New York Indians v. United States

by Henry Billings Brown

United States Supreme Court

170 U.S. 1

New York Indians  v.  United States

These claims were referred, under the act of March 3, 1883, known as the 'Bowman Act,' to the court of claims. That court reported its findings to the senate January 16, 1892; and thereupon, on January 28, 1893, congress passed an act to authorize the court of claims to hear and determine these claims, and to enter up judgment as if it had original jurisdiction of the case, without regard to the statute of limitations. There was a further provision that from any judgment rendered by that court either party might appeal to the supreme court of the United States.

The petition, which was filed on Fb ruary 10, 1893, set forth, as the substance of the treaty, that the claimants ceded and relinquished to the United States all their right, title, and interest in and to certain lands of the claimants at Green Bay, state of Wisconsin, and in consideration of such cession and relinquishment the United States, in and by the said treaty, agreed and guarantied as follows:

First. To set aside as a permanent home for all of the claimants a certain tract of country west of the Mississippi river, described by metes and bounds, and to include 1,824,000 acres of land, the same to be divided among the different tribes, nations, or bands of the claimants in severalty, according to the number of individuals in each tribe, as set forth in a certain schedule annexed to the said treaty, and designated as 'Schedule A,' upon condition that such of the claimants as should not accept, and agree to remove to the country set apart for them within five years, or such other time as the president might from time to time appoint, should forfeit to the United States all interest to the lands so set apart.

Secondly. The United States agreed to protect and defend the claimants in the peaceable possession and enjoyment of their new homes, and to secure their right to establish their own government, subject to the legislation of congress respecting trade and intercourse with the Indians.

Thirdly. The United States agreed that the lands secured to the claimants by the treaty should never be included in any state or territory of the Union.

Fourthly. The United States agreed to pay to the several tribes or nations of the claimants, hereinafter mentioned, on their removal West, the following sums, respectively, namely: To the St. Regis tribe, $5.000; to the Seneca nation, the income annually of $100,000, being part of the money due said nation for lands sold by them in New York, and Which sum they authorized to be paid to the United States; to the Cayugas, $2,500 in cash, and the annual income of $2,500; to the Onondagas, $2,000 in cash, and the annual income of $2,500; to the Oneidas, $6,000 in cash; and to the Tuscaroras, $3,000.

Fifthly. The United States agreed to appropriate the sum of $400,000, to be applied from time to time by the president of the United States for the following purposes, namely: To aid the claimants in removing to their new homes, and supporting themselves the first year after their removal; to encourage and assist them in being taught to cultivate their lands; to aid them in erecting mills and other necessary houses; to aid them in purchasing domestic animals and farming utensils, and in acquiring a knowledge of the mechanic arts.

By a supplemental article the St. Regis Indians were allowed to remove to the said country if they so desired, but were exempted from obligation so to do.

The treaty of Buffalo Creek, having been duly assented to by all the parties thereto, was afterwards, on, to wit, the 4th day of April, A. D. 1840, duly proclaimed; and, certain disputes thereunder having arisen, it was afterwards modified in some particulars not having reference to the matter of this claim, and as so modified was again proclaimed, on, to wit, the 26th day of August, 1842.

The petition further alleged: That at the time of the making of the treaty of Buffalo Creek aforesaid, and for many years prior thereto, the claimants owned and occupied valuable tracts of land in the state of New York, and had improved and cultivated the same and resided thereon, and from the products thereof chiefly sustained themselves.

That the president of the United States never prescribed any time for the removal of the claimants, or any of them, to the lands, or any of them, set apart by the treaty of Buffalo Creek, and no provision of any kind was ever made for the actual removal of more than about 260 individuals of the claimant tribes, as contemplated by the said treaty; and of this number only 32 ever received patents or certificates of allotment of any of the a nds mentioned in the first article of the said treaty, and the land allotted to those 32 was at the rate of 320 acres each, or 10,240 acres in all.

That after the conclusion of the said treaty of Buffalo Creek the United States surveyed, and made part of the public domain, the lands at Green Bay, ceded by the claimants, and sold or otherwise disposed of and conveyed the same, and received the consideration therefor.

