
    THE FOND DU LAC BAND OF CHIPPEWA INDIANS v. THE UNITED STATES.
    [No. 20815.
    Decided April 17, 1899.]
    
      On the Proofs.
    
    
      Suit is brought under the Act June 7,1897 (30 Stat. L., p. 89), referring tlie claim to this court arising under the treaty of September 30,1854, The treaty reserves to the Indians a certain, tract of land, giving metes and hounds, with a proviso that if it he less than 100,000 acres a sufficient amount shall he added to make it up to that. Upon survey it is found that an area of 125,294 acres is embraced, but that the boundary is not far enough, south to include the Indian village. Thereafter, on application of the Indians, a new survey is made which includes the village, but diminishes the reservation to 100,121 acres. A large portion of the area excluded by the new survey is swamp land and useless; that included is arable and productive. The act provides that the court shall make an equitable adjustment between the area provided for in the treaty and that given, making due allowance for the fact that the Indians were given a share of’ the proceeds of lands sold under another treaty.
    I. Where a claim for difference in the quantity of land reserved to an Indian tribe and that provided by treaty is referred to the court, and the difference is found, it only remains for the court to follow the language of the act referring the case and determine whether any equitable adjustment has been made.
    II. Where a case growing out of an Indian treaty is referred to the court to “ hear and determine the difference,” etc , it confers authority to enter judgment; where in addition the words “when completed the court shall malee a fall report to Congress” are used, the court may omit the entry of judgment and report the facts to Congress, with its opinion.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. September 30, 1854, the United States, through their commissioners, appointed for that purpose, entered into a treaty with the chiefs and headmen of the “Chippewa Indians of Lalre Superior and the Mississippi” (10 Stat. L., 1109, 1110), whereby, among other things, it was provided, in paragraph 4 of article 2 of said treaty, as follows:
    “For the Fond-du-Lac band, a tract of land bounded as follows: Beginning at an island in the St. Louis River above Knife Portage, called by the Indians Paw-pa w-sco-me-me-tig; running thence west to the boundary line heretofore described; thence north along said boundary line to the mouth of the Savannah River; thence down tne St. Louis River to the place of beginning. And if said tract shall contain less than 100,000 acres, a strip of land shall be added to the south side thereof large enough to equal such deficiency.”
    II. In accordance with the terms of said treaty and the provisions thereof quoted in the preceding findings, the United States, in October, 1858, through their officer, Peter E. Bradshaw, deputy surveyor, under the direction of the surveyor-general of Minnesota, made a survey of said proposed reservation, whereby it was found that the lines so run from the natural objects indicated embraced an area of about 125,294 acres.
    In making said survey the surveyor began and ended at a point opposite the center of the island named in the treaty as “Paw-paw-sco-me-me-tig,” but what distance that was from the northern boundary of said island does not appear.
    III. The southern boundary line of the reservation thus run was not placed far enough south by some miles to include the ■principal settlements and buildings of the Indians as they supposed it would when they signed the treaty, and in consequence thereof they at once became dissatisfied and made their discontent known to the surveyor and to the agent in charge of them, which, being communicated, through the proper officers of the defendants, to the President, an executive order was issued directing the General Land Office to withdraw from the market certain lands lying south of the southern boundary of said survey, being the lands upon which the principal settlements and buildings of said Indians were made and located and which they desired to be included within their reservation.
    IY. Thereafter, in November, 1859, the President, in order to secure to said claimants the lands so desired by them to the south of said southern boundary, and at their request, caused a new survey to be made, which was intrusted to S. A. Forbes, a surveyor of the United States.
    In this latter survey the southern boundary was extended by beginning at the southeast corner of the original reservation, running thence south 5 miles and 5 chains; thence west 12 miles and 60 chains; thence north 5 miles and 5 chains to the original south boundary of the reservation, containing an area of 41,280 acres.
    At the same time the western boundary line of said new survey was extended north to the St. Louis River, and thence down the said river to the place of beginning, thereby excluding-66,453 acres on the west, which were included in said original survey.
