THE ABSENTEE S H A W E TRIBE
OF OKLAHOMA,
Petitioner,
UNITED STATES OF.AMERICA,
1
1
1
1
1
1
1
3
Docket No, 334-3
)
Defendant,
1
Decided: March 29, 1963
Appearances :
Jack Joseph and
Louis L, Rochmes,
Attorneys for Petitioner,
W, Braxton Miller, with whom
was Mr, bsistant Attorney
General Ramsey Clark,
Attorneys for Defendant,
OPINION OF THE COMMfSSION
Scott, Associate Commissioner, delivered the opinion of the Commission,
The petitioner, The Absentee Shawnee Tribe of Oklahoma, filed its
original petition in Docket 334 on August 11, 1951.
This Commission, on
December 21, 1956, issued an order severing from the original petition the
"Third and Separate Cause of Action?' and the "Fourth and Alternative Cause
of Action" as Docket 334-B, which is the claim involved herein.
The petitioner generally claims that the defendant appropriated
without compensation property which had been set aside within the Shawnee
area in Kansas for the benefit of the Absentee Shawnee Tribe of Oklahoma
contrary to the Constitution, laws and treaties of the United States, for
which recovery is authorized under Clauses 1, 4 and 5 of Section 2 of the
Act.
-.
1 2 Ind. C 1 . Corn. 180
Under the provisions of Clauses (1) and ( 4 ) of Section 2 o f t h e
Act, p e t i t i o n e r p r a y s for a determination granting j u s t compensation
f o r the property taken, judgment i n t h a t amount and f u r t h e r r e l i e f a s
may seem j u s t t o the Commission,
Under Clause 5 of Section 2 of the Act, p e t i t i o n e r prays f o r
judgment in an amount equal t o the value of the lands involved a t t h e
time of taking and an accounting of the proceeds from the s a l e of t h e
property, together with i n t e r e s t thereon.
The defendant i n reply contends t h a t the p e t i t i o n f a i l s t o
s t a t e a claim against the defendant ugon which r e l i e f can be granted
and t h a t p e t i t i o n should be dismissed because the p e t i t i o n e r i s n o t
such a presently e x i s t i n g t r i b e , band o r other i d e n t i f i a b l e group of
Indians a s contemplated i n the Indian Claims Commission Act of
August 13,1946 (60 S t a t . 1049).
As a f u r t h e r defense the defendant, while denying s p e c i f i c a l l y
any l i a b i l i t y , a l l e g e s t h a t i f any claim o r any r i g h t of recovery
should e x i s t , the Shawnee Nation, t h e Eastern Shawnee Tribe of Oklahoma
and the Black Bob Band a r e proper and necessary p a r t i e s hereto.
Further,.
the defendant, while maintaining t h a t the p e t i t i o n does n o t s t a t e a
cause of action, f u r t h e r contends t h a t i f any sum should be found t o
be due p e t i t i o n e r , it i s not e n t i t l e d t o any i n t e r e s t thereon.
This a c t i o n i s based upon provisions of the Treaty of May 10,
1854 (10 S t a t . 1053), between the United S t a t e s and c e r t a i n delegates
representing the bands of Shawnees who were p a r t i e s t o the t r e a t i e s of
November 7, 1825 and August 8, 1831, and who, p r i o r t o the Treaty of
1854, were united i n t o one t r i b e .
1 2 Ind, C l . Cosum. 180
The Treaty of 1854 made special provisions for c e r t a i n Indians
who were absent from the main body of the t r i b e then and had been
since about 1840,
After provision had been made for allotments i n
severalty out of the 200,000 acre t r a c t f o r the main body of Shawnees
i n Kansas and f o r commtmal allotments t o members of Black ~ o b ' s and
Long Tail's settlements, the t r e a t y s t a t e d t h a t it was anticipated
t h a t there would be a surplus of land; t h a t such surplus lands would
be held i n t a c t f o r 5 years a f t e r proclamation of the t r e a t y
ti
be
a l l o t t e d t o "some Shawnees who have been f o r years separated from t h e
t r i b e " and t o "such Shawnees as return to, and unite with the tribe."
The t r e a t y further provided t h a t a t the expiration of the -fLrst f i v e
year period, any surplus lands remaining unallotted should be sold,
and the proceeds held i n the United States Treasury f o r t e n years from
the date of the proclamation of the treaty.
A t the e x p i r a t i o n of the
t e n year period, i f the "absent Shawnees" had not returned and united
w i t h the t r i b e , a l l moneys then i n the Treasury or received a f t e r t h a t
date as-proceeds from the - s a l e of such surplus laads should be ueed f o r ,
or invested f o r "such beneficial o r benevolent objects -n%
tht Shawnees
(emphasis supplied) a s the President of the United States, after con-
s u l t i n g w i t h t h e Shawnee Council, shall determine.
"
The t r e a t y -further
provides t h a t i f "any absent Shawnees return and unite with s a f d t r i b e "
a f t e r the .expiration of the f i r s t f i v e year period mentioned, and before
t h e expiration of the ten year period, a proper share -of the hmda .remaining rmsold should be assigned t o them.
