22 Ind. C1. Corn. 28
THE SKAGIT TRIBE OF INDIANS, also known )
as THE LOWER SKAGIT TRIBE OF INDIANS, )
also known as WXDBEY ISIAND SKAGITS, )
Plaintiff,
vs
.
THE UNITED STATES OF M R I C A ,
Defendant
.
1
1
)
)
)
)
)
Docket No. 294
1
Decided: November 13, 1969
ADDITIONAL FINDINGS OF FACT (ON VALUE)
Pursuant to Interlocutory Order entered herein March 20, 1959,
the Commission has received testimony and evidence and has considered
the arguments and briefs of counsel for the parties relating to proof
of the acreage of lands to which Plaintiff held aboriginal title and
of the fair market value thereof as of March 8, 1859, the date of
ratification of the Treaty of Point Elliott (12 Stat. 1927)
.
Based
thereupon, the Commission makes the following additional Findings of
Fact, to-wit:
15. Description of lands. The lands are described in Finding
No. 12 in Skagit Tribe v. United States, 7 Ind. C1. Comm. 292, 311
(1959), as two tracts, the total acreage of which is agreed to by
the parties as 56,300 acres. One tract consists of 50,300 acres of
the central part of Whidbey Island, island County, Washington. The
second tract is a triangular-shaped area of 6,000 acres on the mainland in Skagit County, the shoreline of which extends northwestward
22 Ind. C1. Corn. 28
36
along Skagit Bay from the mouth of Brown's Slough to the north of the
mouth of cne north fork of che Skagit River. The minlsnd tract is
separated fron northern Whidbey Island by less than 4 miles of water.
16. Population on Dete of Valuation. Tne population of the
Skagit Tribe on March 8, 1859, the effective date of the Point Elliott
Treaty, was found by the Commission to be 300. The population in
1858 of settlers in Island County, which then consisted of Whidbey
Island, Camano Island, and most of the present county of Snohomish,
was 180 according to the assessment roll, and most of these were
estimated to beammidbey Island. The population in 1860 was 294,
and grew slowly until the establishment in the 1940's of the Ault Air
Base and Whidbey Island Naval Station.
The present county of ~kagit,'
which includes the Skagit mainland
tract, had no settlers at the effective date of the Point Elliott
Treaty, and there was in 1866 one reported settler on the extreme
northern edge of the Skagit mainland tract.
17. Climate. As to climate, the Whidbey Island tract and the
mainland tract differ principally as to precipitation, precipitation
being somewhat higher on the mainland tract. The climatic data for
northern and central Whidbey Island is to be considered as fairly
representative for both tracts. Island County, which includes Whidbey
Island, 'hzs one of the most uniform marine climates of any area in
the United States."
The growing season averages 202 days. Dry and
wet seasons are fairly distinct; most of the precipitation, which
averages 18.64 inches, comes in the winter. Precipitation on the
37
2 2 I n d . C i . Corn. 28
a z i n l & n d t r a c t i s s s t i m t e a a t between 30 and 35 inches p e r y e a r .
Average teinperatuzes, bgsed on a 41-year r e c o r d , show a mean ?ow o f
and a mean high of 61.1'.
38.6"
18.
Topography.
Tie topography of t h e t r a c t on Whidbey I s l a n d
i s described generally a s gradually r o l l i n g with elevations ranging
from 100 t o 300 f e e t .
A l i n e of p r e c i p i t o u s b l u f f s , r a n g i n g up t o
250 f e e t i n h e i g h t , surrounds the is-land except i n t h e bays and
h a r b o r s where t h e b l u f f s g i v e way t o l e v e l o r g e n t l y s l o p i n g s h o r e lines.
A r e l a t i v e l y small a r e a o f f r e s h water marsh o r swamp w a s a l s o
on t h e i s l a n d .
The mainland t r a c t was a low, l e v e l s a l t water swamp a r e a w i t h
t h e e x c e p t i o n of a r i d g e on t h e n o r t h s i d e o f t h e n o r t h f o r k o f t h e
S k a g i t River.
area.
A l a r g e number of s l o u g h s c u t up t h e marsh o r swamp
The s a l t water marsh was e s t i m a t e d t o cover a b o u t 4,070 a c r e s ,
l a r g e l y submerged a t h i g h t i d e .
19.
Soils
--
Land C l a s s i f i c a t i o n .