    By this latter survey the reservation was reduced to 100,121 acres, or about 25,173 acres less than that contained in said original survey.
    A large portion of the lands excluded on the west of said new survey was swampy and unfit for cultivation. Most of tbe territory added pn the south by said new survey included high, rolling, arable lands and was very productive.
    Y. At the time, and after the completion of said new survey, as aforesaid, the chiefs and headmen of the claimants expressed themselves to said surveyor and to the agent in charge of them as satisfied therewith, but whether said claimants knew at the time that lands which were included within the original survey had been excluded by said new survey does not appear.
    No agreement or treaty appears to have been entered into between the United States and said Indians concerning said new survey, but the reservation established and defined by said new or Forbes survey has ever since been recognized by the United States as the reservation of said Indians under the treaty with them; and further, it was understood at the time by the officers of the United States having to do therewith that said Indians had accepted said new survey without objection.
    The lands so excluded on the west by said new or Forbes survey were placed upon the market for public entry and have since been disposed of by the United States.
    YI. Pursuant to the act of January 14,1889 (25 Stat. L., 642), “ for the relief and civilization of the Chippewa Indians in the State of Minnesota,” the President of the United States appointed commissioners as therein provided, who, in conformity with the first section of said act, negotiated “ with all the different bands or tribes of Chippewa Indians” in said State, including the claimants herein, for the cession and relinquishment by them in writing of all their title and interest in and to all the reservations of said indians,” except as in said act stated, whereby said claimants, in common with all the other bands or tribes of Chippewa Indians in said State, accepted the terms and provisions of said act, as will more fully appear from the report of said commissioners, found in House Executive Document No. 247, first session Fifty-first Congress, pages 1-60.
    In the negotiations for the cession and relinquishment of the lands aforesaid the chiefs and headmen of the claimants for the first time made known to the defendants’ officers their objection to the last or Forbes survey, whereby their reservation was diminished on the west as hereinbefore set forth; and they asked that the commissioners would examine into the matter and see that justice was done them, which the commissioners promised would be done. (House JBx. Doc. (supra), p. 184 et seq.
    YII. In the same executive document, page 9, it appears that a census was taken of all of said Chippewa Indians in Minnesota and that the aggregate number thereof was 8,304, of which the claimants numbered 671, divided as follows: Adult males, 157; adult females, 187; minors — male, 168; female, 140; orphans — male, 9; female, 10.
    That the total number of acres in all of the reservations of said Chippewa Indians in Minnesota, as shown by said executive document, on page 27, was 4,747,931, reckoning the reservation of the claimants at 92,346 acres, as therein stated, or 4,755,606 acres, reckoning the claimants’reservation at 100,121 acres, as recognized by the United States since said last or Forbes survey.
    Upon the foregoing findings of fact the court finds the ultimate facts so far as they are. questions of fact:
    First. That the difference “ between the area of the reservation actually set apart to said Indians,” claimants herein, and “that provided to be set apart in said treaty” assuming the original survey as in conformity therewith was 25,173 acres.
    Second. That “since the date of said treaty” no “equitable adjustment, in whole or in part,” has been made with said claimants for said difference in area other than the difference in value between the lands so added on the south and those excluded on the west, resulting from said last or Forbes survey, and as herein next stated.
    Third. That by reason of the cession and relinquishment of said claimants of their title and interest in and to said reservation of 100,121 acres, in common with like cessions of their reservations by all the other tribes and bands of Chippewa Indians in Minnesota, they thereby become entitled under said act of January 14,1889 (supra), to share in common with all of said Indians in the proceeds of the sale of said lands so ceded to the United States under said act, amounting tp 4,755,70.6 acres, less the lauds to be set apart to all of said Chippewa Indians in severalty under section 3 of said act and the act of February 8,1887 (24 Stat. L., 388).
    
