Choctaw Nation v. United States
119 U.S. 1 (1886)

Annotate this Case

U.S. Supreme Court

Choctaw Nation v. United States, 119 U.S. 1 (1886)

Choctaw Nation v. United States

Argued October 19-21, 1886

Decided November 15, 1886

119 U.S. 1

Syllabus

The relations between the United States and the Indian tribes being those of a superior toward an inferior who is under its care and control, its acts touching them and its promises to them, in the execution of its own policy and in the furtherance of its own interests, are to be interpreted as justice and reason demand in cases where power is exerted by the strong over those to whom they owe care and protection. United States v. Kagama,118 U. S. 370, cited and applied.

The Act of March 3, 1831, 21 Stat. 504, authorizing the Court of Claims

"To take jurisdiction of and try all questions of difference arising out of treaty Stipulations with the Choctaw Nation, and to render judgment thereon,"

and granting it power to review the entire question of differences de novo, and providing that "it shall not be estopped by any action had or award made by the Senate of the United States in pursuance of the Treaty of 1855," denied to that award conclusive effect as res judicata, but did not set it aside or deny to it effect as prima facie evidence of the validity of the claims adjudged by it. The act operated to reopen that award and the questions decided by it so far as to cast upon the United States, in the trial in the Court of Claims, the burden of disproving the justice and fairness of the award.

By the terms of the submission in the Treaty of June 22, 1855, 11 Stat. 611,

Page 119 U. S. 2

under which the Senate acted as arbitrator of the differences between the United States and the Choctaws, it was clearly submitted to that body to determine whether, under all the circumstances and as a matter of justice and fair dealing, the Choctaws ought to receive the proceeds of the sale of the lands ceded by them to the United States by the Treaty of September 27, 1830, 7 Stat. 333, whether as deducible from the terms of the treaty or as a just compensation to be awarded to them for its breaches. The delegation by the Senate to the Secretary of the Interior to ascertain and report the detailed sums due the Choctaws upon the principles settled by the award was within the powers conferred upon that body by the terms of the submission. No notice to the United States was necessary of the intention of the Senate to proceed as arbitrator under the submission. And the whole proceedings were ratified and confirmed by the United States by the Acts of March 2, 1861, 12 Stat. 238, and of June 23, 1874, 18 Stat. 230.

The award of the Senate upon the differences between the Choctaws and the United States submitted to it under the provisions of the Treaty of June 22, 1855, furnishes the nearest approximation to the justice and right of the case that, after the lapse of time, it is practicable for a judicial tribunal to reach, and, not being affected by any of the facts found by the Court of Claims, is taken by this Court as the basis of its judgment on the subjects in dispute in this case, which arose prior to the treaty of 1855 and were passed upon in the award. In addition to the amount of that award, the Choctaw Nation is entitled to further sums (1) for unpaid annuities, and (2) for land taken from them in locating the boundary of Arkansas under the Act of March 3, 1875, 18 Stat. 476.

The following is the case as stated by the Court:

There are two appeals in this case, one by the Choctaw Nation and the other by the United States, from a judgment rendered by the Court of Claims in favor of the former for the sum of $408,120.32. Jurisdiction of the cause was conferred upon that court by the provisions of an Act of Congress approved March 3, 1881, 21 Stat. 504, entitled "An act for the ascertainment of the amount due the Choctaw Nation," as follows:

"That the Court of Claims is hereby authorized to take jurisdiction of and try all questions of difference arising out of treaty stipulations with the Choctaw Nation, and to render judgment thereon. Power is hereby granted the said court to review the entire question of differences de novo, and it shall not be estopped by any action had or award made by the

Page 119 U. S. 3

Senate of the United States in pursuance of the treaty of 1855, and the Attorney General is hereby directed to appear in behalf of the government, and if said court shall decide against the United States, the Attorney General shall, within thirty days from the rendition of judgment, appeal the cause to the Supreme Court of the United States, and from any judgment that may be rendered the said Choctaw Nation may also appeal to said Supreme Court, provided the appeal of said Choctaw Nation shall be taken within sixty days after the rendition of said judgment, and the said courts shall give such cause precedence."

"SEC. 2. Said action shall be commenced by a petition stating the facts on which said nation claims to recover, and the amount of its claim, and said petition may be verified by either of the authorized delegates of said nation as to the existence of such facts, and no other statements need be contained in said petition or verification."

In pursuance of this act, the Choctaw Nation filed its original petition on the 13th of June, 1881, which was subsequently amended by new pleadings filed February 26, 1884. The questions of difference between the United States and the petitioner, it was alleged, resulted from the nonperformance and nonfulfillment by the United States of the obligations assumed by it under various treaties between the United States and the Choctaw Nation, including those of the following dates, to-wit, the 18th day of October, 1820; the 20th day of January, 1825; the 27th day of September, 1830; the 22d day of June, 1855, and the 28th day of April, 1866.