A g r e a t v a r i e t y of types o f
s o i l i s found om Whidbey I s l a n d , r e s u l t i n g from d e p o s i t s of g l a c i e r s
which moved over t h e a r e a .
S o i l s of t h e g l a c i a l uplands were o f
l i m i t e d v a l u e f o r a g r i c u l t u r a l u s e , b u t t h e r e were n e a r l y 7,000 a c r e s
o f open p r a i r i e land w e l l adapted t o a g r i c u l t u r a l u s e s , t h e l a r g e s t
such open a r e a i n t h e Puget Sound a r e a .
I t was t h e f i r s t a r e a s o u g h t
f o r c r o p purposes.
The s o i l of t h e mainland t r a c t , w i t h t h e e x c e p t i o n o f a b o u t 400
a c r e s , was s u i t e d f o r a g r i c u l t u r e , b u t much of i t could n o t be
s u c c e s s f u l l y u t i l i z e d u n t i l draimige problems were s o l v e d .
~eadily
2 2 I n d . C1. Corn,. 28
38
a v a i i a b l e f o r a g r i c u l i u r a l use i n t h e mainland t r a c t were a b o u t 500
a c r e s , with 930 a d d i t i o n a l a c r e s s u s c e p t i b l e t o a g r i c u l t u r a l u s e .
S s l t w a t e r marsh iands t o t a l e d 4,070 a c r e s and 500 a c r e s c o n t a i n e d
Defendant's e x p e r t a p p r a i s a l w i t n e s s , C. Marc M i l l e r , c l a s s i f i e d
l a n d s of t h e t r a c t a s follows:
Inidbey Island
Open, a g r i c u l t u r a l land
A c c e s s i b l e Commercial timberland
F r e s h w a t e r marsh land
7,938 a c r e s
41,494 a c r e s
868 a c r e s
Ma i n l a n d
Open, a g r i c u l t u r a l l a n d
S a l t w a t e r marsh land
"Non connnerc i a 1" timber land
1,430 a c r e s
4,070 a c r e s
500 a c r e s
56,300 a c r e s
I s l a n d County assessment r o l l s f o r 1859 show 389 a c r e s i n wheat,
524 a c r e s i n o a t s , 2 a c r e s i n r y e , 19 a c r e s i n b a r l e y , 58 a c r e s i n
p e a s , 64 a c r e s i n p o t a t o e s .
P r i o r t o 1859 t h e S k a g i t I n d i a n s c u l t i -
v a t e d p o t a t o e s i n t h e p r a i r i e a r e a s of Whidbey I s l a n d .
F r e s h pro-
duce from t h e r e was marketed on Puget Sound and f a i r l y r e g u l a r l y i n
V i c t o r i a , B r i t i s h Columbia.
20.
Timber and Other Cover.
The t r a c t on Whidbey I s l a n d , w i t h
t h e e x c e p t i o n of t h e open o r p r a i r i e land e s t i m a t e d a t 6,000 t o 7,900
a c r e s , was a t one time covered w i t h dense f o r e s t .
There i s no s p e c i f i c
r e c o r d a s t o i t s d e n s i t y , a s much of i t was logged o f f b e f o r e s u r v e y s
by Gannett and others.
The f o r e s t c o n s i s t e d o f a t l e a s t one-half
Douglas f i r , and the r e s t , w e s t e r n hemlock and western r e d c e d a r .
As
2 2 I n d . C1. Corn,. 28
39
o f 1859, a n d f o r years t h e r e e f t e r , lumbemen confined t h e production
of lumber almost e x c l u s i v e l y t o Douglas f i r .
The undergrowth i n t h e
f o r e s t area included f i r , a l d e r , hemlock, willow, s a l a l , f e r n , hardhack,
saimonberry and b r i e r s .
Surveyors' f i e l d n o t e s made i n connectian
w i t h t h e surveys of 1855, 1856, 1858,
and 1859, r e f e r t o dead o r
. -.
burned timber o r f i r with such terms a s "burned," "mostly dead",
" k i l l e d by f i r e " and " a l l " o r "nearly a l l " k i l l e d by f i r e .
The
evidence presented did not e s t a b l i s h t h a t f i r e damage was e x t e n s l v e ,
b u t such f a c t o r s must be considered i n any e v a l u a t i o n .
