58TH CONGRESS, 2d Session. SENATE. DOCUMENT
No. 111.
MEMORIAL OF CERTAIN POTTOWATOMIE INDIANS.
MEMORIAL UPON THE MERITS OF THE BILL (S. 36741) TO PAY CERTAIN POTTOWATOMIE
INDIANS OF MICHIGAN UNPAID ANNUITIES UNDER TREATIES MADE WITH THEM.
JANUARY 21, 1904.—Referred to the Committee on Indian Affairs and ordered to
be printed.
Memorial on behalf of certain Pottawatomie Indians who have not received any
portion whatever of the appropriations made to fulfill certain treaty obligations
of the United States, notwithstanding the Supreme Court of the United States
has found them entitled to receive their "just proportion" of the
same.
The merits of the bill to pay certain Pottawatomie Indians their just proportion"
of funds and annuities due and unpaid to them under treaty stipulations of the
United States are fully explained in the decisions of the Court of Claims (27
C. C., 427, affirmed by the Supreme Court of the United States, 148 U. S., 691,
and in 36 C. C., 427, affirmed by the Supreme Court in 187 U. S., 371, in the
cases of Pam to pee, et al., v. United States) and by the affidavit of Hon.
John B. Shipman, attorney for said Indians (as contained in S. Doc. 205, 57th
Cong., 2d sees.). For convenient reference a copy of this affidavit is attached.
That a clear understanding of the matter may be more readily had, the principal
facts in its history are recited as follows:
About the year 1830, the Government adopted the policy of extinguishing by
purchase all the Indian title to lands east of the Mississippi River. In pursuance
of that policy, in 1833 it entered into two treaties with the united nations
of Chippewa, Ottawa, and Pottawatomie Indians, thereafter known as
Pottawatomies,
by which it purchased their reservation of 5,000,000 acres on the eastern and
southeastern shores of Lake Michigan, including the Chicago lake front and three
small reservations in the southern part of the then Territory of Michigan.
The Government also agreed that a part of these Indians residing on said small
Michigan reservations need not remove west with the remainder, but might locate
in the northern part of Michigan Territory. In case they did not remove west,
they were nevertheless to receive their "just proportion" of all annuities
under former treaties, and also from the funds arising from the sale of the
reservation on which they then resided.
Only a few of the Pottowatomie Indians of Michigan and Indiana removed north.
The Government, however, did not insist upon the removal of these Indians as
a condition prior to their right to share in the payments under the treaty stipulations.
The great body of them remained in southern Michigan and were paid there for
several years, but no payments ever were made to these Indians at the place
designated for that purpose in the treaty. Such payments were made yearly from
1843 to 1866, inclusive. Then they ceased and these Indians of Michigan and
Indiana received only a small portion of their "just proportion"
of the amounts due them under the treaties referred to. The court, in the cases
reported in 27 C. C., 403, and in 148 U. S., 691, found that they were then
entitled to receive from the Government $104,626 and to share in certain perpetual
annuities. The Indians entitled to share in these funds were found to be the
Pottawatomies of Michigan and Indiana, who received payments from the Government
between 1843 and 1866, inclusive, and their descendants. For the purpose of
paying the amounts so found due Congress has made the following appropriations:
$104,626 (28 Stat. L., 450), $6,243.90 (28 Stat. L., 295), $2,081.30 (28 Stat.
L., 885), and 3,707.30 (29 Stat. L., 330). This last sum was for full and final
payment and extinguishment of said perpetual annuities.
The act of March 2, 1895, directed the Secretary of the Interior to have a census
made of the Indians entitled to share in the distribution of moneys appropriated
in pursuance of the court decisions. This was done in such a manner that the
names of Indians entitled to fully one-half of all such moneys were not included
in the roll, and they have never been paid the amounts found due them.
The affidavit of Judge John B. Shipman, a copy of which is attached and made
a part of this memorial, shows the efforts that were made by him to prevent
this result. He, as the attorney of a large number of these Indians, many of
whom he had represented in the cases in which the amount due these Indians had
been determined, had repeatedly written the Interior Department, and personally
appealed to the officials representing it in their behalf. His letter of February
21, 1895, discusses the matter at length, and makes such suggestions as were
proper and necessary to protect all the interests involved.
No replies to this letter having been received from the Secretary of the Interior,
or Commissioner of Indian Affairs, on July 15, 1895, he wrote again to the Secretary
of the Interior, referring to press reports of the Department's action, but
stating that he, the attorney of record for a large number of those entitled
to share in the payments to be made, was unable to obtain any information from
the Department as to what was being done or about to be done in the premises.
He declared he was prepared to furnish names, residences, and proofs of identity
of more than one hundred Indians entitled to share in such payments, and in
their behalf he asked for an early reply, giving full information. He received
no direct reply, but was finally advised, through the Commissioner of Indian
Affairs, to see the person engaged in making the census. This agent was found
in the field acting under such instructions from the Department as to absolutely
prevent him from preparing a correct list of those who were entitled to be
included therein.
Judge Shipman at once addressed a vigorous protest to the Secretary of the
Interior, in which he pointed out the impossibility of his clients receiving
justice at the hands of the Department unless the census was taken under regulations
in harmony with the findings of the court, instead of the instructions under
which the agent was then acting. With this letter of July 27, 1895, he inclosed
the names of over 150 Indians, with the names and identity numbers of their
ancestors on the former pay rolls who were entitled to be included in the census
as returned. Every one of these, the court in the later case found, should have
been included, but none of them were, and never have received any part of the
sums appropriated to make final settlement and payment of what was due them
in pursuance of said judgment.
He received no reply from the Department, but several months later heard that
another agent had been sent to correct any mistakes the former agent might have
made in the census. He was unable to learn what instructions were given this
second agent, but supposed they were based on the findings of the courts and
therefore what he had urged in his letters. He had further correspondence with
the Department during the following year, and as late as October 30, 1896, but
without obtaining any definite information regarding the interests of his clients.