By the terms of the treaty of October 18, 1820, 7 Stat. 210, it was provided, among other things, that the Choctaw Nation did cede to the United States all that part of its lands situated in the State of Mississippi described in the first article of the treaty, in consideration whereof the United States stipulated that in part satisfaction for the said cession, the United States ceded to the Choctaw Nation a tract of country west of the Mississippi River situated between the Arkansas and Red Rivers, the boundaries of which were therein described, and also that the boundaries thereby established between the

Page 119 U. S. 4

Choctaw Indians and the United States east of the Mississippi River should remain without alteration until the period at which the nation should become so civilized and enlightened as to be made citizens of the United States. It was agreed that Congress should lay off a limited parcel of land for the benefit of each family or individual in the nation; that all those who had separate settlements falling within the limits of the land ceded by the Choctaw Nation to the United States, and who desired to remain there, should be secured in a tract or parcel of land one mile square, to include their improvements, and that those preferring to remove within one year from the date of the treaty should be paid their full value, including the value of any improvements.

It is alleged in the petition that by the Treaties of January 20, 1825, of September 27, 1830, and of June 22, 1855, the boundary line between the lands of the United States and the Choctaws west of the Mississippi River was established, but that the United States, in fixing and causing to be surveyed the said boundary line, did not pursue the line in accordance with the provisions of the said treaties, but encroached upon and took from the lands ceded to the Choctaw Nation a quantity of land, amounting to 136,204.02 acres, which by the legislation of the United States, in violation of these provisions of the treaties, became a part of the public domain of the United States, for which the Choctaw Nation are entitled to recover their value, estimated at $167,896.57.

The petition further states that in the treaty concluded on the 27th of September, 1830, called the "Treaty of Dancing Rabbit Creek," it was provided, among other things, by the 3d article thereof, 7 Stat. 333, that the Choctaw Nation should and did thereby cede to the United States the entire country they then owned and possessed east of the Mississippi River, and agreed to remove beyond the Mississippi River as early as practicable, and that in pursuance of this treaty, the Choctaw Nation surrendered to the United States all the remaining lands at that time owned by them in the State of Mississippi, amounting, as is alleged, to 10,423,139 acres, and, in compliance with the

Page 119 U. S. 5

treaty on their part, commenced to remove, and did remove, within the time stipulated therein or within a reasonable time thereafter, from the said lands to the lands purchased and acquired by them under the terms of the treaty of October 18, 1820.

By the 14th article of the Treaty of September 27, 1830, it was provided that each Choctaw head of a family being desirous to remain and become a citizen of the states should be permitted to do so by signifying his intention to the agent within six months of the ratification of the treaty, and thereupon should be entitled to a reservation of one section of 640 acres of land, to be bounded by sectional lines of survey, and in like manner should be entitled to one-half that quantity for each unmarried child living with him over ten years of age, and a quarter-section for each child that might be under ten years of age, to adjoin the location of the parent. If they resided upon such lands, intending to become citizens of the states, for five years after the ratification of the treaty, a grant in fee simple should issue. Such reservation should include the present improvement of the head of the family, or a portion of it, and the persons who claimed under the article were not to lose the privilege of Choctaw citizenship.

It is alleged in the petition that 1,585 heads of Choctaw families signified their intention to remain on their lands in Mississippi and become citizens under this article of the treaty, and that although they substantially complied with all its requirements and conditions, and thereby became entitled to grants of land in fee simple, as specified in the article, yet but 143 such families ever received from the United States their title to the lands guaranteed them by the article, leaving 1,442 of the said Choctaw heads of families entitled to a grant of their lands in fee simple, under the provisions of said article 14, whose claims had not been satisfied.

It is alleged in the petition that the lands to which these families were entitled amounted to 1,672,760 acres, which were reasonably worth, with the improvements, $5.50 an acre, and that the value of the whole was $9,200,180.

It is further alleged in the petition that the United States,

Page 119 U. S. 6

having failed to secure to each Choctaw head of a family the reservation secured under article 14 of the treaty of 1830, subsequently, by an Act of Congress approved August 23, 1842, 5 Stat. 513, attempted to provide compensation for the same by the issue and delivery of certificates or scrip, which authorized those entitled to such reservations, or their assignees, to enter any of the public lands subject to entry at private sale in the States of Mississippi, Alabama, Louisiana, or Arkansas, which certificates or scrip they were required by said act to receive and accept in full satisfaction of all their claims or demands against the United States under said article 14.

It is further alleged in the petition that 292 of the 1,442 Choctaw heads of families entitled to grants in fee simple under article 14 of the treaty of 1830 have never received any such grants in fee simple or any allowance or compensation whatever for the same. The claims of 1,150 of said 1,442 heads of families were adjudicated and allowed under the Act of August 23, 1842, and certificates or scrip awarded to them under the provisions of said act, authorizing the entry of 1,399,920 acres of land, of which there were paid and delivered to the persons entitled to receive the same 3,833 certificates or pieces of scrip, authorizing the entry of 700,080 acres of land. The certificates for the residue of said 1,399,920 acres, to-wit, for 699,840 acres, were not issued, but were withheld under an Act of Congress approved March 3, 1845, 5 Stat. 777, which provided that they should carry an interest of five percent, payable to the claimants or their representatives, to be estimated upon $1.25 for each acre of land to which they were entitled. The aggregate amount or principal sum thus funded, amounting to $872,000, was afterwards, under an Act of Congress approved July 21, 1852, 10 Stat. 19, paid in money to the claimants, which sum of $872,000 was included in the sum of $1,749,900 subsequently charged to the claimants in an account referred to hereafter, being for 1,399,920 acres of scrip, in lieu of reservations at $1.25 per acre, of which sum of $1,749,900, $872,000 was paid as aforesaid in money, the residue, $877,900, being charged in said account for the certificates or scrip authorizing the entry of 700,080

Page 119 U. S. 7

acres of land, delivered as aforesaid to the said claimants, for which 700,080 acres in scrip the said claimants were charged at the rate of $1.25 per acre, although, by reason of the acts of the United States and its agents in delivering said scrip at places where it could not be used, the whole amount realized by the claimants was $118,400, and no more. So that the amount chargeable against the Choctaw Nation should have been the sum of $980,400, and is all that should be deducted from the $9,200,180, the estimated value of the lands for which they claim the right to recover in this proceeding.

