9E >ZGi-Z TK5E OF OUi.lOYi, a lso cno5m a s THZ PEQ-Z TREE, e t a 1 . , 1
1 1
Pet i t ioners , 1 1
VS . 1 1 1
ME UNITED STATES OF AL-ERICA, 1 1
Defendant. 1
IRA SYLVESTER GODFROY , e t al . , on 1 re la t ion of THE M I A M I TRI3E, e t a 1 . ,
vs . THE UIUITED STATES
1 Pe t i t i one r s , 1
1 1 1
OF B S R I C A , 1 1
Defendant, 1
Decided : July 14, 1958
FINDINGS OF FACT
Docket No. 251
Docket No. 124-A
1. The p e t i t i o n e r s in Docket 1 2 4 - A are descendants of N i a m i
Indians who remained i n Indiana when t h a t t r i b e moved to Kansas i n
1846 and 1848, o r who accompanied t he t r i b e west bu t l a t e r re turned
t o Indiana. They have not been under goverrment supervision s ince
1881. The _oet i t ioners i n Eocket 25.1 coa?rise the t r i b a l u n i t which
moved t o b s a s and then t o Oklahoma where they now reside. The txo
p e t i t i o n s r s c o n s t i t u t e and represent a l l descendants of men3ers of
the M i d t r i b e of Anerican Indians (Ylami Tribe v . United S t a t e s ,
Dkts. 253, 131; 5 1.C-C. 181) and are organized e n t i t i e s having the
capacity t o present claims under the Indian Clains Commission Act of
1946. (Def. E k . 1 6 , p. 3 , Dkt. 251)
A C E A G Z OF KAliSAS RESBVATION
2 . In 1833 the Y5uni t r i b e occupied some 968,020 acres i n In-
diana. < s t i pu l a t i on , Dkt. 256, Tr. p. 4) Upon the suggestion of
J. F. S&ermerhorn, a United S ta tes Agent, t h a t they could be in -
duced t o exchange t h e s e lands f o r 1,000,000 acres west of t he M i s -
s i s s i p p i r i v e r , the Secretary of liar, on July 15, 1833, ins t ructed
Governor P o r t e r of llic:dgzn Terr i tory t o open negotiat ions with t he
t r i be , t h a t t h e exac t acreage of t h e i r land be ascertained by sur-
vey and an equal acreage provided f o r the t r i b e west of the Missis-
sippi. This information was conveyed t o the lliamis a t a council
called &r ing October, 1833. Mr. Schermerhorn recormended tha t the
Miami accept a t r a c t on the Marias des Cygnes, d i r ec t l y west of t he
~ Y I . S S O U Z ~ border , and s a i d the President:
i s r a i l l i n g t o give you a s much l a d there, as l a rge . a country as yon have here.
bu t the mami Ind ians =ere unwilling t o leave t h e i r reservations and
t h e c o m i l terminated without an agreexent being reached. (Pet. EX.
3 , D'A. 251)
3- The Secret- of War ins t ructed the Miami agent, W i l l i a m
Bktrshall dur ing t he following year t o renew the attempt t o laove t he
M i m i xest. A t t h a t t ime, July 12, 1934, he directed t ha t :
* * You * * reduce your o f fe r t o three hundred t h m s a n d acres a d not exceed tha t quantity -less YOU f ind it indispensable t o the attainment of y o u . obJect , bu t i n t hs l a s t r esor t you nzy engage t o gi= them the E i g h t hundred thousand acres i f noth- ing short will satisfy them. (Pet. Ex. 5, pp. 32, 33. Dkt. 251)
During the conference called by Agent MarsElall the t r ea ty of October
23, 1834, 7 Stat . 463, was concluded, the Mia~i Indians ceding Indiana
land tot-ing 250,560 acres. ?he Tribe continued t o hold over 700,000
acres i n Indiana and no provision xas made with respect t o i t moving
west. The Senate having amended the t rea ty , it was returned during
October, 1837, t o Colonel A. C. Pepper, the then Agent f o r the f?i~?li
I n d i a s , kfho secured t r i b a l approvd t o the amendnent. lit the same
time Colonel Pepper was instructed by the Co~~nissioner of I n d i a Af-
f a i r s t o conclude a new treaty cal l ing f o r a M i a m i delegation t o se-
l e c t a permanent residence f o r the t r i b e i n the west. Colonel Pepper
was to be guided by the instructions previously issued with respect t o
procuring a cession of the 1-Emi land.
4. Colonel Pepper procured additional cessions from the Mian5 In-
dians in a t r e a t y concluded November 6, 1838, 7 Sta t . 561. The Ifiami
retained some 491,000 acres in Indiana, and from the cessions made re-
served a small t r a c t of approximately 10 square miles fo r the band of
Ma-to-sin-ia, made a number of grants to individuals, and it was stipu-
l a t ed :
ART. 10. The United States s t i p l a t e t o possess, the M i - ani t r i b e of Indians of, and guaranty t o them forever, a country west of the ~ I i s s i s s ipp i r iver , to remove to a d s e t t l e on, when the szid t r ibe may be disposed t o emigrate from t h e i r ?resent country, and that guaranty i s hereby pledged: And t h e said cauntry sha l l be sufficient i n ex- t e n t , and su i t ed t o t h e i r wants and condition and be i n a region contiguous t o tha t i n the occupation of the t r ibes which emigrated from the States of Ohio and Indiana. And when the sa id t r i b e shal l have emigrated, the United States s h a l l pro tec t the said t r ibe a d the peo?le thereof, i n t h e i r r i g h t s and possessions, against the in juries, encroach- ments and oppressions of any person o r persons, t r ibe or t r i b e s uhatsoever,
T . 11. It i s f u r t h e r s t i?ula ted, that t he United Sta tes w i l l de f ray the e q e n s e s of a de2utation of s i x chiefs o r Reahen, t o explore the cs1mtr-y t o be assigned t o sa id t r i b e , west of t he Y!ssissip?i r ive r .
ART. 14. And whereas John 5, Richardville, the p r inc ipa l chief of sa id t r i 5 e , i s very old and infirm, and not well able t o endure t h e fa t igue of a long journey, it i s agreed t h a t t h e United S t a t e s u i l l pay t o him a d h i s f a i i l y the proportion of t h e annuity of said t r i be which t h e i r number s h a l l i nd i cz t e t o be due t o them, a t Fort Wayne whenever the s a i d t r i b e s h a l l exigrate to the country t o be assign- ed them west , a s a fu ture residence.
I n h i s r epo r t on t h e t r e a t y , addressed t o the Comnissioner of In-
dian Affa i r s , Colonel Pepper cemented:
In negot ia t ing f o r t he t r a c t ceded, especial regard was paid t o t h e po l icy and trishes of the government, t o procure the removal of t h i s t r i b e &st of the Mississippi. * * I am hap- py t o szy t h a t t h e i r disposit ions a?gear favorable t o a re- moval. You will discover t h a t the anxiety manifested as t o t he s i t u a t i o n and extent of the country Xest t o be assigned them and t h e provis ions made fo r t he i r protection there , point s t rong ly t o a conten?lated removal. * * * Art ic le (14) pro- v ide s f o r the p a p e n t of t h a t portion of the annuity belong- i ng t o t h e princi2al Chief and h i s f a d y , a t Fort It?ayne i n t h e event of t he emigration of the t r ibe .
P r i v a t e conversations with him convince me of his profound sense of t h e neces s i t y of h i s t r i be removing soon. Their p resen t s i t u a t i o o , t:ithin narrow lirrits , surrounded on ev- ery s i d e wi th a ~ 5 i t e po,ulation, presents the a l t e rna t ive of speedy e x t i n c t i o n o r rem~val . In short , the numerous caut ious p rov is ions inse r ted i n the t reaty and proposed f o r i n s e r t i o n , convince me t h a t the government's wish f o r t he reznoval of t k i s t r i b e i s powerfully seconded by t h e i r in- c l i n a t i o n s and n e c e s s i t i e s . (Pet. EX. 8, pp. 4-9-50, Ekt. 251)
5 . (a) Proceeding under vnoff ic ia l instructions which hzve since
Iscone misplaced., Agents Samuel YIlroy and Allen Hailton entered i n t o
'urther negot ia t ions k i t h the t r i b e during Kovenber, 1840, and on the
'8th of that month concluded a t r ea ty , 7 Sta t . 582, wherein i n Art ic le
the M i d made a n m 5 e r of individual l a d grants a d then ceded the
remainder of t h e i r t rL3a l land i n Indiana, est imated zt j00,000 acres ,
f o r the r e c i t e d consideration of $550,000. (Pet . Exs. 9-10, Dkt. 251)
I n A r t i c l e 5 it was r e c i t e d t h a t s ince the l z t e w a r cMef, Francis God-
f roy haZ bequeathed t o h i s children a l a rge e s t a t e which could no t be
sold until t h e youngestwas 21 years of age, t h a t t h e United S t a t e s
should pay t o the famL2.y of sa id chief t h e i r j u s t proportion of t h e zn-
n u i t i e s of s a i d trike, "a t Fort t?ayne, from and a f t e r the time t h e t r i b e
sha l l &grate t o t he country assigned t o them west of the Fdssiss ippi ."
Ar t ic le seven s t i pu l a t ed t h a t the reservat ion held by b- to -s in - ia should
be pa t en t ee t o h i s sor;, Ye-shing-go-ne-sia, i n trust for sa id band, and
t he provisions i n favor of John 3. Richardville and family, i n Ar t i c l e
14, Wez ty of November 6, 1838, were extended t o Ye-shhg-go-me-sia and
h i s broC&ers. A r t i c l e e ight then provided:
It i s hereby s t i ~ u l a t e d t ha t the Himi t r i b e of Indians s h a l renove t o t h e country assigned them west of t he Mis s i s s ipp i , w i t & f ive years from t h i s date: * *
(b) The Senate of the United S ta tes on February 25, 1841, a-
=ended t b e t r e a t y by t h e addition of Art ic le 12, which read:
The
The Un2ted S t a t e s hereby s t i pu l a t e t o s e t apa r t 4 as- sign to t h e Niamies, f o r t h e i r occupancy west of the PLs- sisslppi, a t r a c t of country bounded on the east by the S t a t e of FAssouri, on the north by the country of the Weas and Kaskaskias, on the west by the Potta~iatomies of Indi- a n ~ ~ , 2nd on t h e south by the land assigned t o t h e York Indians, est imat9d t o contain f i v e hundred t h a u s d acres.
u l e ~ d e d t r e a t y k - z s then suhnitted t o the Ykami trike f o r approval.