Finally, he again went in person to Washington and learned that the roll on
which payments were to be made was as prepared by the first agent with two
names added as a result of the second agent's work, but not including any of
the 150 names furnished by him and covered by the judgment aforesaid. He then
prepared a bill in equity in the supreme court of the District of Columbia to
restrain the payment of the funds at issue until the rights of all parties therein
could be judicially determined. This he presented to Judge Hagner, of that court,
in chambers, on November 10, 1896. The judge doubted the power of the equity
court to enjoin an executive branch of the Government under these circumstances
and declined to allow the writ.
The Department paid the 272 Indians returned on the erroneous census, between
November 13 and December 15, 1896, but did not pay anything to the 272 Indians
found entitled to participate in such payment by both the Court of Claims and
the Supreme Court of the United States, in the suit instituted early in 1899,
in the further effort to protect these Indians from the unjust acts of the representatives
of the Government. This case was decided in the Court of Claims on the principal
of equitable estoppel, "That where a man remains silent when he ought to
speak he cannot be permitted to speak when it will be to the injury of another
person, who was misled by his silence." (See 36 C. C., 427.) The opinion
admits that the Secretary of the Interior "was not without notice"
of these claimants. Detailed information, concerning more than 150 of them,
had been furnished the Department. This was certainly sufficient to make out
a prima facie case for them and to put the Department upon its notice as to
their rights, so as to require an investigation of their claims at least. But
the records do not show that any such investigation was made by the Department.
The opinion further states:
In this case the claimants knew or could have known, that the census made by
the agent of the Interior Department was returned and filed in August, 1895,
and that the final decision of the Secretary of the Interior was made in January,
1896. So far the case seems clear. The resulting question is, were the claimants
bound to ascertain between that time and the payment of the fund during the
month of November, 1896, that their names were on the pay roll, or might they
assume that the direction of the Secretary would be correctly carried out by
his subordinates? The court has reluctantly come to the conclusion that the
burden rested upon the claimants.
The affidavit of Judge Shipman shows with what energy and persistence he endeavored
to secure recognition of his clients by the Department, and his unsuccessful
attempt to secure an injunction restraining payment pending the result of the
litigation designed to determine judicially the rights of all parties in the
funds to be distributed. He had furnished the address of each of these Indians
to the Department, had advised it of the name and pay-roll number of the ancestors
through whom each one claimed, had written repeatedly and in great detail, and,
finally, when his efforts through correspondence had failed, he had come to
Washington, and in person had brought the matter to the attention of the Department
officers, but without effect. All this was done before any of the funds had
been distributed.
If there is such a thing as notice, the Department would seem to have had it
in ample measure before it disbursed a dollar of the money belonging to these
claimants. Yet the Court of Claims and the Supreme Court of the United States
found that these Indians could not obtain any relief except through an act of
Congress, because they had committed laches in not finding some court through
which they could have compelled the Department to accord them their rights before
the funds were paid out. Perhaps these Indians were unfortunate in that the
courts did not have all the information before them that is contained in Judge
Shipman's affidavit. But they were more unfortunate because of the great doubt
as to the power of any court to interfere with the Department in its distribution
of these funds. The dissenting opinion of Mr. Justice White, concurred in by
Mr. Justice McKenna, very clearly states that side of the case. His argument
is introduced as follows:
In other words, I think the plaintiffs in error must be relegated to Congress
for relief, not because they have lost their right to redress in the courts
by their neglect, but because the wrong which they have suffered is one which
can only be remedied by Congress, the courts being without jurisdiction over
the subject-matter. Whilst, both in the opinion of the court and in my view,
the plaintiffs in error can only obtain relief at the hands of Congress, there
is a serious difference in the grounds upon which the conclusion proceeds; for,
manifestly, it is one thing to refer the plaintiffs to Congress because they
have lost their rights by neglect, and another to refer them to Congress because
that body alone has power over the subject. Because of the difference between
these views, and the effect which their difference may have on the rights of
the parties when their claim for relief is presented to Congress, I deem it
my duty to state quite fully the reason for my dissent.
The opinion of the court states at its beginning that there is apparent hardship
in the result of this litigation which can only be relieved by the action of
Congress. In discussing the case it says:
The Court of Claims finds that of these petitioners 272 ought to have been placed
upon the census roll and were entitled to a share in the fund. The failure to
receive their share may be a hardship to those petitioners, but it must be remembered
that the method of ascertaining those entitled was prescribed by the court and
pursued by the Government.
Again:
Where a fund is created, and the mode of distribution prescribed by the court
which established the amount of the fund, its disposition in accordance with
the course prescribed by the court must be held a finality, and in the case
at bar any further relief must be obtained from Congress and cannot be given
by the courts.
These Indians have not received their "just proportion" of the moneys
due them under the sacred treaty obligations of the United States. Each of these
courts have found them still entitled to receive the 3 cents per acre promised
them for releasing their Michigan reservations to the United States, and the
balance arising from their unpaid annuities, amounting in all, as determined
by the courts and Congress, to $78,329.25.
The entire matter may be summarized as follows:
The Court of Claims and the Supreme Court found that the United States owed
certain Pottowatomie Indians $104,626 and their share of certain perpetual annuities.
Congress afterwards appropriated $112,951.20 to pay the Indians the amounts
due them to date, and then appropriated $43,707.30 to be paid to them in full
settlement and discharge of said perpetual annuities. The total amount so appropriated
was $156,658.50.
The administrative officers of the Government paid the entire amount to exactly
one-half of the Indians who were found by the Court of Claims and the Supreme
Court to be entitled to it.
The other half, without fault or default of their own, have received nothing
so far on this indebtedness of the United States to them.
Congress alone has the power to correct the wrong inflicted upon these Indians
by the administrative agents of the Government.
The purpose ofthis bill is to provide for the payment of one-half of the total
amount so appropriated to these Indians, who have been found entitled to receive
it by both the Court of Claims and the Supreme Court.
The appropriation needed for the purpose is $78,329.25.
The purpose of H. R. — is to provide for the payment of this amount.
On behalf of Phineas Pantopee and the other claimants
herein.
By their attorneys:
McGowan & Suven.
