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&lton 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