It is further alleged that by the 16th article of said treaty, the United States agreed to remove the Choctaws to their new homes; to furnish them with ample corn, beef, and pork for twelve months after reaching there; to take all of their cattle at an appraised value, and pay for the same in money; but it is alleged that between 1834 and 1846, 960 members of the Choctaw Nation emigrated, and subsisted for one year without assistance from the United States, for each of which 960 the Choctaw Nation is entitled to recover $54.16 1/2 from the United States, making the total amount claimed $51,998.40.

It is further alleged that under the provisions of article 19 of said treaty of 1830, four sections of land were reserved to Col. David Folsom, two of which should include his present improvement; two sections each were reserved to eight persons therein named, to include their improvements and to be bounded by sectional lines, which might be sold with the consent of the President, and, for others not otherwise provided for, there was reserved, 1st, one section to each head of a family, not exceeding forty, who had in actual cultivation fifty acres or more, with a dwelling house thereon; 2d, three quarter-sections, after the manner aforesaid, to each head of a family, not exceeding 460, who had cultivated between thirty and fifty acres; 3d, one half-section, as aforesaid, to those, not to exceed 400, who had cultivated from twenty to thirty acres; 4th, a quarter-section to such, not to exceed 350, as had cultivated from twelve to twenty acres, and half that quantity to such as had cultivated from two to twelve acres, limited

Page 119 U. S. 8

to the same number, each class to be so located as to include the improvement containing the dwelling house. These reservations might be sold with the consent of the President of the United States, but should any prefer it, or omit to take such reservation as he might be entitled to, the United States would, upon his removal and arrival at his new home, pay him fifty cents an acre therefor, provided proof of his claim be made before the first of January following.

It is further alleged that said article 19 intended to provide 458,400 acres for 1,600 cultivators, yet, in carrying out the treaty, land was assigned to but 731, amounting in all to 123,680 acres; that the actual number of cultivators of from two to twelve acres at the date of the treaty, was 1,763, instead of 350; that 1,413 therefore failed to get any land at all, owing to the limitations of said article 19; that while the treaty intended to provide reservations for 1,600 cultivators, such reservations were assigned to only 731, although the number of actual cultivators was 2,144; that the 1,413 cultivators thus excluded contended that they were justly entitled to the same measure of compensation for their improvements as was allowed to other cultivators of equal grade, to-wit, 80 acres to each, amounting to 113,040 acres, worth at that time $339,120; that of the 731 to whom were assigned lands as aforesaid, 143 had never received any land or other benefit intended to be secured by said article 19, 45 of whom relinquished to the United States 6,400 acres of land, and never received compensation therefor, and the remaining 98, to whom 15,520 acres of land were assigned, never had any land set apart for them; that the said 143 cultivators were entitled to 21,920 acres, worth the sum of $65,760.

It is further alleged that article 20 of said treaty of 1830 provided for each warrior who emigrated, a rifle, moulds, and ammunition; that 1,458 warriors became entitled to the benefits of article 20, but they were never received by a large number who emigrated; that such articles were worth at that time $13.50 to each warrior, and that the whole amount claimed, by the failure of the United States to carry out the provision of said article 20, was $19,278.

Page 119 U. S. 9

It is further alleged that the act of Congress making appropriation for the expenses of the Indian Department, and for fulfilling treaty stipulations with the various Indian tribes, for the year ending June 30, 1846, approved March 3, 1845, 5 Stat. 777, provided as follows:

"That of the scrip which has been awarded or which shall be awarded to Choctaw Indians under the provisions of the law of 23d August, 1842, that portion thereof not deliverable east, by the third section of said law, in these words, 'not more than one-half of which shall be delivered to said Indian until after his removal to the Choctaw Territory west of the Mississippi,' shall not be issued or delivered in the west, but the amounts awarded for land on which they resided, but which it is impossible for the United States now to give them, shall carry an interest of five percent, which the United States will pay annually to the reservees under the treaty of 1830, respectively, or to their heirs and legal representatives forever, estimating the land to which they may be entitled at one dollar and twenty-five cents per acre."

hat the Choctaw heads of families, and their children, became entitled to receive scrip for 697,600 acres of land, valued at $872,000; that said Choctaw heads of families, their heirs and legal representatives, became entitled to interest thereon from March 3, 1845, but the United States refused to pay such interest unless the person entitled to receive it was at the person entitled to receive it was at the date of the passage of said act, settled in the Choctaw Territory west of the Mississippi River, and also refused to pay such interest on scrip issued subsequent to March 3, 1845, until the beneficiary had removed to the Choctaw Territory; that those persons for whose benefit the scrip was funded were entitled to interest on such funded scrip from March 3, 1845, until July 21, 1852, but the United States did not pay the interest on such funded scrip between those dates, and that the amount of such interest due from the United States was $305,551, but only $171,400.34 of interest was paid on such scrip, leaving due thereon $134,150.66.

