In Prairie Band of the Pottawatomie Tribe v. United States, 28 Ind.Cl.Comm. 454 (1972), the Indian Claims Commission (Ind.Cl.Comm.) held that the Pottawatomi Tribe or Nation ceded to the United States (under the Treaty of September 26, 1833, 7 Stat. 431, and the Articles Supplementary of September 27, 1833, 7 Stat. 442) its recognized title to Royce Area 187 in eastern Wisconsin and northeastern Illinois, a large part of Royce Area 160 in Wisconsin, and Royce Areas 188-190 in southwestern Michigan.
A. Plaintiff-appellants' first point concerns the valuation of the timbered property. Among the more-than-5 million acres ceded by plaintiffs there were about one million of timberlands. The Indians' expert valued these at $11 an acre, while the defendant's witness thought them worth only $.35. The Commission did not
Nevertheless, plaintiffs challenge a glancing comment the Commission made in rejecting the Indian expert's high timberland valuation of $11 an acre — a remark which recalled that at that time loggers entered public lands to cut down trees, either in flagrant trespass or under logging permits which the War Department issued without statutory authority.
Our conclusion on plaintiffs' first point is that they have failed to show that the decision below permitted the Government to reduce the value of the ceded lands — in this proceeding — by reliance on its own wrong.
B. As part of the consideration for the cession, the United States agreed to pay the Pottawatomis $280,000 in annuities of $14,000 per year for 20 years. 7 Stat. at 432. The Commission's ruling deducted the full $280,000 even though the payments were strung out over two decades. 38 Ind.Cl.Comm. at 218-19. Plaintiffs contended below, and argue here, that only the commuted value of the $280,000 payment on the valuation date (i. e., $174,508) should have been offset against the value of the cession. They rely upon Miami Tribe v. United States, 281 F.2d 202, 150 Ct.Cl. 725, cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961), and Crow Tribe v. United States, 284 F.2d 361, 151 Ct.Cl. 281, cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961). See also United States v. Absentee Shawnee Tribe, 151 Ct.Cl. 700 (1960), cert. denied, 366 U.S. 924, 81 S.Ct. 1351, 6 L.Ed.2d 384 (1961) (per curiam order). The Commission, however, followed the later decision in Pawnee Indian Tribe v. United States, 301 F.2d 667, 157 Ct.Cl. 134 (1962), cert. denied, 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 498 (1962), which overruled Miami Tribe, Crow Tribe, and Absentee Shawnees on this very point, and held that the full face value of the annuities should be deducted as consideration. Pawnee Indian Tribe held that allowing commutation down to present value would be tantamount to charging the United States with interest, contrary to the established rule.
Although the Indian appellants ask us to abandon Pawnee Indian Tribe and revive Miami Tribe and Crow Tribe, we are not willing to do so. Litigation under the Indian Claims Commission Act is coming to its close. Pawnee has been the law for 15 years
C. The last of plaintiffs' claims on appeal is that the Commission erred in crediting the Government, as part of the consideration for the land cession, with treaty-mandated payments to Pottawatomi chiefs, other individual Indians, and creditors of the tribe. The 1833 treaty and its supplementary articles, 7 Stat. at 431-33, 442-43, called for annuities to a number of Indian chiefs, a fund for individual Indians whose requests for reservations had been denied, and a fund to satisfy creditors of the Indians. It is said that these payments were either in the nature of bribes or were non-tribal payments which should not have been deducted from the value of the ceded territory in this tribal proceeding. The Commission rejected these arguments. 38 Ind.Cl.Comm. at 217-218, 220.
We cannot say that this ruling was wrong. The treaty (including the supplementary
As for the payment of the tribe's debts, the Commission had earlier held, on the same principle, that a treaty provision of this type constituted part of the consideration for a cession. Absentee Delaware Tribe v. United States, 9 Ind.Cl.Comm. 346, 357 (1961). The opinion below correctly found that result peculiarly appropriate here "where the Senate, in consenting to the ratification of the Treaty, required the examination by a commissioner of all debts for which payment was sought under the provision to pay debts of the Indians in order to exclude any found to be unjust." 38 Ind.Cl.Comm. at 218.
A more serious issue comes to us on the Government's cross-appeal. We noted in Part I, C, supra, that Section 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a, provides that "[i]n determining the quantum of relief the Commission shall make appropriate deductions for all payments made by the United States on the claim * * *."
Thus, the problem emerges not from the language of the 1974 proviso, but from its legislative history. The most significant portion of this is the August 1974 Hearing before the House Subcommittee on Indian Affairs.