That the lands west of the Mississippi river, secured to the claimants by the said treaty of Buffalo Creek, were set apart by the United States, and designated upon the land maps thereof, as the 'New York Indian Reservation,' and so remained until in or about the year A. D. 1860, at which time the United States surveyed, and made part of the public domain, the lands aforesaid, and the same were sold or otherwise disposed of by the United States, which received the entire consideration therefor; and the said lands thereafter were, and now are, included within the territorial limits of the state of Kansas. The said lands at the time the same were so appropriated by the United States were of great value, to wit, of the value of $1.25 per acre and upwards.

That the action of the United States in appropriating the said lands as aforesaid was in pursuance of the proclamation of the president, of date December 3 and 17, 1860, and grew out of an order of the secretary of the interior of the 21st day of March, A. D. 1859; and between the said last-mentioned date and the proclamation of the said lands aforesaid the claimants employed counsel to protect and prosecute their claims in the premises, and asserted that the United States had seized upon the said lands contrary to the obligations of the said treaty, and would not permit the said claimants to occupy the same or make any disposition thereof, and the claimants have steadily since asserted said claim in the premises.

That of the sum of $400,000, agreed by the treaty of Buffalo Creek to be appropriated by the United States for the purposes aforesaid, only the sum of $20,477.50 was ever so appropriated, except as hereinafter stated, and of this sum only $9,464.08 was actually expended.

The petition further alleged that the Tonawanda band had been paid $256,000 for their interest in the land, that settlement had also been had with the Senecas, and that a special act had been passed, authorizing the court of claims to find the facts and enter up judgment, without interest, and that the statute of limitations should not be pleaded as a bar to any recovery.

The petition concluded with a demand for a judgment for the value of the lands, and for the amounts that were to be paid in cash.

The court of claims (30 Ct. Cl. 413) found the facts stated in the margin, ^[1] together with others which are not deemed material to the consideration of the case, and also found, as a conclusion of law from these facts, that the petition should be dismissed, whereupon the claimants appealed to this court.

Joseph H. Choate and Henry E. Davis, for appellants.

Charles C. Binney, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

Notes

1. In 1780 the Six Nations of New York Indians consisted of the following nations or tribes: Senecas, Cayugas, Onondagas, Oneidas, Tuscaroras, and Mohawks. The Mohawks soon after withdrew to Canada, relinquishing to New York all claim to lands in that state.

The court decide that the Indians described in the jurisdictional act sending this case to this court as 'the New York Indians, being those Indians who were parties to the treaty of Buffalo Creek, New York, on the 15th of January, 1838,' were the following: Senecas, Onondagas, Onondagas residing on the Seneca resdages, Onondagas at Onondaga, Cayugas, Cayugas residing on the Seneca reservation, Cayuga Indians residing in the state of New York, Tuscaroras, Tuscaroras residing in the state of New York, Oneidas residing in New York, at Green Bay (Wisconsin), and in the

Seneca reservation, Oneidas, St. Regis, St. Regis in New York, the American party of the St. Regis residing in the state of New York, Stockbridges, Munsees, Brothertowns.

(2) Some of the New York Indians between 1810 and 1816 petitioned the president of the United States for leave to purchase reservations of their Western brethren, with the privilege of removing to and occupying the same without changing their existing relations and treaties with the government, or their right to the annuities promised in those treaties. February 12, 1816, the secretary of war, by authority of the president, gave his permission. In 1820 and 1821 defendants aided some ten Indians, representing plaintiffs, in exploring certain parts of Wisconsin, with a view to making arrangements with the Indians residing there for a portion of their country, to be inhabited by such of the Six Nations as might choose to emigrate thither. Among the petitioners for leave to purchase reservations were the Onondagas, Senecas, Cayugas, and Oneida nations of New York Indians.

August 18, 1821, the Menominees and Winnebago nations, in consideration of $2,000, chiefly in goods, ceded, released, and quitclaimed all their right, title, and claim in certain lands near Green Bay, Wisconsin, amounting to about 500,000 acres, to the Six Nations, and the St. Regis, Stockbridge, and Munsee tribes; reserving the right of fishing, and the right to occupy 'a necessary proportion of the lands for the purposes of hunting, provided that in such use and occupation no waste or depredation should be committed on lands under improvement.'