[Copy of finding of fact IV, with names contained in Schedule A, by the Court
of Claims, affirmed by the Supreme Court of the United States, in Pam to pee
et al. v. The United States, 36 Ct. Cl., 427, and 187 U. S., 371.]
IV. None of the Indians, parties in or represented by the present suit, were
paid as aforesaid. A large number of them—to wit, 272—whose names are set forth
in Schedule A, annexed to claimants' requests for findings, were descended from
Indians whose names were enrolled on the rolls of Indians in Michigan in the
years 1843, 1844, and 1866. A portion of the Indians who remained in Michigan
as coming within the exemption of the treaty of September 27, 1833, were represented
in both petitions in the cases of the Pottawatomie Indians v. The United States,
and the Pam to pee Indians v. The United States.
Schedule A, annexed to claimants requests for findings.
MEMORIAL OF CERTAIN POTTOWATOMIE INDIANS NAMES Senate
Document No. 205, Fifty-seventh Congress, second session.
[For affidavit of Judge Shipman see p. 12.]
MEMORIAL.
To the
Congress:
The merits
of the bill to pay certain Pottowatomie Indians of Michigan unpaid annuities
under treaties made with them appear in the two cases of the Pottowatomie Indians
v. The United States, and Phineas Pam-to-pee and others v. The United States,
which were consolidated, tried and decided as one, and reported in 27 Court
of Claims, 403, affirmed 148 U. S., 691; and the case of Phineas Pam-to-pee
and others v. The United States, reported in 36 Court of Claims, 427, although
Finding of Fact IV by the court is incomplete as published therein on page 430
in omitting the names "set forth in Schedule A" as stated in that
finding. These names, however, appear in the transcript of the record certified
to the Supreme Court on the appeal and as the same was printed and used, the
same being pages 4 and 5 of the appendix to the record in that court and now
on file therein. On this appeal the decision below was affirmed December 22,
1902. Upon the merits of the bill the affidavit which is subjoined hereto is
also referred to. That the facts in the decisions and documents mentioned may
be easily arrived at, a summary is presented in this memorial by one who is
really a part of them.
In 1833
the Pottowatomie, with two other tribes of Indians, had a large reservation
on the west shore of Lake Michigan, while scattered bands of the tribe had three
small reservations in southern Michigan. The tribe were also entitled to annuities
under twelve prior treaties, six of which were temporary and six perpetual.
September 26, 1833, they, with the other tribes, ceded the reservation west
of Lake Michigan (which included the famous lake front property at Chicago)
to the United States, and agreed to remove west of the Mississippi River, but,
the Michigan bands refusing to join in the treaty, the next day supplementary
articles were added, in which the bands joined, whereby the Michigan reservations
were also ceded and the portion of the tribe residing in Michigan were given
permission to remove to the northern part of the State, the Government agreeing
in case of such removal that a "just proportion" of all former
annuities and also those under that treaty should be paid them at
L'Arbre Croche, near the straits of Mackinac.
Thereupon
a large proportion of them removed to northern Michigan, but portions of the
Nottawasepi and Pokagon bands of the tribe remained near their old homes in
southern Michigan and yearly, from 1843 to 1866, inclusive, were paid a part
of what the treaty promised them. Differences afterwards existing as to the
amount of money the Indians were entitled to under the treaties, in order to
have the same judicially determined Congress passed an act entitled "An
act to ascertain the amount due the Pottowatomie Indians of Michigan and Indiana,"
approved March 19, 1890, authorizing the Court of Claims "to take jurisdiction
of and try all questions of difference" arising out of treaty stipulations
with said Indians and to render judgment thereon (26 St., 24) under which the
two suits first above mentioned were commenced, based upon such treaty stipulations,
resulting after a trial in a judgment in the consolidated case of $104,626 for
the claimants, that being the amount of annuities found by the court to be due
and unpaid the Indians at that date, but also establishing thereby their right
to the perpetual annuities as well, the court deciding that the Indians entitled
to the "just proportion" of the unpaid annuities mentioned in the
supplementary articles referred to in the treaty and in whose favor and for
whom (and their descendants) the judgment was rendered were those Indians to
whom the payments aforesaid were made in southern Michigan yearly from 1843
to 1866, inclusive.
To pay the
judgment and the perpetual annuities established as mentioned, Congress appropriated
the following sums: $104,626, 28 Stats., 450; $6,243.90, 28 Stats., 295; $2,081.30,
28 Stats:, 885; $43,707.30, 29 Stats., 330; the latter sum being to pay them
in full as capitalized, the total appropriations amounting to $156,658.50. The
Indian Office was charged with the distribution of the funds among the Indians
recovering the judgment subject only to the payment for legal services rendered
in the prosecution and recovery of it. By another law of Congress the Secretary
of the Interior was empowered and directed to detail or employ an Indian inspector
to take a census of the Indians entitled to the money and to make payment of
the same—$1,000 in addition being appropriated for that purpose-29 Stats., 894.
The Indians entitled to the funds mentioned, then, are those to whom the payments
were made from 1843 to 1866, inclusive, as shown by the pay rolls for those
years.
The beneficiaries
in said bill are a portion of the Indians in whose favor said judgment was rendered,
and for whose benefit said appropriations were made. Their attorney made persistent
efforts to get the Interior Department to pay them their share of the money,
copies of his letters to the department in that behalf appearing in his subjoined
affidavit (the originals being, doubtless, in the department now) but without
success, the department refusing to recognize them as having any interest in
the funds, or to recognize any proofs as entitling them to a hearing, or to
recognize their attorney in said suits as representing any Indians entitled
to share in the funds, treating with contempt even the certificate of the chief
justice of the Court of Claims, sent the Department May 18, 1896, supporting
the contention of their attorney, while the affidavit of the interpreter who
acted for all the Government agents in distributing the money to the Indians
on the pay rolls mentioned from 1843 to 1866, inclusive (except for two years)
and who spoke from personal knowledge of them, their families, and their descendants
since; supported as his affidavit was by the affidavits of two Indians, whose
names were the same as their ancestors on the pay rolls, were treated as matters
of no account, although all these supported the contention of their attorney
that the beneficiaries in said bill were entitled to share in said appropriations.
