18 Ind. C 1 . Comm. 434

BEFORE THE INDLAN CLAIMS COMMISSION

THE CREEK NATION, 1 1

P e t i t i o n e r , )

v. ) 1 1

THE UNITED STATES OF AMERICA, ) 1

De f endant. )

Docket No. 167

Decided: Ju ly 6, 1967

FINDINGS OF FACT

1. The p e t i t i o n e r , the Creek Nation of Indians of t h e S t a t e of

Oklahoma, i s an i d e n t i f i a b l e group of American Indians w i t h i n t h e

meaning of t he Indian Claims Commission Act, and a s such i s a u t h o r i z e d

t o b r ing t h i s cause of a c t i o n under Sec t ion 2 of s a i d A c t . P e t i t i o n e r

-- i s an organized t r i b e and has a duly appointed P r i n c i p a l Chief ho ld ing

a Commission a s such from the Secre ta ry of the I n t e r i o r , and a l s o has

a Creek Ind ian Council which a r e r ep re sen ta t ives of s a i d Creek Nation,

and a r e s o recognized by the o f f i c e r s of defendant charged w i t h t h e

r e s p o n s i b i l i t y of administer ing Indian a f f a i r s .

2. The United S t a t e s and the Creek Nation concluded a t r e a t y

February 14, 1833 (7 S t a t . 417) which was proclaimed A p r i l 21, 1834.

By t h i s t r e a t y the United S t a t e s granted t o t he Creek Nation i n f e e

s imple c e r t a i n descr ibed lands, including the lands involved i n t h i s

s u i t , i n what was then Indian T e r r i t o r y but which subsequent ly became

a p a r t of t h e S t a t e of Oklahoma. A r t i c l e 111 of the t r e a t y provided:

"The United S t a t e s w i l l g ran t a pa ten t , i n f e e simple, t o t h e Creek Nation of Indians f o r the land ass igned s a i d n a t i o n by t h i s t r e a t y o r convention, whenever t he same s h a l l have been r a t i f i e d by the President and Senate of t h e United S ta tes - -and the r i g h t thus guaranteed by the United S t a t e s

1 8 Ind. C1 . Corn. 434

s h a l l be continued t o s a i d t r i b e of Indians, so long a s they s h a l l e x i s t a s a na t ion , and cont inue t o occupy the country hereby assigned them."

Sa id patent was issued t o the Creek Nation by Pres ident Mi l la rd

F i l lmore , on August 11, 1852.

3. By A r t i c l e 3 of the Treaty of June 14, 1866 (14 S t a t . 785),

between the Creek Nation and the United S t a t e s , proclaimed August 11,

1866, t he Creek Nation, "*>V* i n compliance wi th the d e s i r e of t he

United S t a t e s t o l o c a t e o ther Indians and freedmen thereon," ceded

and conveyed t o t he United S t a t e s

"*** t o be s o l d t o and used a s homes f o r such o t h e r c i v i l i z e d Indians a s t h e United S t a t e s may choose t o settle thereon t h e wes t h a l f of t h e i r e n t i r e domain, t o be divided by a l i n e run- n ing no r th and south; the e a s t e r n h a l f of s a i d Creek lands , be ing r e t a ined by them, s h a l l , except a s he re in o therwise s t i p u l a t e d , be forever s e t a p a r t a s a home f o r s a i d Creek Nation; and i n cons idera t ion of s a i d ce s s ion of t he west h a l f o f t h e i r lands, es t imated t o con ta in t h r e e m i l l i o n s two hundred and f i f t y thousand f i v e hundred and s i x t y a c r e s , t he Un i t ed .S ta t e s agree t o pay the sum of t h i r t y (30) c e n t s per a c r e , m ~ u n t i n g t o nine hundred and seventy-f ive thousand one hundred and s ix ty -e igh t d o l l a r s **.'I

A r t i c l e 8 of s a i d t r e a t y provided:

"It is agreed t h a t the Secre ta ry of the I n t e r i o r f o r t h w i t h cause the l i n e d i v i d i ~ g t h e Creek country, a s provided f o r by the terms of t h e s a l e of Creek lands t o t h e United S t a t e s i n a r t i c l e t h i r d of t h i s t r e a t y , t o be a c c u r a t e l y surveyed under the d i r e c t i o n of the Commissioner o f Ind ian Af fa i r s , the expenses of which survey s h a l l be p a i d by the United States ."

