United States v. Blackfeather
155 U.S. 180 (1894)

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U.S. Supreme Court

United States v. Blackfeather, 155 U.S. 180 (1894)

United States v. Blackfeather

No. 622

Argued October 24-25, 1894

Decided November 19, 1894

155 U.S. 180

Syllabus

This Court is not called upon to consider errors assigned by an appellee who has taken no appeal from the judgment below.

The findings of the court below touching the expenditures by the United States to support and keep a blacksmith for the use of the Indians are too indefinite to allow them to be made the subject of a setoff.

The United States having undertaken by Article VII of the Treaty of August 8, 1831, with the Shawnees to "expose to public sale to the highest bidder" the lands ceded to them by the Shawnees, and having disposed of a large part of the same at private sale, were thereby guilty of a violation of trust, and as all public lands of the United States were, by the Act of April 24, 1820, c. 51, 3 Stat. 566, made open to entry and sale at $1.25 an acre, the measure of damages for the violation is the difference between the amounts realized, and the statutory price.

Under the provisions of said treaty, the Shawnees were entitled to interest on such damages as an annuity.

The United States is not responsible to the Shawnees for moneys paid under a treaty to guardians of orphans of the tribe, appointed by the tribal council, who had embezzled the money when so paid.

Whether the Shawnees are entitled to recover in these proceedings money embezzled by an Indian superintendent, quaere.

There was no error in the action of the court below ordering a percentage allowance to counsel.

Page 155 U. S. 181

This was a claim by the Shawnee tribe of Indians under a special act of Congress passed October 1, 1890, c. 1249, 26 Stat. 636, conferring jurisdiction upon the Court of Claims, subject to an appeal to this Court, to hear and determine the just rights, in law or in equity, of the Shawnee and Delaware Indians under certain treaties with the government.

The fourth section of the act authorizes the Shawnees to bring suit to recover

"any amount of money that in law or equity is due from the United States to said tribes in reimbursement of their tribal fund for money wrongfully diverted therefrom."

The original petition in the case was filed December 10, 1890. An amended petition was filed, by leave of the court, February 3, 1891, to which the defendants filed a traverse.

On July 6, 1892, an amended and supplemental act of Congress was passed, c. 151, 27 Stat. 86, authorizing the Shawnees to present to the Court of Claims

"all their claims against the United States and the Cherokee Nation, or against either or both of them, of every description whatsoever, arising out of treaty relations with the United States, rights growing out of such treaties, and from contracts, expressed or implied, under such treaties, made and entered into by and between the said Shawnees and Cherokees, and between them of either of them, and the United States."

Subsequently, on July 21, 1892, the appellee filed a second amended petition in the Court of Claims introducing claims not embraced in the former petition.

The United States interposed a general denial of the allegations of the petition and also made a counterclaim of $12,182.03, alleged to have been overpaid, under a treaty of 1825.

The case having been heard by the Court of Claims, the court, upon the evidence, made the following findings of fact:

I. The following is the Spanish grant to the Shawnee Indians, to which reference is made in the preamble of the treaty between the United States and the Shawnees in Missouri, proclaimed December 30, 1825:

"Delawares and Shawnees, claiming a tract of country

Page 155 U. S. 182

between the River St. Coure and Cape Gira'deau, and bounded on the east by the Mississippi and west by the White Water, District of Cape Gira'deau, produced to the board as follows, to-wit:"

"The Baron De Carondelet, knight of the faith of St. John, colonel of the royal armies, governor intendant general, subprefect of the provinces of Louisiana, west Florida, and inspector of their troops, etc. Be it known by these presents that in consideration of the good and faithful services that the said Louis Lorimer has rendered to the state since he has been a subject of his Catholic majesty, we allow him to settle with the Delaware and Shawnee Indians who are under his control in such places as he may select in the Province of Louisiana, on the right bank of the Mississippi, from the Missouri to the Arkansas River, which may have no governor, and both to hunt and plant thereon for the support of their families, and no commandant, officer, or King's subject shall have the power to oppose him in occupying the lands by him and the said Indians sown, planted, or settled, so long as they shall think proper to abide there, provided, in case they abandon them to move elsewhere, they will be considered as vacant, and, as for the house that the said Sir Louis Lorimer built at Cape Gira'deau, it shall remain in his possession, not to be taken from him for any reason except the sole ones of illicit commerce or corresponding with the enemies of the state."

"Wherefore we have given these presents, signed by our hand and countersigned by the secretary of this government, and to which we have caused the seal of our arms to be affixed at New Orleans, on January 4, 1793."

"Le Baron De Carondelet"

"Andres Lopez Armesto"

"By order of his lordship"

II. The Missouri band of Shawnees have received payments in accordance with the provisions of the treaty of 1825, but the following balance remains unpaid: $1,152.78.

III. The lands which the treaty of 1831, between the United States and the Ohio band of Shawnees, ceded to the defendant herein, were received and sold. Of these lands,

Page 155 U. S. 183

between December 24, 1832, and December 31, 1832, 9,841.27 acres were sold at public sale to the highest bidder at the rate of $2.08 3/4 per acre. The total amount received for these lands is shown in Finding VI. The rest of the land so ceded was sold at private sale at the rate of $1.25 per acre. Some of the land sold at this rate of $1.25 per acre had improvements upon it, but most of the land so sold was unimproved. The lands were sold with reasonable expedition. The last sale was June 30, 1840. The total amount of the lands ceded was 96,051.48 acres.