All proceedings
in the Indian Office were kept from said attorney. The order to Cadman in regard
to taking a census of the Indians entitled to the fund was made June 8, 1895,
and directed him to account for all on the roll of 1866, but to make no additions
thereto other than their descendants (36 Ct. Cls., 436); but it was not until
the latter part of July the attorney found it out, and then only by finding
Cadman in the field, when he at once made a protest against it (36 Ct. Cls.,
436439), and while the Secretary sustained the protest and, January 10, 1896,
directed that the census include all on the rolls from 1843 to 1866, inclusive,
this order was never obeyed. Instead of directing Shelby (who succeeded Cadman)
to account for all Indians on the rolls from 1843 to 1866, inclusive, as Cadman
was for the roll of 1866, according to his construction of the order given him,
as appears by Shelby's return, he was merely directed "to make an investigation
of sundry claimants' rights to enrollment" (36 Ct. Cls., 442); but this
number did not include any of the 150 Indians whose names were sent the Department
July 27, 1895, by the claimants' attorney, while the proof he required would
effectually shut out from enrollment every Indian applying. Speaking of those
turned down, be states the proof required thus:
"They
themselves or their witnesses could not state positively that their supposed
ancestors were ever enrolled with said Indians, or that they drew money on the
roll upon which they were found, or that there was not another Pottowatomie
Indian by the same name." (36 Ct. Cls., 450.) He, however, recommended
that two belonging to the roll of 1866 and who had escaped Cadman be added,
which was done, he being forbidden to make a roll or add to Cadman's. The Indians
had never seen the rolls about which they were required to swear so positively
as a preliminary to any hearing at all.
A personal
visit and application to the Commissioner of Indian Affairs and also to the
Secretary at Washington by the attorney produced no beneficial result, the
Department asserting the census made by Cadman, with the two names added at
the suggestion of Shelby, but all based on the pay roll of 1866, had been approved
by the Secretary and could not be changed.
He also
failed to obtain an injunction from the equity court in the District of Columbia
to prevent payments being made upon that census roll until the rights and equities
of all interested in the fund could be judicially settled in the court. After
all this, and with notice and knowledge of its wrong and injustice to the beneficiaries
in said bill, the Commissioner in fact admitting it was wrong, the Department
distributed of said fund $118,534.52 to the 272 Indians upon the Cadman census
roll between November 13 and December 15, 1896—not a cent being paid the beneficiaries
in said bill. What became of the rest of the money the writer of this memorial
does not know, except that the Department reports that $36,563 of it
was paid to the attorney representing other Indians in the case, but whose contract
called only for 12 per cent.
After this
the suit reported in 36 Ct.C1s.,427, was commenced, which on appeal reached
the Supreme Court, and December 22, 1902, was decided adversely to the claimants
(who are the beneficiaries in said bill) by a divided court. The opinions are
reported in the February 1, 1903, issue of the advance sheets of the opinions
of the court at pages 142-154. While the decision in its legal sense is against
the claimants, the equity and justice of their claim is conceded both in the
opinion of the court and in the dissenting opinion, as well as by the Government
itself. The Court of Claims find as a fact that the 272 Indians whose names
are set forth in Schedule A in the bill were descended from the Indians enrolled
on the pay rolls mentioned from 1843 to 1866, inclusive, and that they were
paid none of said funds, while the number paid was 272, making the whole number
to share in the appropriations 544, and the amount or share of the funds belonging
to the beneficiaries, and which is unpaid, $78,329.25. The positions of the
judges in the Supreme Court upon the rights and equities of the claimants, as
shown by the record, is well stated in the opening of the dissenting opinion
by Mr. Justice White, as follows:
It results from the findings of the court below that the petitioners in that
court who are appellants, apart from the question of their laches, are entitled
to the relief which they seek. This was conceded by the court below in the conclusion
of law which it drew from the findings of fact, was not challenged by the Government
in the argument at bar, and is, besides, not now questioned by this court in
its opinion.
In other
words, although upon the facts and justice of their case, the petitioners were
entitled to the judicial relief sought, yet they had so neglected their rights
that the court would not enforce them. Laches, in fact, was not claimed to exist,
and the proof shows could not be successfully charged against them, but laches
in law was the excuse of the court for its denial of justice; that is to say,
that the claimants should have appealed to the Court of Claims before the money
was distributed to again establish their right to share in it, and invoke the
aid of that court to control the Secretary of the Interior in distributing the
funds under the act of Congress making the appropriations. Speaking of this
proposition, and what it imposed upon the claimants, the dissenting opinion
concludes as follows:
Although
the petitioners formally presented their claim to the Secretary of the Interior
and called his attention to their rights, they yet lost them, because they did
not foresee that that officer would, without notice, proceed to distribute the
money to the wrong persons and upon a basis which the Government now, whether
adversely or not I need not consider, declares to have been absolutely unjust
and illegal.
Culpable
negligence in distributing the funds is the mildest term that can be applied
to the Government agents in the transaction, taking the facts as stated by the
judges in both courts; and attention cannot be diverted there from by charging
the claimants with laches in not asking a court to enforce rights against the
Government of which its agents were completely advised and purposely ignored.
Besides, would an order of the Court of Claims have received greater consideration
than the certificate of its Chief Justice in the same matter sent the Department
May 18, 1896, and which was treated with contempt.
It will be observed that the judges did not agree upon the existence of such
authority in the Court of Claims, the minority holding that its power in the
premises was exhausted by finding the amount unpaid
the Indians
under the act of March 19,1890, the majority holding that the authority to designate
the individual Indians entitled to it was conferred, but not exercised for lack
of evidence to identify them, and, as it was not used, it was left over for
use later. Can laches be charged upon the claimants for not knowing in advance
which side the majority of judges (and hence the decision of the court) would
be on that question? Especially when the opinion in 27 Ct. Cls., 403, as affirmed
in the Supreme Court, seems to negative the idea of any surplus power remaining
in the court, while the Government brief in 36 Ct. Cls., speaking of the former
decision, states that in making it "the court remitted the matter to the
Indian Office and washed its hands of all responsibility;" and on page
40 of its brief in the Supreme Court the same language upon the same subject
appears. It was not a live question on the argument in the Supreme Court, and
was not even alluded to by counsel. The existence of such a power lying latent
in the Court of Claims was first heard of when the majority opinion came out.