The president's approval of the arrangement found in the treaty of August 18, 1821, was signified February 19, 1822, as follows:

'The within arrangement, entered into between the Six Nations, the St. Regis, Stockbridge, and Munsee nations, of the one part, and the Menominees and Winnebagoes, of the other, is approved, with the express understanding that the lands thereby conveyed to the Six Nations, the St. Regis, Stockbridge, and Munsee nations, are to be held by them in the same manner as they were previously held by the Menominees and Winnebagoes. James Monroe.

'February 19, 1822.'

The $2,000 above mentioned was thus paid: In goods, $900 from the Stockbridges, $400 from the Oneidas, $200 from the Tuscaroras; in cash, $500. The Senecas subsequently dene d that they had any title to any lands in Wisconsin. It does not appear that the Cayugas or Onondagas claimed any interest in the lands prior to 1860.

(3) Permission to secure an extension of the cession in the preceding

finding recited was given by the secretary of war, and thereafter, on September 23, 1822, the Menominees, in consideration of $3,000 in goods, made a similar cession of another tract containing at least 5,000,000 acres, rather undefined (adjoining the above), to the Stockbridge, Oneida, Tuscarora, St. Regis, and Munsee nations; the releasees promising, however, that the releasors should 'have the free permission and privilege of occupying and residing upon the lands' in common with the former.

The president's approval was given March 13, 1823, as follows:

'The foregoing instrument is approved, so far as it conveys to the Stockbridge, Oneida, Tuscarora, St. Regis, and Munsee tribes or nations of Indians that portion of the country therein described which lies between Sturgeon Bay, Green Bay, Fox river; that part of the former purchase made by said tribes or nations of Indians of the Menominee and Winnebago Indians on the 8th of August, 1821, which lies south of Fox river and a line drawn from the southwestern extremity of said purchase to the head of Sturgeon Bay, and no further,-that quantity being deemed sufficient for the use of the first before-mentioned tribes and nations of Indians. It is to be understood, however, that the lands, to the cession of which to the tribes or nations aforesaid the government has assented, are to be held by them in the same manner as they were held by the Menominees previous to concluding and signing the aforegoing instrument, and that the title which they have acquired is not to interfere in any manner whatever with the lands previously acquired or occupied by the government of the United States, or its citizens.'

October 27, 1823, the secretary of war officially notified the releasees that the president distinctly wished them to understand that by this partial sanction he did not mean to interfere with, nor in any manner invalidate, their title to all the lands which they had thereby acquired, including those not confirmed by the government, but, on the contrary, he considered their title to every part of the country conveyed to them by the releasors as equally valid as against them, and that what they had done was with the full assent of the government.

Of the consideration above mentioned $1,000 were paid by the Stockbridges and Munsees, while $1,000 were to be paid by the Oneidas, Tuscaroras, and St. Regises, in one year from September 23, 1822, and $1,000 in two years from that date. Of the two latter amounts $1,000 appears to have been paid by the United States out of the funds of the St. Regises about 1825, while $950 were paid by the Brothertown tribe September 18, 1824, in consideration of which, the releasees, by an agreement with the Brothertowns, under date of January 8, 1825, ceded to them a small separate tract, by metes and bounds, and, after reserving to themselves, for each tribe of the releasees,

a similar tract from out the country purchased from the releasors, granted to the Brothertowns an equal, undivided part of all the remaining portion of said purchase. It does not appear whether the Oneidas and Truscaroras paid any part of the above consideration.

(4) The grants set forth in findings 2 and 3 include the lands subsequently ceded by the Menominees to the United States by the treaties of August 11, 1827, and February 8, 1831.

(5) Thereafter some New York Indians, belonging to the Oneida, St. Regis, Stockbridge, Munsee, and Brothertown tribes, removed to, and took possession of, the lands in Wisconsin.

Later, and after 1832, another small portion of the New York Indians removed to the Wisconsin or Green Bay lands.

March 14, 1840, the Senecas denied ownership of Wisconsin lands, stating that they determined to have no other home than that of their fathers, where they then resided; and, in May and September follw ing, in petitions to the president, the senate, and the house of representatives, their council denied that they were parties to the treaty.

(6) It does not appear that application was made by the tribes or bands, or any of them, to the government, for removal to the Kansas lands provided for in the Buffalo Creek treaty, except as hereafter appears in these findings.