Page 119 U. S. 10

It is further alleged that the Choctaw Nation, by the fourth article of the Treaty of October 18, 1820, was secured in the right to occupy and enjoy forever the lands retained east of the Mississippi River which were by the provisions of said article to be set apart to each family or member of the Choctaw Nation, when that nation should become so civilized and enlightened as to be made citizens of the United States; that the United States agreed, by the seventh article of the treaty of 1825, not to apportion said lands for the benefit of the Choctaw Nation but with the consent of that nation; that the legal effect of said article 4 of the treaty of 1820, and of article 7 of the treaty of 1825, was to secure to the heads of families and individual members of the Choctaw Nation a title in fee simple to all lands belonging to that nation not included in the cession made by the treaty of 1820; but that the United States having, by the treaty of 1830, disregarded the obligations of said articles 4 and 7, and having paid for said lands ceded by the Choctaw Nation, under the treaty of 1830, an inadequate consideration, the Choctaw Nation was entitled to be paid by the United States the whole amount of the proceeds resulting from the sale of said lands so ceded.

It is further alleged that the Choctaw Nation, by its legislative assembly, on November 9, 1853, created a delegation to settle all unsettled business with the United States; that on the 22d of June, 1855, the United States entered into a treaty with the Choctaw Nation to settle and adjudicate all matters of difference, claims, or demands of that nation, or individual members thereof; that subsequent to the ratification of said treaty by the United States, the Senate of the United States entered upon the examination and adjudication of the questions submitted to it by article 11 of that treaty, whereupon a statement of the claims and demands of the Choctaw Nation upon the United States, with supporting evidence, was presented to the Senate, to enable it to give such claims a just, fair, and liberal consideration; that after consideration of such claims, the Senate, on the 9th of March, 1859, passed a resolution to allow the Choctaws the proceeds of the sale of such lands as had been sold by the United States on January 1,

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1859, deducting therefrom the cost of survey and sale, and all proper expenditures and payments under the treaty of 1830, excluding the reservations allowed and secured, and estimating the scrip issued in lieu thereof at $1.25 per acre, and that they be allowed 12 1/2 cents per acre for the residue of said lands.

It is further alleged that in pursuance of said resolution, the Secretary of the Interior caused an account to be stated between the United States and the Choctaw Nation, showing that the United States were indebted to said nation, on account of the net proceeds of the lands ceded by the Treaty of September, 1830, in the sum of $2,981,247.30.

It is also alleged that under the Treaty of June 22, 1855, in consideration of the claims heretofore stated and of the cession and lease of 15,000,000 acres of land valued at $2,225,000, the United States agreed that all the rights and claims of the Choctaw Nation and the individuals thereof and all matters in dispute should receive a just, fair, and liberal consideration and settlement; that by virtue thereof, the Choctaw Nation became entitled to a settlement of and payment for all their pending rights and claims, individual and national, free from all waivers or estoppels which might in equity have been interposed against them, and that by virtue of article 11 of the Treaty of June, 1855, and of the consideration paid to the United States therefor, the Choctaw Nation became entitled, by virtue of article 18 of the treaty of 1830, whenever well founded doubts should arise, to have said treaty construed most favorably toward the Choctaws.

In said petition, the Choctaw Nation prays that the award of the Senate of the United States be made final and that the account stated by the Secretary of the Interior may be restated in order that the balance due may be determined, and the following errors corrected; that the proceeds of the lands sold up to January 1, 1859, and the residue then remaining unsold at 12 1/2 cents per acre, amounted to $8,413,418.61, instead of $8,078,614.80; that the actual cost of survey and sale was $256,387.74, instead of $1,042,313.96; that the sum of $120,826.76 for reservations to orphans was not deducted, included in, or connected with the aggregate fund against which it is

Page 119 U. S. 12

charged in said account; that there should not have been deducted from said aggregate fund the payments made to meet contingent expenses of the commissioners appointed to adjust claims under the 14th article of the Treaty of September, 1830, amounting to $51,320.79, nor the expenses growing out of the location and sale of Choctaw reservations, and perfecting titles to the same, amounting to $21,408.36; that the correction of the foregoing errors would show a balance payable to the Choctaw Nation, under the award of the Senate, of $4,295,533.24, instead of $2,981,247.30, for which sum the Choctaw Nation prays judgment, after deducting $250,000 paid on account of said award under the Act of March 2, 1861, and the further sum of $250,000 in bonds appropriated by said act, and also prays that interest be allowed on this latter sum at six percent per annum from March 2, 1861, until paid.

It is further alleged that, under the Act of Congress approved March 2, 1861, the Choctaw Nation became entitled to receive from the United States $250,000 in bonds, bearing interest at six percent per annum, as a payment on account of said award of the Senate of the United States; that the issue and delivery of said bonds was demanded by the Choctaw Nation in April, 1861, but said bonds were not and never have been issued and delivered to it, nor has it received from the United States any payment of money in lieu of said bonds; that said Choctaw Nation claims from the United States on account of said award the said sum of $250,000, with interest at six percent per annum from the date when demand for said bonds was made until paid; that the claims of the Choctaw Nation against the United States, but for the adjudication thereof by the Senate, would amount to $8,432,349.78, for which the Choctaw Nation would be entitled to recover judgment, with interest at five percent from September 27, 1830, and that there remains due and payable to the Choctaw Nation from the United States on account of the award of the Senate, after deducting therefrom the said sum of $500,000, the sum of $3,795,533.24, on which the Choctaw Nation claims interest at five percent per annum.