The l o s s of
timber from f i r e s w a s n o t r e s t r i c t e d t o Whidbey I s l a n d , a s such damage
was common t o t h e e n t i r e Puget Sound a r e a .
I n c o n t r a s t , t h e mainland t r a c t was open land having o c c a s i o n a l
clumps of t r e e s with t h e exception of approximately 500 a c r e s n o r t h
of t h e n o r t h fork of t h e S'wgit River on which t h e r e were spruce,
c e d a r , yew, a l d e r , and balsam f i r , but l i t t l e o r no r e d f i r .
The
undergrowth on the higher land north of t h e n o r t h f o r k of t h e S k a g i t
River included v i n e maple, willow, crabapple, salmonberry, hardhack,
a l d e r b r i e r s and n e t t l e s .
Sedges, c a t t a i l s , skunk cabbage, hardhack, Labrador t e a and
sphagnum moss were found i n the open f r e s h water marshes on Whidbey
I s l a n d , and g r a s s e s , t u l e s , hardhack and b r i e r s were found i n t h e
s a l t swamp a r e a of the mainland t r a c t .
The open or
a r e a s on the k%idbey I s l a n d t r a c t were
covered w i t h various types of g r a s s and s c a t t e r e d g a r r y oaks, Douglas
f i r , mountain red cedar, red alden, wiilow, v i n e maple, Oregon maple,
22 Ind. C1. Corn. 28
and elderberry and other bushes.
21 KO Xinerals. KO mineral deposits were known and no mines
were within the Skagit tracts at the date of valuation. Indeed, no
coal or other mineral deposits of commercial importance have been
found there since that date.
I-.
22. Settlement of the Lands. The open, so-called "prairie"
area of the Skagit tract on Whidbey Island was first settled. The
forested areas of the tract were not generally sought or taken for
settlement in or about 1859, no extensive demand then existing for
exportation of lumber from the Puget Sound region. However, sales of
land on Whidbey Island were among the very earliest sales in the
entire Puget Sasund area. The tabulation on page 55 of Defendant's
Exhibit 300-A (compiled from records of the Bureau of Land Management)
shows that 21,948.35 acres of lands of the Skagit tracts (Whidbey
Island and the mainland) were disposed of from 1859 to 1870, made up
as follows:
3,965.55 acres under the Homestead Act of 1862, 4,455.21
acres under the Cash Sales Act of 1820, 1,790.78 acres under Military
Bounty Land Warrants and 11,736.81 acres under the Donation Land Act.
In 1870, 456.5 acres were acquired under the Homestead Act of 1862,
640 acres with Military Bounty Land Warrants, 800 acres with Agricultural College Scrip, and 471.96 acres under the Donation Land Act--a
total of 20,447.70 acres. Although all of the stands of timber on
the island may not have been quite as dense nor composed of trees of
the size found in some other Puget Sound areas, and a possibly substantial amount may have been destroyed or badly damaged by fire,
2 2 Ind. C 1 . Corn. 28
41
between 35,000 and 40,000 a c r e s of t h e timberlands had become p r i v a t e l y
owned by 1880, i n c l u d i n g t h o s e taken under che Donation Land Act and
t h e Homestead Act.
Almost 85 p e r c e n t of a l l land of t h e S k a g i t t r a c t s
had passed t o p r i v a t e ownership by 1880.
H i s t o r y of t h e Puget Sound a r e a d i s c l o s e s t h a t t h e s e S k a g i t l a n d s
a t t r a c t e d more i n t e r e s t , and a t a n e a r l i e r d a t e , than t h e o t h e r l a n d s
i n t h e a r e a because of t h e i r l o c a t i o n and convenient a c c e s s i b i l i t y by
w a t e r , t h e r e a d i l y c u l t i v a t a b l e open p r a i r i e l a n d s on Whidbey I s l a n d ,
t h e e x i s t e n c e of n a t u r a l h a r b o r s a t Coupeville on Penn
Cove and a t
Oak Harbor, and t h e l o c a t i o n of timberland on t h e waterways, making
timber h a r v e s t q u i t e a c c e s s i b l e .
More p r o s p e c t i v e s e t t l e r s and b u y e r s
saw Whidbey I s l a n d b e f o r e March 8, 1859 t h a n any o t h e r l o c a t i o n i n t h e
area.