The l i n e d iv id ing the Creek Nation i n t o two equal p a r t s , as provided

i n t h e Creek Treaty of June 14, 1866, was surveyed and e s t a b l i s h e d by

F r e d e r i c k W. Bardwell i n 1871, and w a s approved by the Sec re t a ry of t h e

I n t e r i o r on February 5, 1872. This gardwell l i n e became t h e wes tern

18 Ind. C1. Comrn, 434

boundary of the diminished Creek National domain, expressly reserved

and "forever set apart as a home for said Creek Nation,'' under the Creek

Treaty of 1866. (Def. Ex. 1)

4. By Article 3 of the Treaty of March 21, 1866 (14 Stat. 755),

between the Seminole Nation and the United States, proclaimed August 16,

1866, the Seminole Nation purchased from the United States a tract of

land within the area ceded by the Creek Nation to the United States in

the Creek treaty of June 14, 1866. The Seminole tract was to begin

with the Creek dividing line on the east and continue west, between

the North and South Canadian Rivers for a distance sufficient to make

200,000 acres by running a line due north and south between said rivers.

(Cl. Ex. 3; Def. Ex. 3 )

During the Fall of 1866, before the Bardwell line was surveyed

and established, the United States had moved the Seminoles to what was

then believed to be their new 200,000-acre'tract, purchased under the

Seminole Treaty of March 21, 1866. However, when the Bardwell line was

established, it was discovered that many of the Seminoles were occupy-

ing a large area, then estimated to be 175,000 acres, east of the

Bardwell line and on lands reserved and owned by the Creek Nation. In

the meantime the Seminoles had made substantial improvements on this

land. (Def. Ex. 3; Def. .Ex.- 11, pp. 5-6)

The Creek Nation claimed jurisdiction over the lands occupied by

the Seminoles, and the Seminoles appealed to the Government for ~rotection

and relief. (Def. Exs., 3, 4, and 11, p. 6)

18 Ind. C 1 . Com. 434

5. By the Act of March 3, 1873, (17 S t a t . 626) i s w a s provided

"That the Sec re t a ry of the I n t e r i o r be, and he hereby i s , au thor ized t o nego t i a t e with the a fo re sa id Creek Indians f o r the rel inquishment t o the United S t a t e s of such # o r t i o n s of t h e i r country a s may have been s e t a p a r t i n accordance w i t h t r e a t y s t i p u l a t i o n s , f o r the use of the Seminoles, and t h e Sacs and Foxes of t he Miss i s s ipp i t r i b e s of Indians, respec- t i v e l y , found t o be e a s t of t h e l i n e sepa ra t ing t h e Creek ceded lands from t h e Creek r e se rva t ion , and a l s o t o nego t i - a t e and ar range wi th s a i d t r i b e s f o r a f i n a l and permanent adjustment of t h e i r r e se rva t ions ; and the Sec re t a ry s h a l l r e p o r t t h e r e s u l t t o Congress." (Def. Ex. 2)

A s p e c i a l c o m i s s i o n e r was appointed by the Sec re t a ry of t h e I n t e r i o r

t o c a r r y on these nego t i a t i ons with the Creek Nation, b u t h i s e f f o r t s were

unsuccessfu l . The Creek Nation w a s r e l u c t a n t t o s e l l any more of i t s

lands , and suggested t h a t t he Seminoles be removed from t h e Creek domain,

o r t h a t i t rece ive i n l i e u thereof o the r lands contiguous t o t h e Creek

domain of t h e same quan t i t y and q u a l i t y , These sugges t ions were r e j e c t e d

by t h e I n t e r i o r Department. (Def. Exs. 2 - 10; 11, p. 6 )

However, the Creek Nation, by a c t of i t s . ,Nat iona l Council , appoin ted

d e l e g a t e s t o r ep re sen t t he Creek Nation i n an e f f o r t t o s e t t l e t h i s con-

t rove r sy , The de lega tes f i n a l l y agreed t o accept t h e o f f e r of t h e Gov-

ernmane t o purchase 175,000 ac re s of Creek domain on which the Seminoles

had been s e t t l e d f o r $175,000, o r $1.00 per ac re . This proposed s e t t l e -

ment was approved by the Secre ta ry of the I n t e r i o r , who suggested t h a t

t h e h i s t o r y of the f a c t s be prepared f o r submission t o Congress f o r i t s

a c t i o n . (Def. EX. 8)