Agents ='soy and H<on reported t o the Comissioner of Indian Affzirs
t h a t t h e t r i b e had been called i n to council and had been informed t h a t if
it did n ~ t l i k e t he treaty it could be abrogated by the withholding of
'bal approval, and "with a f u l l knodedge of the e f f e c t of t h e i r
assent when given, they x i l l i n g l y gave it, (pe t . Ex. 16 , Dkt. 251)
i n May, 1%. A s anended, t h e t r e a t y was proclaimed on June 7, 1841.
Agents Milroy =d E a ~ i l t o n reported t h a t a por t ion of t h e h - t o -
s in - i a band might remain upon its reservat ion when t h e tribe moved
v e s t b u t t h a t i t would hzve been d i f f i c u l t , if a t a l l poss ib le , t o
ob ta in t h e consent of t h i s band t o the cession without t h i s provi-
s ion ; t h a t t h e provision concerning the Godfroy family was necessary
t o assure them an advantageous s a l e of t h e i r land. Agents Plilroy,
H a i l t o n and Pepper each explained t h a t individual land grants were
zsed as a means of awarding members of the t r i b e f o r services ren-
6ered t o it, and of equalizing t r i b a l a s se t s ; t h a t t h e grants xe re
u s u a l l y soon sold and t h e proceeds divided among t h e persons consi-
c 3 e n t i t l e d t h e r e t o . (Pet. Exs. 8, 10 , Dkt. 251)
6. It was est imated t h a t the Yiimi t r i b e by t h e t r e a t y of 1840
zeded from 500,000 t o 5 1 1 , O C O gcres of land in I n d i m a . The Senste
a n e n b e n t t o the i r 1€!40 t r e a t y rec i t ed t h a t t k e t r a c t t o be s e t a s ide
t o t h a t t r i b e i n Kansas was estimated t o contain j00,000 acres. In
-854, when t r a n s m i t t i n g the P.&~.ni t r e a t y of June 5, 1854, wherein the
t r i b e ceded t h e Kansas t r a c t , the Commissioner of Indian Affa i rs ,
?%nypenny, commented t o the Secretary of the I n t e r i o r as f o ~ ~ o . n . s :
The a c t u a l q u a n t i t y of land however ~ r i t h i n t h e bound- a r i e s nazed x i t h i n the a r t i c l e refer red t o (Ar t i c le 12, Treaty of 1840) does not probsbly exceod 370,000 a c r e s , and i n the conference betk-een the Indians a d myself t h i s ma t te r of dif lerences uzs discussed and w a s f u l l y understood by then, and it was an elenent i n t h e purchase of the l m d .
7. The Co~niss ion fincis t k a t the re wzs no agreeclent between t he
United S ta tes and the Mimi t r i b e t h a t sa id t r i b e should be placed in
possession of a t r a c t of land i n t he west fjO0,OCO acres i n extent , o r
equivalent i n acres t o t h e Indiana land ceded by the 14ia.ni t r i be i n
1840. The Commission f inds t h a t t he United S t a t e s promised sa id t r i b e
a t r a c t within t h e region inhabited by Indians formerly r e s i a g i n
Ohio and Indiana which t r a c t should be s u f f i c i e n t in size t o care for
t h e i r wants; t k a t the United S ta tes through t h e Senate Amendment of
February 25, 1E4-1, t o the M i m i t r e a t y of 1840, tendered t he F L a
t r i b e a t r a c t of land i n Kansas su f f i c i en t i n acreage and within a
region meeting t h e specificatioris r ec i t ed above, which t r a c t the Xi-
ax i t r i b e accepted b;f asseriting t o s a id amecd-xent a t a t r i b a l council
ca l l ed during May, 1841, f o r the Wr.pose of considering t ha t amend-
ment. While t h e anendxient rec i t ed thr-t sa id t r a c t wes estimzted t o
contain 500,OCO acres , the accuracy of t ha t estimate was not a con-
5 i t i on of t h e tender nor of i ts acceptance.
Ownershi3 of t he Kansas Land
8. By J o i n t Resolution of March 3, 1845, 6 S t a t . 942, Congress
2xtended Francei Slocum, her children and grahdchildren, in all 22
>ersons, permission t o draw t h e i r share of tribal a n m i t i e s i n Indi-
m a 2f t e r the PA& t r i b e moved west, subject , however, t o the re-
i t r i c t i o n t h a t :
If t h e a foresa id Indians, t h e i r descendants, o r any part thereof s h a l l remove t o the country west of t h e YLssis- s i p p i r i v e r assigned t o tke P iaq i t r i b e of Indians, then and i n such case , the portions o r shares of annuit ies o r o ther moneys payable t o the t r i b e sha l l be paid t o such persons so removing a t the place of payment of annuit ies t o s a i d t r i b e of Indians,
. ..e sane pr ivi lege was extended t o 12 other Himi Indians , t h e i r fmi-
l i e s a d descendants, by a Joint Resolution on May 1, 1850, 9 S t a t . 806.
Neither of these resolutions was approved nor svlc t ioned by the M i a m i
t r i b e i n Kansas nor by the Miami Indians who renained i n Indiana under
t r e a t y provisions t o s o do.
9. I n 1846 the Miami t r i be emigrated t o Kansas. (pet . B. 220,
D k t . 251) Xembers of the Godfroy family, possibly members of t he
Richardville f m i l y although tha t Chief died i n 1841, He-sing-go-me-
s i a and h i s brothers , t he 22 persons named in the J o i n t Resolution of
1W5, some members of Fii-to-sin-ia's band, and perhaps others remain-
ed i n Indiana. I n all, 161 persons drew annuit ies the re . Sixty-one
of s a i d persons migrated t o Kansas during 1848. (Pet . &s. 28, Dkts.
? A, 221, 222; Dkt. 251) The t r i b e suffered a severe numerical
'loss through i l l n e s s during its first years -5n Kansas, ( ~ k t . 251, Def . -. 1, p. 121, and an undisclosed number of i t s members returned t o
Indiana. In 1854 the re were 302 Xami Indians res id ing in Indiana
a d only 248 l i v i n g In Kansas.
10. Payment of t r i b a l a m u i t i e s t o the p a r t i e s named i n t h e
Jo in t Resolutiors was objected t o by those YAacii Ind iv l s in Kansas
=d by those renaining i n Indizna under t r e a ty provisions. A t a
2ouncil held with the \Zestern Y L m i a t Osage River Agency on October
4 , 1853, they complained :
W e were t o l d in our l a s t t r e a ty t ha t a l l our Annuities should be paid w e s t of the Missouri, =d i f any renain- ed behind in Indiana they should receive nothing. &%en we first cane here we received a l l our Annuities - but f o r a f ex years it has been changed and now the l a r g e s t p a r t i s pa id t o those who remained and h a e - w e n t back t o Indiana.
11- (a) The preanble t o t he t r e a t y of June 5 , 1854, PO S t a t .
1093, r e c i t e s t h a t it was concluded i n Washington between George W.
hnypenny, a s representa t ive of t he United S t a t e s , a d
t h e following namd delegates r e p r e s e ~ t i n g t h e M i a m i t r i b e of Indians, v i z : Nab-~e-lan-quah, o r Big Legs; Xa-cat-a-chin-quah, o r L i t t l e Doctor; L&-a-pin-cha, o r Jack Hackley ; SO-ce-lan+sh-eah, o r John 3owrie ; and Wan-zop-c-ah'; they being thereto duly suthorized by sa id t r i b e - and Fk-shin-go-me-zia, Po-con-ge-ah, Pin-yi-ot-te- ah, Wop-pop-pe-tah, o r Bocdy, and Ke-ah- cot-=ah, o r Buffalo, Miami Indians, res idents of the S t a t e of Indiana, being present, and assenting, ap- proving, agreeing t o , and confirming said a r t i c l e s of agreement and convention.
The scan t notes taken during the meetings p r io r t o the execution
of t h e t r e a t y d i sc lose t h a t the Indiana Indians s t a t e d t ha t they were
present s o l e l y t o discuss who i n Indiana was e n t i t l e d t o par t ic ipate i n
t he t r i b a l annui t i es , and t h a t they had no au thor i t r t o re?resent t he
Indiana Miami in any t r e a t y negotiations ; (Pet. Ex. 31, p . 3-58, D k t . 251) t h a t t h e Western o r Kansas 15ami claimed only three families i n Indiana
were e n t i t l e d t o receive t r i b a l annuit ies, denied t h a t the Indiana Ean3
Indians were p resen t becagse of the proposed t r ea ty , and t ha t the Corn-
missioner of Indian Affairs agreed with them t h a t the Indiana fEami had
no i n t e r e s t i n t h e Kansas land. (Pet. Ek . 27 ,' Ckt . 124-A)
(b) The land ceded i n Art ic le 1, Treaty of 1854, is described
t he r e in p r ec i s e ly as t h a t granted t o the Eami t r i b e by Article 12, Trea-
t y of 1840, both t r a c t s being estimated t o contain j00,000 acres. Mithin
t he ceded a r e a , t h e Miani reserved 70,000 acres about the i r residence
bui ldings f o r a l lo tment purposes and 640 acres f o r school purposes. The
o r i g i n d r e se rvz t i on is ident i f ied as Tract 329 upon Royce's map of Kan-
2, Vol. 18, S.A.E., and contained 324,796.88 ac res ; the reserved
area contained 70,638.54 acres ar,d i s iden t i f i ed upon sa id Yap as Tract
330. Defendant's m i b i t No. 2, Dkt. 251, which i s made a p a r t of t h i s
f inding, depic ts the reservation and reserved area a s l a t e r surveyed.