It is also alleged that between July 1,

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1861, and July 1, 1866, there became due from the United States to the Choctaw Nation, under various treaty stipulations made prior to July 1, 1861, the sum of $406,284.93, of which amount it is admitted the United States may legally retain $346,835.61, leaving a balance due of $59,449.32.

It is further alleged that the questions of difference existing between the Choctaw Nation and the United States result from the nonfulfillment of treaty stipulations, and relate exclusively to claims which can now only be satisfied by the payment of such sums as the United States ought under its treaties to pay to said Choctaw Nation, which are as follows: 1st, claims upon the basis of the Senate award, and of the correctness of the account stated by the Secretary of the Interior May 8, 1860, amounting to $2,958,593.19, with interest on the balance due on the award of the Senate at five percent, and on the bonds authorized by Congress at six percent, until paid; 2d, amount due under the award, after correcting errors in the account stated by the Secretary of the Interior, $4,272,879.13, to which add interest on balance due under the award of the Senate from March 9, 1859 at five percent, and on bonds authorized by Congress from March 2, 1861 at six percent, until paid; 3d, amount claimed in case the award of the Senate, under article 11 of the treaty of June 22, 1855, should be set aside, $8,659,695.67, with interest on the 14th article claims of $7,808,668.80, from August 24, 1836, until paid; 4th, claims of the Choctaw Nation against the United States, stated upon the principle that the United States retain the lands acquired by the Treaty of September 27, 1830, in trust for the benefit of the Choctaw Nation, and, as trustee, are bound to account for the value of said lands, after deducting therefrom the amounts paid to the Choctaw Nation on account of said lands.

The petition further prays that if none of the above methods of stating its claims against the United States are such as can be approved and sanctioned, and if the court may rightfully ignore the Senate award, and examine the matter de novo, then the Choctaw Nation may be considered as having been required in violation of the treaties of October, 1820,

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and January, 1825, to cede to the United States the lands described in the Treaty of September, 1830, and that the court will declare that the United States, from and after the Treaty of September, 1830, held such lands as the trustee for the benefit of the Choctaw Nation, and were bound to account for the proceeds resulting from the sale thereof; that the court will ascertain the amount realized by the United States from the sale of such lands, and cause an account to be stated in respect thereto, and charge against the value of all payments on account of said lands by the United States; that upon such accounting, a judgment may be rendered for the balance found due, with interest thereon, and that the Choctaw Nation have judgment for the amount of the annuities due to it from July 1, 1861, to July 1, 1866, amounting to $59,449.32, and also for the sum of $167,896.57, being the value of the lands taken from the Choctaw Nation by the United States in locating the western boundary of the State of Arkansas.

The United, states, in addition to a general denial, filed a special plea alleging that by the 14th article of the treaty of 1830, each Choctaw head of a family who desired to remain in Mississippi and become a citizen of the state was to be permitted to do so upon signifying his intention to the agent of the United States within six months from the ratification of the treaty, whereupon he should be entitled to a reservation of land including his improvement, and, should he live upon the land for five years thereafter, a grant in fee simple should issue to him; that within the six months, 100 heads of Choctaw families signified their intention to remain and become citizens of the states, and their names were registered; that on August 12, 1833, the ceded lands were directed to be sold, and an agent was appointed to locate the reservations of those intending to remain; that many who were not registered applied for reservations, but were not recognized, yet, it appearing that they had signified their intention in due time, and been refused registry, the agent was directed to receive evidence, and make provisional locations of lands, the sale of which was suspended to await the action of Congress; that

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commissioners were appointed to adjust the claims to reservations, and filed a report on June 16, 1845; that 143 heads of Choctaw families obtained reservations in the ceded territory, and 1,155 other Choctaw heads of families were found to be entitled to the benefits of article 14 of the treaty, but the United States had disposed of the lands to which they would have been entitled, so that it was impossible to give said Indians the quantity to which they were severally entitled; said commissioners thereupon estimated the quantity of land to which each of said Indians would be entitled, and allowed him for the same quantity, to be taken out of any public lands in the States of Mississippi, Louisiana, Alabama, or Arkansas, subject to entry at private sale; that 1,155 pieces of scrip, each representing one-half the allowance of land, were issued to those entitled thereto and were accepted in part payment for the lands aforesaid; that the remaining 1,155 half-pieces of scrip were reserved, and interest paid thereon, valued at $1.25 per acre to those entitled thereto, until the principal of $872,000 was paid upon the execution of a final release of all claims of such parties under the 14th article of the treaty; that thereby the claims of the 1,155 Choctaw heads of families were fully satisfied and discharged, and any further claim by or on behalf of them was forever barred. The plea prays that so much of the amended petition as sets forth a cause of action in behalf of said 1,155 Choctaw heads of families for the value of lands alleged to be due them be dismissed.

To this special plea the Choctaw Nation filed a replication on April 22, 1884, which in substance denied the validity of the alleged release mentioned in the plea on the ground that the same was wrongfully exacted under circumstances that made it inequitable for the United States to insist upon it as a bar to the claims of the Choctaw Nation covered by it.