6 . Accordingly, the Agreement of February 14, I881 w a s prepared and

s i g n e d by t h e delegates of the Creek Nation, ceding t o t h e United S t a t e s

18 Ind. C1 . Comm. 434

175,000 acres of Creek National domain. Said agreement reads i n pa r t

as follows:

"And the sa id Creek delegation do hereby agree, f o r and on behalf of sa id nation, that they w i l l cede t o the United Sta tes , and do hereby cede, a s t r i p of land i n the Indian Terr i tory , now occupied by the Seminole Nation of Indians, lying ea s t of the sa id l i ne dividing the Creek lands from the lands ceded t o the United Sta tes i n the t r e a ty of June 14, 1866; bounded on the north by the North Fork of the Canadian River; on the south by the Canadian River; on the West by the dividing-l ine between the Creek Reservation and the lands ceded under t r e a ty of 1866 above noted; and on the e a s t by a l i ne running north and south between the r i v e r s named, s o f a r e a s t of s a id divis ional l ine as w i l l comprise wi thin s a i d described boundaries one hundred and seventy-five thousand (175,000) acres, a t the price of one do l la r ($1) per ac re ; s a id cession t o be i n f u l l force and e f f e c t when the sum of one hundred and seventy-five thousand do l la r s s h a l l have been deposited i n the Treasury of the United S ta tes t o the c r e d i t of the Creek Nation, t o draw i n t e r e s t a t the r a t e allowed i n the t r e a ty of June 14, 1866, wherein ce r t a i n of t h e i r lands i n Indian Ter r i to ry were ceded t o the United S ta tes ; ***," (Cl . Exs, 2, 3, pp. 7-8; Def. Ex, 10)

Said Agreement, and a h i s to ry of the fac t s r e l a t i v e the re to , were

submitted t o Congress i n a message from the President of the United

Sta tes , on January 24, 1882. (Def. Ex. 11) By Act of August 5, 1882,

(22 S ta t . 265) i t was ~ rov ided :

"To pay the Creek Nation of Indians f o r one hundred and seventy f i v e thousand acres of land now occupied by the Semi- nole Nation, the sum of one hundred and seventy f i ve thousand do l la r s , as per agreement made i n pursuance of the a c t of March t h i rd , eighteen hundred and seventy three, which agreement bears da t e February fourteenth, eighteen hundred and e igh ty one, and i s now on f i l e i n the Department of the I n t e r i o r ; s a i d sum t o be immediately available." (Def. Ex, 12)

The amount of $175,000 was thereaf ter paid t o the Creek Nation fo r

these lands. (Cl. Ex. 15)

1 8 Ind. C 1 . Comm. 434

7. In 1888 Henry C. F. Hackbusch, United S t a t e s Surveyor, was

employed t o survey the 175,000 a c r e t r a c t ceded under the Agreement of

February 14, 1881, and t o f i x the e a s t e r n boundary the reo f . He was

i n s t r u c t e d t o r e t r a c e the Bardwell l i n e from the po in t of beginning on

t h e Canadian f ive r t o i t s i n t e r s e c t i o n w i t h the North Fork the reo f , t o

meander both r i v e r s , and t o e s t a b l i s h the e a s t e r n boundary of s a i d

t r a c t a t such place a s t o include 175,000 acres . (Cl. Ex. 4, pp. 14-15)

Hackbusch loca t ed on the no r th bank of the Canadian River t h e marker

e s t a b l i s h e d by Bardwell i n 1871 a s t he beginning of t h e Creek d i v i d i n g

l i n e . He a l s o loca t ed Bardwell 's 4-mile corner , but no t i n i t s proper

p l e c e accord ing t o Bardwell 's f i e l d notes , and he loca t ed Bardwell ' s

38-mile and 40-mile corners no r th of the North Canadian River, bu t was

unable t o l o c a t e any in te rmedia te markers. His retracement o f t h e

Bardwell l i n e r an from t h e poin t of beginning loca ted on t h e ground,

through t h e &mile corner t o the 38-mile corner , which was about t h r e e

m i l e s n o r t h of t he North Canadian River. (Cl. Ex. 4, pp. 15-17, and

22- 24)

Hackbusch computed the a rea between t h e Bardwell l i n e , as r e t r a c e d

by him, and t h e e a s t boundary of t h e 175,000-acre t r a c t e s t a b l i s h e d by

him as con ta in ing the 175,000 ac re s ceded by the Creek Nation under t h e

Agreement of 1881. Af te r concluding h i s survey of the e a s t boundary of

t h e 175,000-acre t r a c t , Hackbusch s t a t e d i n h i s f i e l d notes (Cl. Ex. 4 ,

pp. 17-18):