With t h e f i r s t s e t t l e m e n t s c o n c e n t r a t e d i n t h e Penn Cove a r e a ,
permanent towns came i n t o e x i s t e n c e a t Coupeville and Oak Harbor.
23.
Accessibility
-
transportation.
For t h e I n d i a n s of t h e
Puget Sound a r e a , most t r a v e l was on waterways, which were t h e avenues
of commerce, p a r t i c u l a r l y s i n c e f i s h i n g continued t o be a p r i n c i p a l
o c c u p a t i o n and food source.
White s e t t l e r s who a r r i v e d p r i o r t o a n d
d u r i n g 1859 depended upon t h e same means of t r a n s p o r t a t i o n .
The o n l y
r o u t e s from t h i s a r e a t o markers i n Oregon, C a l i f o r n i a , and e v e n t h e
e a s t e r n United S t a t e s were by w a t e r .
Hence, t h e l o c a t i o n of t h e
S k a g i t l a n d s a s t o g e n e r a l a c c e s s i b i l i t y was unexcelled anywhere i n
t h e T e r r i t o r y of Washington.
I n f a c t , t h e i r l o c a t i o n made t h e S k a g i t
l a n d s among the f i r s t t o be invaded and u t i l i z e d by w h i t e s e t t l e r s ,
22 Ind. C1. Corn,. 28
including trappers, flshernen, farmers, I d e m e n 2nd merchants.
R o ~ d w ~ ypieyed
s
a very minor part in the developnent of the area
until the sdvent of railroads twenty to thirty years after our valuation date. i3y 1854, settlers on Budd Inlet and at Olympia had opened
a road to Cowiitz Landing on which passengers and freight were carried
by stagecoach. But Whidbey Island could be reached from Cowlitz
Landing only by canoe and horseback over an 80 mile route. However,
the Whidbey Island ports of Coupeville and Oak Harbor had become
regular stops for ocean-going vessels engaged in trade from San
Francisco and beyond.
24.
Economy of Puget Sound Area. Commencing in about 1859, and
for three or four decades thereafter, the economy of the white men in
this frontier area was based almost exclusively on lumbering. The
principal market for the lumber was San Francisco, but since the supply
exceeded the demand there, additional mrkets were developed in Bawaii,
Tahiti, China, Australia and Chile. The first shipment of piles went
to San Francisco in 1850, and about the same time sales were made at
Fort Nisqually, the Hudson's Bay Post, and at Fort Steilacoom. In
1853 sawmills were opened at Seattle and at Alki, and construction
began on mills at Fort Ludlow and Utsalady and on the Pope and Talbot
Puget mill at Port Gamble.
In 1854 a mill was built at Apple Tree
Grove and moved in the same year to Fort Madison. In 1853 the
Roeder-Peabody-Page mill was built on Bellingham Bay. During the
years 1856 through 1858 the area had broken out with a rash of new
sawmills and the older ones had increased production.
Due to over-
22 Ind. Ci. Corn. 28
production, under-capitalization, and a nation-wide economic depression
following the Indian Wars, early in 1859 nills started to curtail
production.
The lumber operations involved timber most easily accessible
from the waterways. small settlements grew up at the mill sites.
Timberlands in the Skagit area were ideally located on the coast lands
and proved to be early targets of the lumber industry.
Money in the Puget Sound area was in short supply and interest
rates were extremely~high,in at least one instance running as much
as 4% per month on chattels, and to 1 1/2% per month on real property.
Although lumbering must be credited with supporting settlers of
the Puget Sound area for many years after 1859, agricultural pursuits
were carried on to the extent necessary to supply the local population.
Most of the settlers had been farmers and they planned in terms of
farm production as their ultimate use of these lands. To such people,
the broad, open prairies of Whidbey Island were most attractive, and
experienced the earliest cultivation.
While fishing had not obtained the status of an industry, the
white settlers, like their Indian neighbors, depended upon this as a
major source of food supply. Its potential as a future major factor
in the region's economy was quite apparent
-
awaiting only the devel-
opment of a larger market.
25. Land sales. As we found in the cases of claims of other
Indian tribes in the Puget Sound area previously adjudicated, there
is a scarcity of comparable sales or acquisitions at times relevant
2 2 I n d . C 1 . Connil. 28
t o our valuation d a t e h e r e .
lands.