      Upon tbe foregoing findings of fact and ultimate facts tlie court decided as conclusions of law:
    First. That the difference “between the area of the reservation actually set apart to said Indians and that provided to be set apart in said treaty” of September 30, 1854, was 25,173 acres.
    Second. That taking, as the jurisdictional act provides, “into consideration” and making “due allowance for the fact that said Indians were given a share in the proceeds of the lands sold and disposed of under and pursuant to the provisions” of the act of January 14,1889, and the difference in the character of the original and diminished reservations as set forth in the findings, the benefits resulting to said claimants therefrom operated as an “ equitable adjustment made to said Indians” for said “difference in area,” and the petition herein is dismissed.
    
      Mr. J. M. Vale for the claimants.
    
      Mr. M. G. Burch (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

This suit is brought under a provision of the act of June 7, 1897 (30 Stat. L., p. 89), making appropriations for the current and contingent expenses of the Indian Department, which reads as follows:

“ That the claim of the Fond du Lac band of Chippewa Indians of Lake Superior for compensation arising from the alleged difference in area of the reservation as actually set apart to them and that provided to be set apart, under the fourth subdivision of article two of the treaty between the United States and the Chippewas of Lake Superior and the Mississippi, made and concluded at Lapointe, in the State of Wisconsin, on the thirtieth day of September, in the year eighteen hundred and fifty-four, proclaimed January twenty-ninth, eighteen hundred and fifty-five, be, and the same is hereby, referred to the Court of Claims; and jurisdiction is hereby conferred on said court, with right of appeal as in other cases, to hear and determine the difference, if any, between the area of the reservation actually set apart to said Indians and that provided to be set apart in said treaty, if any, the said action to be brought by the said Fond du Lac band of Chippewa Indians against the United States by petition, verified under oath, by. any duly authorized attorney for said Indians, within thirty days from the passage of this act; and in hearing and determining the said matter the court shall take into consideration and determine whether since the date of said treaty there has been any equitable adjustment made to said Indians in whole or in part for the alleged difference in area, and the court shall also take into consideration and make due allowance for the fact that said Indians were given a share in the proceeds of the lands sold and disposed of under and pursuant to the provisions of an act entitled ‘An act for the relief and civilization of the Chippewa Indians in the State of Minnesota,’ approved January fourteenth, eighteen hundred and eighty-nine. The Attorney-General shall appear and answer said petition within thirty days from the filing thereof, unless the time for pleading be extended by the court tor cause shown; and said action shall have precedence in said court, and when completed the court shall make a full report to Congress.”

By the terms of paragraph 4, article 2, of the treaty of September 30,1854 (10 Stat. L., 1109,1110), between the United States and the Chippewa Indians of Lake Superior and the Mississippi, there was to be set apart to the claimants' as and for a reservation a tract of land bounded as follows:

“ For the Fond du Lac bands, a tract of land bounded as follows: Beginning at an island in the St. Louis River, above Knife Portage, called by the Indians Paw-paw-sco-me-me-tig, running thence west to the boundary line heretofore described, thence north along said boundary line to the mouth of Savannah River, thence down the St. Louis River to the place of beginning. And if said tract shall contain less than one hundred thousand acres, a strip of land shall be added on the south side thereof large enough to equal such deficiency.”

Under that treaty the land described therein was surveyed, beginning at a point opposite the center of the island named, and as thus surveyed the area was found to contain 125,294 acres, or 25,294 acres more than the minimum number stated in the treaty; but the southern boundary line, though in conformity with the treaty, was not placed far enough south to include the settlements and buildings of the claimants, as they supposed it would be when they signed the treaty. To meet their objection and to allay their discontent in this respect the President, the year following, caused a new survey to be made, whereby, beginning at the southeast corner of the original survey, and running thence south 5 miles and 5 chains to a width of 12 miles and 60 chains west, there were added on the south, adjoining fcbe southern boundary of the original survey 41,280 acres, mostly rolling, arable lands. But in extending, as was done, the west line of said new survey north to the St. Louis River, there were excluded 66,453 acres, mostly swamp and unfit for cultivation, on the west which were within the original survey, thereby diminishing their reservation to 100,121 acres, and herein lies the cause of this suit..