But if such an order had been obtained, how could it have been enforced by that
almost powerless tribunal?
Besides,
in the original case the court had identified the claimants as the Indians named
on those pay rolls, and as clearly by reference as if it had copied the rolls
in its journal, leaving nothing of a judicial nature to be done, the rest being
purely ministerial work left for the Interior Department to do. Any census enumerator
could have done it. Cadman could as well for the other rolls as he did for the
roll of 1866 if his orders had included them, and so could Shelby, but the orders
of neither directed a census to be taken based upon any but the roll of 1866.
Congress took this view of the situation evidently by taking charge of the rest
of the business and appropriating $1,000 to pay for doing it, and directing
the Interior Department to see that it was attended to. What portion of power
in the premises could the claimants suppose was left in the court after this?
Or was left in fact? It seems to have been reasonably well used up by the court
in identifying and counting the claimants, as it had to in order to ascertain
their "just proportion" of the annuities sued for, while Congress
took away and appropriated any fraction of power that was left. By the terms
of the treaty of 1833, the annuities found by the court to be unpaid were specifically
payable in Michigan, and it certainly would have been a great hardship to require
the Indians to come to Washington to get the money, and especially so if they
had to go into court to establish their right to it over again. But if the situation
required this, why was no notice given of it? Why, instead, did Congress, in
effect, say an enumerator should go to Michigan and there take a census of
all entitled to the fund?
But the
Government was aware of the claimant's rights, knew its duty in regard to them,
and did not do it. Is it a meritorious defense in a suit for its nonperformance
that the claimants no longer have any rights which the court is bound to respect
because they neglected to compel that duty to be performed? Yet it is the law
of the court in that case, for it is so written. Congress alone has authority
now to see that the treaty is carried out and that these Indians get the 3 cents
an acre promised them for releasing the Michigan reservations, including the
fairest lands in the State, and which still remains unpaid as agreed by all
the judges. Will Congress do it?
Respectfully
submitted by
Jno. B.
Shipman.
In the matter
of the claim of 272 Pottawatomie Indians of Michigan against the United States
for unpaid annuities under treaties made with them.
STATE OF
MICHIGAN, County of Branch, ss:
John B.
Shipman, of Coldwater, in the county and State aforesaid, being duly sworn,
upon his oath says: That he is a member of the bar of the supreme court of said
State as well as of the Supreme Court of the United States, and has been for
many years; that he is the attorney for the Indians making the claim above
mentioned against the United States and has been exclusively in all the litigation
in relation thereto, as reported in the 27 Court of Claims, 403; 148 U. S. Rep.,
691; 36 Court of Claims, 427, and in the same matter decided by the Supreme
Court December 22, 1902, but not yet reported in book form to his knowledge;
that for the complete finding of facts in the case reported in the 36 Court
of Claims, 427, reference must be had to its amended
return as certified to the Supreme Court on the appeal thereto, decided December
22, 1902, as stated, the case being in that Court No. 211, of the October term,
1902. In relation to certain matters appearing in the reports and decision mentioned
this deponent says:
That August 15, 1894, he sent to the Commissioner of Indian Affairs at Washington,
D. C., by mail, with the postage thereon prepaid, a letter whereof this is a
copy:
COLDWATER,
MICH., August 15, 1894.
THE COMMISSIONER
OF INDIAN AFFAIRS:
Upon the general deficiency bill is an item to pay a judgment in favor of the
Pottawatomie Indians of Michigan and Indiana rendered for $104,626.
The Indians
appeared in the Court of Claims part by one attorney and another portion by
another attorney. I represented probably half (more or less) of those entitled
to share in the payments to be made. The two proceedings were by the court consolidated
and heard as one case, and only one judgment was rendered. See the case in 27
Court of Claims Reports, page 405; affirmed in the Supreme Court of the United
States, 148 U. S., 691, 705.
On behalf
of those I represent, I wish to know the method and manner of distributing the
funds, the Indians being citizens, not holding tribal relations, and the money
payable to them per capita, as you will see by the opinions rendered, particularly
in 148 U. S., page 705.
Will the
fund be distributed through and by your bureau?
By the express
finding of the Court of Claims the fund belongs to those parts of the Pokagon
and Nottawasepi bands of Pottawatomies to whom the payments mentioned in certain
pay rolls in the office of the Second Auditor of the Treasury in 1843 and subsequently
were made (see findings 11 to 14, inclusive). Is it incumbent upon them to trace
their descent from those named in the pay rolls to entitle them to payment?
Two of
those pay rolls only were in evidence, viz, for
1843 and 1844, and by these it appears the entire family shared equally, the
children receiving as much as the parents. Will the distribution now be to the
descendants of the children in the same proportion as to the descendants of
the father or mother?
Will the
payments be made now in the same way as then, viz,
by counting the entire number of Indians who have a right to Share in the fund,
including the heads of families and their children, and then dividing the entire
fund equally among them?
To illustrate:
One Indian only is paid on the pay roll. That Indian has now living one descendant,
but he has a wife and four children. Do the six draw equally from the fund with
all the others now entitled or do they only receive such share as their ancestor,
whose name is on the pay roll, would have been paid if living?
Will a
Special agent be sent to distribute the fund?
Can one holding a power of attorney from an Indian entitled (he being a citizen)
receive and receipt for his share of the fund? It will be very expensive and
probably impossible for some living distant to attend the place where the main
body of Indians are located.
Please excuse this long communication, but the interest of those for whom I
act seem to render it necessary. An early answer is requested on their behalf
so they may know what to do.
Very respectfully,
JNO. B. SHIPMAN.
To this communication no reply was received, and February 21, 1895, he sent
by mail, postage prepaid, to the Secretary of the Interior a letter, whereof
this is a copy:
COLDWATER,
MICH., February 21, 1895.