The undeniable impetus for the 1974 amendment was the Commission's decision on the so-called Sioux "Black Hills" claim. See Sioux Nation v. United States, 33 Ind.Cl.Comm. 151 (1974), rev'd in part, 518 F.2d 1298, 207 Ct.Cl. 234, cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975). There the Commission held that an 1877 Act had unilaterally acquired (by eminent domain and, if not, as a result of less than fair and honorable dealings
There is some hint that the 1974 proviso should be strictly confined to the Sioux's Black Hills claim and that claim alone, but this reading is clearly not permissible. The amendment was deliberately framed in general terms,
It is then said that, in any event the amendment should be applied only to cases just like the Sioux's Black Hills claim. In its decision in that case, 33 Ind.Cl.Comm. at 219, the Commission declared that the 1877 acquisition-by-statute of the Black Hills by the Federal Government was unilateral and not pursuant to any valid treaty or agreement; this meant, the opinion said, that whatever the Sioux received for this land was not "consideration" (which, in the Commission's view, requires a contractual relationship) but simply "payments on the claim." The defendant now takes this as a ruling that "payments on the claim" (in the statutory sense) and "consideration" are mutually exclusive, the former referring solely to unilateral, unbargained for payments by the United States. Though there is no support for this position in the Commission's decisions (see supra and infra), there is some help for it in Hearings on
Reversing its position, the Department of Justice now relies on the distinction apparently drawn in Chairman Kuykendall's written statement, and bolsters its present view by the fact that the Commission told the subcommittee that, if the proposed "food, rations, or provisions" proviso had been in the Claims Commission Act from the beginning it would have barred only about $100,000 in deductions up to 1974 and, aside from the Sioux claim, would have only "minimal" or "insignificant" effect in the future. See Hearings on H.R.16170, supra note 13, at 15, 17, 24, 29, 31, 38, 45, 47-48. Defendant says that unless "consideration" payments are excluded — as it now urges — it would be impossible to come up with the small figure of $100,000 for pre-1974 effect, or use the characterization "minimal" or "insignificant" for future impact. That appears to be true for the past; $100,000 would be far too small if "payments on the claim" covered past consideration expenditures for food, rations, and provisions, as well as purely unilateral payments for the same purpose. With respect to future effect, the use of "minimal" is more arguable; in the light of the Sioux payments for food, rations, and provisions, estimated to be from $30,000,000 to $57,000,000, see Hearings on H.R. 16170, supra note 13 at 19, 36, 39, the present challenged deduction of some $517,000 plus the others we now know
This legislative history is certainly ambiguous, as the Commission noted below, 38 Ind.Cl.Comm. at 224, and we have concluded that, everything considered, the Commission was correct in refusing to separate out and exclude "consideration" payments of food, rations, and provisions from the coverage of the 1974 proviso. The normal understanding of the language would cover both, as we have pointed out, and to overcome such a normal reading the showing from legislative history or legislative purpose must be persuasive. See National Labor Relations Board v. Plasterers' Union, 404 U.S. 116, 129 n. 24, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971); United States v. Dickerson, 310 U.S. 554, 562, 60 S.Ct. 1034, 84 L.Ed. 1356 (1940); United States v. American Trucking Ass'ns, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). We do not find such persuasiveness here. The distinction drawn at the hearings by the Commission chairman between "consideration payments" and "payments on the claim" had not previously appeared in the Commission's decisions,
Moreover, there seems to be only the weakest of policy reasons for differentiating, insofar as food, rations and provisions are concerned, between so-called consensual "consideration payments" and non-gratuitous unilateral payments by the Federal Government. If humanitarian impulses preclude the Government from collecting from the Indians for feeding and sustaining them when such expenditures are made by the United States, on its own, sometime after a cession of the Indian tract previously used for sustenance, then it would seem most peculiar to treat differently with sustenance payments promised in the same treaty which transfers the land to the Government. It is said in support of the distinction that in the case of "consideration payments" there would at least be participation and bargaining by the Indians for the food, rations, or provisions, but that supposed difference pales into nonexistence in the many cases in which any "bargaining" was decidedly one-sided — such as a case (like this) under Section 2(3) of the Claims Commission Act, 25 U.S.C. § 70a, where a treaty is being revised for "unconscionable consideration," or where fraud, duress, or mistake is involved, or where there is a claim under Section 2(5) based on less than fair and honorable dealings.
Because, for these reasons, the legislative history does not convince us to depart from the normal interpretation of the words of the 1974 proviso, we accept that reading as correct and affirm the Commission's ruling which excluded from allowable offsets, under the 1974 amendment, some $516,606.65 in "consideration payments" to the Indians for food, rations, and provisions.
In all respects appealed from, the decision of the Indian Claims Commission is Affirmed.
