Prairie Band of Potawatomi Indians v. United States, Appeal No. 2-57.

• Citation: 143 Ct. Cl. 131,165 F. Supp. 139
• Decision Date: 16 July 1958
• Docket Number: Appeal No. 2-57.
• Parties: The PRAIRIE BAND OF POTAWATOMI INDIANS, et al., Appellees, v. UNITED STATES. The CITIZEN BAND OF POTAWATOMI INDIANS, et al., Appellees, v. UNITED STATES, Hannahville Indian Community et al., Appellants.
• Court: Court of Federal Claims

165 F. Supp. 139

143 Ct. Cl. 131

The PRAIRIE BAND OF POTAWATOMI INDIANS, et al., Appellees, v. UNITED STATES.

The CITIZEN BAND OF POTAWATOMI INDIANS, et al., Appellees, v. UNITED STATES, Hannahville Indian Community et al., Appellants.

Appeal No. 2-57.

United States Court of Claims.

July 16, 1958.

COPYRIGHT MATERIAL OMITTED

Walter H. Maloney, Washington, D. C., for appellants, Hannahville Indian Community, et al. James N. Beery, Washington, D. C., was on the briefs.

Louis L. Rochmes, Washington, D. C., for appellees, The Citizen Band of Potawatomi Indians, et al. Howard D. Moses, Chicago, Ill., was on the brief.

O. R. McGuire, Washington, D. C., for appellees, The Prairie Band of Potawatomi Indians. Robert Stone Johnson, Topeka, Kan., was on the brief.

Asst. Atty. Gen. Perry W. Morton filed a brief for the United States. Sim T. Carman, Alexandria, Va., was on the brief.

REED, Justice (Retired), sitting by designation, delivered the opinion of the court:

This is an appeal from an order of the Indian Claims Commission, 60 Stat. 1049, 25 U.S.C.A. § 70 et seq. The order entered September 19, 1956, 4 Indian Claims Commission 515, 539, is one dismissing an intervening petition of the Hannahville Indian Community, et al., filed in the there-pending consolidated case of the Prairie and Citizen Bands of Potawatomi Indians, et al., against the United States. The appeal was filed under Section 20(b) of the Indian Claims Commission Act.¹

On the same day, the Commission entered an interlocutory order, 4 Indian Claims Commn. 460,472, awarding the "Potawatomi Nation, as created by the treaty of June 5, 17, 1846, and as it then existed," $3,290,217.

Although there are still pending in the Commission proceedings for accounting, we think the appeal here is allowable under the above jurisdictional section. The order to dismiss the intervention is completely severed from the main proceeding. The intervenors have no voice in the claim of the Potawatomies against the United States. Their claim was "that they be permitted to participate in any judgment or award granted the Western Potawatomie and share equally in the proceeds of such award or judgment"². Finality of adjudication has always been insisted upon in the federal courts before appeals are allowed, but some collateral issues may "become so severed * * * as to permit an appeal."³ The present appeal is of that type. Like Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528, a case of appeal from a ruling of the United States Court of Appeals for the Third Circuit requiring a bond to protect a corporate defendant against costs in a derivative suit against a corporation by a stockholder, this appeal has a "final and irreparable effect on the rights of the parties." The Supreme Court said in the Cohen case, 337 U.S. at page 546, 69 S.Ct. at page 1225:

"But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably."

We think that is the situation here. This court has passed, sub silentio, upon such a controversy, McGhee v. Creek Nation, 122 Ct.Cl. 380.

In the Cohen case any judgment against the corporation could have been appealed because of an error in not requiring bond, but instead the appeal was allowed before judgment. Here, the Commission could have dismissed the petition for intervention as a matter of discretion. See Allen Calculators v. National Cash Register Co., 322 U.S. 137, 140, 64 S.Ct. 905, 88 L.Ed. 1188. Instead, the Commission made a final determination of intervenor's rights from which a res judicata status of their claim might reasonably follow. See 4 Indian Claims Commn. 537. This we think distinguishes this case from Ex Parte Cutting, 94 U.S. 14, 20, 24 L.Ed. 49. This appeal is distinguished from that in Credits Commutation Co. v. United States, 177 U.S. 311, 314 et seq., 20 S.Ct. 636, 638, 44 L.Ed. 782, because the "legal right to intervene" in that case depended upon a "future possibility," contingent and speculative. Hence there was no standing. The final determination of intervenor's rights brings this appeal more closely to the situation in Pipe Line Co. v. United States, 312 U.S. 502, 506, 61 S.Ct. 666, 85 L.Ed. 975, where there was a judgment that allowed the party attempting intervention to safeguard its private interests. In that situation it was held the right to intervene was not discretionary.

