United States v. Creek Nation

• Decision Date: 13 April 1973
• Docket Number: Appeal No. 8-72.
• Citation: 476 F.2d 1290,201 Ct. Cl. 386
• Parties: The UNITED STATES of America v. The CREEK NATION.
• Court: U.S. Claims Court

201 Ct. Cl. 386, 476 F.2d 1290 (1973)

The UNITED STATES of America v. The CREEK NATION.

Appeal No. 8-72.

United States Court of Claims.

April 13, 1973.

Paul M. Niebell, Washington, D. C., attorney of record, for appellee.

Roberta Swartzendruber, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for appellant.

Before COWEN, Chief Judge, DURFEE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

DURFEE, Senior Judge.

The United States, defendant-appellant, has taken an interlocutory appeal from a decision and Interlocutory Order of the Indian Claims Commission, 26 Ind.Cl.Comm. 410 (1971), Commissioner Blue separately concurring and Commissioner Kuykendall dissenting.

In its petition plaintiff claimed additional compensation under Section 2, Clauses 3 or 5 of the Indian Claims Commission Act of 1946 for 5,200,000 acres of land in Alabama which it ceded to the United States by the Treaty of March 24, 1832, 7 Stat. 366. The Creeks have a compensable interest in the 5,200,000 acres of land; title is not in issue.¹ The principal consideration for this land was some 2,187,200 acres of the same land reserved from the cession for the temporary use, and promised fee title possession (or value thereof), by individual Creek chiefs and family heads. Agreeing with plaintiff on both theories of recovery advanced, the Commission ruled that the United States as a matter of law was liable for the fair market value of the full 5,200,000 acres of land ceded, thereby holding appellant liable for the value of the 2,187,200 acres of the cession which were reserved for chiefs and family heads of the Creek Nation. The United States "is not objecting to paying the difference between the treaty consideration and fair market value of the 3,012,800 acres not returned to the individual Creeks."² Rather, appellant argues, and the dissenting opinion agrees, that the land which the treaty reserved to chiefs and family heads should have been excluded from the area for which the Comission granted compensation, and that plaintiff cannot claim additional compensation for these lands selected by individuals.

Two issues are presented: (1) whether the Commission erred in holding that the Creek claim with regard to the 2,187,200 acres was not barred by collateral estoppel due to a prior decision, Creek Nation v. United States, 77 Ct.Cl. 226 (1933), based upon the Creek Jurisdictional Act of 1924, 43 Stat. 139; and (2) whether error was made in holding that the part of the claim disputed is not a composite of individual Indian claims but rather a tribal claim within the jurisdiction of the Commission and this court. We affirm.

Before considering the issues, it is necessary to state what this appeal does not involve. Appellant has not disputed any of the findings of the Commission on grounds of lack of substantial evidence. Therefore, we take these findings as conclusive to the extent not inconsistent with the findings in the 1933 Creek case as hereafter explained. Although the Government has argued that the legal conclusion of a lack of fair and honorable dealings is not supported by the facts, we find no merit to this argument given the findings of the Commission.

The history of the Creeks pertinent to our decision follows. In the year 1790 the Creek Nation exercised the right of occupancy over a wide area of land located in a part of the present States of Alabama, Georgia and Mississippi. Such right of occupancy was recognized by the United States.³ By various treaties thereafter made the Creeks ceded most of their tribal domain to the United States, and in 1826 were confined to a comparatively small domain in eastern Alabama and western Georgia. By Treaty of January 24, 1826, proclaimed April 22, 1826,⁴ the Creek Nation ceded to the United States all of its domain located in the State of Georgia. After the Treaty of 1826, these Indians were confined to a small domain in eastern Alabama, containing about 5,200,000 acres. As additional consideration for the cession of tribal lands in 1826, the United States agreed to purchase lands west of the Mississippi River where a portion of the Creek Nation intimated it would settle. About 1827 or 1828 some of the Creeks did move to and settle upon lands west of the Mississippi in Indian Territory assigned the Creek Nation along and between the Verdigris, Arkansas, and Canadian Rivers.

Thereafter, in the Federal Government's view "the extension of the state laws of Alabama to include the Creek area and the influx of white settlors made it necessary that the (remaining) Creek Indians should remove west of the Mississippi."⁵ At about this point in time begins the sequence of events which the Commission found determinative in establishing a lack of fair and honorable dealings, and afforded evidence of duress and unconscionable consideration.