Hon. HOKE
Sierra,
Secretary
of the Interior:
One of
the appropriation bills of the present Congress carries an item like this:
"That
the Secretary of the Interior is hereby authorized and directed to detail or
employ an Indian inspector to take a census of the Pottawatomie Indians of Indiana
and Michigan who are entitled to a certain sum of money appropriated by Congress
to satisfy a judgment of the Court of Claims in favor of said Indians; and for
the purpose of making the payment to the Pottawatomie Indians of Michigan and
Indiana of the $104,626 appropriated by the last Congress to satisfy a judgment
of the Court of Claims there is hereby appropriated the sum of $1,000."
Inasmuch
as the action of the person appointed may have an influence upon the importance
in the payment and distribution of that fund, it is of the utmost importance
the work be carefully and correctly done, that no injustice result to the Indians
entitled to it, and to that end a competent, reliable, and entirely disinterested
person should be selected. As it is payable per capita, every person having
a right to share in the fund iS interested in reducing
the number entitled, for thereby his proportion would be increased, and hence
he would not do for a referee. Even as a witness his interest should invite
suspicion. It should also be borne in mind that these Indians are citizens and
have a right to be treated accordingly.
The case
or judgment of $104,626 referred to in the appropriation bill is reported in
27 Court of Claims Reports, 405, and affirmed in 148 U. S. Supreme Court, 691.
The opinions rendered leave the question of distribution of the fund awarded "to
that department of the Government which by law has incumbent on it" the
administration of such trusts— meaning probably the Indian Office. But of course
it must be distributed to the persons entitled thereto and to their descendants,
as found and decided by that court.
The claim
arose under the treaty of September 26, 1833, and articles supplementary thereto,
made the next day, and the question presented was what Indians had a right to
remain in Michigan and not forfeit their proportion of annuities under former
treaties. It appears from the opinions that from 1843 to 1866, inclusive, certain
Indians had been paid different sums of money in the southern part of Michigan
by Government paymasters, and the court held that only those Indians had a right
to remain in Michigan, and hence a right to a proportion of annuities under
the treaty. Findings 11 to 14, inclusive, express it, the latter declaring that
those entitled to pay "are those parts of the Pokagon and Nottawasepi bands
(of Pottawatomies) to whom the payments mentioned in the letter of Hon. E.
B. French were made, as shown in Finding VII." Finding VII contains a list
in gross of the number of Indians paid yearly from 1843 to 1866, and of the
names of the paymasters who made the payments, but not the names of the Indians
who were paid.
Two of
these pay rolls only, viz, for 1843 and 1814, were
in evidence in the case, and they can now be found in the printed record in
the Court of Claims (case No. 16842), but the originals for all the years are
in the office of the Second Auditor of the Treasury. They contain the names
of the Indians paid, and the fund appropriated to pay this judgment must of
course be distributed to the Indians named in those pay rolls or their descendants
per capita, as declared in the opinion rendered in the Supreme Court. The inspector
to be employed under the item mentioned in the appropriation bill must find'
out who the Indians are thus entitled to the sum so appropriated by the last
Congress to satisfy that judgment and take a census of them.
To prevent
imposition the person employed Should have some knowledge of these Indians,
and the more he has, the better; and besides, he must not be interested in the
distribution of the fund. The paymasters mentioned in the letter of Hon. E.
B. French which the court made a part of its judgment are dead, probably, but
the interpreter employed by every agent making those payments except the first,
viz, for 1843 and 1844, lives and is in the full
possession of all his mental and physical powers. His name is Rev. John R. Robinson,
a minister of the gospel, now preaching at Chapin, Saginaw County, Mich. His
father was Rix Robinson, a Senator in the early history of Michigan, who married
a Pottawatomie woman, this gentleman
being their
son. He was educated in the mission school at Mackinaw, but graduated at Grand
Rapids, and his life work has been as teacher, interpreter, and preacher among
the Indians, although his church members now are all white people. He is 69
years old and speaks the English and Pottawatomie language fluently and perfectly.
Commencing
in 1845 with the paymaster, Wm. A. Richmond, mentioned in the list contained
in the letter of Hon. E. B. French, Mr. Robinson acted for him as interpreter
in making the payments referred to and for every other paymaster therein named,
and it is hardly within the range of possibilities that another person can be
found now living who combines capacity and knowledge of those Indians equal
to him. Under the decision of the court neither he nor any of his relatives
can share in the distribution of the fund appropriated. Hon. George F. Richardson,
member of Congress from the Fifth district, knows him, and is referred to, without
consulting the member, however. On behalf of the Indians I respectfully ask
that he be employed to take the census of said Indians that justice may be done
to all.
JNO. B. SHIPMAN.
No reply
was made to this letter.
July 15, 1895, deponent sent to the Secretary of the Interior by mail, postage
prepaid, another letter, whereof this is a copy.
COLDWATER,
MICH., July 15, 1896.
Hon. HOKE
SMITH, Secretary of Interior:
The Pottawatomie
Indians of Michigan and Indiana.
I beg leave
to again call your attention to the appropriation made for these Indians, and
to the fact that although I am the attorney of record for a number of them as
you are officially informed by the record in the Court of Claims and in the
Supreme Court, yet I am unable to obtain any information from the Department
as to what is being done or is to be done in the premises, although the press
reports action has been had thereon to the extent of appointing one John W.
Cadman as special agent to take a census of them with reference to ascertaining
who are entitled to the fund. I am also informed he is enumerating the Pokagon
Band or part of the tribe residing in the western part of the State, but ignores
all others.
In previous
communications I pointed out the great danger of the enumerator being imposed
upon by those Indians for the purpose of shutting out others actually better
entitled to the money than they. The decisions mentioned expressly and explicitly
declare that the Indians entitled to the fund are those parts of the Pokagon
and Nottawasepi bands of Pottswatomies mentioned in certain Government pay rolls,
not the Pokagons alone. None of those entitled, except only a portion of the
Pokagons, reside where the press report Cadman is at work. The main portion
of the Nottawasepis live at Athens, or near there, in Calhoun County, Mich.,
and others north near the Straits of Mackinac. The agent will be unfaithful
to his duty if he neglects to visit them or give them an opportunity to be heard
either in person or through me, their attorney.