It does not appear that any substantial number of Indians wished to go to Kansas, other than those who made up the Hogeboom party, infra.

(7) In the year 1838, at the time of the negotiation of the treaty of Buffalo Creek, the Senecas, the Onondagas, the Oneidas, the Cayugas, the Tuscaroras, and the St. Regises each possessed a reservation of land in the state of New York, on which members of the tribes resided, and the right of occupancy of which was secured to them by treaty stipulations. The Cayuga Indians had no separate reservation of their own in the state of New York, but made their home with, and resided upon the reservation and lands possessed by, the Seneca nation. This they did with the consent of the Senecas, and a portion of the Onondagas did the same.

(The eighth finding is immaterial.)

(9) For many years prior to the treaty of Buffalo Creek (of 1838), these nations or tribes of Indians had improved and cultivated their lands, on which they resided, and from the products of which they chiefly sustained themselves.

The treaty of Buffalo Creek, as printed in the seventh volume of the Statutes at Large, contains a misprint on the third line of page 556. The word 'Oneidas' is in the original treaty 'Onondagas'; the whole line reading, 'Onondagas residing on the Seneca reservation.'

(10) Extract from Executive Journal of June 11, 1838:

'The senate esumed as in cmmittee of the

'The senate resumed, as in committee of the New York Indians, and the article supplemental thereto.

'On motion of Mr. Wright, and by unanimous consent, the question was taken on agreeing to the amendments reported from the committee Indian affairs, and determined in the affirmative,-yeas 33.

• * *

'No further amendments having been made, the treaty was reported to the senate, and the amendments were unanimously concurred in.

'Mr. White then submitted the following resolution of ratification, embracing the amendments as reported from the committee, and adopted by the senate:

"Resolved (two-thirds of the senators present concurring), that the senate advise and consent to the ratification of the treaty made and concluded at Buffalo Creek, in the state of New York, the 15th day ofJanuary, in the year of our Lord 1838, by Ransom H. Gillett, a commissioner on the part of the United States, and the chiefs, headmen, and warriors of the several tribes of the New York Indians, assembled in council, with the following amendments."

(Here follows a series of amendments striking out original articles 3, 4, 5, 6, 9, and 19, striking out particular words and clauses from other articles, inserting new article 15, and concluding as follows:)

"Resolved, further (two-thirds of the senators present concurring), that the senate advise and consent to the ratification of the supplemental article to the treaty concluded at Buffalo Creek, in the state of New York, January 15, 1838, which was made at the council house of St. Regis on the 13th day of February, 1838: provided, the chiefs and headmen of the St. Regis Indians, residing in New York, will in general council accept of and adopt the aforesaid treaty, as modified by the preceding resolution of ratification:

"Provided always, and be it further resolved (two-thirds of the senate present concurring), that the treaty shall have no force or effect whatever, as it relates to any of said tribes, nations, or bands of New York Indians, nor shall it be understood that the senate have assented to any of the contracts connected with it, until the same, with the amendments herein proposed, is submitted and fully and fairly explained by a commissioner of the United States to eah of said tribes or bands, separately assembled in council, and they have given their free and voluntary assent thereto; and if one or more of said tribes or bands, when consulted as aforesaid, shall freely assent to said treaty as amended, and to their contract connected therewith, it shall be binding and obligatory upon those so assenting, although other or others

of said bands or tribes may not give their assent, and thereby cease to be parties thereto: provided, further, that, if any portion or part of said Indians do not emigrate, the president shall retain a proper proportion of said sum of four hundred thousand dollars, and shall also deduct from the quantity of land allowed west of the Mississippi such number of acres as will leave to each emigrant three hundred and twenty acres only.'

'The senate proceeded, by unanimous consent, to the consideration of said resolutions.

'On the question to agree thereto. 'It was determined in the affirmative - Yeas . . . 33, Nays . . . 2

• * *

'Ordered, that the secretary lay this resolution before the president of the United States.

• * *

Proclamation of the Treaty of Buffalo Creek.