NICHOLS, Judge, concurring:
I join in Judge Davis' opinion and in the judgment of the court. As to the cross-appeal, I would like to say that I would find the issue even more difficult than it is, but for a factor not mentioned in the opinion. Congress was clearly concerned as to the bogging down of the Sioux case or cases in factual investigation of minutiae of insufficient importance to justify the time lost and the auditors' pay. The Senate Committee said, 3 U.S.Code Congressional and Administrative News (1974), pp. 6111, 6115, that the computation of an offset for feeding the Sioux, if allowed, would "take 5-15 men working at least a year (and probably longer) ... and even then the absence of necessary data may prevent the preparation of a complete and fully accurate report." This of course relates to the Sioux cases and not others, but the Committee plainly indulged in the presumption that the problems manifest in the Sioux cases might arise in others. It declined to enact special legislation for the Sioux alone. In effect, the problems of their cases were taken as models of others about which no information was obtained, except for generalizations that may have been mistaken. As Judge Davis says, we cannot correct Congress'
In United States v. Delaware Tribe of Indians, 427 F.2d 1218, 192 Ct.Cl. 385 (1970) we had before us a Commission rule that it would ignore for offset purposes any gratuities in the nature of subsistence, etc., which in any year did not exceed five percent of the deficiency in the compensation previously paid the Indians for their lands, below what it should have been. We struck this down as an attempt to award interest, contrary to the applicable precedents. However, the parties made it clear that the Commission was also attempting to shed some of the burden of making insignificant calculations. There was much talk about the cost of a hypothetical sack of peanuts, as against the cost of tracking it down for audit purposes a century later. This we recognized as worthy of consideration, even though the cure adopted was incurably tainted. Congress has now acted in the premises and we should give its enactment all the effect the language permits.
In 28 Ind.Cl.Comm. 454, 469, the Commission also held that the plaintiffs in Dockets No. 15-C (Prairie Band of the Pottawatomie Tribe of Indians, et al.), No. 29-A (Hannahville Indian Community, et al.) and No. 71 (Citizen Band of Pottawatomi Indians) could sue in a representative capacity for and on behalf of the Pottawatomi Tribe or Nation.
Before the Commission the parties did not litigate the coverage of that proviso. Plaintiffs argued that the more-than-half-million dollar sum was non-deductible regardless of the proviso (that contention is still preserved in this court), and the defendant responded to that position. The Commission sua sponte imported the 1974 amendment into the case, holding it applicable. The opinion said (38 Ind.Cl.Comm. at 224): "Although there is some ambiguity in the language of the amendment and its legislative history as to whether `payments on the claim' are to be deemed synonymous with or include `consideration,' our present judgment as to the intent of Congress is that such forms of payment are not to be credited against our awards whether or not there exists a refined distinction between consideration and payments on the claim."
In this very case, defendant, in the findings it proposed to the Ind.Cl.Comm. on the award, included the now challenged $517,000 (approx.) under its Proposed Finding No. 19, headed "Payments on the Claim"; it reserved the term "Consideration" for the Government's undertakings in the treaty, regardless of whether or not those undertakings were actually executed. Thus, the expenditures in fact made for food, rations, and provisions were characterized by defendant itself as "payments on the claim," at a time when the coverage of the 1974 proviso was not being litigated.
"* * * we must analyze three types of payments made by the United States to the Indian tribal claimant and for which the Government may obtain credit or have deducted from a monetary award to such claimant. They are known as (1) consideration, (2) payments on the claim and (3) gratuities or gratuitous offsets.
The first one, "consideration," is not truly an offset. In the typical land cession case the United States paid something in money, lieu lands, or goods, for the ceded land in accordance with the treaty or agreement it had made with the Indian Tribe. The Commission tests the conscionability of the transaction by comparing the then fair market value of the land with the amount of consideration paid. If the transaction is determined to be unconscionable because the treaty consideration is so grossly less than the value of the ceded land, the Indian claimant is entitled to an award of the difference between the two sums, but the consideration paid by the United States is credited against the gross fair market value to determine the net award to the plaintiff tribe. It is inherent in a conscionability claim that credit will be given for the consideration paid in order to reach a fair result. It is our understanding that there is no proposal before the Congress to change the existing practice of crediting consideration paid [emphasis added].
"Payments on the claim" are those sums, goods and services provided to the tribe by the United States in response to a claim or grievance asserted by the tribe. As distinguished from consideration, payments on the claim are made unilaterally by the United States not because of any treaty obligation to do so, but in acknowledgment by the Government that some compensation is due the tribe for past specific cases. Such payments are usually authorized by statute. Like consideration, but unlike gratuities, Sec. 2 of our Act as it stands, requires that payments on the claim be deducted from any award to the Indian tribal claimant. Payments on the claim have appeared rather rarely in Indian claim litigation, and usually have consisted of money or land given to a tribal claimant rather than food or provisions. * * *"
It is worth noting that the chairman of the Commission, who filed the written statement with the House subcommittee, joined in the opinion below which we are asked by the Government to reverse with respect to the 1974 proviso.