such other tracts shall not in the whole exceed the quantity that would be contained in five leagues square.

The United States, by reason of the Treaty of 1816, recognized title, subject to the above reservation, in the United Nation as to Royce Area 147 and Royce Area 148, excepting the area herein described as 148-A, which is that portion of Royce Area 148 lying east of the Fox River in Illinois. However, from a time long prior to the United States' acquisition of Area 148, until ceded by the Treaty of July 29, 1829, the United Nation had original Indian title to Area 148-A. Therefore, at the time of the Treaty of 1829 the United Nation had title to all of Royce Areas 147 and 148.

The Indian Claims Commission found that the sum of $364,901 was the treaty date value of the consideration for the cession made by the United Nation under the 1829 Treaty, that this sum was so grossly inadequate an amount for the lands involved as to make the consideration unconscionable, and concluded as a matter of law that the United Nation was entitled to recover from the defendant the sum of $2,407,264.30, less the sum of $364,901.00, representing the consideration paid by the United States for the 1829 cession and less the sum of $10,790.28, representing allowable gratuitous offsets, leaving a net balance of $2,094,573.02 owed by the defendant. 11 Ind. Cl.Comm. 693 (November 29, 1962), as amended by order entered April 15, 1965, 15 Ind.Cl.Comm. 232. The United Nation contends here that this sum is only a less inadequate consideration for the lands ceded.

According to the commissioners who made the Treaty of 1816, their reason for reserving the area "five leagues square" was that it "contained those immensely valuable lead mines which for some time past had attracted and occupied much public attention * * *." The "stipulation would authorize the President to make such reservation as would include all those mines * * *."

The lead deposits were in Area 147 and were actually little exploited up to 1825, at which time there were but 30 miners at work and few locations considered worth "giving bond for the occupation thereof." The area, however, continued to be deemed rich in lead and had attracted at least 10,000 people for mining, and presumably supporting trades, by the time of the Treaty of 1829. The deposits were known to extend along the east side of the Mississippi, from near to its confluence with the Wisconsin, south 100 miles, plus or minus a few, to the Apple River, and east for from 20 to 30 miles. In 1828 the production of the mines was 12,311,730 pounds of lead.

Exploration started in the neighborhood of Galena and on the Fever River, near the south end of the deposits as they are now known, but by 1828 miners were operating up country near the Wisconsin River. The whole area was recognized as one where "the same geological features present themselves * * *." Beyond all actual exploration as of 1829, there would seem ample evidence to show the existence of a much larger region, including perhaps the whole northern half of Area 147, where the probabilities of extracting minerals in commercial quantities were deemed sufficient in 1829 to justify expenditures for exploration and development, immediately or at a somewhat later date. Thus, the price a willing buyer and a willing seller would have settled on for fee title to land in that area would have been influenced, to some degree, be it great or small, by such factor. The value of actually non-mineral land was also affected; the miners used their gains from mining to buy farm land, food had to be grown for the miners, transportation was necessary and therefore roads had to be built.

In 1821 the superintendence of the lead mines allegedly reserved to the United States by the 1816 Treaty was transferred to the War Department, the lead being regarded as a strategic material. It would seem that at first there was some uncertainty whether a contiguous area "five leagues square" should be laid out under authority of the 1816 Treaty in that part of Area 147 deemed to be richest in lead, with the hope it would contain enough good mines to satisfy all of the prospectors, or whether the prospectors should first go anywhere in Area 147, stake out locations, and apply for leases thereon, which would be pro tanto part of the reserved area, however scattered. The latter procedure won out because the former would have had the unacceptable consequence of necessarily leaving some of the lead deposits in Indian ownership, as the lessons of actual exploration speedily bore out. The adopted routine was for a prospector to stake out an area and apply for a lease; it would normally run for three years. The area covered by a lease was at first 160 acres, later 320 (there also were ten acre mining permits). The rent was one-tenth of the lead recovered, in kind. Many prospectors, however, omitted the formality of applying for leases and paying rent and had little regard for the legal rights of the United States or the Indians. The result was that the whole area, many times five leagues square, was being cut up and made useless for the Indian way of life. The...