"This l i n e ( the e a s t boundary of the Seminole), i n accord- ance w i t h s p e c i a l i n s t r u c t i o n s , was run s o f a r e a s t of t he

Creek Dividing Line a s t o include an a rea of 175,000 a c r e s . But the one hundred seventy- f ive thousand acres do no t em- brace a l l the lands now occupied by the Seminoles. Some valuable property renains e a s t of the e a s t boundary, such a s the s t o r e and pos t o f f i c e a t We-wo-ka; the We-wo-ka mis s ion ; the s t o r e and post o f f i c e a t Arbeka, and s e v e r a l homesteads of t he Indians. As near a s I can es t imate , not having a pos i - t i v e knowledge, i t w i l l take about twenty-five thousand a c r e s more o r l e s s t o include a l l the property of the Seminole Ind ians , which now remains e a s t of the e a s t boundary, a s surveyed by me, under my con t r ac t of June 26, 1888. Henry C. F. Hackbusch, U. S. Surveyor."

The Hackbusch survey was approved by the Commissioner of t h e General

Land Office on December 22, 1888 (Cl. Ex. 4, p. 18).

8. I n a Memorial t o Congress, da ted March 17, 1884, t h e Creek

de lega tes t o Washington complained t h a t the Bardwell l i n e d i v i d i n g the

Creek lands i n t o two equal p a r t s under t h e Creek Trea ty of 1866 w a s

erroneously surveyed, and t h a t a g r e a t e r a r e a w a s included i n t h e wes t e rn

p a r t than was ceded by the Creek Nation t o the United S t a t e s i n t h e T r e a t y

of 1866 (Def. Ex. 13).

Upon i n v e s t i g a t i o n of t h i s complaint the Secre ta ry of t h e I n t e r i o r ,

on A p r i l 21, 1884, confirmed the r epo r t of the Commissioner o f I n d i a n

A f f a i r s t h a t t h e Bardwell l i n e was i n e r r o r ; t h a t t h e r e were 6,430,990

a c r e s i n t he Creek domain when the Trea ty of 1866 was executed w i t h t h e

Creek Nation; and t h a t t h e west h a l f a f t e r the d iv id ing l i n e was e s t a b -

l i s h e d i n 1871 contained 3,402,430.48 acres , o r 151,870.48 a c r e s more

than the es t imated 3,250,560 acres s t a t e d i n the t r e a t y . The S e c r e t a r y

expressed the opinion t h a t the Creek Nation was e n t i t l e d t o be p a i d f o r

t h e a d d i t i o n a l 151,870.48 acres taken by the United S t a t e s and n o t pa id f o r ,

w i t h i n t e r e s t thereon; and t h a t the claim should be prepared and submi t ted

18 Ind. C1. Comrn. 434

t o Congress wi th an e s t ima te of an appropr i a t ion f o r i t s payment (Def.

"For t h i s amount, t o pay the Creek Nation of Ind ians f o r one hundred and f i f t y - o n e thousand e i g h t hundred and seventy and fo r ty -e igh t hundredths a c r e s of land, being the amount taken by the United S t a t e s i n excess of the e s t ima te made i n t he t h i r d a r t i c l e of the t r e a t y wi th s a i d Indians proclaimed August e leventh, e igh teen hundred and s ix ty - s ix , a t t h i r t y

' c e n t s per a c r e , f o r t y f i v e thousand f i v e hundred and s ix ty-one d o l l a r s i n f u l l payment f o r s a i d land."

9. The rea f t e r Congress by Act of March 3, 1885 (23 S t a t . 362, 3 6 7 )

made p rov i s ion f o r t h e withholding of t he cu r r en t app ropr i a t ions f o r t he

Creek Nation, except they should, w i t h i n 1 2 months, and i n pursuance

of a r e s o l u t i o n of i t s n a t i o n a l counc i l f i r s t had and obta ined , make and

f i l e i n t h e o f f i c e of t h e Secre ta ry of S t a t e an acceptance and r a t i f i c a t i o n

of t h e Bardwell survey made and approved by the Department under t he Trea ty

of June 14, 1866; and i t w a s f u r t h e r provided t h a t t h e a d d i t i o n a l lands

acqu i r ed by the United S t a t e s through t h i s erroneous survey should b e . h e l d

by t h e United S t a t e s under t he provis ions of s a i d T rea ty of 1866. This

mandate was duly accepted by t h e Creek Nation. (Creek Nation v. United

S t a t e s , 77 C, Cls. 159, 162-163).