In 1829 the State of Alabama, which had achieved statehood in 1819, extended its jurisdiction over the Creek country and divided the Indian land into counties. In 1831 the Alabama legislature incorporated a town within the Creek country as white men settled in Indian territory.

On the 16th of January 1832, the civil and criminal jurisdiction of Alabama was extended over all the Indian territory within her limits. The courts of revenue and roads were enjoined to establish such highways, bridges, and ferries, within the territory in which the Indians might live, as they should think the public good required. * * *

All laws and customs used, enjoyed, and practiced by the Creeks within the limits of the State, contrary to her constitution and laws, were abolished.

And it was further enacted that if the Indians should meet in council, and make any laws for the tribe contrary to the laws and constitution of Alabama, such Indians should, upon conviction, be imprisoned in the common jail of the county. * * *

These laws excited the animosity of all the Indians, but more especially that of the chiefs. They destroyed their oligarchical form of government, and struck down their power at a blow. * * * Roads were to be cut in every direction through their territory; white men were permitted to purchase and take possession of their improvements. * * *⁶

There is no doubt, and appellant has not disputed, that these intrusions by the State of Alabama were contrary to Federal law.⁷ Cf. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). The Federal Government had ample authority under the intercourse law of March 30, 1802, 2 Stat. 139, to protect the Creek Nation from physical intrusion upon Creek lands by white settlers. Consistent with its own policy of Indian removal from the East, the Federal Government determined it would not oppose Alabama's actions. The press of white settlers to overtake Indian lands in the Eastern United States had found expression in a formal declaration of policy by Congress in the Act of May 28, 1830, 4 Stat. 411, that Indian tribes were to be removed from their ancestral homes in the East to lands west of the Mississippi River by seeking agreement of tribes for the exchange of their eastern lands for lands in the West. As a coercive inducement to obtain the agreement of the Creeks, the Federal Government told the Creeks that it was powerless to prevent the extension of the Alabama laws over (and as a consequence thereof the influx of white settlers into) Creek lands. Secretary of War John H. Eaton on May 30, 1829, instructed General William Carroll in this manner:

A crisis in our Indian affairs has arrived. Strong indications are seen of this in the circumstances of the legislatures of Georgia and Alabama extending their laws over the Indians within their respective limits. * * * The President is of the opinion that the only mode left for the Indians to escape the effects of such enactments, and consequences more destructive, and which are consequent on their contiguity to the whites, is for them to emigrate. * * *

* * * * * *

* * * Ascertain upon whom, as pivots, the will of the Cherokees and Creeks turns. * * * Open to each a view of his danger and the danger that threatens his people. This may be made up of references * * * to the inefficiency of their own laws for their advancement; and finally, to the fact that these will be superseded and trodden under by the exercise over them of the laws of the States. Emphasis added.⁸

Further evidence of this misrepresentation, tantamount to duress, which propelled the Creeks toward giving up the bulk of their remaining tribal lands, is contained in a letter dated November 1, 1831, from Secretary of War Lewis Cass to the Creek Chiefs:

Your great father, the President, has not unlimited power. He is bound by the Constitution and laws, and after examining these, he is satisfied, that he can not prevent the States from this exercise of their authority. So long, however, as they refrained from doing this, the General Government took charge of your whole concerns. But the State of Alabama having now included you in the great mass of her citizens, I trust you will yield careful obedience to her laws.⁹

It should be remembered that the Creeks who had remained in Alabama after 1828 had a fixed intention to remain there rather than move West. The Alabama land was the last enclave of ancestral lands left to the Creeks and the religious significance of the land cemented the Creek intention to remain there. In April 1831 the Creek Chiefs wrote to the Secretary of War:

With considerable reluctance, we have been compelled to refuse a compliance with his (the President\'s) wishes toward removing to the west; our aged fathers and mothers beseech us to remain upon the land that gave us birth, where the bones of their kindred are buried, so that when they die they may mingle their ashes together. They view a removal as the worst evil that can befall them.¹⁰

In December 1831 the Creeks sent a delegation to Washington to request that white intruders be removed and that the...