The case having been heard before the Court of Claims, the court, upon the evidence, found the facts, which are set out in much detail. It is only necessary here to state the following:

The War Department, then having charge of Indian affairs, on May 21, 1831, instructed Colonel Ward, the Indian agent in Mississippi, on the subject of carrying into effect the Treaty of

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September 27, 1830. The correspondence between the department and its agents is set out fully. On June 26, 1833, Mr. G. W. Martin was appointed by the War Department to make selections of the locations of land granted to the Choctaws under the 14th, 15th, and 19th articles of the treaty, and was instructed to call on Ward and Major Armstrong, also an agent of the United States, appointed under the treaty, for the registry of the different classes so entitled. In pursuance of his instructions, Mr. Martin located claims and received evidence of claimants, and transmitted reports to the Secretary of War, with a list of 580 claims for the reservations under the 14th article, and with affidavits as to forty claimants, showing imperfections in Ward's register, and that persons who sought to be registered were refused, and not permitted to do so.

It was found as a fact by the Court of Claims that Ward was unfit for the duties of the situation; that his conduct was marked by acts calculated to deter the Indians from making application; that he was abusive and insulting to them, preventing them thereby from making application under the 14th article of the treaty, in order to necessitate their going west of the Mississippi. He insisted that the Indians had sold their land; that he had been instructed to induce as many as possible to go west, and that more had been registered than had been anticipated. After the 24th of August, 1831, the agents of the United States insisted that those whose names were not registered should go west, and that if they did not go, soldiers would be sent to drive them out; that they would take their children from them, and many other threats were made by them. On the 31st of July, 1838, about 5,000 of the Choctaw Indians still remained in Mississippi. Notwithstanding the efforts of the removing agent of the government to remove them, they remained, asserting their intention to do so and claiming the benefit of the 14th article of the Treaty of 1830. It was the intention of those remaining east of the Mississippi to take the benefit of the 14th article of the treaty.

It was also found by the court that the whole number of heads of families receiving land under the 14th article was

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143; the number who established their rights under the act of Congress approved August 23, 1842, was 1,150, and the number disallowed by the commissioner was 292. The commissioner rejected the claims of 191 heads of families under that act because they had no improvement on their reservations on the 27th of September, 1830, and did not reside on the same for five years continuously after said date. These 191 families complied, or attempted to comply, with the requirements of the 14th article within the time required by it, but were deprived of their rights under it by the agents of the United States. They were entitled to reservations amounting to 225,760 acres.

It was also found by the court that under the provisions of the Act of Congress approved August 23, 1842, the United States, having failed to grant to said Choctaw heads of families the lands which they and their children claimed under said treaty, and having disposed of the said lands, so that it was impossible to give said Choctaw heads of families the lands whereon they resided on the date of the treaty of 1830, did, between June, 1843, and November, 1851, issue and deliver to the said 1,155 Choctaw heads of families, and to their children, the certificates or scrip provided for in said act, for 1,404,640 acres of land, which certificates or scrip the said Choctaw heads of families and their children were required by the United States to receive and accept in lieu of the reservations of land which, under the said 14th article of the treaty, they claimed. The United States refused to deliver to the said Choctaw heads of families and their children that one-half of the scrip which might have been delivered to them under the provisions of the said act of Congress, east of the Mississippi River, until the said Choctaw heads of families and their children had either started for, or actually arrived in, the Choctaw Territory west of the Mississippi River. Under the Act of Congress approved March 3, 1845, 697,600 acres in the said certificates or scrip, so directed to be delivered to the 1,155 Choctaw heads of families and their children, were funded at the value of $1.25 per acre, with interest payable thereon annually, forever at the rate of five percent

Page 119 U. S. 18

per annum, which specified number of acres in certificates funded under said act was that part of said certificates which was not deliverable east to the said Choctaw heads of families and their children, and not until their arrival in the Choctaw Territory west of the Mississippi River. This scrip, which was funded for the benefit of said Choctaw heads of families and their children under the Act of Congress of March 3, 1845, was funded by the United States at the rate of $1.25 an acre, amounting to the sum of $872,000, which sum was paid to the said heads of families and their children, or their legal representatives, under the provisions of an Act of Congress approved July 21, 1852.

It was further found by the Court of Claims that the said Choctaw heads of families and their children, claimants under the 14th article of the treaty of September, 1830, were reduced to a helpless condition of want, which rendered it practically impossible for them to contend with the United States in their requirement that the said Choctaw heads of families should accept and receive the scrip provided to be issued to them in lieu of the reservations, by the act of 1842, and the said scrip, and the money paid to redeem the same, were taken and accepted because they were powerless to enforce any demands against, or impose any conditions upon, the United States.

The Choctaw Nation, by its proper authorities, on November 6, 1852, executed and delivered to the United States the following instrument, for the purposes therein specified:

"Whereas, by an act of Congress entitled 'An act to supply deficiencies in the appropriations for the service of the fiscal year ending the thirtieth day of June, 1852,' all payments of interest on the amount awarded Choctaw claimants under the 14th article of the Treaty of Dancing Rabbit Creek for lands on which they resided, but which it is impossible to give them, shall cease, and that the Secretary of the Interior be directed to pay said claimants the amount of the principal awards in each case respectively, and that an amount necessary for this purpose be appropriated, not exceeding the sum of $872,000, and that final payment and satisfaction of said awards shall

Page 119 U. S. 19

be first ratified and approved as a final release of all claims of such parties under the 14th article of said treaty, by the proper national authority of the Choctaws, in such form as shall be prescribed by the Secretary of the Interior, now be it known that the said general council of the Choctaw Nation do hereby ratify and approve the final payment and satisfaction of said awards, agreeably to the provisions of the act aforesaid, as a final release of the claims of such parties under the 14th article of said treaty."