I am prepared
to furnish the names, residences, and proof of identity of more than one hundred
Indians entitled to share in that fund who are not Pokagons, and more than that
number whom I and no one else represented in both of those courts when the claim
was litigated and whom I still represent. These Indians have been so cruelly
wronged and robbed in the past that no cause for complaint against the Government
should be permitted to arise out of its action in paying out the fund appropriated
in this instance. Certainly after the clear decision of the courts as to whom
it belongs no possible excuse can exist for its diversion to others.
In their
behalf I ask an early reply giving full information in the matter.
Very respectfully,
JNO. B. SHIPMAN.
To this
communication no reply was received directly nor any information given deponent
as to what was being done or what Cad. man's orders were, but instead word was
sent by the Commissioner of Indian Affairs for deponent to see Cadman, which
he proceeded to do, finally finding and meeting him at Kalamazoo the latter
part of July, and then obtained his first reliable information as to what the
orders were under which he was acting. The instructions from the Indian Office
were prepared June 8 and approved June 15, 1895, and directed him, in taking
a census of the Indians entitled to the funds in question. "to proceed
to Benton Harbor, Mich., and South Bend, Ind., the places of abode of the Indians
referred to" (which was only partially true), and in taking it be guided
by the pay roll of 1866, accounting for all whose names appeared on that roll
and their legal descendants, and adding: "No additions are to be made to
the original roll other than the descendants of the Indians whose names appear
upon the roll above referred to."
Cadman
stated to deponent his work was about completed and he was preparing his report
to the Department. Deponent requested him to withhold his report for about ten
days, until he could protest against his orders and try to get them corrected
in accordance with the decision of the court as to the Indians entitled to the
funds, and he promised to do so. This was the first and last time he ever saw
the said Cadman. Deponent then returned to his home in Coldwater and immediately
prepared and sent by mail to the Secretary of the Interior at Washington, D.
C., postage thereon prepaid, a communication dated July 27, 1895, whereof this
is a copy:
COLDWATER,
MICH., July n, 1895.
Hon. Hoke Smith, Secretary of the Interior.
In the matter of the Pottawatomie Indians of Michigan and Indiana.
As directed by the Commissioner of Indian Affairs, I got in communication with
Mr. Cadman, who is engaged in taking the census of these Indians with a view
of making payments of the money appropriated by Congress for them, and finally
met him.
It required
but a few minutes' examination to discover it was impossible for the Department
to carry out and comply with the decision and findings of the court allowing
the claim upon the line he was pursuing and under the directions he was obeying.
He is enumerating and taking a census only of the Indians mentioned and contained
in the pay roll of 1866 and the heirs of those deceased. This is certainly and
surely wrong, and as this seems a turning point in the matter, and the question
is a very important one, I must ask that the findings and opinions rendered
by the Court of Claims therein be examined with great care. The findings of
fact declaring or showing to whom the money belongs are all in the report, as
well as the opinion explanatory of the findings. (See 27 C. C1s. R., p. 405.)
In affirming the case the Supreme Court (148 U. S., 691) did not in any way
change the finding and opinion of the court below. To aid in the investigation,
I state the question, how it arose, and how it was decided:
September
26, 1833, a treaty was made at Chicago with the United Nation of Chippewa,
Ottawa, and Pottawatomie Indians which made it obligatory upon the Indians who
were parties to it to remove west of the Mississippi River in three years thereafter.
The Michigan Indians were all opposed to emigrating west and refused to join
in the treaty which made it obligatory upon them to do so. The Michigan Pottawatomies
at that time had three reservations in what was then the Territory of Michigan;
one consisting of 49 sections on the St. Joseph River, opposite the town of
Niles, occupied by Topenebees and Pokagon bands, another being the Nottawasepis
Reservation, of 4 miles square, and a third, consisting of 99 sections north
of it. September 27, 1833, a supplement was added to the treaty made the day
previous in which the Michigan Indians joined and became parties thereto, whereby
these three reservations were ceded to the Government, the last supplemental
article, however, providing that the portion of the tribe residing on the Michigan
reservation might remove to the northern part of Michigan, in which case the "just
proportion" of all annuities payable to them under former treaties and
that arising from the sale of those three reservations should be paid them
at L'arbre Croche (near the Straits of Mackinac). (See the treaty in 7 U. S.
Stat. L., 442-445.)
After this
most of the Indians left the reservations, going into different parts of Michigan,
and many of them into the northern portion of it, but a part of the Pokagon
and Nottawasepi bands remained in southern Michigan. No attention was given
the Indians by the Government until 1843 (ten years after making the treaty)
, when small payments of money commenced to be paid them, which was continued
yearly up to and including 1866, but the payments were made in the southern
part of Michigan to those portions of the Pokagon and Nottawasepi bands remaining
there,
and not
at L'Arbre Croche, as agreed in the treaty. These
Indians and those going i north numbered all told
1,100, as found by Finding XI of the Court of Claims in the suit mentioned.
To show
the number of Indians paid and the fact of their payment from 1843 to 1866,
inclusive, a letter of Hon. E. B. French of May 4, 1871 (then Second Auditor),
was used in evidence and is contained in Finding VII, but the only pay rolls
given in evidence were for the years of 1843 and 1844, and these were obtained
by me under a call upon the Treasury Department. They are found in the printed
evidence of the case at pages 123 to 126 (printed paging), and also in the return
made to the court by the Secretary of the Treasury now in the files with the
rest of the evidence taken by me in the cause. These two rolls of 1843 and 1844
were the only lists or evidence used in the court showing the names of the Indians
who were paid by the Government at any time. No pay rolls or other evidence
showing the names of Indians paid after 1844 was in or can be found in the case.
