57th Congress, 1st Session
Senate Document #311
Mr. Turner presented the following
Memorial From Joseph’s Band Of Nez Perce Indians, Relating To Claims For Compensation For Lands In The Indian (Now Oklahoma) Territory, And To Other Claims
[To accompany S. 5311.]
April 18, 1902.Referred to the Committee on Indian Affairs and ordered to be printed.
Claim of Joseph’s band of Nez Percé Indians for compensation for lands in the Indian (now Oklahoma) Territory; for share of the proceeds derived from the sale of a portion of the Nez Percé Reservation in the State of Idaho; for the value of lands which should have been allotted to the members of said band on said reservation, and for lands in the Wallowa Valley, Oregon.
By the sundry civil act of 1883 the sum of $300,000 was appropriated to pay the Cherokee Nation on account of its lands lying west of the ninety-sixth degree, in the Indian Territory, with the proviso that the said nation should convey the lands occupied by the Osage, Nez Percé, and other bands of Indians to the United States, to be held in trust for the use and benefit of said bands of Indians. In pursuance with the terms of said act the Cherokee Nation, by deed bearing date June 14, 1883, conveyed the lands embraced within the boundaries of the Nez Percé Reservation (townships 25 and 26 north, of range 1 west, and townships 25 and 26 north, of range 2 west, containing 90,710.89 acres) to the United States, to be held in trust for the use and benefit of Joseph’s band of Nez Percé Indians.
By an item contained in the Indian appropriation act of March 3, 1885, the sum of $18,000 was appropriated for the support and civilization of Joseph’s Band of Nez Percé Indians, and the Secretary of the Interior was authorized to expend out of that amount a sum sufficient for the removal of said Indians to some other location, and, by deed bearing date May 2, 1885, Joseph’s Band of Nez Percé Indians relinquished and quitclaimed to the United States, in trust for the use and benefit of such Indians as the United States might see fit to locate thereon, all their right, title, and interest in and to the said four townships of land, the consideration named in said deed of relinquishment and quitclaim being the said sum of $18,000 appropriated by the said act of March 3, 1885, for the support and civilization of said hand of Indians.
Of the 90,710.89 acres thus to be held in trust for the use and benefit of other Indians, 11,273.79 acres were allotted to the Tonkawa and Lipan Indians, and 160.50 acres were reserved for Government purposes, a total of 11,434.29 acres, and the balance, 79,276.60 acres, was thrown open to settlement and entry by citizens of the United States, and in direct violation of the trust created by the terms of the deed of relinquishment and quitclaim executed by Joseph’s Band of Nez Percé Indians.
These lands (the 79,276.60 acres) were disposed of by the Government to citizens of the United States at the rate of $2.50 per acre, or a gross sum of $198,191.50.
Subsequently an agreement was entered into with the Tonkawa Indians by the terms of which they were paid the sum of $50,600 for the relinquishment of their interest in said lands, leaving a balance of $147,591.50 in the hands of the Government as the net proceeds from the sale of said lands.
The United States paid the Cherokee Nation at the rate of $1.25 per acre for the surplus lands embraced in said four townshipsthat is, the lands remaining after allotments were made to the Tonkawa and Lipan or a total of 09,095.75; and if this sum be added to the sum paid to the Tonkawa ($50,600) and the total taken from the gross sum received by the Government from the sale of said lands, there would be still due Joseph’s Band of Nez Percé the sum of 08,495.75. But this should not be done because Joseph’s Band of Nez Percé .are entitled to the whole amount for which the lands were sold (unless the amount paid the Cherokee Nation is chargeable against them), as the Tonkawa were entitled only to the amount of lands allotted to the members thereof, they having no other interest in said lands. These lands as before stated, were given to Joseph’s Band of Nez Percé by act of Congress, and any transaction between the Government and the Cherokee Nation or between the Government and the Tonkawa could not affect the interests of Joseph’s Band.
Lands In The State Of Idaho
By an agreement between the United States and the Nez Percé Indians of May 1, 1893, ratified by act of Congress, approved August 15, 1894, the said Indians ceded and sold to the United States a portion of their reservation in the State of Idaho for the sum of $1,626,220, which was paid out, as in said agreement provided, to the Nez Percé Indians of Idaho, and though the members of Joseph’s band were equally interested in the ownership of said lands they never received one cent of the consideration received there for, nor did they receive allotments on said reservation to which they were legally entitled.
