Pam-to-Pee v. United States/Opinion of the Court
The act of March 19, 1890, entitled 'An act to ascertain the amount due the Pottawatomie Indians of Michigan and Indiana,' conferred jurisdiction upon the court of claims to 'try all questions of difference arising out of treaty stipulations with the said Pottawatomie Indians of Michigan and Indiana, and to render judgment thereon.' The act granted power to said court to 'review the entire question of difference de novo,' and provided for an appeal to this court by either party.

In pursuance of the provisions of this statute, on the 14th of April, 1890, a petition was filed in the court of claims by the Pottawatomie Indians, by their agent and attorney, John Critcher, and on the 5th of November, 1890, another petition by the Pottawatomie Indians, by their agent and attorney, John B. Shipman.

The United States objected to the filing of two petitions, and the court below, overruling a motion to dismiss the later petition, consolidated the causes, and dealt with them as one. The two classes of claimants unite in the appeal to this court.

They agree in complaining of the insufficiency of the sum allowed the Indians by the decree of the court below; but they disagree, as between themselves, in respect to the division of the moneys awarded by the decree. The Indians represented by John Critcher claim the entire fund. Those represented by John B. Shipman claim a right to participate in the fund, and claim likewise, as we understand them, that only 91 Indians are really represented in the first petition. We shall first consider the merits of the appeal as against the United States, and afterwards deal with the question of distribution.

The first controverted question is as to whom is due the annuity of $2,000 for 20 years, granted by the last clause of the supplemental treaty of September 27, 1833. The petitioners claim the entire amount, $38,000. The United States contend that this amount is distributable between the Indians who went west under the provisions of the treaty of September 26, 1833, and those who remained in Michigan under the supplemental treaty of September 27th, in proportion to their respective numbers.

To answer this question, we must resort to the language of the treaties. The fourth article of the treaty of September 26, 1833, is as follows:

'A just proportion of the annuity money, secured as well by former treaties as the present, shall be paid, west of the Mississippi, to such portion of the nation as shall have removed thither during the ensuing three years. After which time the whole amount of the annuities shall be paid at their location west of the Mississippi.' 7 St. p. 431.

The articles supplementary, of September 27th, provided as follows, (7 St. p. 442:)

'Article 1. The said chiefs and headmen cede to the United States all their land situate in the territory of Michigan south of Grand river, being the reservation at Notawasepe, of 4 miles square, contained in the 3d clause of the 2d article of the treaty made at Chicago on the 29th day of August, 1821, and the ninety-nine sections of land contained in the treaty made at St. Joseph on the 19th day of September, 1827; and also the tract of land on St. Joseph river opposite the town of Niles, and extending to the line of the state of Indiana, on which the villages of To-pene-bee and Pokagon are situated, supposed to contain about 49 sections.

'Article 2. In consideration of the above cession, it is hereby agreed that the said chiefs and headmen, and their immediate tribes, shall be considered as parties to the said treaty to which this is supplementary, and be entitled to participate in all the provisions therein contained as a part of the United Nation; and, further, that there shall be paid by the United States the sum of $100,000, to be applied as fllows.' (Here follows a specific disposition of $60,000 of it.)

'And $40,000 to be paid in annuities of $2,000 a year for twenty years, in addition to the $280,000 inserted in the treaty, and divided into payments of $14,000 a year.

'Article 3. All the Indians residing on the said reservations in Michigan shall remove therefrom within three years from this date, during which time they shall not be disturbed in their possession, nor in hunting upon the lands as heretofore. In the mean time no interruption shall be offered to the survey and sale of the same by the United States. In case, however, the said Indians shall sooner remove, the government may take immediate possession thereof.'

On page 445 appears the following, signed by eight Indians, but not signed by the commissioners:

'On behalf of the chiefs and headmen of the United Nation of Indians who signed the treaty to which these articles are supplementary, we hereby, in evidence of our concurrence therein, become parties thereto.

'And as, since signing of the treaty, a part of the band residing on the reservations in the territory to Michigan have requested, on account of their religious creed, permission to remove to the northern part of the peninsula of Michigan, it is agreed that in case of such removal the just proportion of all annuities payable to them under former treaties, and that arising from the sale of the reservation on which they now reside, shall be paid to them at l'Arbre Croche.'

The court below held, with the United States, that under these provisions these claimants were entitled, not to the whole, but to 'a just proportion' of this annuity provided for in the supplemental articles of September 27, 1833; and in this view we concur.

It was admitted that the one year's annuity, $2,000, had been paid, leaving to be paid $38,000, of which amount the court awarded in favor of the claimants, as 'a just proportion thereof,' the sum of $3,653.60. The court arrived at this particular sum by taking the number of the Indians who went west at 2,812, and the number of those who were permitted to remain east as 291.