This i s e s p e c i a l l y t r u e a s t o timber-
A study of such s a l e s i n t h e e n s u i n g c h i r t y y e a r s i n d i c a t e d
t h a t a l l s a l e s o f land i n v o l v i n g any c o n s i d e r a b l e a c r e a g e were s a l e s
by t h e F e d e r a l government under t h e Cash S a l e s Act a t $1.25 p e r a c r e ,
o r by t h e Board of U n i v e r s i t y of Washington Commissioners a t a f i x e d
Purchases could be made with d e p r e c i a t e d
p r i c e o f $1.50 p e r a c r e .
government s c r i p , m i l i t a r y w a r r a n t s , o r greenback c u r r e n c y .
Other
k e d e r a l s t a t u t e s under which t i m b e r l a n d s were a c q u i r e d were t h e
Preemption A c t s , t h e Homestead Act of 1862, t h e Timber C u l t u r e A c t
o f 1873, and t h e Timber and Stone Act of 1878.
Witnesses reported i s o l a t e d instances of s a l e s during t h i s
p e r i o d , acknowledging t h a t t h e y c o u l d n o t be viewed a s comparable
f o r o u r e v a l u a t i o n purposes, b u t t o i n d i c a t e t h e s p a r c i t y of l a n d
t r a n s a c t i o n s a t t h a t time.
Pope and T a l b o t , l a r g e s t lumber company
i n t h e a r e a , made i t s f i r s t land purchase i n t h e Puget Sound a r e a i n
1861 a t $1.50 p e r a c r e .
It continued p u r c h a s i n g some l a n d s from 1863
t o 1866 w i t h m i l i t a r y s c r i p , making t h e c o s t l e s s t h a n t h e l i s t e d
$1.25 p e r a c r e .
From 1875 through t h e 1880's Pope and T a l b o t purchased
numerous 160 a c r e t r a c t s i n t h e Puget Sound a r e a a t a b o u t $3.12 p e r
acre.
P u r c h a s e s by o t h e r m i l l o p e r a t o r s r e f l e c t s i m i l a r p u r c h a s e
prices.
The o r d i n a r y buyer, such a s t h e i n d i v i d u a l s who were moving
i n t o t h e a r e a , would not have a v a i l a b l e t o him t h e same d e v i c e s f o r
s p e c i a l advantage.
A l l such purchases involved t i m b e r l a n d s l o c a t e d w i t h i n a m i l e
and a h a l f of waterways.
The bulk of e a r l y purchases involved Douglas
45
2 2 I n d . C 1 . Coim. 28
f i r t r e e s , but some c e d a r .
Use of o t h e r s p e c i e s s u i t a b l e f o r paper
p u l p , sucn a s nemlock 2nd w h i t e f i r , d i d n o t commence u n t i l a f t e r
t h e t u r n of t h e c e n t u r y .
To March 8, 1859, only 13 s a l e s of a g r i c u l t u r a l o r p o t e n t i a l l y
a g r i c u l t u r a l lands had been made i n I s l a n d County, 5 i n King County,
and a few i n Thurston and P i e r c e Counties.
Most of t h e S k a g i t l a n d s
l i e i n I s l a n d County, and t h e s a l e s were o f open p r a i r i e lands on
Whidbey I s l a n d .
Those were t h e f i r s t r e g i o n s s e t t l e d .
Acquisition
was made under t h e Donation Land Act, t h e Preemption A c t , o r a f t e r
1862, t h e Homestead A c t .
No evidence of amounts o r i g i n a l l y p a i d f o r
t h e n e g l i g i b l e number of such s a l e s a p p e a r s i n the r e c o r d , but t r a n s f e r s by p e r s o n s holding t i t l e a c q u i r e d from government sources a r e
r e f l e c t e d i n t h e r e p o r t of Defendant's a p p r a i s a l w i t n e s s M i l l e r as
follows:
S a l e s Before March 8 , 1859
Date
-
Number
of S a l e s
1854
1855
1856
1857
1858
1859
2
1
2
none
6
2
To t a 1
Acreage
320
160
480
---
1,120
293
-
Total
Consideration
$
Average P r i c e
Per Acre
700.00
300.00
3,000 .OO
---
8,500.00
1,300.00
A f t e r March 8 , 1859
26.
F a i r Market Value.
Up t o March 8 , 1859 s a l e s and t r a n s a c t i o n s
2 2 i n d . 21. COD.