(c ) Ar t ic le 3 , Treaty of June 5 , 1854, reads:
In consideration of the cession hereinbefore made, the United S ta tes agree t o pay t o the E a r t r i b e of Indians t he sum of two hundred thousad d o l l a r s , i n manner a s fo l - lows; v i z : Twenty annual i n s t a h e n t s of seven thousand f i v e hundred d o l l a r s each, the first payable on the f irst day of October, one thousmd and e igh t hundred and s ix ty , and t he remainder t o be paid respect ively on t h e first day of October of each succeeding y e a , u n t i l the whole s h a l l have been paid; and the remaining f i f t y thousand do l la r s s h a l l be invested by the President i n sa fe and prof i table s tocks , the i n t e r e s t thereon t o be applied, under h i s d i - r ec t ion , f o r educational purposes, o r such ob jec t s of a bene f i c i a l character , f o r the good of tke t r i b e , as may be considered necessary ar.d expedient; and hereaf te r , when- ever t h e Pres ident s h a l l think proper, the sum thus provided t o be invested, may be converted i n t o money, and the sane pa id t o t he t r i b e in such manner a s he may judge t o be be s t f o r t h e i r i n t e r e s t s . Eio o a r t of t he moneys t h i s or the precedine a r t i c l e mentioned s h a l l ever be a ~ ~ r o ~ r i a t e d o r pa id t o t he .Dersons, families, o r bands, who, by the four- t e en th a r t i c l e of the t r e a t y of "ove~ber s i x th , one thou- sand e i g h t hundred and thi r ty-e ight , by the f i f t h and sev- enth a r t i c l e s of the t r e a t y of Kovember twenty-eight, one thousand e igh t hundred and for ty , o r by v i r t u e of two reso- l u t i o n s of Congress, approsed ]?arch t h i r d , one thousand e i g h t hundred and forty-five, and Nay first, one thousand e igh t hundred and f i f t y , o r otherwise, a re oennit ted t o drax o r have dram, i n the s t 2 t e of Indiana, t h e i r ~ r o g o r - t i o n of t h e a c u i t i e s of the Y i i t r i b e . (underscoring su?plied)
The a r t i c l e s of previous t r e a t i e s referred t o i n the above quota-
t i o n , a r e those -pelmitting John 3. Richardville and h i s family, the f a i -
l y of Francis Godfroy, and Yi-shing-go-me-sia and h i s brothers, t o rece ive
t h e i r propor t ionate s h r e of t r i b a l annui t ies a t For t Vayne, Ind iu la , af-
t e r t h e t r i b e emigrated t o the country assigned t o it i n the west. The
Treaty of November 28, 1843:
The remaining i n s t d h e n t s of $12,500 annually accru- ing under Ar t ic le 2 were t o be paid $6,863 .& t o the Kiami Indians i n Indiana and $5,636-36 t o the M i a d Indians in Karisas.
Treaty of October 6 , 1818:
The permalent services promised i n Article 5, t rezty of 1818, a blacksnith and a mi l le r , were t o continue f o r the bene f i t of the &Lami Indians i n Kansas.
Treaty of 1826, and Others :
In consideration of the &urn of $421,435.68, payable $190,434.68 t o t h e Kiaini i n Kansas and $231,004 t o t h e M i a m i Indians in Indiana, i n six equal install- ments, t h e Kia;.,i t r i b e released the amu i ty of $23,000 under Ar t i c l e 4, Treaty of October 23, 1826, all ;rer- rcanent provisions f o r mor,ey in l i e u of laborers , for a g r i c u l t u r a l assistarice, tobacco, i ron, s t e e l , sal t and a l l o the r annui t ies of any kind created by fmrer t r e a t i e s ; and sa. t isf ied a l l c l ~ i m s agairist t he United S t a t e s for d z ~ a g e s due on account of nonfu l f i lhen t of any t r e a t y s t ipu la t ions , or In&r ies to , destruction of o r l o s s of property by wongful ac t s of the United S ta tes o r i t s c i t i z e n s o r agents.
Dist-ribution of the anrxity sums was ccmputed on the ra- t i o of 248 Himi Indians residing i n Kansas and 332 fiami Indians r e s id ing in Indiana. (Pet. Ex. 245, Dkt . 251) I n considerat ion of $30,000 pzid in three i n s t a l l - rcents t o t h e Karsas Yhini, the t r i b e relezsed clainrs f o r : $8,000.68 sppropristed t o pay fo r im?rovenents b u t re tu rned t o the general fund in the United States
R i c h ~ d v i l l e m d Godfroy f a a i l i e s bad been g r a t e d several t r z c t s i n In-
diana under t r e a t i e s executed by the Kiani t r i be between l a 8 and 1840,
inclus ive . (d) Ar t ic les 4 and 5, Treaty of 1854, provided for t h e commu-
t a t i o n of thc t r i b a l annui t ies , the settlement of clzims against t h e
United S t a t e s , and the d i s t r i bu t i on of funds. The items cc~llrrmted and
t he consideration paid there for were:
Treasury; $l4,223 .5O accumulated i n appropriations fo r the support of t k s p o r and in f i rn , and the education of the youth cf tke t r i5e as provided by the t r e a t i e s of October 23, 1826, and XovemSer 6, 1838, a d c l a i m of the Kansas 1Bai for d z ~ a g e and lo s s of stock a ~ d other pro?erty resu l t ing from the i r rensval west.
The annuity of $25,000 before released was neverthe- l e s s t o te paid f a r the years 1854 and 1855 ard divi- ded between the Kami Indians i n Indiana and those in Kansas i n the sax3 r a t i o as the $12,500 payment above referred to.
Unexpended appropriations for iron, salt, s t e e l , to- bacco, e t c . , i n t h e sum of $4,059.08 were t o be paid t o the Miami i n Indiana.
It was specified only the 302 persons naned on the l ist of Indiana FAami agreed t o i n June, 1854, and t h e i r descendants, should part ic ipate as Indiana M i a m i Indians unless the inclusion of such addition- a l persons should have been f i r s t approved by the Indiana Y h m i i n open council. (;irticle 4 , 1954 Treaty)
There is no evidence suggesting what, i f any, claims, darcages, in-
fu r i e s o r property l o s s e s were presented f o r consideration and a re re-
ferred t o i n Item 4 above. The council minutes r e f l e c t t h a t the Commis-
sioner advised the PI ias i . he considered the $25,000 annuity referred t o
i n Item 5 above t o be l e s s than permanent in nature because in the 1826
t r e a t y establ ishing t h a t amui ty it was specified tha t it "shal l be paid
t o them, a s 1 o n g . a ~ they ex i s t together as a t r i b e ; which several sums
a r e t o include the anrsuities due by preceding t r e a t i e s t o the sa id tribe. '
The record d i sc loses that the t reaty negotiations vere carried for-
ward by the p e t i t i o n e r s , that the t r ibe was not des t i tu t e or suffering
such f inancia l embarrassment as to place i t a t the mercy of the defendant,
t h a t the t r i b a l representat ives were neither ignorant nor incompetent. It
does not appear t h a t d e f e d a n t possessed and withheld any information touch-
ing the value of the Il'i-mi land or t ha t t h e defendant engaged in de-
ception, duress, coerclon o r over-reaching.
12. There was o r G i n a l l y included i n Ar t ic le & of t he 1854 t r ea -
t y a provision t h a t t& $231,004 accruing t o the Indiana E L a i Indians
upon c o r n t a t i o n of t b annuit ies should be invested by the United S t a t e s
and the i n t e r e s t therefrom annually paid those Indians if they so desi red:
and t h e said Miami Indians nox present from the Sta te of Indiana, agree t o t ake the opinion of t h e i r people on t h e i r r e tu rn home, a d advise the department without de- .lay. (Pet. Ex. 30, p. 175, Ckt. 251)
Thereaf ter a f u l l council of the Kia~i Indians i n Indiana xas c a l l -
ed and a delegation dis?atched t o Washington t o secure an amendment t o
t he t r e a t y , (Pet . a, 17, p. 2, Ckt. 251) Vhile i n Executive Session
on August 4, 1554, the United S ta tes Senate s t ruck the provision above
quoted, and subs t i t u t ed therefor the following:
The sum of two h m e e d and thirty-one thousand and four d o l l a r s hereby st5zmlzted t o be paid t o the Miami h d i - ans of Indiana, s k h l be held by the United Sta tes f o r said last-named Indians , and by the government invested, as t k e P r e s i d e n t n2y d i r ec t , a t an i n t e r e s t of f ive per cent , per annum, & which in te res t s h a l l be paid annu- ally, f o r the per iod of twenty-five years, t o the sa id Mianri Indians of Indiana, * *; Provided : That no persons o t h e r than those -braced i n the corrected l is t agreed up- on by t h e Miamis of I n d i a a , in the presence of the Com- missioner of India Affairs , i n June, eighteen hundred and fifty-f our, comprLsing three bur-dred aqd txo nznes as N i a m i Indians of Indiaha, and the increase of the families of the persons embraced ~II said corrected l i s t , s h a l l be recipients of the payments, -uities, con-;utation moneys a d interest hereby s t i p u l a t e d t o be paid t o the Miami Indians of Inciianz, un l e s s o the r persons sha l l be added t o sa id l i s t by the con- s en t of t h e s a i d B a ~ i Indians of Indiana, obtained i n coun- c i l , according t o the custon of the Xiani t r i b e of Indians: Provided: That the sun of nine thousand seven hundred a d fo r ty - s ix d o l l a r s and fourteen cer,ts sha l l immediately be
paid out of sa id sTm * * t o the fo l lox ing persons, xho a r e a por t ion of the I - l izq i t r i b e of Indians res iding i n Indiana, and i n the fol loxing manner; * *
The Miani Indians of Indiana, being now represented in Washington by a f u l l y authorized deputation, and having re- quested t he foregoing anendnents, t h e same a re binding on them; bu t these a ~ e n h e n t s are i n no xay t o a f f e c t o r k ? a i r the s t i pu l a t i ons in sa id t r ea ty contzined, a s t o the Mianies west of the Mississip?i , the sa id amendnents being f i n a l , and not r e w i r e d t o be submitted t o t he fdLa?lies f o r t h e i r con- sen t :
The amended t r e a t y was r a t i f i e d and p r o c l a b e d k u p s t 4, 1854,
1 0 S t a t . 1093.