It is claimed that the court below erred in this method of computation, because it gives an interest to Indians who were not entitled, under the supplemental treaty of September 27, 1833, to participate in this fund. An examination of that treaty shows that the annuity of $2,000 for 20 years was in part consideration of the cession by the Indians who took part in it of 49 sections of reservations on which they were then settled; and it is claimed, with considerable force, that the proceeds of the sale of such reservations, so far as this annuity was concerned, should be distributed among the Indians on whose behalf the supplemental treaty was made, to the exclusion of those who had made the treaty of the day before.

However, we think the court below was right in refusing to adopt this view of the case, and in regarding the two treaties as substantially one, and that, therefore, this annuity was distributable among both classes, giving to those who were permitted to remain east 'a just proportion thereof.'

The conclusion arrived at by the court below, in its eighth finding, was that, under the several treaties, and upon the entire account, there had accrued to the entire tribe-those who had gone west, and those who had remained in Michigan and Indiana-the sum of $1,432,800; that the portion of this that belonged to the petitioners was $134,368.26. To this is to be added the proportion awarded the petitioner of the $2,000 annuity under the supplemental treaty of September 27, 1833; being, as we have already seen, $3,653.60. The court below further awarded the petitioners, as their proportionate share of the money due and unpaid of the perpetual annuities under the treaties of September 26 and 27, 1833, the sum of $41,626. As against these sums, the court below charged the petitioners with the sum of $75,162.50, which amount, it is admitted, has been received. The court below was urged to decree that the perpetual annuities under said treaties should be reduced to a cash basis, as of the present time, and be now paid. Such a disposition of these annuities would be a very convenient one, and all the claims of the petitioners would thereby be finally closed. But the court properly held that no power had been given it to convert the perpetual annuities into a sum for present payment, and that matter must be left to be hereafter dealt with by congress.

As the United States took no appeal, the several contentions on their behalf are not before us for consideration.

Accepting, as we must do, the facts of the case as found by the court below, we perceive no error in its decree establishing the sum due to the petitioners.

How the moneys so awarded shall be distributed among the several claimants, it is not easy for us to say. The findings of the court below, and the contradictory statements of the several briefs filed by the appellants, have left this part of this subject in a very confused condition. The court says:

'The second section provides that said action shall be commenced by petition, stating the facts, and that the same may be verified by a 'business committee' or authorized attorney of said Indians. Each of the petitions in this proceeding is verified by the affidavit of the attorney appearing in each case, and in that particular are identical. In each case it appears that by special appointment the attorneys represent some of the Pottawatomies who remained in the states of Indiana and Michigan, under the supplementary article to the treaty of September 27, 1833. In this view of the statute, the court allows the motion of the defendants to consolidate the cases, made on the 8th day of January, 1891, and overrules the motion to dismiss cause No. 16,842, made on the 19th of January, 1891.

'This brings the issue by both petitioners to the consideration of the court, to be disposed of upon one broad ground of the right of all the Pottawatomies of Michigan and Indiana. Congress have recognized, by the very title of the act, a claimant designated as the 'Pottawatomie Indians of Michigan and Indiana;' and under that generic head is to be determined the aggregate right of such claimant, leaving the question of distribution to that department of the government which by law has incumbent on it the administration of the trust which in legal contemplation exists between the United States and the different tribes of Indians.'

On the other hand, it is contended, with great show of reason, by the petitioners who are represented in case No. 1,125, (16,842 in the court below,) that the question of what Indians are entitled to participate in the fund is one of law, to be settled by the court, and should not be left to clerical functionaries. Our difficulty in disposing of this part of the subject is that we have neither findings nor concessions that enable us to deal with it intelligently.

It is to be observed that the court below found as a fact (see finding 10) that the average proportion between the Indians who removed west and those who remained was as 2,812 of the former to 291 of the latter, and the court used that relative proportion of numbers as a factor in computing the amount due the petitioners.

The petitioners, however, number 1,371 in case No. 1,125, but the number represented in No. 1,133 (16,473 in the court below) is not precisely stated. It is alleged in the brief filed in behalf of petitioners in case No. 1,125 that only 91 Indians are actually represented in case No. 1,133, and that the other 200 Indians are among those represented in case No. 1,125.

But these facts are not found for us in any authoritative form. Nor, indeed, would it seem that the court below was furnished with information sufficient to enable it to define what Indians, or what number of Indians, entitled to distribution, are represented by the respective attorneys or agents.

Unable as we are to safely adjudicate this question as between these classes of claimants, we can do no better than acquiesce in the suggestion of the court below, that it is one to be dealt with by the authorities of the government when they come to distribute the fund.

As these petitioners no longer have any tribal organization, and as the statutes direct a division of the annuities and other sums payable by the head, and as such has been the practice of the government, perhaps the necessities of the situation demand that the identification of each claimant entitled to share in the distribution shall be left to the officers who are the agents of the government in paying out the fund. U.S. v. 'Old Settlers,' 148 U.S. --, 13 Sup. Ct. Rep. 650.

The decree of the court below is affirmed. 

Notes