I n t h i s same Act of March 3, 1885, 23 S t a t . 362, 384, i t w a s pro-

v ided:

"That the Pres ident i s hereby au thor ized t o open negot ia - t i o n s w i t h the Creeks, Seminoles, and Cherokees f o r t h e purpose o f opening t o s e t t l emen t under t he homestead l a w s t he unassigned lands i n s a i d Indian T e r r i t o r y ceded by them r e s p e c t i v e l y t o t h e United S t a t e s by the s e v e r a l t r e a t i e s of August e l even th e i g h t e e n hundred and s ix ty - s ix , March twen ty - f i r s t , e i g h t e e n hundred and s i x t y - s i x , and Ju ly n ine teenth , e igh teen hundred and s i x t y - s i x ; and f o r t h a t purpose t h e sum of f i v e thousand d o l l a r s , o r s o much thereof a s may be necessary, be, and the

18 Ind. C 1 . Comm. 434

same i s hereby, appropriated out of any money i n t he Treasury not otherwise appropriated; h i s a c t i o n hereunder t o be r epo r t ed t o Congress . I f

Delegates of the Creek Nation were appointed i n November, 1888,

with a u t h o r i t y t o negot ia te wi th the United S t a t e s f o r t he f i n a l d i s p o s i -

t i o n of the lands known a s Oklahoma. (Def. Ex. 14)

On December 27, 1888 s a i d de lega tes wrote t he Commissioner of

Indian A f f a i r s and expressed t h e i r wi l l ingness t o nego t i a t e w i th t h e

United S t a t e s " r e l a t ive t o c e r t a i n lands cond i t i ona l ly ceded by the

Trea ty of June 14, 1866," and f u l l y s e t f o r t h t h e i r views wi th r e s p e c t

t o t he va lue of s a i d lands (Def. Ex. 15).

On January 8, 1889 the Cormnissioner of Indian A f f a i r s advised t h e

Sec re t a ry of t he I n t e r i o r t h a t the Creek de lega tes were ready t o proceed

wi th the nego t i a t i ons , and submitted t o t he Sec re t a ry the Communication

of t he Creek de lega tes dated December 27, 1888 (Def. Ex. 16).

10. On January 19, 1889, the Creek de lega tes and the Sec re t a ry of

t he I n t e r i o r en t e red i n t o "Art ic les of Cession and Agreement," which was

approved by t h e National Council of t he Creek Nation on January 31, 1889

(Def. Ex. 17). Sa id Agreement was t r ansmi t t ed t o Congress on February 5,

1889 by P r e s i d e n t Grover Cleveland, wi th a s ta tement of the purposes of

s a i d Agreement (Def. Ex. 18) , and by Act of March 1, 1889, 25 S t a t . 757,

Congress r a t i f i e d and confirmed s a i d Agreement (Def. Ex. 19). Sa id

Agreement provided i n p a r t a s follows:

'Whereas by a t r e a t y of cess ion made and concluded by and between the sa id p a r t i e s on the four teenth day of June, e igh teen hundred and s ix ty - s ix , t he s a i d Muscogee (or Creek) Nation, i n compliance with the d e s i r e of t he United S t a t e s

18 Ind. C l . Corn. 434

t o Locate o t h e r Indians and freedmen thereon, ceded and con- veyed t o t he United S t a t e s , t o be s o l d t o and used a s homes f o r such o the r c i v i l i z e d Indians a s t h e United S t a t e s might choose t o s e t t l e thereon, the west h a l f of t h e i r e n t i r e domain, t o be d iv ided by a l i n e running nor th and south , which should be surveyed a s provided i n the e i g h t h a r t i c l e of t h e s a i d t r e a t y ; the e a s t e r n h a l f of the lands of t h e s a i d Muscogee (or Creek) Nation t o be r e t a i n e d by them a s a home ;

