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CASES DECIDED

IN

THE COURT OF CLAIMS

October 1, 1943, to January 31, 1944, and other cases not heretofore

published.

WINNEBAGO TRIBE OF INDIANS v. THE UNITED

STATES

[No. M-421. Decided October 5, 1942]

On the Proofs Indian claims; liability of United States for taking Indian prop

erty.—Where reservation was taken by the United States and Indians were given another in exchange, it is held defendant is not liable in a suit for just compensation where Congress has acted for what in its opinion was for the best interests of the Indians and has not expressly conferred jurisdiction on the Court of Claims to determine whether or not just compensation was paid for reservation taken. Sioux Tribe of Indians v. United States, No. C-531-(7), 97 C. Cls. 613; certiorari denied, 318 U. S. 789.

The Reporter's statement of the case:
Mr. Ralph H. Case for the plaintiff.

Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief.

The court made special findings of fact as follows: 1. This suit is brought under the jurisdictional Act of December 17, 1928 (45 Stat. 1027), which confers jurisdiction on this court “to hear, examine, and adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of the treaty of February 27, 1855 (Tenth Statutes, page 1172), and the Act of February 21, 1863 (Twelfth Statutes, page 658), or arising under or growing

100 C. Cls. Reporter's Statement of the Case out of any subsequent Act of Congress, Executive Order, or treaty which said Winnebago Tribe of Indians, or any band thereof, may have against the United States * * *.

2. By a treaty with the United States dated February 27, 1855 (10 Stat. 1172) the plaintiff tribe ceded to the United States the reservation then occupied by it in the territory of Minnesota and, in partial consideration for the cession, was granted, as a permanent home, a tract of land equal to eighteen miles square on the Blue Earth River in Minnesota territory, this tract to be selected by an agent for the Government and a delegation of Winnebagoes immediately after the ratification of the treaty. The treaty provided : 6* * * and the country thus selected shall be the permanent home of the said Indians."

The treaty was ratified on March 3, 1855. The selection of the new home was made promptly thereafter, and the Indians removed thereto in due course.

3. Not long after their removal to this reservation it appeared both to them and to the defendant that their interest would be served best by selling a portion of the reservation not needed by them, and by establishing with the proceeds of the sale a fund which it was hoped would make them independent and self-sustaining. A treaty to accomplish this was entered into April 15, 1859 (12 Stat. 1101). The plaintiffs retained 104,958.8 acres, which it was provided should be assigned in severalty to the heads of families and unmarried males of 18 years and upwards, and these lands were later so assigned. The balance of their land, 99,366.51 acres, was sold eventually at prices ranging from 80 cents to $1.25 an acre, the proceeds of which were devoted to the benefit of plaintiffs. Article IV of said treaty provided :

* * * And, in order to render unnecessary any further treaty engagements or arrangements hereafter with the United States, it is hereby agreed and stipulated that the President, with the assent of Congress, shall have full power to modify or change any of the provisions of former treaties with the Winnebagoes in such manner and to whatever extent he may judge to be necessary and expedient for their welfare and best interests. Reporter's Statement of the Case 4. Beginning in August 1862 the Sioux of the Mississippi attacked the white settlers in the State of Minnesota, killing a number of men, women, and children, and destroying and damaging a large amount of property. This outbreak was known as the Sioux war of 1862, and is sometimes referred to as the “Minnesota” or “New Ulm Massacre." Plaintiffs took no part in this outbreak, but the white residents believed that they did and they threatened retaliation. The situation became so acute that the Indian Agent for the Winnebagoes felt it necessary to strictly confine them to the limits of their reservation. Still, public clamor and demands for vengeance against all Indians in the State, and particularly against the Sioux and the Winnebagoes, increased, and open conflict and bloodshed became imminent.

The white people demanded the removal of all Indians from the State. In response thereto, the House of Representatives by resolution passed on December 1, 1862, directed its committee on Indian Affairs to report "the most speedy and economical mode of removing from the State of Minnesota all the Indians within her borders.”