46
28
w i t h w h i t e s e t t l e r s i n t h e Puget Sound a r e a f a i l e d t o e s t a b l i s h any
p a t t e r n o f land v a l u e s .
The record f a i l s t o produce e v i d e c c e upon
which a v a l u e e s z a b l i s n e d by t h e customary methods of a p p r a i s a l ,
based upon comparable s a l e s , can be e s t a b l i s h e d .
A c t u a l l y , some of
t h e s e l a n d s were s t i l l used and occupied by t h e I n d i a n s .
James A . C r u t c h f i e l d , J r . , a p r o f e s s o r of economics, appeared a s
an expert witness f o r the P l a i n t i f f .
He u t i l i z e d two methods of
v a l u i n g t h e t r a c t and a r r i v e d a t a n o p i n i o n o f v a l u e under each
method.
H i s f i r s t method i s r e f e r r e d t o a s t h e "market v a l u a t i o n " ,
based upon t h e commercial v a l u e d e r i v e d from t h e m a r k e t i n g of p r o d u c t s .
He computed t h e v a l u e of timber discounted t o 1859 a t 8%, a n d added a
per a c r e value f o r a g r i c u l t u r a l p o t e n t i a l .
Under t h i s method he
placed a v a l u a t i o n on t h e Whidbey I s l a n d l a n d s of $4.94 p e r a c r e , and
t h e mainland t r a c t of $1.25 p e r a c r e .
I n h i s second method of v a l u a t i o n , r e f e r r e d t o a s t h e " s u b s i s t e n c e
v a l u a t i o n " , h e a r r i v e d a t a v a l u a t i o n of t h e e n t i r e S k a g i t t r a c t o f
$1,000,000.00 l e s s $200,000.00 f o r r e t a i n e d r i g h t s , o r a n e t subs i s t e n c e v a l u e of $800,000.00. This c o n c l u s i o n was d e r i v e d by u s i n g
$150.00 p e r y e a r as t h e v a l u e of s u b s i s t e n c e ( p o t e n t i a l e a r n i n g
c a p a c i t y ) o f each I n d i a n , m u l t i p l i e d by t h e number of S k a g i t I n d i a n s
a t t h e time (400)
.
The C r u t c h f i e l d methods of e v a l u a t i o n have been
r e j e c t e d by t h e Commission i n p r i o r d e c i s i o n s .
C . Marc M i l l e r , a q u a l i f i e d and experienced a p p r a i s e r , t e s t i f i e d
a s a n e x p e r t w i t n e s s upon behalf of t h e Defendant.
Recognizing t h e
absence of comparable s a l e s , he u t i l i z e d a market v a l u e approach,
47
22 Ind. C1. Corn. 28
tsking into consideration all possible factors that would be apparent
to a prospective ?urchaser, i,e. white settler, lumberuan, in 1859.
He considered such elements as the natural resources of the land,
including its climte, vegetation (timber included), game snd wildlife (fishing Inciuded), mineral resources, its then or potential use,
its existing agricultural production, transportation, accessibility,
potential markets, soil surveys, general economic conditions, topography, population and settlement patterns. He gave careful consideration to sales and other factors relating to separate values of
agricultural or potentially agricultural lands and of timberlands on
Puget Sound
.
Miller proceeded to classify lands as to types as hereinabove
described, and then to place values accordingly. He set the fair
market value of the Skagit tracts as of March 8, 1859 at $31,250.00
or approximately 55 1/2 cents per acre, derived as follows:
Whidbey Island
Acres
Open, potentially agricul7,938
tural land
Accessible comercial timber- 41,494
land
Fresh water marshland,
unc laimed
Per Acre
Value
-
$2.00
$15,876.00
.30
12,448.OO
.30
260 .OO
Mainland
Open, potentially agriculrural land
Salt water marshland
Noncommercial timberland
Tota 1 Acreage
Total Value
$31,235 .50
2 2 Ind. C 1 . Comm. 28
48
Miller contended t h a t the p r e v a i l i n g s a l e p r i c e of governmen:
lands or' $1.25 per a c r e c o n s t i t u t e d a maximum c e i l i n g p r i c e above
which a hypothetical w i l l i n g buyer would not have gone.
The Commission
however, has previously r e j e c t e d t h i s Miller contention i n Snohomish
Tribe of Indians v . United S t a t e s , 7 Ind. C 1 . Comm. 768 (1959).