"And whereas but a po r t ion of s a i d lands s o ceded f o r such use has been s o l d t o Indians o r ass igned t o t h e i r use, and t h e United S t a t e s now d e s i r e t h a t a l l o f s a i d ceded lands may be e n t i r e l y f r eed from any l i m i t a t i o n i n r e s p e c t t o t he use and enjoyment t he reo f and a l l claims of t he s a i d Muscogee (or Creek) Nation t o such lands may be sur rendered and ex t inguished as w e l l a s a l l o t h e r c laims of whatsoever n a t u r e t o any t e r r i t o r y except t h e a f o r e s a i d e a s t e r n h a l f o f t h e i r domain;

"Now, the re fo re , t hese a r t i c l e s of ce s s ion and agree- ment by and between the s a i d c o n t r a c t i n g p a r t i e s , wi tness :

"I. That s a i d Muscogee (or Creek) Nation, i n cons idera- t i o n o f t he sum of money h e r e i n a f t e r mentioned, hereby a b s o l u t e l y cedes and g ran t s t o t h e United S t a t e s , wi thout r e s e r v a t i o n o r condit ion, f u l l and complete t i t l e t o t h e e n t i r e western h a l f of the domain of t he s a i d Muscogee (or Creek) Nation ly ing west of t h e d i v i s i o n l i n e surveyed and e s t a b l i s h e d under t he s a i d t r e a t y of e ighteen hundred and s i x t y - s i x , and a l s o g ran t s and r e l e a s e s t o t he United S t a t e s a l l and every claim, e s t a t e , r i g h t , o r i n t e r e s t of any and eve ry d e s c r i p t i o n i n o r t o any and a l l land and t e r r i t o r y whatever , except s o much of t h e s a i d former domain of t h e s a i d Muscogee (or Creek) Nation a s l i e s e a s t of t h e s a i d l i n e o f division,^ surveyed and e s t a b l i s h e d a s a fo re sa id , and i s now h e l d and occupied a s t h e home of s a i d nat ion.

"11. I n cons idera t ion whereof, and of t he covenant h e r e i n otherwise contained, t he United S t a t e s agree t o pay t o t h e s a i d Muscogee (or Creek) Nation t h e sum of two m i l l i o n two hundred and e i g h t y thousand e i g h t hundred and f i f t y - s e v e n d o l l a r s and t e n c ~ l t s . **k."

" I V . These a r t i c l e s of ce s s ion and agreement s h a l l be of no f o r c e o r ob l iga t ion upon e i t h e r pa r ty u n t i l they s h a l l

18 End. C l . Corn. 434

be r a t i f i e d and confirmed, f i r s t , by a c t of t he n a t i o n a l counc i l of s a i d Muscogee (or Creek) Nation, and secondly, by the Congress of the United S ta t e s , nor unless such r a t i f i c a - t i o n s h a l l be on both s ides made and completed before the f i r s t day of July, anno Domlni e ighteen hundred and e igh ty - nine.

"V. No t r e a t y o r agreement he re to fo re made and now s u b s i s t i n g i s hereby a f f ec t ed , except s o f a r a s the pro- v i s i o n s hereof supersede and c o n t r o l t he same." (Def. Ex. 19 )

This s e t t l emen t ~ r o v i d e d add i t i ona l compensation f o r t h e excess

a r e a of 151,870.48 acres of Creek domain included i n t he 3,402,428.88

ac re s west of t he Creek d iv id ing l i n e by the erroneous Bardwell survey

(Def. Ex. 18, p. 2).

The Message of t he President t o Congress, dated February 5, 1889,

which t r ansmi t t ed the Creek Agreement t o Congress f o r approval , s e t s

f o r t h t h e lands involved i n t he adjustment, and the manner i n which the

adjustment w a s made i n s a i d agreement, as follows (Def. Ex. 18) :

Acres

T o t a l Quant i ty of lands i n the western h a l f o f t h e Creek domain ceded i n t h e Creek Trea ty of June 14, 1866 . . . . . , . . . 3,402,428.88

Assigned lands t o Indian uses under s a i d t r ea ty :

Acres Acres Seminole reserva t ion ,

purchased under emi in ole T rea ty of March 21 1866 .................. 200,000.00

Sac & Fox Reservation .... 479,668.05 Pawnee Reservat ion ....... 53,005.94 732,673.99

Unassigned lands, but appropr ia ted i n some degree t;o Indian use :

18 Ind. C1 . Comrn.. 434

That p a r t of Creek ceded lands included i n the Cheyenne and Arapahoe Reservat ion ......... 619,450.59

Iowa Reservation ...... 228,417.67 Kickapoo Reservat ion .. 206,465.61 Por t ion of t he Creek

ceded lands west of the Seminole 200,000-acre t r a c t included i n the Pottawatomie Reserva- ................ t i o n 222,716.32 1,277,050.19