The suit in which appellants' motion to intervene was filed was brought before the Commission by two bands of Potawatomi Indians—the Prairie Band of Kansas and the Citizen Band of Oklahome —in two separate petitions. Both claim their right of action is derived from the fact that they are the sole possessors of the rights of the Potawatomi Nation, reinstated in its national character by the Treaty of Council Bluffs, Iowa, and the Osage River, Kansas, June 5 and 17, 1846, 9 Stat. 853. There is no dispute here as to their rights or their derivation.

These appellee bands in the name of the Potawatomi Nation seek recovery from the United States for the difference between the agreed amounts paid their Nation by the United States under the Western treaty aforesaid and the then value of the Iowa tract of five million acres, acquired under the treaty of Chicago by the United Nation of Chippewa, Ottawa and Potawatomi Indians, September 26 and 27, 1833, 7 Stat. 431, 442, and a treaty concluded at Washington February 11, 1837, 7 Stat. 532, for the Osage River lands. These treaties conveyed Potawatomi lands east of the Mississippi to the United States. The tribes agreed to move west. An interlocutory order adjudging over three million dollars to petitioners has been entered by the Indian Claims Commission, as above indicated, for the Potawatomi Nation on the ground that the amounts paid in 1846 were grossly unconscionable in relation to the then value of the land. 4 Indian Claims Commn., Pt. 2, p. 471. The appellants sought intervention which was denied. Appellants are descendants of Potawatomi Indians who occupied lands in Wisconsin, Illinois and Michigan ceded to the United States under the above two treaties. Their ancestors thereby acquired a right to go to one or the other tracts of land west of the Mississippi.

Appellants' contentions are, first, that the various tribes or bands of Potawatomies in the early nineteenth century constituted an "overall political entity" owning all tribal property "including the lands ceded" by the two above treaties and therefore, whether "affiliated," i. e., members of the present Potawatomi Nation, or not, or whether organized into a tribe or not, appellants are entitled to a proportionate share of any award from the Commission. Second, appellants say that Congress has recognized their right by certain appropriation acts for the relief of Potawatomi Indians. This recognition is said to be conclusive in any distribution of tribal assets.

As to the first contention, in our view of the controlling facts in this case as to membership, it is immaterial whether the Potawatomies in the East were a single tribe or many bands. Appellants' rights would be the same. The treaties were made under many different names, usually geographic or descriptive in form as in the Greeneville, Ohio, treaty of 1795, Potawatomies of the River Saint Joseph. 7 Stat. 49. See the list of Land Cession Treaties in the reports of the Indian Claims Commission, Vol. 4, Pt. 2, p. 512. The very treaties following the Chicago Treaty of 1833 show that the "United Nation of Chippewa, Ottawa and Potawatomie" could not pass title as we know it, to all Potawatomi land.⁴ The question of the autonomy of the various bands of Potawatomi who roamed Ohio, Michigan, Indiana, Illinois and Wisconsin in the early years of the last century was fully examined and determined by the Indian Claims Commission, Vol. 4, Pt. 2, pp. 517-524. They reached this conclusion:

"The above transactions with Potawatomi Indians show beyond doubt that the Potawatomi people, at the time of the treaty of 1833 and the treaty of 1837, was composed of numerous autonomous groups who in their land dealings with defendant acted independently of each other and as autonomous entities."

We agree with that conclusion from the facts found.

We therefore first discuss the question of recognition by Congress of the rights of the intervenors and then the question of continuing membership of intervenors in the Potawatomi Nation after its removal to the West.

Was there determination by the United States of the claims of the Eastern Potawatomi Indians by appropriations to them? Appellants argue that certain appropriations for the benefit of the Potawatomi of Wisconsin evidenced a recognition by the Congress of the right of all Potawatomi, whether or not they emigrated west, to share in the proceeds of the Iowa and Kansas lands. Their point is that since Congress has power to determine who are members of a tribe entitled to receive the funds or lands of a tribe, congressional appropriations, under the circumstances of the payments now to be discussed, must be accepted here as a determination of appellants' right to share in this award. We accept as sound the stated rule that the United States may make such determinations of property rights.⁵ The Commission could find from the record no identifiable group of these Indians who went West and then returned East, nor have we.⁶ Therefore we pass only upon claims arising from tribes or persons continuously residing east of the Mississippi.

Appellants' claim of recognition is based on several enactments. The Act of June 25, 1864, 13 Stat. 169; of June 21, 1906, 34 Stat. 380; and of June 30, 1913, 38 Stat. 102. The 1864 Act, so far as pertinent, is an...