'Martin Van Buren, President of the United States of America, to All and Singular to Whom These Presents shall Come, Greeting: Whereas, a treaty was made and concluded at Buffalo, in the state of New York, on the fifteenth day of January, one thousand eight hundred and thirty-eight, by Ransom H. Gillet, a commissioner on the part of the United States, and the chiefs, headmen, and warriors of the several tribes of the New York Indians, assembled in council;

'And whereas, the senate did, by a resolution of the eleventh of June, one thousand eight hundred and thirty-eight, advise and consent to the ratification of said treaty, with certain amendments, which treaty, so amended, is word for word as follows, to wit. * * *

'And whereas, the senate did on the 25th of March, one thousand eight hundred and forty, resolve 'that in the opinion of the senate the treaty between the United States and the Six Nations of New York Indians, together with the amendments proposed by the senate of the 11th of June, 1838, have been satisfactorily acceded to and approved of by said tribes, the Seneca tribe included, and that in the opinion of the senate the president is authorized to proclaim the treaty as in full force and operation':

'Now, therefore, be it known that I, Martin Van Buren, president of the United States of America, do, in pursuance of the resolutions of the senate of the eleventh of June, one thousand eight hundred and thirty-eight, and twenty-fifth day of March, one thousand eight hundred and forth, accept, ratify, and confirm said treaty, and every article and clause thereof.

'In testimony whereof, I have caused the seal of the United States to be hereunto affixed, having signed the same with my hand.

'Done at this city of Washington this fourth day of April, one thousand eight hundred and forty, and of the Independence of the United States the sixty-third.

M. Van Buren.

'By the President:

'[Seal.]

John Forsyth,

'Secretary of State.'

(11) The president of the United States never prescribed any time for the removal of the claimants, or any of them, to the lands, or any of them, set apart by the treaty of Buffalo Creek, further than is shown in these findings.

Many of the Indians have protested against any removal. The Onondagas have officially declared that they would not remove, and treaties subsequent to that of 1838 appear in the statutes in relation to this subject-matter. The Tuscaroras still occupy their reservation in New York.

After the amended treaty had been assented to, the Senecas, the Cayugas and the Onondagas residing with them, and the Tuscaroras, continued to protest against the treaty; the Senecas asserting that their declaration of assent was invalid, and that they would never emigrate but on compulsion, and requesting, as did also some Onondaga chiefs, that no appropriation be made to carry the treaty into effect. These protests were continued even after the treaty was ratified, and until the treaty of May 20, 1842, was made. More than five years from the ratification of the treaty of Buffalo Creek, the Tuscarora chiefs declared that the tribe would not part with its reservation, nor remove from it, whatever a few individuals might do. The Indian protests against the treaty were based upon the following allegations: (a) That the treaty had been brought about by corrupt means operating upon Indians of influence in their tribes, and put in motion by an agent of the pre-emption owners; (b) that a considerable majority of the Indians wished to remain in New York.

After the treaty of May 20, 1842, was ratified, the lands and improvements on the Buffalo Creek reservation in New York were appraised, and the Indians thereon gradually withdrew to the Cattaraugus and Alleghany reservations in New York.

(12) Prior to November 24, 1845, some of the New York Indians had applied to the Indian office for the proper steps to be taken for their emigration. It was not deemed expedient to enter into any arrangements for this purpose until the department believed that a sufficient number to justify the expenditure incident to the appointment of an agent was prepared to remove.

No provision was made for the actual removal of more than about 260 individuals of the claimant tribes, as contemplated by the treaty of Buffalo

Creek, and as shown below. Of this number, only 32 ever received patents or certificates of allotment of the lands mentioned in the first article of the treaty, and the amount allotted to those 32 was at the rate of 320 acres each, or 10,240 acres in all.

In 1845 Abram Hogeboom represented to the government of the United States that a number of the New York Indians, parties to the treaty of 1838, desired to remove to the Kansas lands; and upon such representation, and in conformity with such desire, said Hogeboom was appointed special agent of the government to remove the said Indians to Kansas.

The sum of $9,464.08 of an amount appropriated by congress was expended in the removal of a party of New York Indians under Hogeboom's direction in 1846.

From Hogeboom's muster roll, in the Indian office, it appears that 271 were mustered for emigration. The roll shows that of this number 73 did not leave New York with the party; 191 only arrived in Kansas, June 15, 1846; 17 other Indians arrived subsequently; 82 died; and 94 returned to New York.