On the 9th day of November, 1853, the legislative council of the Choctaw Nation provided for the appointment of a delegation which should represent said nation in the settlement of all the unsettled claims and demands of said nation, or individual members thereof, against the United States. The preamble to the joint resolution appointing that delegation recites that

"The Choctaws were, and ever have been, dissatisfied with the manner in which the treaty of Dancing Rabbit Creek was made, owing to the many circumstances which were created to force them into it, and owing to the exceeding small and inadequate amount which was given as payment for their country,"

and that "a large number of claims on the United States, arising under the 14th and 19th and other articles of the Treaty of 1830 are still remaining unpaid," and the said delegates were

"clothed with full power to settle and dispose of, by treaty or otherwise, all and every claim and interest of the Choctaw people against the government of the United States, and to adjust and bring to a final close all unsettled business"

between said people and the government of the United States.

This delegation opened negotiations with the United States, through the Commissioner of Indian Affairs, for a new treaty by means of a communication in writing dated on the 5th of April, 1854, which contained a general statement or survey of the condition of the relations then existing between the Choctaw Nation and the United States, and set out seriatim complaints against the government, especially for causes of dissatisfaction arising under the treaty of September 27, 1830, claiming that scarcely one of the stipulations of that treaty

Page 119 U. S. 20

had been carried out by the government so as to do justice according to the intent of the treaty. They especially alleged that the laws passed for the examination of their claims under said treaty, and the 14th article thereof, prescribed a course of adjudication of so rigid and technical a character as necessarily to exclude many just claims; that many were compelled to remove because of the failure of the government to give them their rights under the said article, and that the law unjustly cut off such persons from the benefits of it; that the scrip issued under the law was paid in such a manner as to make it of but little value to the Indian, and that those who received anything received but a mere pittance. They contended that many claims existed unadjusted and unpaid under the 19th article, and proposed to make arrangement for final adjustment of all matters, national and individual, in a new treaty, by which the nation proposed to pay all individual claims under the 14th and 19th articles, and release the government of the United States from all responsibility on that account because such claims were not susceptible of proof against the United States, but could be adjusted by the authorities of the nation, provided the nation could effect such a settlement with the United States as the Choctaw people desired. They claim that under the Treaty of September 27, 1830, the Choctaw Nation was entitled to the funds arising from the sale of lands ceded, after deducting the expenses of sale and the debt mentioned in said treaty; that the government of the United States was a trustee for the Choctaw Nation in the sale of the lands ceded by that treaty, so that, after the payment of the expenses incident to the execution of the trust, the Indians were entitled to the remainder, and they proposed that the payment to the nation of such remainder should operate in law as a satisfaction of the individual claims under a new treaty.

Upon the basis of this communication, the Commissioner of Indian Affairs instructed the agent of the United States for the Choctaws to make the requisite inquiry and investigation to ascertain the character and extent of their claims, and what arrangement was necessary to accomplish the object in

Page 119 U. S. 21

view. The agent of the United States for the Choctaws submitted to the Commissioner of Indian Affairs, in answer to this reference, a paper containing a comparative estimate or approximate statement of the claims then asserted by the Choctaw commissioners, which statement had been furnished by the Choctaw delegation to said agent. The aggregate amount of these claims so stated was $6,599,230, which it was proposed to settle on the principle of allowing the net proceeds of the sales of the lands ceded to the United States by the Choctaw Nation, under the Treaty of September 27, 1830, the whole showing the balance claimed to be due to the Choctaws to be $2,380,701. The agent of the United States, in his communication to the Commissioner of Indian Affairs referring to said statement, said:

"I have examined this statement carefully, and from the most reliable information I am possessed of, obtained in the Choctaw country and here, I am inclined to think that part of it embracing the extent of the obligations under the treaty is as nearly correct as it could be made at this date."

The amount of the obligations under the treaty thus referred to was placed in said statement at $6,599,230. These negotiations between the Choctaw delegation and the executive authorities of the United States were conducted with reference to the accomplishment of the following objects:

1st. That the United States should provide, in a new treaty, for an examination and settlement of all the claims of the Choctaws, whether national or individual, under the treaty of 1830, as specified in the letter of the Choctaw delegation to the Commissioner of Indian Affairs dated April 5, 1854.

2d. That the Choctaws should adjust their disputes with the Chickasaws; should lease to the United States all that portion of their common territory between the 98th and 100th degree of west longitude, for the permanent settlement of the Wichita and such other bands of Indians as the United States might desire to locate therein, and should absolutely and forever quitclaim and relinquish to the United States all their right, title, and interest in and to any and all lands west of the 100th degree of west longitude.

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These negotiations resulted in the treaty of 1855, which was ratified by the Senate of the United States on the 21st of February, 1856, and proclaimed by the President on March 4 of the same year. 11 Stat. 611. The preamble to that treaty recites that

"The Choctaws contend that by a just and fair construction of the treaty of September 27, 1830, they are, of right, entitled to the net proceeds of the lands ceded by them to the United States under said treaty, and have proposed that the question of their right to the same, together with the whole subject matter of their unsettled claims, whether national or individual, against the United States, arising under the various provisions of said treaty, shall be referred to the Senate of the United States for final adjudication and adjustment."