13. The M i a m i Indians renaining wi thin Indiana without t r i b a l
consent, a d those re turning t o Indiana from Kansas x i thou t t r i b a l con-
s e n t , severed t h e i r t r i b a l relktionship and l o s t a l l r i gh t t o p a r t i c i -
va t e i n t he t r i b a l a s se t s , funds o r property. Such Indians united wi th
and formed a s ing le u n i t ~ 5 t h YLami I n d i m s r i g h t f u l l y within the s t a t e
under t r i b a l pellnission granted t o them by the t r e a t i e s of NovemSer 6,
1838, and Novenber 28, 1840. This united grou? a r e the pe t i t i one r s in
Docket No. 124-A. par t ic ipzt ing -h and approving t h e Piami t r e a t y
of 1854, s a i d p a r t i e s agreed t o a d iv i s ion of the t r i b a l a s se t s in which
they were, o r claimed t o be, en t i t l ed t o pa r t i c ipa t e , and accepted cer-
tain moneys, b e n e f i t s and consZderations as rec i ted i n sa id t r ea ty , and
waived a l l claim t o other t r i b a l assets , including t he Miami rese rva t ion
l and in Kansas. Such e lect ion or e lec t ions s e t out i n the 1854 t r e z t y
a r e binding upon s a i d par t i es and t h e i r descendants, the pe t i t ioners i n
Docket Eo. 124-A.
C o m t e d Annuities
14. The coawtat ion of an annuity i s i n e f f e c t but a change in
the form of investment of t r i b a l finds. (~otawatomi Tribe vs . United
S t a t e s , 2 I.C.C. 207, 230) The c a p i t a l value of an annuity i s t h a t
sum which i s necessary a t current i n t e r e s t r a t e s t o produce annually
t he amount of the annuity. On the date of commutation of the = u i t i e s
due t o t he Miami t r i b e , June 5, 1854, t he M i a m i were e n t i t l e d t o annual
money payments of $25,000 and t o annual services , goods o r mate r ia l s of
t h e value of $1,540 according t o the agreement of the par t i es here to ,
o r a t o t a l of $26,540. A t t h a t time t he prevail ing i n t e r e s t r a t e was
f i v e pe r cent per annum, and the cap i t a l value of s a id a m u i t i e s was
$530,800. f l c e a Sand of Tillar;l.ooks, e t a l . , vs. United S ta tes , 115 C.
C l s . 453, 341 U. S. 48, 95 L. ed 738; Pet . Ex. 27, p . 209, Dkt. 251.
The contingency appearing in Art ic le 4, Treaty of October 23, 1826,
7 S t a t . 300, l im i t i ng the $25,000 annuity conmted i n 1854 t o "as long
as they (the X i a m i ) ex i s t together a s a t r i b e , " reduces t h a t annuity t o
less than permment. The re lease of unspecified claims and commtation
of t h e annui t i es mentioned i n exchange f o r the benef i t s derived from re-
c e i p t of a l a r g e r sum a t t he time, which fonns p a r t of the agreed con-
s i de r a t i on , and the cash payment of $471,438.68, was not unfair, dishonor-
able nor unconscionable. 30 evi6ence of fraud, duress, undue in f luence
o r over-reaching has been shom.
The In t e r e s t Claims
1 . A l i s t of 302 persons which the f ive representatives of t he
Indiana agreed were a l l those en t i t l ed ts reside i n Indiana and
i n the t r i b a l annuities, Kas attached t o the 1834 t rea ty .
en t i t l ed t o par t ic ipate . On Jm.e 12, 1858, Congress directed: (Sec. 3,
11 Sta t . 329, 332)
And be it fur ther enacted, tha t the Secretary of the In- t e r i o r be and he i s hereby, authorized and directed t o pay t o such persons of >E=i blood as hzve heretofore been excluded from the annuities of the t r i b e since the removal of the M i a n i ~ s i n eighteen hundred and forty-six and since the t r ea ty of eighteen hundred and fifty-four, and whose names a re not included i n the suppleme~t t o sa id t rea ty , t h e i r proportion of the t r i b a l annuities from which they have been excluded, and he i s also authorized and directed t o en ro l l such persons upon the pay l is t of sa id t r i b e , and cause t h e i r anriuities t o be paid to them i n future; Provided, That the foregoing ayrrents sha l l be i n f u l l of a l l claims fo r annuities arisirlg ont of previous t r ea t i e s . And said Secretary i s a l s o zuthopized a d directed t o cause t o be lo- cated f o r such persons each two hundred acres of land out of the t r a c t of ssventy thousand acres reserved by ths second a r t i c l e of the t r e a t y of June f i f t h , eighteen hundred and fif t.y.-four, with t h e Miaees, t o be held by such persons by the same tenure a s the locations of in6ividuals are held which have been made ~ 6 e r the third a r t i c l e of said treaty.
to them 14,533.38 acres of Miai land i n Kansas, without t r2bal con-
sent thereto.
16. A n Act t o abol ish the Miami t r i b a l re la t ions was adopted on
%arch 3 , 18?3 , 17 S t a t . 631, and the s a e of riami l v ld in Kansas was
a t h o r i z e d on YAY 15, 1882, 22 Stat . 63. It was w e c t e d that a census
52 taken of the M i a m i Indians; that the mount of annuities paid t o in-
53viciual.s referred t o i n the Act of June 12, 1858, and charged t o P S i a m i
Jldians %hose na-ces appeared on the corrected l i s t of 1854 be ascertain- .
XI and charged against the proceeds of the Sanszs land; and tha t it be
determined whether any perscns cn t ha t l i s t xere e n t i t l e d t o a l lo toez t s
i n Kansas, a d , i f so, they were t o be paid therefor . Questions a r i s i ng
i n connection therewith k-ere referred t o t he Court of Claims under Sec-
t i o n 2, Act of 3Iarch 3 , 1833, Chapter 116, by the Committee of Indian
Affairs f o r the House of Representatikes. A c e r t i f i e d copy of t ha t
Court 's Statement, Fin2ings, and Conclusions, f i l e d January 5, 1891,
was t he r ea f t e r t r a n s ~ i t t e d t o the Cornittee.
(a) The Cour't found as f a c t t ha t most of t he F&uni t r i b e had
moved t o Kansas in 1846; t h a t a l w g s number of t he t r i b e , besides those
who had spec ia l -permission under t r e a t i e s and Acts of Congress t o remain
in Indiana, d id not migrate t o Kansas but remained i n 'Indiana and ad ja-
cent s t a t e s , and t h a t t h e t r i b a l annuit ies uere d2vided from 1846 t o 1854 . . between those Miarui i n Indiana and those i n Kansas; t h a t i n June, 1854,
the Commissioner of Indian Pffairs and the Indiana Miami representatives
then in Xashington had revised and corrected the l is t of those Hi.an;i i n
Lndiana who were e n t i t l e d t o par t i c ipa te
Indians l i v i n g i n Indiana, which l i s t of
lade part of t h e Senate Amendment t o the
The cour t a l s o found t h a t under the
i n funds payable t o the YLiami
302 ?ersons is r e f e r r ed . t o and
Miaui t r e a t y of 1834.. !
ac t of. 1858 t he Secretsry of the
n t e r i o r had recognized 73 addi t ional persons i n Indiana a s being of par-
ial B&mi blood; t h a t s a i d 73 persons were thereaf te r a l l o t t ed 200 acres
ach out of t h e 70,000 acre resen-e in Kansas; t ha t s a i d selections ag-
-egated 14,533.38 acres , were r q o r t e d July 18, 1859, and approved Octo-
:r 7, 1859; t h a t s a i d 73 persons received $2,679.76 from t h z t portion of
.2,500 belonging t o t h e Western (Kansas) Himi per Art ic le 2 of the 1,554
ea ty , =d $15,691.12 from funds acci-cing t o sa id Indians per P r t i c l e 4
of s a id t r ea ty , ill x i t h o l ~ t consultation 55th the t r i b e o r the consent
of i t s chiefs ; t h a t sa id persons were enrolled as PS& Indians of In-
diana and received v ~ n u i t i e s i n corrmon ~ i t h sa id group f o r a naxber of
gears; t h a t sa id persons d id not emigrate v e s t with the t r i b e , did not
res ide upon the land ceded in 1854 pr ior t o such allotments but remain-
ed i n the e a s t , and t h a t it was not shown t h a t s a id 73 persons, most of
whom were s t r icken from the l i s t of Indiana Hiami under authority of an
opinion issued by the Attorney General i n 1867 (12 Atty . Genl. Op., p.
236) . were of H i a m i blood.
The Court concluded: "The reasonable value of the land so a l l o t -
ted t o s a i d 73 persons i n h'ovenber, 1859, the date of the approval of
the Secretary of the In t e r io r , was an averzge of $3 per acre, amount-
- ~ g in the aggregate t o $43,600.14. " ( ~ t . C l s . , Congressional Case
NO. 1343 ; Pet . Ex. 207, Dkt. 251)
17. On March 3, 1591, 26 S ta t . 1000, there was appropriated and
paid the Western lidmi Indians $18,370.89 as a re turn of funds appro-
p r i a t ed and $43,600,1k. a s payment f o r lands a l l o t t ed said 73 persons
a s above r ec i t ed . On March 2, 1895, 2€! Stat . 903, there was appropri-
a ted f o r repayment t o the Miami Indians of Indhna who then numbered
439, t h e sux of $W,528.38 as a return of the sum taken from t h e i r
t r i b a l funds and p s i 6 s a id 73 persons. (~t. C l s . , Congressional Case
No. 9255; Sen. BIisc. Doc. 131, 53 Cong., 3d Sess.; Def. E k . 16, p. 4,
Dkt. 251).