The new survey appears to have given satisfaction to the chiefs and headmen of the claimants at the time, but whether they knew that the lands on the west had been excluded does not appear, and no agreement appears to have been entered into between the United States and the claimants concerning the new boundary lines of their reservation.

The reservation as thus defined and established, however, has ever since been recognized by the United States, and no complaints or objections were ever made concerning the same by the claimants to the defendants’ officers until the commissioners, pursuant to the act of January 14, 1889 (25 Stat. L., 642), commenced to negotiate with them for the cession and relinquishment of their title and interest in said reservation, as set forth in finding six.

The purpose of that act, as indicated by the title, was “for the relief and civilization of the Chippewa Indians in the State of Minnesota,” and in furtherance of that purpose it was provided in the first section that the commissioners appointed, as therein provided, were “ to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the State of Minnesota, except the White Earth and Red Lake reservations, and to all and so much of these reservations as in the judgment of said commission is not required to make and fill the allotments required by this and existing acts and shall not have been reserved by the commissioners for said purposes,” as thereinafter stated. And further, that all lands not so set apart in severalty should be, as set forth in section 4, surveyed and subdivided into 40-acre lots, and that those lands with standing pine timber should be designated as “pine lands” and should be sold as therein provided, for not less than $3 per 1,000 feet, board measure, of tbe pine timber tbereon, and all other lands were to be designated as “ agricultural lands,” to be sold under tbe homestead law for not less than $ 1.25 per acre, and the proceeds of all such lands under section 7 of the act, after deducting expenses of making the census and obtaining the cession and relinquishment, the removal and allotments, survey, etc., was required “to be placed in the Treasury of the United States to the credit of all the Chippewa Indians in tlie State of Minnesota as a permanent fund, which shall draw interest at the rate of 5 per centum per annum, payable annually for the period of fifty years after the allotments provided in this act have been made, and which interest and permanent fund shall be expended for the benefit of said Indians,” in the manner provided in said section.

Tbe findings show that the difference “between the area of the reservation actually set apart to said Indians and that provided to be set apart in said treaty” is 25,173 acres.

That being established, it only remains for the court, in the language of the act, “to take into consideration and determine whether, since the date of said treaty, there has been any equitable adjustment made to said Indians, in whole or in part, for the alleged difference in area,” and in the determination of that question the act provides that “the court shall also tahe into consideration and malee due allowance for the fact that said Indians were given a share in the proceeds of the lands sold and disposed of under and pursuant to the provisions” of the act of January 14,1889.

Although the original reservation was diminished 25,173 acres, it is quite evident from the findings of fact that the lands on the west, excluded by the last survey, were of no greater value than the lands added on the south, so that in respect of the value of the original and diminished reservations there was little, if any, difference.

At the time of the session and relinquishment of title to their respective reservations the Chippewa Indians of Minnesota numbered, including men, women, and children, 8,304, while the total area of their combined reservations, reckoning the claimants’ at 100,121 acres, contained 4,755,706 acres; thus showing that while the population of the claimants was about one-twelfth of the whole number, their reservation was about one forty-seventh of the whole acreage; and had there been no diminution of the original survey it would be about one thirty-eighth of the whole acreage.

Section 3 of the act of 1889 provided for allotment in sev-eralty to all the Chippewa Indians in Minnesota, under the provisions of the act of February 8,1887 (24 Stat. L., 388), the first section of which latter act in this respect provides:

“To each head of a family, one-quarter of a section;
“To each single person over eighteen years of age, one-eighth of a section;
“ To each orphan child under eighteen years of age, one-eighth of a section; and
“To each other single person under eighteen years now living, or who may be born prior to the date of the order of the President directing an allotment of the lands embraced in any reservation, one-sixteenth of a section.”