According to the annual report of the Commissioner of Indian Affairs for the year 1893, the year in which said agreement was entered into, there were 1,809 Nez Perces residing on said reservation in Idaho, and Joseph’s band numbered 141, a total of 1,950; if the said sum of $1,626,220, received as consideration for the cession of the Idaho lands, had been paid out per capita to all those entitled to share therein, each person would have received $834, but as paid out each individual on the reservation received $898, and the members of Joseph’s band, in order to make them equal with the others, are entitled to 141 times that amount, or a total of $126,753.36; besides the members of Joseph’s Band were entitled to allotments on said reservation, but received none, and are therefore entitled to a money consideration there for.
Amount Due Joseph’s Band
In considering what amount is justly due Joseph’s band under the several transactions above mentioned, the question arises whether the amount paid to the Cherokee Nation, and to the Tonkawa as well, or to either, should be deducted from the gross amount received by the Government from the sale of the surplus lands in the Nez Percé Reservation in the Indian (now Oklahoma) Territory.
If Joseph’s band is entitled to the amount for which the lands were sold without regard to the amount paid to the Cherokees and to the Tonkawa, then there is due on that account the sum of $198,191.50, the total amount received by the Government. Add amount due for their portion of Idaho lands, $126,753.36, making the total amount due $324,944.86.
If the amount paid to the Tonkawa be deducted from the gross amount received from sale of the lands there will remain the sum of $147,591.50. Add amount due on account of Idaho lands, $126,753.86, making a total of $274,345.36.
If the amount paid the Cherokees and not the amount paid the Tonkawa be deducted from the gross amount received, there remains the sum of $99,095.75. Add amount due on account of Idaho lands, $126,753.86. The total amount due is $225,849.61.
If the amount paid the Cherokees and the amount paid the Tonkawa be deducted from the gross amount received, there remains the sum of $48,495.75. Add amount due on account of Idaho lands, $126,753.86, leaving a total of $175,249.61.
No consideration was ever received by Joseph’s band for the relinquishment of title to the lands in the Indian Territory, nor was there any authority of law for the Indians to make such conveyance, or for the United States to accept such conveyance. The transaction was wholly without authority of law.
By the deed of June 14, 1883, from the Cherokee Nation to the United States as trustee, the Government became the trustee without interest, the Indians being the cestui que trust and the real owners of the land; they were not tenants of the trustee because their title to the land was created and fixed by the act of 1883 creating the trust, the United States becoming the naked trustee, and there was no authority of law under which the Indians could convey the land to anyone, and certainly not to the trustee. The title vested in the Indians by the operation of a law of Congress and no conveyance thereof would be valid except by the same authority that created the trust. But, admitting for the sake of argument that the naked trustee without interest could legally take and hold title from the cesqui que trust and that the conveyance by the Indians to the United States is valid, in that case the United States was again made the naked trustee for such Indians as the Government might locate on the land, and such Indians, to the extent of the lands occupied by or allotted to them, became the cesqui que trust, and the United States had no interest in the land other than as trustee for the Indians.
Now, for what purpose did Joseph’s Band convey these lands to the trustee, admitting the conveyance to be valid ? For the purpose of settling other Indians thereon, and no other. It is admitted that under the trust created by the deed of conveyance from Joseph’s Band, if valid, the trustee could have assigned every acre of the land to other Indians, but there was no power to make any other disposition thereof. But instead of complying with and carrying out the express terms of the trust, 11,273.79 acres were allotted to the Tonkawa and Lipan, 160.50 acres were reserved for Government purposesthat is, the trustee set aside for its own use this tract of 160.50 acresand the balance remaining, 79,276.60 acres, was disposed of to white settlers, in direct violation of the express terms of the trust, and the trustee appropriated the proceeds thereof to its own use. Under our jurisprudence a trustee may not even become a purchaser, for value, of his ward’s estate. His office is held to be so sacred that he is not permitted to have any relation, direct or indirect, to the estate, save that only which devolves upon him by the terms of the trust; but here we have the spectacle of the trustee appropriating to its own use the entire property of its ward, and which would not be tolerated for a moment between private individuals.
Letter of Chief Joseph to the Commissioner of Indian Affairs
WASHINGTON, D. C., April 30, 1900.
SIR: I have your letter of the 6th instant in reply to mine of the 31st ultimo, and beg leave to say that it does not answer the inquiries propounded in my said letter.