Unassigned and unappro- p r i a t e d Creek ceded lands ........................... 1,392,704.70

To ta l 3,402,428.88

The adjustment i n p r i c e was made i n the fo l lowing manner (Def. Ex. 18 ) :

For t h e 732,673.99 ac res of assigned lands used f o r t h e purposes s p e c i f i e d i n the Creek Trea ty of June 14, 1866 ................................... no adjustment

For t h e 1,277,050.19 ac res of unassigned b u t appro- p r i a t e d t o some degree of Indian use, $1.25 an a c r e , l e s s 30 cen t s paid under t h e Trea ty of 1866, and l e s s 20 cen t s t o cover the expenses of su r - veys and adjustments, o r a n e t a d d i t i o n a l consid- e r a t i o n of 75 cents an ac re , o r ................. $ 957,787.64

For t h e 1,392,704.70 ac res of unassigned and un- appropr i a t ed Creek ceded lands, $1.25 a n ac re , l e s s 30 cen t s pa id under the Treaty o f 1866, o r a n e t a d d i t i o n a l cons idera t ion of 95 c e n t s a n a c r e , o r ............................................. 1,323,069.46

T o t a l cons idera t ion i n Creek Agreement .......... approved by Act of March 1, 1889 $2,280,857.10

The cons ide ra t ion of $2,280,857.10 was pa id by t h e United S t a t e s

t o t h e Creek Nation under t h e provisions of s a i d Agreement of 1889.

This c o n s i d e r a t i o n was intended by the p a r t i e s t o compensate t h e Creek

18 Ind. C1. Corn. 434

Nation for its remaining interest in lands in Indian Territory condition-

ally ceded to the United States under the Creek Treaty of June 14, 1866

(14 Stat. 785; 2 Kapp. 931), and not then "sold to and used as homes

for such other civilized Indians as the United States may choose to

settle thereon."

At the time the 1889 Agreement was executed, the error in the Hack-

busch survey was unknown to the parties, and both parties labored under

the misapprehension that the 175,000-acre Seminole tract, surveyed by

Hackbusch in 1888, contained only the 175,000 acres ceded by the Creek

Nation in the 1881 agreement. However, the Hackbusch survey of the

eastern boundary of the 175,000-acre Seminole tract, actually included

176,198.99 acres, or 1,198.99 acres of Creek land which had not been

ceded by the Creek Nation under the Agreement of February 14, 1881.

(Cl. Ex. 4)

11. In 1897 and 1898 the United States Geological Survey section-

ized the Seminole domain, and as a result of these surveys it became

evident that errors had been made in establishing the boundaries of the

Seminole domain. (~1. Exs. 8-12; 18) An examination of the records of

said surveys, made by the General Land Office in 1900, disclosed that

the eastern divisional line of said 175,000 acre tract, established by

Hackbusch in 1888, was in error, and it was then estimated that an

excess of "several hundred acres" over the 175,000 acres ceded by the

Creek Nation in the Agreement of February 14, 1881, had been excluded

from the Creek National domain, and erroneously included in the Seminole

18 Ind. C1. Comm. 434

domain. (Cl. Ex. 11, p. 6 ) However, no e f f o r t s were made by the o f f i -

cers of defendant a t t ha t time t o determine the exact amount of sa id

excess acreage, o r t o correct sa id e r ro r .

12. The o r ig ina l Seminole Agreement, between the Seminole Nation

and the United Sta tes , r a t i f i e d by Act of July 1, 1898 (30 S t a t , 567),

provided generally t h a t the United S ta tes divide and a l l o t t he lands

of the Seminole Nation equally among the members thereof, and f o r the

disposal of some of s a id lands f o r o ther purposes spec i f i ed i n s a i d

Agreement.

During the course of a l l o t t i n g sa id Seminole domain the o f f i c e r s

of the United Sta tes discovered t h a t the t o t a l acreage of the Seminole

domain was 365,851.57 acres, ins tead of 375,000 acres (Cl. Ex. 12).

Although the Zfnited S ta tes had knowledge of the f a c t t h a t t h e Seminole

domain w a s shor t by 9,148.43 acres, i t s o f f i c e r s made no e f f o r t t o

determine which of the boundaries of the several Seminole t r a c t s was i n

e r ro r , whether the e r ro r was i n the survey of the 200,000-acre t r a c t ,

o r i n the 175,000-acre t r a c t (Cl. Ex. 11).