The amount of land to be reserved to Francis Duquochet (article 11, treaty of 1831) was 320 acres.

The amount of land to be reserved to Joseph Parks (article 13) was 640 acres. The amount of land, the price of which was to be reserved to the Michigan Shawnees (article 13), was 640 acres.

IV. Whether the Shawnees, who, in 1831, resided on the River Huron, Michigan, have expressed a desire to follow the Shawnees of Wapaghkonnetta to their residence west of the Mississippi does not appear; nor does it appear that they have expressed a desire not to do so. Their wishes upon this subject are not disclosed.

V. Out of the proceeds of the land sales in Ohio, the United States has retained (at 70 cents per acre) the amount shown in finding 6; also, $6,994.40 the cost of the gristmill and sawmill; also, $1,011, the cost of surveying; also, $13,000 for improvements.

VI. The following is the account between the United States and the Shawnee tribe under treaty of 1831:

Total amount of land ceded (acres) . . . . . . . 96,051.48

Less:

Reserved for Joseph Parks. . . . . . . . 640.00

Reserved for Francis Duchouquet. . . . . 320.00

Reserved for Hurons (the price to be

held as shown in treaty). . . . . . . 640.00

Difference between plats and abstracts . 5.43

------ 1,605.43

---------

Acres . . . . . . . . . . . . . . . . . . . . 94,446.05

Page 155 U. S. 184

Of these acres there were sold at $2.08 3/4 per acre, 9,841.27 acres, yielding $20,543.65.

There remained (acres) 84,604.78, which, at $2 per acre, would have yielded $169,209.56; adding this to the $20,543.65 gives a total of $189,753.21.

There has been paid to the Shawnees:

Per 5th article treaty of 1831 . . . . . . . . . . $ 13,000.00

Per 4th " " " " . . . . . . . . . . 6,994.00

Per 7th " " " " (surveying). . . . . 1,011.00

Amount retained from sales, at 70 cents per acre . 66,252.63

------------

Total . . . . . . . . . . . . . . . . . . . . $ 87,257.63

============

From the amount due as shown above . . . . . . . . $189,753.21

Subtract . . . . . . . . . . . . . . . . . . . . . 87,257.63

------------

Balance (in 1840) . . . . . . . . . . . . . . $102,495.58

============

Paid to the Shawnees (September 28, 1852) under

the 7th article of the treaty of 1831. . . . . . $ 37,180.58

============

Interest on $102,495.58 from June 30, 1840, to

June 12, 1893 at 5 percent . . . . . . . . . . . $271,357.04

Interest on $37, 180.58 from September 28, 1852,

to June 12, 1893 at 5 percent. . . . . . . . . . 75,672.80

------------

Difference. . . . . . . . . . . . . . . . . . $195,684.24

Subtract amount paid . . . . . . . . . . . . . . . 37,180.58

------------

Balance . . . . . . . . . . . . . . . . . . . $158,503.66

Add (see supra). . . . . . . . . . . . . . . . . 102,495.58

------------

Total . . . . . . . . . . . . . . . . . . . . $260,999.24

Add amount unpaid under treaty of 1825 . . . . . . 1,152.78

------------

Total . . . . . . . . . . . . . . . . . . . . $262,152.02

VII. Difficulties arose as to the 100,000 acres which the second article of the treaty of 1831 provided should be given the Indians, and the United States failed to perform their stipulation in this regard. Because of this failure, the United States paid the Ohio Shawnees $66,246.23, and received receipts stating that the moneys thus paid were "in full payment of all claims under that part of the treaty of 1831 which has relation to the grant of 100,000 acres of land in fee simple to

Page 155 U. S. 185

the Ohio Shawnees." It does not appear that the amount so paid the Ohio Shawnees was insufficient compensation.

VIII. Owing to laches or dishonesty, certain moneys due to orphan children under the treaty of 1854 with the Shawnees, to be distributed under the last clause of article 8 thereof, was lost to them. The President deemed best to pay their money over in severalty. The Shawnee council created certain so-called "guardians" of the orphan children, and to them the defendants paid a portion of the orphans' money which by laches or dishonesty never reached the orphans. Another portion of the orphans' money was committed to a United States Indian superintendent for distribution. He embezzled it, and this money was lost to the orphan children.

The total amount lost to the orphan children in the manner above set forth was $10,506.39. On this amount, the United States recovered from the Indian superintendent's sureties $1,068.77, and in 1884 appropriated the balance, $9,437.62, but no payment has been made, as the Secretary of the Interior and Commissioner of Indian Affairs deemed that the whole amount of the money should not go to the Shawnees as a tribe, but a part at least, "should be paid directly to the parties to whom it belongs."

IX. There was paid the Shawnees for blacksmiths, from 1825 to 1854, the sum of $17,408.73.

Upon these findings, the Court of Claims entered a decree to the effect that there was due to the Shawnees from the United States on June 12, 1893, the date of the decree, principal and interest, the sum of $262,152.02, and the further sum of $10,506.39, due to certain infant Shawnees, which was ordered to be paid to said orphans or their personal representatives under the direction of the Secretary of the Interior. It was further ordered that there be paid to counsel for the Shawnees, as compensation, the sum of $26,215, which does not exceed ten percent of the amount recovered by said Indians, and which is to be paid out of and deducted from the said above-mentioned sum of $262,152.02. The opinion of the court is reported in 28 Ct.Cl. 447.

From this judgment the United States appealed to this Court.

Page 155 U. S. 186

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