With your permission I will set forth the facts, as I understand them, in relation to the several matters of interest to my people, and shall be pleased to have you give me definite answer to each.Lands In The Indian Territory
By the sundry civil act of 1883 the sum of $300,000 was appropriated to pay the Cherokee Nation on account of its lands lying west of the ninety-sixth degree in the Indian Territory, with the proviso that said nation should convey the lands occupied by the Osage, Nez Percé, and other Indians to the United States, to be held in trust for the use and benefit of the several bands of Indians named therein. In pursuance of the terms of said act the Cherokee Nation, by deed dated June 14, 1883, conveyed the lands embraced within the boundaries of the Nez Percé Reservation (townships 25 and 26 north, of range 1 west, and townships 25 and 26 north, of range 2 west, containing 90,710.89 acres) to the United States, in trust for the use and benefit of Joseph’s Band of Nez Percé Indians. By an item contained in the Indian appropriation act of March 3, 1885, the sum of $18,000 was appropriated for the support and civilization of Joseph’s Band of Nez Percé Indians, and the Secretary of the Interior was authorized to expend of that amount a sum sufficient for the removal of said Indians to some other location, and by deed dated May 22, 1885, the said Indians relinquished and quitclaimed to the United States, in trust for the use and benefit of such other Indians as the United States might see fit to locate thereon, all their right, title, and interest in and to the said four townships of land.
Now, what consideration passed to the Indians for the relinquishment and quitclaim of their title and interest in said lands, and under what law were they authorized to make such a conveyance and the United States accept the same? As I understand it, all agreements between Indian tribes and the United States, to be of any validity, must be ratified by Congress. Please answer this specifically.
Of the 90,710.89 acres thus to be held in trust by the United States (that is, as trustee for Joseph’s Band of Nez Percé) for the use and benefit of other Indians, 11,273.79 acres were allotted to the Tonkawa and Lipan Indians, 160.50 acres reserved for Government purposes, a total of 11,434.29 acres, and the balance, 79,276.60 acres, was thrown open to settlement and entry by citizens of the United States, in direct violation of the trust created by the deed of relinquishment and quitclaim under which they were held. Am I correct in this statement and conclusion?
The surplus lands, those remaining after allotment to the Tonkawa and Lipan (79,276.60 acres), were sold at $2.50 per acre, or a gross sum of $199,198.50. By the agreement with the Tonkawa they were paid $50,600 for the relinquishment of their interest in said surplus lands, leaving a balance of $149,591.50. To whom does this balance belong? Not to the Tonkawa, for they had no interest in the lands other than the amount required for allotment, and certainly not to the United States as the trustee, for that would be in violation of all rules of law. The trustee in this case held the lands for a specific purpose and had no power to divert them to other uses, and when illegally diverted the trustee had no interest in the proceeds. Is not this a rule of law established and universally recognized by all courts? Again, what right and under what law did the trustee pay $50,600 to the Tonkawa and Lipan? Where did the trustee get this authority?
By the agreement with the Nez Percé Indians of May 1, 1893, ratified by an act of Congress of August 15, 1894, said Indians sold to the United States a portion of their reservation in Idaho for the sum of $1,626,220, to be paid out as therein provided. My people were joint owners and equally interested in the lands thus disposed of and were legally entitled to their distributive share of the funds derived from the sale thereof, and also legally entitled to allotments of land on that reservation, but they were illegally deprived of both. Under what authority of law was this done, and how could my people be deprived of their rights without their consent? The lands within the reservation in Idaho belonged to the Nez Percé people, all being equally interested therein, and I ask under what authority of law my people could be legally deprived of their interest therein or in the proceeds derived from the sale thereof?
Lands In The Wallowa Valley, Oregon
From time immemorial the Nez Percé Indians owned and occupied the lands lying between the Grand Ronde River and the Snake River, known as the Wallowa Valley, in Oregon, the title to which has never been relinquished or surrendered by them. The fact that these lands were so owned and occupied has never been disputed, which fact is borne out by the records of your office, and in order to protect them in the rights so recognized and to prevent the lands being overrun and appropriated by the whites, the said lands were set apart for my people by Executive order dated June 16, 1873, and remained so reserved until June 10, 1875, when by Executive order of that date they were restored to the public domain and opened to settlement and entry, all in violation of the recognized rights of my people. Now, I ask under what law or treaty my people were deprived of their rights to these lands? If there be such law or treaty, I shall be pleased to have you give me the reference to where it may be found. If there be no such law or treaty, then I ask whether my people have forfeited their rights to said land, and if so, how and when and under what authority of law?
Now, I should like very much to have a detailed and specific answer to all these matters, and at a date as early as possible.
I understand that there is a final payment of some hundred thousand dollars yet to be made from the proceeds derived from the sale or relinquishment of lands under the agreement of 1883, and for and in behalf of my people I respectfully but most earnestly protest against the payment thereof until the legal rights of my people in the several matters and things herein set out are fully investigated, recognized, and adjusted.
Very respectfully,
The Commissioner of Indian Affairs
JOSEPH
Chief of Joseph’s Band of Nez. Percé Indians, now residing on the Colville Reservation, Washington.
Witnesses to Joseph’s signature:
Paul Sho Wa Way
Stephen Reuben