The advice of the Secretary of the Interior was requested. With reference to the Winnebagoes he said:

The Winnebagoes have a small territory of four and a half townships of land, designed for their permanent homes. It is situated in the county of Blue Earth, surrounded by settlers, with no natural boundary. These Indians are constantly exposed to collision with the whites, who now entertain, it appears, hostile feelings towards all Indians. It is due, however, to these Indians to say that recent investigations have failed to show that any act has been committed by them at all justifying the ill will existing against them, and it is only for their security and advantage that I am induced to advise their emigration. It is with extreme reluctance that they will consent to leave their homes, and the government cannot be justified in requiring them to emigrate unless it can be satisfactorily shown that the Indians will be benefited thereby in everything that may relate to their security, happiness, and future prosperity.

From inquiries made of persons well acquainted with the country of the Upper Missouri river, it is believed that a location may be found for these Indians bordering 100 C. Cls. Reporter's Statement of the Case upon the river Missouri and some of its tributaries, with at least two natural boundaries, of the quality as to wood, water, and adaptation to agriculture described in the bill herewith sent for your consideration, where the Winnebagoes may be established with better prospects of sooner being able to sustain themselves, independent of the government, than in their present location.

As the Winnebagoes are without any fault sufficient to justify any substantial complaint, it is but just that if the government requires their removal their new homes shall be donated to them without cost, and that they

shall have the benefit of the sale of their present reserva· tions, which it is supposed will realize to them, at least,

$150,000; and to that extent it is to be hoped they will be benefited if they are required to remove from the

State.

Following this, Congress passed the Act of February 21, 1863 (12 Stat. 658). Under it the President was authorized to assign and set apart for the plaintiffs a tract of unoccupied land beyond the limits of any State of a size not less than their diminished reservation, and also "to take such steps as he may deem proper to effect the peaceful and quiet removal” of the Indians from the State, and to "settle them upon the lands” chosen for them. It was provided that the lands in the Blue Earth reservation should be appraised and sold for a price not less than their appraised value, nor less than $1.25 an acre, and for the use of the proceeds of the sale in making "necessary improvements upon their new reservation." All of the lands, except 1,841.56 acres which had been allotted to certain Winnebagoes who were unwilling to remove therefrom, were sold for the sum of $263,744.62, all of which was disbursed for their benefit. The Indians who were unwilling to remove were allowed to remain on their allotments.

5. In accordance with the provisions of the Act of February 21, 1863, supra, 1,945 Winnebagoes were removed under military escort to a reservation selected for them at Usher's Landing, Dakota Territory, consisting of approximately. 368,649 acres. Their personal belongings were also removed, as well as such improvements as could be removed; the imReporter's Statement of the Case provements which could not be removed were sold and the proceeds disbursed for their benefit.

6. The Winnebagoes were dissatisfied with their new location from the start, principally because they felt that the small detachment of soldiers attached to the agency was not sufficient to protect them from their enemies, the Sioux, who threatened them with annihilation. They refused to separate and to live upon separate tracts of land and to attempt. to cultivate the soil, but lived under the protection of the soldiers in one consolidated community in the shadow of the stockade which had been erected for their protection and the protection of government property. When practically all of the soldiers were withdrawn in August 1863 their fears in-creased, and more than 600 of them left the reservation during that month to seek safety among the Omahas in Nebraska. Within a year thereafter more than 1,300 had left, most of them proceeding to the Omaha reservation and others rejoining scattered bands of their own people in Minnesota and Wisconsin.

Under these conditions, the apparent unfitness of the Usher's Landing reservation for purposes of agriculture, the impossibility of inducing the Winnebagoes to return thereto, the willingness of the Omahas to dispose of a part of their reservation as a home for the Winnebagoes, and the desire of the Winnebagoes to be settled with or near the Omahas, the Commissioner of Indian Affairs on November 15, 1864, recommended that an arrangement be made with the Omahas. whereby a part of their reservation might be secured as a home for the Winnebagoes.

7. By a treaty with the Omaha tribe of Indians (14 Stat.. 667) the defendant secured a tract of 128,000 acres, which was fertile, well timbered, and watered. This tract of land the defendant set apart for the occupation and future home of the plaintiffs, in consideration of the cession to the defendant of all their right, title, and interest in their reservation at Usher's Landing (14 Stat. 671). The defendant also agreed to make certain improvements and furnish them with certain farming implements, seeds, etc.

To fulfill the obligations of this treaty the defendant has expended for the benefit of the plaintiffs $213,347.24.

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