Assuming for the purpose of an illustration that 100 acres per capita would be a fair average on the basis given, and that all the 8,304 Indians would be entitled to share alike therein; it would require 830,400 acres to meet the requirements of such allotment, leaving to be sold for the common benefit of all, at the price and in the manner provided in sections 5 and 6 of the act, 3,925,306 acres, of which about one-twelfth, or 316,000 acres, or the proceeds thereof when sold, will become the property or share of the claimants.

As shown by the commissioner’s report (House Ex. Doc., first session, Fifty-first Congress, p. 25), the Indians “ decided to take their allotments upon their reservations,” as they had the right to do under the proviso to section 3, act of 1889, which reads:

“That any of the Indians residing on any of said reservations may, in his discretion, take his allotment in severalty under this act on the reservation where he lives at the time of the removal herein provided for is effected, instead of being removed to and taking such allotment on White Earth Reservation.”

Under that provision upon the basis stated the claimants, numbering 671 souls, would be entitled to have set apart to them in severalty 67,100 acres in their reservation, or if they preferred a like amount in lieu thereof in the White Earth Reservation, and in addition thereto to share, in common with all the other Indians named, in the proceeds of the sale of the residue of such lands as provided by section 7 of the act of 1889.

It will thus be seen that by the mutual acceptance of the terms and provisions of the act of 1889, and the cession and relinquishment, by all the Chippewa Indians in the State of Minnesota, of their title and interest in and to their reservations in said State, the claimants thereby became entitled to share equally with their brethren in the proceeds of the sale of nearly 4,000,000 acres of land, or to the proceeds of about 316,000 acres, equal to 470 acres per capita, in addition to the lands set apart to them in severalty for permanent homes as aforesaid.

That the claimants were greatly benefited by thus being placed upon an equality with their brethren in all their reservations in the State of Minnesota, and that such benefit greatly exceeds the difference between the area of the original and diminished reservation so set apart to the claimants, there can be no question.

It is. true that such benefit results to them by reason of the mutual action of their brethren in the cession of their reservation as aforesaid, but the Congress, by the language of the act of our jurisdiction, commands us by the imperative shall, “ to take into consideration and determine whether since the date of said treaty there has been any equitable adjustment to said Indians in whole or in part for the alleged difference in area,” and further that “the court shall also take into consideration and make due allowance for the fact that said Indians were given a share in the proceeds of the lands sold and disposed of under and pursuant to the provisions of the act entitled “An act for the relief and civilization of the Chippewa Indians in the State of Minnesota,” approved January 4, 1889.

Hence, taking into consideration the character of the lands added on the south and those excluded on the west of the original survey by the new or Forbes survey, the court is of the opinion that there was little, if any, difference in the value of the two areas occasioned thereby; and taking that into consideration with and making “ due allowance for the fact that said Indians were given a share in the proceeds of the lands sold and disposed of un’der ” the act of 1889 as aforesaid, leads the court, in giving effect to the language and evident purpose of the act, to conclude that since the date of the treaty of 1854, under which the reservation was originally set apart to the claimants, there has been an equitable adjustment made to said Indians in whole “for the alleged difference in area” and that therefore the claimants are not entitled to recover compensation therefor.

The language of the jurisdictional act, to wit, “That the claim of the Fond du Lac band of Chippewa Indians of Lake Superior for compensation arising from the alleged difference in area * * * be, and the same is hereby, referred to the Court of Claims; and jurisdiction is hereby conferred on said court, with right of appeal as in other cases, to hear and determine the difference, if any, between the area of the reservation actually set apart to said Indians and that provided to be set apart in said treaty,” seems broad enough, in the light of former adjudications in this court under similar statutes, to authorize the court to render final judgment and decree; but in view of the statement of the claimants’ counsel on the trial of this case that a report to Congress of the facts in conformity with the last words of the act, “when completed the court shall make a full report to Congress,” would be satisfactory, we conclude to suspend the rendition of judgment and decree herein and report the facts to Congress with this opinion for their action.

It follows from what we have said that the claimants are not entitled to recover compensation for the difference in area between the reservation actually set apart to them and that provided to be set apart by the treaty of 1854, under which they claim.  