18. The Governnentls sovereign immnity t o i n t e r e s t charges upon
-, obl iga t ions i s no t waived by 60 S t s t . 1049. I n the a3sence of such
waiver, t h i s Corxnission is u i t h ~ u t author i ty t o g r a t an s.k-ard f o r in-
t e r e s t upon funds diverted from t r i b a l annuity payments due p e t i t i o n e r s ,
(Loyal Band o r Grow of Creek Indians vs . United S t a t e s , 118 C t . CIS. 373)
o r upon the sum paid i n l i e u of r e s t i t u t i o n of t r i b a l l a d s erroneously
a l l o t t e d t o non-I"iia& persons.
Valuation Evidence
19. The annexation of Texas i n 1845, settlement of the Oregon-
Canada boundary d i spu te in 1846, t he Xexican cession of 1848, and t h e
discovery of gold in California i n 1849, a l l contributed t o a westward
migration i n the United S ta tes . The President was authorized t o ext in-
guish Indian t i t l e t o t h a t count- west of Iowa and Missouri, LO S t a t .
226, 238, and i n December, 1853, a b i l l t o organize t he Te r r i t o r i e s of
Kansas and Nebraska was introduced i n Congress. The prompt r e ~ o v a l of
the Indians t r i b e s f ron t h a t country was considered advisable, and i n
May, 1854, six t r e a t i e s , th ree of outr ight purchase and three t r u s t a-
greements with t he United S t a t e s t o survey, advert ise and s e l l t r i b a l
land f o r t h e benef i t of t he several t r i be s , were negotiated with Kansas
Indians. A delegat ion of the Miami t r i b e , duly authorized t o negot ia te
f o r t h e cession of t h e t r i b a l land i n Kansas,.arrived in Washington t h e
l a t t e r p a r t of t h a t month. (Pet. Ex. 26, Dkt . 124-A)
20. Negotiat ions with t h e Kiami delegations o?ened Fay 23, 1854.
The Kansas delegat ion offered t o cede a l l but 70,000 acres of the tri-
bal l a d "providing t h e i r i s an a g r e ~ n e n t t o the extent of t e r r i t o q a d
p r i c e of the s a ~ e . " The delegation argued t ha t t h e t r i b e bad been pron-
i s e d a country west equal if not l a rge r than the land ceded in 1840, bu t
. . . .
at Congressional u n f a ~ i l i z r i t y with the lands of bordering t r i b e s had
resu l ted i n it receiving only a l i t t l e over half of an estimated 5C0,OCO
acres , and asked $1.00 per acre fo r such land. (Pet . &s . 31, pp. 155,
32, 33; nkt . 251)- It re jec ted the Com~iss ioner ls counter-offer t o s e l l
the land a t publ ic auction fo r tb.e benef i t of the t r i b e , and on June 2,
1 8 9 , t h e delegates wrote the Commissioner a s follows: (pet . Ek. 34, Dkt
Your red chi ldren have had a consultation on the propo- s i t i o n you made u s t h i s morning f o r Our Country West. We a re very near together. Our p r ice was 75 c t s a s t he low- e s t our people would consent t o s e l l f o r such were our views. we have f i n a l l y agreed t o take 70 c t s per acre f o r the bal lance reserving as per o& choice . W 0 ~ m s , This i s less than we intended t o s e l l it fo r , ye t t o have it i n some form i n which our people lqest can understand more f u l - l y w e have agreed t o t he above s t a t ed pr ice per Acre.
%on the Commissioner re jec t ing t h i s offer , t he delegztion offered t o ac-
cept $200,000, payable subs tan t ia l ly a s appears in the t r ea ty of June 5,
1854, pe r t i nen t por t ions of which are rec i ted i n our Finding of Fact Mo.
U. hereinabove. Simultaneously with negotiations f o r t h e s a l e of the
Kznsas land, negot ia t ions were conducted with both the delegations f o r
sf^ adjustment of annuity and &her claims, f o r the c o r n t a t i o n of a l l an-
n u i t i e s , and a d iv i s ion of t h e t r i b a l a s s e t s . ' The fh21 terms of s e t t l e -
ment as i n c o q o r a t e d i n t o t he t r ea ty a re a l so rec i ted i n our Sinding of
Fact Eo. 11 hsreinabove.
21. Six days before t he Hi& cession, on Kay 30, 1854, 10 S t a t .
277, t he Kansas Ter r i to r ia l . Act was adopted. The S ta te was adnit ted i n -
t o t he Union on January 29, 1861, 12 Stat. 126, at xhich time it had a
population of 107,206 souls. k o n g the l a d pol ic ies and laws whic5 be-
ie e f f e c t i v e w i th t h e passage of the Ter r i to r ia l Act, or shor t ly there-
a f t e r , were t he fc l lowing :
(1) The Act of April 24, 182C, 3 Sta t . 566, which Act provided
f o r the disposal of the pu3lic domain a t public auctions i n 80-acre t r a c t s
t o the highest bidder for cash, a t not l e s s than $1.25 per acre. After
the close of such public sales the unsold land was available in t r a c t s of
640 acres o r l e s s a t the minimum price of $1.25 p e r acre.
(2) The Pre-emption Act of 1841, 5 S t a t . 453, which pemi t t ed
s e t t l e r s t o en ter upon not more than 150 acres of the unsurveyed public
domain and hold preferent ial r ights to purchase t h e t r a c t entered upon
a t the minimum price of $1.25 per acre, payable a f t e r the land was pro-
claimed f o r sa le . The minim~;Lrn price per acre thus became the m a x i m u m
price per acre. Sales of "claimsn of such pre-em?tion s e t t l e r s were
commonly effected, and were recognized by the government.
( 3 ) The Graduation Act of August 4, 1854, 10 Sta t . 574, which
was first proposed during 184.0, reduced the minimum price of unsold land
which had been on the market fo r ten years t o $1.00 per acre, that which
had been on t h e market fo r 15 years t o 754 per acre, t h a t which had been
on the market f o r 20 y e z s t o 50$ per acre, t ha t which had been on the
market f o r 25 years t o 25+ per acre, and t h a t which had remained upon
the market f o r 30 years or more t o 12+# per acre. No land sold in Kan-
sas under t h e Graduation Act, which was replaced by the Homestead Act
of June 2 , 1862.
(4) Numerous Congressional Acts dea l t with the issuance t o
cer ta in c l a s ses of individuals of mi1ita-y sc r ip t and warrants which
:re applicable t o land pr,chases. Beginning i n 1852 a s e r i e s of )-cis
made a l l such warrants assignable. Uhen used f o r purchasing se lec ted
land, they were credited at $1.25 per acre, bu t i n 1854 such warrants
were obtainable f o r about $1.10 each.
5 ) Sy t he Ytilitary Bounty Act of March 3 , 1855, 10 S t a t .
701, dl o f f i c e r s and soldiers who had served the United S ta tes in m y
w a r s ince the Revolution, were g rmted 160 acres or so much a s , with
what had previously been a l l o ~ e d the4 xould equal t ha t amount. Over
33,000,000 acres were subject t o being g r a t e d under t h i s act .
22. On Ju ly 22, 1854, 10 S t a t . 308, Kansas public land t o which
Indian t i t l e had been extinguished, was ordered surveyed and sold , sub-
j e c t t o pre-emption r i gh t s . Hok-ever, under the Graduation Act, the
mening of new land in Iowa, Misconsin and Xinnesota, t he PAlitary Boun-
w Act of 1855, and hugh donations of public l a d f o r financing con-
s t r u c t i o n of r a i l r o a d s a d i n t e rna l irr.provements (l5,680,000 acres be-
i ng made ava i lab le during 1856) which were offered f o r s a l e , the gen-
e r a l l and market was saturated, and public land in Kansas, with minor
exceptions, was held off the market u n t i l a f t e r July 1, 18-57'. The M i -
ami r e se rva t i on was n o t surveyed u n t i l 1556. he reserve se lec t ions of
70,640 ac r e s were no t completed and approved u n t i l April 1859. The ced-
ed l and w a s opened f o r settlement i n 1859 a t which time 352$ of the
l a d was occupied by pre-emption "squatters." The f i r s t public s a l e s
were he ld i n 1953, a t which tias 54.7% was pre-npted. By the end of
1863, 73.55 of t h e land had been sold. A t the close of 1869, 97.8s
was sold, pre-ernpted or homesteaded. (Pet. Exs. 200, 122, 215, Dkt- 251)
The original entry books of the vzrious land offices within' the res-
ervation area disclose t h a t the YLmi l a d , exclusive af the school sec-
t ions and land dis?osed of by other than sa le , had the following sa l e s
record: ( ~ e f . Ex. 1, p. 101, Dkt . 251)
Year - Acres Sold Year Acres Sold
1867 1868 1869 1870 1871 1872 1873 1874 Subse- quently
. - . .
Total.. . . . . . 242,240
23. Between July 1, 1857, and Septenber 30, 1861, only 184,000
acres were sold fo r cash i n S ta te of Kansas, while 3,617.000 acres
were granted f o r mi l i ta ry purposes, 2,891,000 acres for schools and
500,000 acres f o r in t e rna l bprovements. The sales pattern demnst ra tes
a defiriite preference f o r timber land with open pra i r ie attached.