By the terms of that treaty, a division of their common lands was made between the Choctaws and the Chickasaws, and the Choctaws relinquished to the United States all their lands west of the 100th degree of west longitude, and the Choctaws and the Chickasaws together leased to the United States all that portion of their common territory west of the 98th degree of west longitude, for permanent settlement of the Wichita and such other tribes or bands of Indians as the government of the United States might desire to locate therein. The 11th and 12th articles of said treaty are as follows:

"ARTICLE 11. The government of the United States not being prepared to assent to the claim set up under the Treaty of September 27, 1830, and so earnestly contended for by the Choctaws as a rule of settlement, but justly appreciating the sacrifices, faithful services, and general good conduct of the Choctaw people, and being desirous that their rights and claims against the United States shall receive a just, fair, and liberal consideration, it is therefore stipulated that the following questions be submitted for adjudication to the Senate of the United States:"

"First, whether the Choctaws are entitled to, or shall be allowed, the proceeds of the sale of the lands ceded by them to the United States by the Treaty of September 27,

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1830, deducting therefrom the cost of their survey and sale, and all just and proper expenditures and payments under the provisions of said treaty, and, if so, what price per acre shall be allowed to the Choctaws for the lands remaining unsold, in order that a final settlement with them may be promptly effected; or"

"Second, whether the Choctaws shall be allowed a gross sum in further and full satisfaction of all their claims, national and individual, against the United States, and, if so, how much."

"ARTICLE 12. In case the Senate shall award to the Choctaws the net proceeds of the lands ceded as aforesaid, the same shall be received by them in full satisfaction of all their claims against the United States, whether national or individual, arising under any former treaty, and the Choctaws shall thereupon become liable and bound to pay all such individual claims as may be adjudged by the proper authorities of the tribe to be equitable and just, the settlement and payment to be made with the advice and under the direction of the United States agent for the tribe, and so much of the fund awarded by the Senate to the Choctaws as the proper authorities thereof shall ascertain and determine to be necessary for the payment of the just liabilities of the tribe shall, on their requisition, be paid over to them by the United States. But should the Senate allow a gross sum in further and full satisfaction of all their claims, whether national or individual, against the United States, the same shall be accepted by the Choctaws, and they shall thereupon become liable for, and bound to pay, all the individual claims as aforesaid, it being expressly understood that the adjudication and decision of the Senate shall be final."

In pursuance of the 11th article of the treaty, the questions submitted to the Senate of the United States were answered by a resolution of the Senate passed on the 9th of March, 1859, as follows:

"Resolved that the Choctaws be allowed the proceeds of the sale of such lands as have been sold by the United States on the 1st day of January last, deducting therefrom the costs

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of their survey and sale and all proper expenditures and payments under said treaty, excluding the reservations allowed and secured, and estimating the scrip issued in lieu of reservations at the rate of $1.25 per acre, and further that they be also allowed twelve and a half cents per acre for the residue of said lands."

In reference to this award of the Senate, the Court of Claims, in the finding of facts, says:

"The consideration which was given by the Senate to the subject matter so submitted to it by the said eleventh article of the said treaty, and to the evidence which was so presented to, and taken and considered by, the Senate, was full, fair, and impartial, and its adjudication, as made under the said article, was not influenced or affected by, and was in no way or degree the result of, any fraud, corruption, partiality, and there is no evidence tending to show that it was the result of surprise or mistake on the part of the Senate, or any member thereof."

On the 9th of March, 1859, the Senate of the United States also adopted a resolution for the purpose of ascertaining the amount due the Choctaw Nation under their award, as follows:

"Resolved, that the Secretary of the Interior cause an account to be stated with the Choctaws showing what amount is due them, according to the above-prescribed principles of settlement, and report the same to Congress."

And the Secretary of the Interior, in compliance with the mandate of said resolution, did, on the 8th of May, 1860, transmit to Congress a statement of account with the Choctaw Nation. This account shows, as the proceeds of the sales of the Choctaw lands up to January 1, 1859, together with the residue of said lands unsold at that date at 12 1/2 cents per acre, an amount in all of $8,078,614.80, from which was to be deducted the whole amount of charges, equal to $5,097,367.50, leaving a balance due to the Choctaws of $2,981,247.30.

On the 9th day of January, 1861, the Choctaw Nation, by its memorial addressed to Congress, demanded payment from the United States of the amount claimed to be due to it under said award. By the provisions of the Act of March 2, 1861, the Indian Appropriation Act, 12 Stat. 238, there was paid to

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the Choctaw Nation the sum of $250,000 on account of their claim. The bonds for the additional sum of $250,000, which were by that act directed to be issued and delivered to said Choctaw Nation on account of said claim, were never issued or delivered to it, although demand for the same was made upon the Secretary of the Treasury by them on the 4th of April, 1861.

Upon the findings of fact, the Court of Claims found a balance due the Choctaw Nation from the United States of $408,120.32, made up of various claims arising under the treaty of 1830, and for the value of land taken in fixing the boundary between the State of Arkansas and the Choctaw Nation, deducting the payment made, under the act of 1861, of $250,000. In reaching this conclusion, the Court of Claims rejected the award of the Senate under the treaty of 1855 as having no effect in law, and excluded the consideration of all claims covered by the release executed by the Choctaw Nation on November 6, 1852.

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