Without determining the e r ro r s i n the several surveys of the Semi-

nole domain, and then being f u l l y advised t h a t there w a s a p o s s i b i l i t y

of e r r o r i n the Hackbusch survey of the eas tern boundary of the 175,000

ac re t r a c t , and t ha t s a id t r a c t by e r ro r contained a por t ion of the

Creek domain, defendant's administrat ive o f f i ce r s , nevertheless, a l l o t t e d

and patented lands along sa id eas te rn boundary of s a id 175,000-acre t r a c t

t o Seminole Indians, permitted a port ion of s a id lands t o be so ld by the

18 Ind. C 1 . Corn. 434

Seminole Townsite ~ornmission i n 1900, and confinned s a i d s a l e by Act of

Karch 3 , 1905, 33 S t a t . 1088; and retained a portion of s a i d lands within

the Emahaka Mission school t r a c t f o r school purposes under s a i d Seminole

Agreement, and l a t e r sold the same i n 1920 a t public auct ion (Cl. Exs.

12; 16; 17).

13. It was not u n t i l 1930 tha t the General Land Office, a t the

request of counsel f o r p l a i n t i f f , reviewed the surveys of the Seminole

domain and the e r r o r s i n the surveys of the Seminole domain were defin-

i t e l y determined. The General Land Office, working s o l e l y from the f i e l d

note records of s a i d surveys i n the o f f i ce , and without an examination

of the markers on the ground, determined t h a t the Hackbusch survey of

the e a s t e r n boundary of the 175,000-acre t r a c t by e r r o r included i n s a i d

t r a c t an excess of 2,397.71 acres belonging t o the Creek Nation, which

had not been ceded by s a i d Creek Nation under the Agreement of Febru-

a r y 14, 1881 (C1. EX.^^, p. 16; Exs. 14 & 15)

A f u r t h e r examination on the ground made by General Land Off ice

Surveyors i n 1941, disclosed t h a t the f i e l d note record of the Bardwell

survey d i d not conform t o the markers of sa id survey found on the ground,

a s located and re t raced by Hackbusch i n 1888, and t h a t the Hackbusch

survey of the eas te rn boundary of the 175,000-acre Seminole t r a c t ,

a c t u a l l y included 176,198.99 acres, o r 1,198.99 acres of Creek land,

which had not been ceded by the Creek Nation i n sa id Agreement of Febru-

a r y 14, 1881 (C1. Ex. 4; Creek Nation v. United Sta tes , 93 C. C l s . 561,

568, 569).

18 Ind. C1. Comm. 434

14. The Commission finds that the consideration of $2,280,857.10

paid by the United States to the Creek Nation under the provisions of

the agreement of March 1, 1889, compensated the Creek Nation, petitioner

herein, for its remaining interest in lands in Indian Territory condi-

tionally ceded to the United States under the Creek Treaty of June 14,

1866. (14 Stat. 785)

No part of this consideration was aid for the general release set

forth in paragraph I of the agreement of 1889 and no consideration was

paid to the Creek Nation under this agreement for the 1,198.99 acres of

the Creek domain included in the 175,000-acre Seminole tract by the

erroneous survey of United States Surveyor Hackbusch in 1888. The Com-

mission further finds that the Creek Nation has never been compensated

for these 1,198.99 acres of land.

15. The Codssion concludes that petitioner herein, the Creek

Nation, was deprived of said 1,198.99 acres of land without compensation

therefor, and that said loss was caused by the erroneous survey of

United States Surveyor Henicy C. F. Hackbusch in 1888, which survey was

approved by the Commissioner of the General Land Office on December 22,

1888.

The Cormnission therefore finds that under Clause 3 of Section 2 of

the Indian Claims Commission Act, which clause allows a revision of

agreements on the ground of mutual mistake of fact, defendant is liable

to petitioner for the fair market value of the said l,l98.99 acres of

land as of the date or dates when these lands were taken from petitioner

by the defendant.

The case will now proceed to a determination of the date or dates

of taking of said lands, valuation thereof as of that time, whether

petitioner is entitled to interest from the date of taking, and a

determination also as to what offsets, if any, defendant is entitled

under the Indian Claims Commission Act.

/s / Arthur V. Watkins Commissioner

/S / Wm. M. Holt Commissioner

/s / T. Harold Scott Commissioner