In
1859 the highest value of Skagit lands t o incoming s e t t l e r s was f o r
agriculture.
The S'mgit lands contained the most a t t r a c t i v e open
' p r a i r i e lands s u i t a b l e f o r a g r i c u l t u r e of any a c c e s s i b l e lands i n
t h e Puget Sound a r e a .
Evidence was presented t h a t economic f a c t o r s
then a t work made i t obvious t h a t i n t h e near f u t u r e t h e s e l a n d s
would have even g r e a t e r value because of t h e i r timber.
h i s t o r y confirms t h i s prognostication.
Subsequent
Located on the S k a g i t lands
were thousands of a c r e s of good timber located near t h e waterways, s o
a s t o be immediately a c c e s s i b l e f o r movement of lumber t o t h e developing markets.
The Commission has noted t h a t p a r t of t h e Skagit lands a r e embraced w i t h i n the t r a c t designated a s the Tulalip (or Snohomish)
-.
Indian r e s e r v a t i o n ,
The a d j a c e n t Snohomish t r a c t w l t h i n t h a t r e s e r -
v a t i o n was decreed t o have a value on March 8, 1859 of $1.10 p e r a c r e
i n the a f o r e s a i d Snohomish c a s e . We used t h a t v a l u a t i o n i n determining
t h e land value c r e d i t e d t o the United S t a t e s f o r lands given t o t h e
P l a i n t i f f t r i b e i n Upper Skagit Tribe e t a 1 v. United S t a t e s , 13 Ind.
C 1 . Comm. 583 (1964).
In a d d i t i o n t o the f a c t o r s r e f e r r e d t o by M i l l e r , t h e record
h e r e i n e s t a b l i s h e s a c c e s s i b i l i t y and q u a l i t y of both a g r i c u l t u r a l
2 2 I n d . C 1 . Corn. 28
49
and timber l a n d s on t h e S k a g i t t r a c t a s having a more f a v o r a b l e
FRfiaence on v a l u e s t h a n K i l l e r saw.
Xeports of Swan and Kellogg on
t h e h i s t o r y of Whidbey I s l e n d , a s w e l l a s o b s e r v a t i o n s by G-a n n e t t
and by I n d i a n a g e n t s , d i s c l o s e t h a t t h e s e l a n d s were of t h e t y p e most
e a g e r l y sought a t t h a t time.
For them t h e demand was g r e a t e r and
t h e r e were more p r o s p e c t i v e buyers and s e t t l e r s .
Accordingly, based upon a l l of t h e p e r t i n e n t f a c t o r s r e f l e c t e d
i n che c o n s o l i d a t e d d o c k e t s of t h e S k a g i t and i t s r e l a t e d c a s e s , w e
have determined t h e f a i r market v a l u e of t h e S k a g i t l a n d s on March 8 ,
1859 t o be a s f o l l o w s :
Wnidbey I s land
No. Acres
Open a g r i c u l t u r a l l a n d s
A c c e s s i b l e conmtercial
t imbe r l a n d
F r e s h w a t e r marshland
P e r Acre
Value
-
7,938
41,494
868
Ma i n l a n d
Open a g r i c u l t u r a l l a n d s
S a l t w a t e r marshland
Less a c c e s s i b l e timberland
TOTALS
1,430
4,070
500
56,300
The Commission h a s p r e v i o u s l y determined i n t h e Upper S k a g i t c a s e ,
s u p r a , t h a t t h e s h a r e of t h e t r i b e which i s P l a i n t i f f i n t h e i n s t a n t
c a s e i n t h e monetary c o n s i d e r a t i o n p a i d by t h e United S t a t e s p u r s u a n t
t o t h e T r e a t y of P o i n t E l l i o t t executed January 2 2 , 1855 (12 S t a t . 9 2 7 )
and r a t i f i e d on r l r c h 8 , l859,was $25,331.50, l e a v i n g a d i f f e r e n c e of
$74,856.50.
We f i n d t h a t payment by t h e United S t a t e s under t h e t r e a t y
o f the sum of $25,351.50 f o r a c q u i s i t i o n of 56,300 a c r e s of l a n d t h e n
.50
22 Ind. C1. C o m . 28
having a fair market value of $100,188.00 (constituting a payment o f
only twenty-five (25%) percent of the value) was such a grossiy
inadequate amount as to make the consideration unconscionable.
..
Concurring:
, Commissioner