24. By 1854 the population density of the United States was shift-
ing westward. Immigration i n t o the country had been steadily increasing
and the unsettled land i n the west with i t s more f r u g d but l e s s expen-
s ive l i f e was a magnetic a t t rac t ion . Pioneers from our eastern s t a t e s
and emigrants from abroad, accustomed to a timbered country, c lear ly
preferred the timbered areas , and t h e i r settlements followed westward
along the streams or along the emigrant roads. None of these roads
reached the F-iiami t r a c t , the nearest one being 45 miles north, a t Nest-
t, the present c i t y of Kansas City, bu t set t lements fol loxsd u? the
Osage r i v e r i n western Eissour i , and by 1854 the va l l ey land hned i a t e -
l y east. of t he Yaami t r a c t ua s well se t t l ed . The e n t i r e population of
Nissouri had averaged tiro t o six persons per square mile i n 1840, in-
cluding i n t h a t bracket a comparable area of 350,000 acres along the
Osage r i v e r , adjacent t o the M i a m i reservation on t he e a s t , bu t ~ 5 t h
a dens i ty of 18 t o 45 persons-per-square-nile i n t he v i c i n i t y of Kan-
sas City. By 1850 the 15 t o 45 persons-per-square-zile b e l t extended
south from Kansas City near ly a s f a r as the northern l i m i t s of the Hi-
ami reservat ion. The a r e a op?osite the upper one-fourth of t h e reser-
vation contained six t o eighteen persons-9er-square-mile, but two t o
six persns-per-square-fie was standard i n Missouri along the balance
~f t h e Miami rese rva t ion , (Def . Ex. 1, pp. 77-80, D k t . 251)
The following t a b l e of M g r a t i o n figures and of public land s a l e s
r i th in t he United S t a t e s ind ica tes a relat ionship between the two:
Year W g r a t i o n i n t o Acres of Azblic the Un5ted States Domain Sold
1,330,000 1,406,000 2,056,000
895,000 3,787,000
13,823, ooo
25. The obvious preference for hornesites along the established
nigrant rou tes and a l o ~ g the waterirays within t inbered areas resu l ted
s the l e s s a t t r a c t i v e l a n d , part icularly within the older s t a t e s , re-
zining unse t t l ed o r being abandoned in favor of more preferable s i t e s
I t he w e s t . Secause of a forfe i ture of about 33$ of the land and a
default of approximately 405 of the purchase price of a l l credi t sales
of public land eas t of Kansas, by 1840 Congress had become greatly con-
cerned with the methods of acquisition and disposition of the public
domain. Numerous investigations were conducted, a number of b i l l s de-
signed t o reeuce the mount of unsold public land were proposed, and
nuinerous Congressional Con.iiittee reports =ere nade before 1855, These
t
reports discrose tha t on June 30, 1853, there were 22,722,000 acres of
unsold and unappropriated public land i n ffissouri alone, and there were
22,773,000 acres unsold i n Iowa; tha t over 20,000,000 acres in each
s t a t e remained unsold a la te r . The Graduation Act of August 4,
1854, offered such land at reduced prices , graduated according t a the
number of years it had been on the market. The five. classes of lad
~ 5 t h separate pr ices fo r each, and the acreage affected thereby, follow:
Class - Time Unsold Price Acres in Acres i n Missouri a l l States
F i r s t 10 - 15 vs. $1.00 2,471,000 18,?66,000 Second 15 - 20 yrs. 2,612,000 15,654~aoo Third 20 - 25 yrs. '75 -50 l,843,000 11,541,000 Fourth 25 -30yrs. 25 456,000 6,486,000 Fifth 30 yrs. Sc over .l2$ 6,468,000 25,114,000
Total Acreages ... 13,850,000 77,5&000
Three hundred fifteen thousad acres of the 350,000 acre tract i n
Nissouri, adjoining the M i & reservation on the e a s t , which defendant's
e v e r t valuat ion u i tness , Dr. Xurray, used for conparison purposes, came
under the Graduation Act, over three-fourths of the ent i re t ract having
been on the ararket f o r nore than ten years by 185h.
W i n g t h e l a s t half of 1854,. 3,916,000 acres of the public domain
s d d a t $1.25 per acre, of uhich 295,000 acres were i n YAssouri; 191,000
2s sold at $1 .OO of %:hi& 06,000 acres were i n Missouri, and 4,100,000
acres sold a t 12$$ per acre, of which 975,000 acres were in Nissouri. In
t he f i r s t half of 1855, 3,000,000 acres sold a t $1.25; of 2,791,060 acres
s e l l h g a t other graduated prices, 1,600,000 acres so ld a t 12&f per acre
and 781,000 acres of t h a t c l a s s l a i d i n YLssouri.
A prospective purchaser of the Miami land In 1854 would have been
aware of the amount of conpetitive publ ic land then available, and of
t he f a c t that l eg i s l a t i on had been pending i n Congress since 1840 look-
ing toward t h e 'reduction of i t s pr ice . The e.ninent passage of such leg-
i s l a t i o n would have been mt ic ipa ted by such purchaser and would hzve
been an i n f l u e n t i a l element in determining the p r ice a wi l l ing purchaser
" ~ o u l d agree t o pay f o r the Mia?;i t r a c t .
26. In 1854 the re were considerable mi l i t a ry s c r i p and militvy
wzrrants outstanding and applicable t o the purchase of s m a l l acreages
of t he pub l i c domain. These were obtainable a t a s l i g h t discount bu t
a purchaser of a tract as la rge as the M i a m i t r a c t would have r ea l i z ed
b u t l i t t l e savings t h o u g h acqu3hing s c r i p o r warrants f o r anpl icat ion .
upon i ts purchase p r ice . I n any event, whether acquiring sc r ip and war-
r a n t s o r paying cash f o r the land, t he ordinary purchaser would have con-
s idered the cos t of financing his t ru l sac t ion , and in 189 money was
scarce . A s l i g h t economic recession was f e l t throughout the e n t i r e
country i n 1853 and 1854. Long term bond issues of the United S t a t e s
and ind iv idua l s t a t e s dreu 5 and 6% i n t e r e s t . Since these usud-ly
s o l d a t a premium, t h e r a t e w g s actual ly s l i gh t l y l e s s than 6$. Rates
on sho r t t e r m investments were markedly higher, and f i r s t c lass corn-
mercial paper drew frorr. 7 t o 1 2 3 i n t e r e s t in Boston a d Kex Pork,
the money centers of t h a t t i ne . By s t a t e law Missouri prohibited
i n t e r e s t in excess of 6$ but shor t term bond and mortgage mney
drew f ron 10 t o 12% there i n 1852 and Hissouri banks were paying
65 on r e s t r i c t e d deposi ts i n 1854. Better economic conditions dur-
ing t he next f ex years , together with the e f f e c t of t h e Grasuation
Act, gave inpetus t o a. short-lived land boon i n t he west, which
peaked i n 1857, was follotred by a drought in 1858 and 1859, and
the C i v i l War of 1561, t he depressive e f f e c t of which was in a
measure re l i eved by t he Homestead Act of E 6 2 . To~izrd the close
of t h e w a r publ ic i n t e r e s t i n land acquisi t ion was renewed.
Taking i n t o consideration the element of r i s k re la ted t o in-
ves t ing i n undeveloped land, and the uncertainty a s t o the time ne-
cessary t o r e a l i z e upon such an investment, an investor i n the M i a m i
t r a c t i n 1854 could hzve e q e c t e d t o pap approximately 85 for financ-
ing charges. ( ~ r a n s . p. 231, ~ u r r a y )
27. It i s a matter of h is tory tha t i n 1520 when the gation con-
t a ined 11 f r e e s t a t e s and 11 slave s t a t e s both ~ a i n e ' and Missouri ap-
p l i e d f o r admission t o t he Union. Interes ted i n maintaining a bal-
ance of poKer i n the Senate,- the south ins i s ted t h e Federal Govern-
nent was unable t o p roh ib i t slave-ry i n any s t a t e . I n the resul tant
compromise, Elaine was adnit ted as a f ree s t a t e , Missouri as 2 slzve-
holCing s t a t e , and it was agreed t ha t a l l s t a t e s admitted therezfter
which were nor th of t he l i n e 3G0 3 0 1 should be f r e e s ta tes . Kever-
t h e l e s s , when t h e Kebraska-5asas Te r r i t o r i a l B i l l was introduced i n
mary, 1854, it incorporated t he p r inc ip le of squa t t e r s sovereignty,
i . e . , s lavery within t h a t t e r r i t o r y was t o be determined by i t s s e t -
t l e r s .
Both the pro-slavery and anti-slavery groups were anxious t o con-
t r o l t h i s new area , and the Massachusetts m i g r a n t Aid Company, l a t e r
the New England Emigrant Aid Coinpany, was organized f o r the purpose of
es tabl ishing claims t o Kansas land by anti-slavery be l ievers . Later
southern organizations of l i k e nature were formed t o advance t h e ~ 1 2 ~ -
e ry views and both fac t ions pushed f o r ez r ly settlement and control of
Kansas. Hoxever, t he T e r r i t o r i a l Act gave no protection t o s lave own-
e r s moving i n t o Kansas who faced the menacing p o s s i b i l i t y of ser ious
property l o s s should t h e s t a t e u l t imztely decide against slavery. M-
"-.rrnore, t h i s was p redmina te ly a p r a i r i e s t a t e and not well-suited t o
s lave labor . These were r e a l deterrents , especia l ly t o Nissouri which
was a ~ ~ i o u s t o surround i t s e l f x i t h slave-holding s t a t e s , while t he prox-
imity of Missouri and easy access t o Kansas by i ts c i t i z e n s was a l so a
de te r ren t t o those op2osed t o slavery and anxious t o remove from its v i -
c in i t y . Also, much pub l i c land remained fo r s a l e in s t a t e s where slav-
e r y was a s e t t l e d i s sue .
A prospect ive purchaser of the Iliaxi t r a c t would have given con-
s idera t ion t o these f ac to r s and would probzbly have concluded t h z t they
so f a r o f f s e t each o the r as tolemove the issue of s lavery as an i n f lu -
encing f a c t o r in the r ap id i t y k i t h which Kansas could be expected t o be
s e t t l e d , and t h e r e s u l t a n t &=and fo r land within t h a t s t a t e . That Elm-
s a s would become t h e scene of blooey s t r i f e and deadly antagoniss beb:een
the pro-slavery and -.ti-slavery groups, with both s i de s sending pre-
e q t o r s o r scua t te r s i n t o Kvlsas and ecgzgicg i n arned conf l ic t , would
not hzve been u i t h i n the reasonable c o n t e q k t i o n of a purchaser i n 1854.
This con f l i c t , from wkich Kansas derived her nme "Bloody X ~ I S G S , " con-
t r i bu t ed grea t ly t o e a r l y settlement i n the s t a t e but was under control
by Xovember, 1856, shor t ly before the s a l e of several t r a c t s of I n d i a
t r u s t lands which w i l l be hereinaf ter referred to . (Def. Ex. 13, Dkt.