It does not appear that any of the thirty-two Indians to whom allotments were made settled permanently in Kansas.

(13) A council of the Senecas, the Cayugas and Onondagas living with them, and the Tuscaroras was called by the Indian commissioner, to be held at Cattaraugus, June 2, 1846, to learn the final wishes of the Indians as to emigration. The commissioner who was sent on the part of the United States reported that the meeting was well attended, but that the chiefs were unanimous in the opinion that scarcely any Indians who wished to emigrate remained. The commissioner also reported that he held an enrollment for two full days, but that only seven persons requested to be enrolled for emigration, and these vouched for five more as wishing to go.

(14) The United States, after the conclusion of the treaty of Buffalo Creek, surveyed and made part of the public domain the lands at Green Bay ceded by the claimants, and sold or otherwise disposed of and conveyed the same, and received the consideration therefor, except as in these findings shown to the contrary. The reservation to 'the first Christian and Orchard parties of Oneida Indians,' which was set aside for them by defendants at Green Bay, Wisconsin, contained 65,540 acres, all of which has been allotted in severalty, and reserved for school purposes, except 84.08 acres.

The Stockbridge Indians acquired a reservation in Wisconsin of 11,803 acres, some of which has been allotted in severalty. 9 Stat. 955; 11 Stat. 663, 679; 16 Stat. 404. The United States never acquired any lands in the state of New York from the Indians of that state. The lands ceded in that state by the Indians thereof were ceded for consideration to the

state, or to the Ogden Land Company, so called. There may have been some small cessions to individuals, but there were none to the United States.

(15) Upon the ratification of the Oneida treaty of February 3, 1838, the present Oneida reservation in Wisconsin was surveyed, containing about 65,000 acres. After the ratification of the treaty of Buffalo Creek, the United States surveyed, made part of the public domain, and sold or otherwise disposed of the tract at Green Bay, the Indian title to which had been ceded by that treaty, except the said Oneida reservation. This was treated as if it had been the reservation excepted from the cessicn in article 1 of that treaty, which latter reservation was never surveyed, and the bounds of which, as given in the said article, are not the same as those of the former reservation, although the two reservations cover, for the most part, the same ground, and are of about the same area.

The lands west of the Mississippi secured to the claimants by the treaty of Buffalo Creek have been since that treaty surveyed, and made a part of the public domain, and sold or otherwise disposed of by the United States, which received the consideration therefor; and the said lands were thereafter, and now are, included within the territorial limits of the state of Kansas. The price realized by the United States for such of said lands as were sold was at the rate of $1.34 per acre, while the cost of surveying, etc., the same was at the rate of about 12 cents per acre, making the net price realized by the United States about $1.22 per acre.

(16) By treaty with the Tonawanda band of the Senecas, numbering 650 individuals, the United States, November 5, 1857, in consideration of certain releases of claims under the treaties of 1838 and 1842, agreed to pay and invest, and did pay and invest, for said band, the sum of $256,000.

The sum of $256,000 was equivalent to $1 per acre for the lands in Kansas to which the Tonawandas would have been entitled had they all emigrated under the treaty of Buffalo Creek, and also to a part of the sum of $400,000 proportioned to their numbers as compared with the whole number of New York Indians, according to the schedule in the treaty. A portion of the fund, all of which was paid and invested as agreed, was applied to the purchase in fee of 7,549.73 acres of the Tonawanda reservation in New York for the tribe's benefit, and the Tonawandas still reside thereon.

(17) After March 21, 1859, an order of the secretary of the interior was made, which directed that the tract of land in Kansas territory known as the 'New York Indian Reserve' be surveyed, with a view of allotting a half section each to such of the New York Indians as had removed there under treaty provisions, after which the residue was to become public domain. Thirty-two New York Indians were found to be resident on the land, and

allotments were made to them. After this, and before the proclamation of the president of said lands as part of the public domain (December 3 and 17, 1860), some of the New York Indians employed counsel to protect and prosecute their claims in the premises; asserting, in the powers of attorney, that the United States had seized upon the said lands, contrary to the obligations of said treaty, and would not permit the said Indians to occupy the same, or make any disposition thereof. The said Indians have since asserted their said claims.

(The remaining findings are deemed to be immaterial.)