In the .event a l l surplus
lands have been sold a t the time of t h e i r return, then e q u i t a b l e payments
should be made t o them from the money held by the Treasury.
1 2 Ind. C1. Comm. 180
From an analysis of these provisions, i t i s apparent t h a t the
t r e a t y did n o t consider the "absent Shawnees" a s an i d e n t i f i a b l e group
i n which r i g h t s were automatically vested t o the surplus lands, but
r a t h e r a s individuals who f o r various reasons were absent from the
main body of the Shawnees, and who could i n d i v i d u a l l y invoke freedom
of choice a s t o returning t o the united Shawnee t r i b e .
However, i t i s
equally apparent t h a t i n order t o become e n t i t l e d t o h i s s h a r e i n t h e
Shawnee lands i n Kansas, each "absent" Shawnee was bound t o r e t u r n t o
and u n i t e with the t r i b e within a c e r t a i n l i m i t e d period of t i m e , and
f a i l i n g t o do so, he l o s t such b e n e f i t s a s might have inured t o him
under t h e treaty.
The absent group which was so provided f o r had never l i v e d i n
Kansas, but had about 1840 moved westward i n t o Indian T e r r i t o r y ,
s e t t l i n g on laads once occupied by the Creeks and Seminoles,
However,
t h e r e i s no indication t h a t they were considered a s e p a r a t e e n t i t y ,
but r a t h e r wanderers from the f o l d of t h e Shawnee t r i b e ,
That t h e y
s t i l l considered themselves a p a r t of t h e Shawnee t r i b e i s borne o u t
by t h e f a c t t h a t i n 1862, when dispossessed by t h e fortunes of war,
they returned t o t h e protection of the Shawnee t r i b e proper, and t h e
Shawnees shared t h e i r annuity with them,
In 1862, i f not before, they were f u l l y advised of t h e i r r i g h t s
under t h e t r e a t y and of the necessity t o r e t u r n t o and u n i t e with
t h e t r i b e i n order t o b e n e f i t thereunder.
Their f a i l u r e t o e x e r c i s e
t h e i r r i g h t s granted them under t h e t r e a t y eliminated any i n d i v i d u a l
i n t e r e s t i n such benefits.
This Commission has s t a t e d :
12 Ind. C 1 . Cormn. 180
...
a c o l l e c t i o n of individual r i g h t s are not converted
i n t o a t r i b a l claim simply because i t i s a s s e r t e d a s a
c l a s s a c t i o n by a subsequently organized group claiming
i n a r e p r e s e n t a t i v e capacity. Indian Claims which a r e
s u b s t a n t i a l l y individual claims a r e not t r i a b l e before
t h e Commission under the Indian Claims Cormnis-sion Act
(7 Ind- C1. Comm. 156, Docket 282)
...
As t o whether t h e surplus lands and the monies r e a l i z e d from
t h e i r s a l e were d e a l t with i n accordance with t h e Treaty of 1854, t h e
p e t i t i o n e r contends t h a t t h e Absentee Shawnee a r e e n t i t l e d t o recover
t h e i r s h a r e of the proceeds of the s a l e s .
Ikfendant, on t h e other
hand, maintains t h a t the proceeds were administered i n accordance
with t h e provisions and i n t e n t of the t r e a t y , and t o t h e s a t i s f a c t i o n
of the Shawnee t r i b e .
The t r e a t y provides t h a t a l l moneys received from t h e s a l e s of
such s u r p l u s land "shall be applied t o , o r invested f o r , such benef i c i a l o r benevolent objects among t h e Shawnees, (emphasis supplied)
a s t h e P r e s i d e n t o f the United S t a t e s , a f t e r consulting w i t h t h e Shawnee
Council, s h a l l determine.
"
It i s t h e opinion of t h i s Commission t h a t a f t e r t h e e x p i r a t i o n
of t e n y e a r s , as provided i n the t r e a t y , the absent Shawnees had l o s t
t h e i r r i g h t t o " r e t u r n t o and u n i t e with" the Shawnee t r i b e f o r t h e
purpose of claiming t h e i r share of the surplus lands; t h a t the Shawnee
Council o f n e c e s s i t y represented a l l those who wished t o be a p a r t of
and i d e n t i f i e d w i t h the Shawnee t r i b e ; and, therefore, t h e decision of
t h e Council a s t o recommendations it wished t o make t o t h e President
a s t o t h e d i s p o s i t i o n of the funds i n question was f i n a l , and binding
upon a l l persons a f f e c t e d by the t r e a t y .
12 Ind. C1. con&
180
Accordingly, it is the opinion of this Commission that the individual absent Shawnees by failing and refusing to comply with the
conditions set forth in the Treaty of 1854 lost any right which they
may have had to the surplus Shawnee lands in Kansas; that the proceeds
of the sales of such surplus lands were expended in accordance with the
provisions of the Treaty of 1854; that the Absentee Shawnee Tribe of
Oklahoma is without a cause of action in the present proceeding, and
the claim must be and is dismissed.
T. Harold Scott
Associate Commissioner
We concur:
Arthur V, Watkins
Chief Commissioner
Wm, M. Holt
Associate Commissioner