251; House Ex. Doc. 13, 34 Cong. 1st ~ e s s . )
28. By the f a l l of 18.57 there were 35 f ree -s ta te t oms i t e s alone
i n Kansas. (Pet . Ex. 157, Dkt. 251) I n l e j j Ossawatomi was se t t l ed in
L i n n county, FI~neka was s e t t l e d in Y i a m i county in 1856. By 1859 the
towns of Lawrence x i t h a po?ulation of 3,500, Leconpton which was the
T e r r i t o r i a l c a p i t a , Tecumseh and Topeka were located on the Kansas r i v -
e r , with Burlingame t o the south along the Santa Fe t r a i l , Brownsville
i n Shawnee County and Esnporia was established in Lyon county.
29. Defendant produced two xitnesses, Eichard 5 . Ball and Dr.
Kill iam G. Ymrray, both quzlified appraisers, who valued the Miami
t r a c t a s of June 5, 1894, a t 35# and 50$ per acre, respectively. Both
had r e c e n t l y examined t h a t land and an adjoining 350,000-acre t r a c t in
YAssouri, h2d s tud ied s o i l data, maps, descriptive material , h i s to r ic
2nd econoriical da ta a?plicaSle t o the region, and the surveyors1 notes
concerning the a reas made during the or iginal surveys in 1856 2nd 1857.
MT. H a l l thought t h a t a prospective purchaser i n 1854 woufd have
considered t h e Miani t r a c t i solz ted by the Peoria reservation to the
nor th a d t h e E m m i se lec t ions which were t o be within the t e r r i to ry
u t the i r habitations; t ha t road service was the Fort Leavenworth - Fort Scott mili tary road running through the eastern edge of both reser-
vations, ~ 5 t h the Santa Fe trzi.1 ?assing som 15 miles northwest of the
Peoria land, over 40 xai.1e.s northxest of the Mia~i t r a c t ; t ha t there were
no rai l roads in nei ther t r a c t nor were any e x ~ e c t e d ; tha t a general low
pr ice l e v e l prevailed with money scarce and a 1@ investaent re turn not
unreasonable; that a purchaser would need pay taxes, conduct a safes pro-
notional program, pronote rai l road cocstruction and in te rna l improvements
by vas t land grants, s e l l on installments, n n surveys and construct roads;
t h a t he would have competitive individual land grants t o rai l roads and in-
s t i t u t i o n s a s well as the public domain lands available a t $1.25 per acre
o r l e s s under the Graduation Act, and n i1 i ta -y bounty warrants and scr ip
available a t discount prices.
*. H a l l did not discuss the sa le pr ices received for the compara-
t i v e K s s o u r i t r a c t , but considered tha t only 16 of it was then sold a d
~r;uch would be available under Graduation prices. Upon a mathematical rea-
soning t h a t a purchaser would be en t i t led t o 25% p r o f i t , would need give
way 25% f o r development and sa l e s costs would also require 25$, he de-
h m i - e d a purchaser would be wil l ing t o pay only 35# per acre f o r the
:timi t .ract i n 1854.
In comparing the BIissouri t r a c t and the iVIiami lands, Er. Murray found
the s o i l s , climate, precipi ta t ion and a l t i tude were s i m i l a r ; t ha t the YAs-
smr i land had a 35% timber coverage as compred t o 4C$ coverage f o r the
% i d t r a c t ; the s o i l s were mostly f i r s t and second class; the climzte w a s
favorable; a sna l l acreage of f e r t i l e bottom lad along the Osage r iver i n
each t r a c t was subsect t o flood; while an abundulce of limestone and
coal were on both t r a c t s it had no comsercial value f o r r a n t of t rans-
por ta t ion f a c i l i t i e s ; there were no ra i l roads servicing e i t h e r t r a c t and
none were ant ic ipated; water transportat ion was l imi ted t o f l a t boats o r
r a f t s on t h e Osage r i v e r during occasional periods of high water; roads 3
were mere t r a i l s over which freighting was tedious, and timbered land
with adjoining p r a i r i e was most i n demand.
Dr. Murray considered tha t only 10-$ of the Missouri t r a c t o r 34,877
acres so ld between l&3 and 1e46, and 1,4$ of those were warrant s a l e s ; .
t h a t a sharp increase i n land sa les occurred i n 1853-E54; t ha t most of
the Xissouri l and f e l l under t h e Graduation Act of August 4, 1854, when
286,000 acres were y e t on the market. Dr. Emray considered tha t an in -
ves tor would need pay 85 hie res t on borrowed cap i ta l , and a prospective
purchaser coulci afford t o pay only 50$ ger acre f o r the Miami t r a c t i n
1854.
30. ~ c l u s i v e of school sections and land otherwise disposed o f ,
have t he following 2 9 , l l j a c r e s wi thin t h e comparative Ylssouri t roc t
s a l e s record:
Pear
1854 P r i o r 6/5 1854 After 6 / j 1855 185 6 1857 1858 1859 1860 1861 1862
Acres Sold Acres Sold
31. Neither of pe t i t i one r s ' exyert x i tnesses placed a monetary
value upon t he KLmi land. I da Fox, a research =a lys t , reviewed the
h i s t o ry of Kansas; John Long, Assistant Professor of Geography and Eis-
t o ry a t Wabash College, Crsxf o rdsv i l l e , Indizna , compared t h e IEami
t r a c t t o t h e Peoria cession of 1854, basing h i s comparison upon com-
ments found i n t he notes of t he o r ig ina l surveys conducted i n 1856-
1857, and a recen t personal i n s p e c t i o n of the t r a c t s . He s t a t ed t he
survey notes c l a s s i f i ed the s o i l as first, second and t h i r d r a t e ; he
considered f i r s t r a t e included bottom, t e r race and upland having up t o
ttio per cent slope, u i t h a l l u v i s l and dsrk res idua l p r a i r i e s o i l , t h a t
second r a t e included what i s c lass i f i ed todzy a s Classes 11, 111, and IV,
2nd t h i r d r a t e included present day s o i l c lass i f i ca t ions of C l s s s V, V I ,
and VII. H e found 13.35 of t he E a m i t r a c t was Class I and 65.7s was
a s s 11, which xould lezve 21% as Class 111; t h a t t he Peoria t r a c t was
7.45 Class I and 75-65 Class 11,
M r . Long d i d not consider Class I11 land good f o r cul t ivat ion. He
discounted a 1949 S o i l Consemation Service publication reference t o
Linn Caunty s o i l a s a c id and phosphorus, with a l a rge percentage under-
l a id by a t i g h t c l a y p n which hinders penetrat ion of water and p lan t
r o o t s , saying t he r e has been a decline of s o i l s ince 1854, t h a t the
ac id i s s l i g h t and not bad fo r the small grain produced there . He re-
f e r r e d t o one John H. Gibsonss statenent tha t the s o i l s zre capable of
producing hemp, maize, wheat and a l l s m a l l grains, vegetables or f r u i t s
corimon t o t e ~ p e r a t e regions.
3 2 . P e t i t i o n e r s r e l y upon the q q r a i s d s a d sa les in 1856 and 1857
of Peoria, Delaware and Iowa t n s t lands t o e s t a b l i s h an 1834 value f o r
t h e >fiami cession. These three t r a c t s of Kansas 1u.d which k-ere ceded
in trust during 1814, were directed, appraised and sold in such manner
as the President deemed proper but f o r not l e s s t hzn $1.25 per ac re o r
less than t he appraised value. (100 S t a t . 700) The a2praisers who Kere
a?pointed on A p r i l 1 6 , 1e56, were di rected t o fix no value f o r any land
they considered worth l e s s than $1.25 per acre. They were t o take i n t o
consideration the e l i g i b i l i t y and qua l i ty of the l and , the proximity of
water courses, roads, timber and.other advantages, including improve-
~ n t s upon adjacent l a r d s o t t e r than t r u s t land k-ithin Kansas, but t o
give no consideration t o any improvements upon t h e land being a ~ p r a i s e d ,
Values were s e t upon each acre in the th ree t r a c t s . (pet . Ex. 52, Dkt . 251)
(a ) The Eelatrare trust land was located in Jefferson and Lea-
venworth count ies , approximately 50 rciles north of the Y i a n i reservation.
It contained over 500,OOG acres, bounded on the e a s t by the Hissouri r i v -
er. The Kansas r i v e r bordered it f o r some 15 miles d o n g the southwest.
(Pet. Ex. 243, Dkt. 251) Appraiser James Relfe expressed an opinion t h a t
t h e average p r i ce of $2.00 per acre received f o r land within a ce r t a in
range when s o l d during November and Cecember, 1856, would have been much
higher if pre-emptors had not been permitted t o acquire the. choice t r a c t s
2t a?praised values. Guarter sections witkin 15; t o 20 miles of Leaven-
~ o r t h acquired by pre-em?tors, were shor t ly resold at p ro f i t s of from
$1.25 t o $3.12 per acre. (Pet. Ex. 71, D k t . 251)
(b) The Iova t r u s t land of approximztely 78,000 acres w a s
divided by t h e Kansas-Xebraska s t a t e l i n e , more than 100 miles north - - -- -...
of t he PYani t r a c t . It a l so l a i d along the E issour i r i v e r . A t t he
sales held during June, 1857, a l l but a few t r a c t s were so ld in l e s s
than two weeks f o r ul average of $2.35 per acre. Eef ore the close of
the s a l e , 290 of the &7 t r a c t s had been traxxferred by t h e purchasers.
(Pet. Exs. 243, 93, Dkt. 251)
(c) The Peoria t r u s t l a d s $;ere a ~ p r a i s e d a t from $1.25 t o
$2.00 per acre and l a t e r increased an even 255 per ac re t o an average
of $1.66 per acre f o r the 208,585.69 acres. (pet . Exs. 73, 80, 82,
198, Dkt. 251) A l l bu t 700 acres were sold between June 23th and July
l b t h , 1857, f o r an average of $1.67 per acre. (Pet . bs. 99, 120, Dkt.
