Osage Nation of Indians v. United States

• Decision Date: 01 May 1951
• Docket Number: Appeals Docket No. 4.
• Citation: 119 Ct. Cl. 592,97 F. Supp. 381
• Parties: OSAGE NATION OF INDIANS v. UNITED STATES.
• Court: U.S. Claims Court

97 F. Supp. 381

119 Ct. Cl. 592

OSAGE NATION OF INDIANS v. UNITED STATES.

Appeals Docket No. 4.

United States Court of Claims.

May 1, 1951.

COPYRIGHT MATERIAL OMITTED

Wesley E. Disney, Washington, D. C., F. M. Goodwin and Lawrence H. Gall, Washington, D. C., on the brief, for appellant.

Ralph A. Barney, Oklahoma City, Okl., A. Devitt Vanech, Asst. Atty. Gen., for appellee.

Ernest L. Wilkinson and Robert W. Barker, Washington, D. C., and Aaron, Aaron, Schimberg & Hess, and Adams, Moses & Culver, all of Chicago, Ill., Ralph Montgomery Arkush, New York City, Theodore C. Bonney, Seneca Falls, N. Y., Brown, Dashow & Ziedman, and Dempsey, Mills & Casey, Chicago, Ill., Dykema, Jones & Wheat, Detroit, Mich., Earle & Reilly, New York City, Harrison, Thomas, Spangenberg & Hull, Cleveland, Ohio, Blake, Voorhees & Stewart, New York City, McCarter, English & Studer, Newark, N. J., Pam, Hurd & Reichmann and Pritzker, Pritzker & Clinton, Chicago, Ill., Riegelman, Strasser, Schwarz & Spiegelberg, New York City, and Washington, D. C., Sonnenschein, Berkson, Lautmann, Levinson & Morse, Chicago, Ill., Williamson, Hoge & Curry, Los Angeles, Cal., amici curiæ.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

LITTLETON, Judge.

This is an appeal by The Osage Nation of Indians from a final determination of the Indian Claims Commission, in which a majority of the Commission determined that the appellant was not entitled to any relief. Appellant's petition was filed with the Commission under and pursuant to the Act of August 13, 1946, 60 Stat. 1049, 25 U.S.C.A. § 70 et seq., hereinafter referred to as the Indian Claims Commission Act.

Appellant's claim, in essence, is for additional compensation, to be measured by the fair market value on September 29, 1865, of a tract of land approximately 30 miles wide and 50 miles long, consisting of 865,930.31 acres, in southeastern Kansas, which land was ceded to the United States by Article 1 of the Treaty of September 29, 1865, between the Osage Nation of Indians and the United States, 14 Stat. 687. Article 1 provided as follows:

"The tribe of the Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the United States the lands contained within the following boundaries, that is to say: beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles to the northeast corner; thence west with the northern line thirty miles; thence south fifty miles, to the southern boundary of said reservation; and thence east with said southern boundary to the place of beginning: Provided, That the western boundary of said land herein ceded shall not extend further westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris river crosses the southern boundary of the State of Kansas. And, in consideration of the grant and sale to them of the above-described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time direct. Said lands shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws including any act granting lands to the state of Kansas in aid of the construction of a railroad through said lands, but no pre-emption claim or homestead settlement shall be recognized: and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the `civilization fund,' to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States."

In its petition filed with the Commission, appellant asserted its claim under Section 2 of the Indian Claims Commission Act, which reads, in part, as follows:

"The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. * * *"

Although, in its petition, briefs and arguments before the Commission, appellant urged that its claim for relief was cognizable under all five clauses of Section 2, in its appeal to this court appellant relies only on portions of clause (3) and on clause (5). Appellant contends that the record before the Commission establishes conclusively the following three ultimate facts, any one of which would entitle appellant to the relief requested: (1) that there was a unilateral mistake of law or fact on the part of the Osage such as would justify the revision of the treaty under clause (3) of Section 2, in that the provision in Article 1 of the treaty relative to the creation of a civilization fund for Indian tribes other than the Osage but at the expense of the Osage, was not fully explained to, nor understood by, the Osage, but that, on the contrary, the cession of surplus lands in Article 1 was made with the understanding and belief on the part of the Osage that the proceeds from the sale by the Government of the ceded land, over and above the $300,000 advanced, plus the expenses of survey and sale, were to accrue to the benefit of the Osage Indians residing in the United States; (2) that in any event, the consideration actually passing to the Osage under Article 1 of the treaty, amounting to $300,000, or approximately 34 cents per acre, was unconscionable inasmuch as the land was worth at least what the Government received for it, that is, $1.25 per acre; (3) that the course of conduct pursued by defendant's agents in making the treaty and procuring the cession in Article 1 did not meet the standards of fair and honorable dealings within the meaning of clause (5) of Section 2.

The Commission based its denial of appellant's claims under clause (3) on two ultimate findings of fact: that the value of the land in 1865 did not exceed the sum of $300,000 paid, and that the terms of the treaty of September 29, 1865, particularly with respect to the civilization fund provision of Article 1, were fully explained to and understood by the Osage.

Upon these ultimate findings rests the Commission's disposition of the claim. Upon these or substituted conclusions upon the same issues must rest this court's decision. At the outset, therefore, it is necessary that we determine the extent of the authority of this court to review and to revise the findings of fact of the Commission before proceeding to analyze those findings in the light of the record, and to determine whether they should be modified to accord with what we perceive to be the facts as established by the record.

As stated in National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739, "When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized."

Section 20 of the Indian Claims Commission Act of August 13, 1946, provides in part as follows:

"(b) * * * At any time within three months from the date of the filing of the determination of the Commission with the clerk either party may appeal from the determination of the Commission to the Court of Claims, which Court shall have exclusive jurisdiction to affirm, 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 of law, including any conclusions respecting `fair and honorable dealings,' where applicable, stated by the Commission 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 portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error. The Court may at any time remand...