251) Specia l Cornmissioner Stevens who conducted the s a l e , reported t h a t
near ly every piece was claimed by a s e t t l e r , bu t those t r a c t s not so tak-
en general ly brought $3.00 per acre. (Pet. Ex. 44, Dkt . 251)
33. Only the Peor ia t r u s t land has been compzred wi th the Miami
t r a c t . The s o i l i n t he two t r a c t s i s lotrer Pennsylvanian, lower Pernian
o r upper 15ississippian. Parent materials f o r res idua l s o i l s are shales ,
limestones and sandstones. The Kansas S ta te Board of Agriculture in
"Soil Conservation i n Kansasn i n 1946 reported both t r a c t s l a i d i n t he
East P r a i r i e s a ~ d Interspersed k'oodland Region; t h a t the Peoria t r u s t
lands and t h e nor thern t h i r d of the .Xi& lands a re with& t h e sub-die-
s ion "East Central P r a i r i e s S e c t i ~ n , ~ ~ which i s characterized by gently
sloping t o moderately r o l l i n g uplands, with rock outcro2ping.s on occas-
s i ona l lo-* h i l l s , on t h e breaks and steep slo?es along drainage tssys.
Lverage e leva t ion i s 1,200 t o 1,250 fee t , average r a i n f a l l i s 35 t o 39
inches, average groxing season i s 150 t o 190 days and average tem?era-
' ->re i s 55' t o 57O.
The southern txo-thirds of the M i a m i t r a c t l i e s i n the Southeast-
ern P ra i r i e s Section, and i s aproximately 100 f e e t lower in elevation
and has a more l eve l topcgraphy. It zverages a precipi ta t ion of 37 t o
45 inches, a growing season of 190 t o 195 days and an average tempera-
ture of 56' t o 571'. Swmers are long, hot and dry. Winters are moder-
a te . There are wide extremes i n r a in fa l l , vaying from drought t o flood.
The P'hrais des Cygnes (Osage) r iver drains both t r ac t s . Drainage
i s generally southerly and southeasterly. Frequent floods along the
Osage r i v e r pro2er affect a relat ively small but very f e r t i l e area.
Walnut, hickory, sugar maple, eL3 and other hardwoods grow on the
u?lands, with syca~ax-e and willox along the streams. According t o the
1856-7 survey notes, the Hiaai t r ac t had 155 timber coverage outside of
reserved lands, and the Peoria t r ac t had but 9$ coverage. ( ~ r a n s .
p. 131, John Long) I ron ore and coal were noted f o r each t r a c t , with
an abundance of limestone, especially i n the southeast quarter of the
M i a n i t r a c t , Tar springs Xere mentioned, suggesting the presence of
petroleum but a t t r ac t ed no attention since there was no demand f o r it, .
While advantageous f o r construction of pioneer homes and fencing, it i s
not indicated t h a t limestone or tiniber i n 1854 possessed a present o r
p o t e n t i d commercial value apart from the Z=d, nor is there evidence
of mineral value wi th in e i ther t rac t .
None of the b e n e f i t s of civil ization such as schools, churches,
telephone or telegra2h services were ~ivailable $iithin e i ther t rac t .
Beginning with the Act of August 3, 1854, large sums of money %ere pro-
vided f o r laying out and construction of post roads i n Kansas, bu t in
June of t ha t year transportat ion i n the Peoria and E a m i reservat ions
was l h i t e d t o a d i r t t r a i l fron western Missouri t o t he YLami v i l l ages ,
ad t o t he Fort Leavenworth - Fort Scot t m i l i t a ry d i r t road which cross-
ed the extreme eas tern ends of both reservations. The Santa Fe trail
passed northxest of the Peoria t r a c t . Water t r v l spo r t a t i on was l imi ted
t o t he Osage r i v e r during high s t a t e s . The r a i l r oad tenninated a t Alton,
I l l i n o i s , north of S t . Louis. A ra i l road t rack between Hannibal and St.
Joseph, Missouri, was under construction bu t no immediate prospect of a
r a i l r o a d i n or near t h e Miami o r Peoria t r a c t s exis ted. For want of
t ranspor ta t ion , t he b e s t po ten t ia l use f o r e i t h e r t r a c t in 1854 was sub-
s i s tence puzpose farming.
34. Horace Greeley corr~ented the Kansas timber was f i t only f o r
f u e l and fencing (Pet. Ex. 147, Dkt. 251). t h a t limestone had b e t t e r po-
t e n t i a l i t i e s f o r construction. A Mr. Lovejoy, wr i t ing from Palmyra, Kan-
sas, on March 16, 1855, said t inber was p l e n t i f u l bu t high priced a t $30
per thousand; t h a t p ine brought t o Kansas City by way of the E s s o u r i
r i v e r so ld a t $60. a thousand; t h a t much construction was of stone or
concrete i n preference t o timber, with houses costing from $800 t o
$2,000, b u t some dwellings were b u i l t f o r a s l i t t l e as $150 o r $200;
t h a t house r e n t var ied from $12 t o $50 per month, and t ha t most t o m s
donated a l o t if a dwelling was t o be erected upon it. (Pet. Ex. 154,
D k t . 251)
Fre igh t v i a the Kissouri r ive r from S t . Louis t o Westport (Kansas
c i t y ) was from $1 .OO t o $1.50 per hundred weight. (pet . Ex. 131, Dkt. 25l)
35. During 1854 the Cammissioner of Indian Affairs approved the
s a l e by Deleware Indians of 2,571 acres of wel l timbered land within an
area where timber was scarce, t o the Christ ian Indians a t $2.50 per acre,
which he considered "a mere ~onj .nd . sum. " In Narch, 1857, the Christ ian
Indians disposed of the t r a c t fo r an sverage of almost $17.00 per acre.
The land was bisected by the chief commercial m u t e i n t o the i n t e r i o r of
Kansas and was within txo miles of Leavenworth which had long been the
most rapidly growing cornunity in Kansas, where a ready market exis ted
f o r farm produce. (Pet. ~ s . 52, 140, 103-106, Dl&. 251)
36. F m m 1785 t o 1870 the average cost t o the Government of sur-
ve-ving public land was .0325+ per acre, the average cost of s e l l i ng such
f and was .029$ per acre, o r a t o t a l pcr acre cost of .062#.
37. It was reported in 1857 tha t claims t o timbered land nezr Su-
-i,ar Xound i n the area of the & a d t r a c t drained by Sugar Creek were val-
ued a t $5 .OO t o $7.50 per acre. Squatters claims in the Osage r i v e r vS-
l e y were valued i n 1858 a t $1.25 to $ 3 . 2 pe r acre f o r p ra i r i e land and
$1.87 t o $6.25 f o r timbered land. (Pet. Ex. 138, 142, D k t . 251)
38. The Comission takes judicia l notice of i ts decision i n Doc-
ke ts 15-J and 71-A, 4 I.C.C. 410, wherein the fakr market value on June
5-17, 1946 of a 909,565.62 acre t r a c t knom a s the Osage reservation and
adjacent t o the M i a n i t r a c t on the west, was found to be 65d per acre.
A spec i a l study of 733,621.40 acres of tha t land disclosed it was sur-
-reyed F? 1956 and 5b$ =as ?re-er&ed when the f i r s t public s d e s were
held i n le59. Through 1860 an additional 168,291 .'?j acres or 22s sold.
Sales from 1851 (21,714.69 acres), honesteads a f te r 1862 (26,181.60 acres)
s t a t e school selections (74,528.74 acres) and rai l road selections
(53,230.85 acres) made u? the balance. Pract ical ly all cash sa l e s
were fo r $1.25 per acre, some were paid f o r k i th scr ip issued under
the Agricultural and Kechanical College Act of July 2, 1862, 1 2 Sta t .
503. The t r a c t was within the 20-mile l imi t of two railroads t o be
constructed nearby, and one t r sck passed through it. (12 Sta t . 772;
14 Sta t . 236; Royce 266, Kansas Xap 2)
(a) Land of the Sac and Fox, within forty-five miles north
and west of the YAami t r a c t , was appraised i n 1864 a t a weighted aver-
age of $1.29 per acre, and most of it sold under sealed bids f o r an
average $1.05 per acre in 1865-6. 68,292.29 acres sold in 1859 f o r an
average of 85C per acre. (Royce 419, 454, Kansas 2)
(b) 4,000 acres of the Chippewa-3unsee trust larid, within
25 miles of the FAmi t r a c t , uere a2praised i n 1865 at values ranging
from $1.25 per acre f o r th i rd class land t o $2.00 per acre f o r first
c lass land. 1,113.37 acres sold in 1866 a t an average of $2 . 01 per
acre and 2,687.94 acres sold i n 1871 a t an average of $4.44 per acre.
All these lands were within the ten mile l imi t of the Leavenworth, Law-
rence and Galveston Railrozd. (Eoyce 419, Kansas 2)
( c ) 30,137.56 acres of Ottawa trust. land, within 25 miles of
the Miami t r a c t were a p ~ r e s e d i n 1864 a t from $1.25 t o $5.00 f o r an
average of $2.00 per acre. Betxeen Yiy, 1864, and Hay, 1866, 22,377
acres sold a t an average of $2.40 per acre. This ent i re acreage was
k i th in the ten mile l i m i t of the Leavenworth, Lawrence and Galveston
3ailroad. (Royce 435, Kansas 2)
39. From the en t i r e record before u s , a s wel l a s those
f a c t s of which t h e Comnrission takes jud ic ia l not ice , a d taking
i n t o consideration a l l th elements and f a c t o r s found in the
Osage Case (3 I .C .C. 231) proper fo r c ~ ~ s i d e r a t i o n , we conclude
t h a t t h e land involved herein had a fa i r market value on June 5,
1854, of $1.25 per acre, or a t o t a l value of $317.597.93. It
is a l s o concluded t h a t $200,030 was not an unconscianable con-
s idera t ion under the f a c t s and circumstances surrow.ding its
purchase on t h a t da te , and t ha t pet i t ioners are not e n t i t l e d t o
?e l ie f under' Sect ion 2 (5) of the Indian Claims Comnission Act.
The p e t i t i o n s i n Dockets Nos. 251 and 124-A w i l l each be dis-
*ssed.
/s/ Edgar E. X i t t
Chief Co.missioner
/s/ Louis J. O1blarr
Associate Commissioner
/s/ Wm. M. 'Bolt
Associate Commissioner