It will
be seen here were two classes of Indians, as stated by the court in Finding
XL, the one consisting of those to whom the payments in question were made and
the other comprising those who went north and elsewhere in the State, and the
question presented was how many of them had a right to remain in Michigan and
were therefore entitled to receive a "just proportion" of the annuities
mentioned. I insisted that as all had equal rights in the reservations ceded
all should share equally in the avails when sold, under the terms of the treaty
and supplement thereto, but the court decided against me, holding that only
those Indians to whom the payments mentioned were made came within the exemption
as to removal west and were therefore the only ones entitled to a "just
proportion" of former annuities (See Finding XI). Finding XIII states these
payments were "made to a part of the Pokagon and a portion of the Nottawasepi
bands of the Pottawatomie Indians," not to the Pokagons alone, while Finding
XIV further defines those entitled to the money and identifies and declares
those coming within the supplemental articles as to'removal to be "those
parts of the Pokagons and Nottawasepi bands to whom the payments mentioned in
the said letter of Hon. E. B. French were made, as shown in Finding VII,"
while the pay rolls mentioned, of 1843 and 1844, contain the only information
the court had as to whom those Indians were. Observe Finding XII also, which
decided these Indians "represented in both petitions." The opinion
rendered in the case also emphasizes this fact.
It must
also be kept in mind that the matter to be arrived at was the Indians who had
a right to remain in Michigan and be paid these annuities in 1833, not in 1866,
and the court took as the best evidence of that fact the first pay-roll made
after that year, viz, in 1843, the officers and
agents of the Government having by the act of paying them recognized those Indians
as the ones entitled to stay and be paid. To take one made in 1866, thirty-three
years after the right under consideration arose, would manifestly work great
injustice, for those having a right to stay up to 1843 or 1844 had a right to
remain always and live where they chose in the State, and before 1866 many of
them died, while others had moved north, and their names would not appear on
the pay roll of 1866, or other causes might have operated to prevent their names
from being there, but their heirs are entitled to share in the fund just the
same, and so should they, if living. I am also told there are those on the roll
of 1866 who have no business there.
Besides, the pay roll of 1843 contains but 207 Pokagons—the rest to make up
the 253 upon it are Nottawasepis—and in 1844 the number of the Pokagons is 208,
but the total number paid was 269, the balance being Nottawasepis, as noted
on the roll, while the total number through all the years as averaged by the
court and upon which its award was based was 291. To give the fund now all to
the Pokagons, as will be the case if the census is based on the 1866 roll wholly,
is to pay them money awarded by the court
to the Nottawasepis.
I do not
mean to say, under the broad decision of the court, that pay rolls subsequent
to 1844 cannot be considered or acted on, and if names there appear which are
not on the rolls of 1843 and 1844 that such Indians (or, if dead, their heirs)
cannot share in the fund, but I mean and insist that the census should omit
no one on the pay rolls of 1843 and 1844 which were used on the trial in that
case, and I respectfully ask that those rolls be sent to Mr. Cadman at once
and he be directed to include in his census all the Indians, or, if dead, the
heirs of all the Indians whose names appear thereon. In no other way can the
decision of the court rendering the judgment mentioned or the purpose of Congress
in making the appropriation to pay it be carried out fully.
To aid the
enumerator I inclose the names of heirs whom I represent
(as far as ascertained to date) and whose ancestors are named on the pay rolls,
as well as those entitled in their own right—the Nottawasepis and Pokagons being
in Separate lists—the numbers in the margin corresponding with the numbers in
the pay rolls. Where two numbers appear it indicates where the name appears
on both the pay rolls of 1843 and 1844. I might, if desired, get their residences
also. I have not examined subsequent pay rolls sufficiently to know whether
or not I represent any upon them which are not on these.
I hope to
be speedily advised of the course determined upon by the Department, so that
if the conclusion is to proceed under the census, based upon the roll of 1866,
I may have time to seek a remedy before the fund is paid out.
Respectfully
submitted.
JNO. B.
SHIPMAN.
The letter
contained the inclosure therein mentioned and in
the third finding of fact by the Court of Claims in the case referred to in
the thirty-sixth Court of Claims Reports, 427, as appears by the transcript
of the record thereof filed on the appeal to the Supreme Court and which was
decided December 22, 1902, as stated. Speaking of this letter and
inclosure the court finds as a fact the following:
Inclosed
in the said letter of John B. Shipman was a list containing the names of over
one hundred and fifty of the claimants herein, the names of their ancestors
and number on the pay rolls of 1843 and 1844 being given as stated in the letter.
These are a portion of the 272 Indians making the claim mentioned in the caption
of this affidavit.
Not a word
in regard to this letter or in regard to anything contained in it was ever
received by deponent from the Department or from any official of the Government
or employee connected with any of its departments. and Cadman's return was made
and filed in the Department in August, 1895.
Toward the
spring of 1896 (the exact time he cannot state) deponent heard from (he thinks)
some Indian that in January, 1896, the Secretary of the Interior decided that
the census should include all on the rolls of 1843 to 1866, inclusive, or if
dead, their descendants, as claimed by deponent in his letter of July 27, 1895.
And also that a Department employee named Shelby had been detailed to do the
work under the order; that deponent supposed, of course, the orders to Shelby
would be like those to Cadman, except instead of being limited to the roll of
1866, as his were, they would include all pay rolls from 1843 to 1866, and he
be directed to "account for all the Indians" whose names appeared
on those rolls, or if dead, their descendants, as was required by the Secretary's
ruling and decision, which he has since learned was dated January 10, 1896.
Since the
pendency of the suit last mentioned, and not before, he first learned of what
Shelby's orders were and that they were quite different from Cadman's, and,
in fact, did not require him to take any census at all, but simply to "
make an investigation of sundry claimants' rights to enrollment," as he
states in his return, dated March 14,1896, but none of the 150 Indians mentioned
in deponent's letter of July 27,1895, were "investigated" by him,
except two, and these he rejected, although the Court of Claims found they were
entitled to enrollment, these two making a personal application to him for enrollment.
The list sent the Department July 27, 1895, was not turned over to Shelby to
investigate, so far as the record shows.
Deponent
further says that to pay the original judgment referred to in the Twenty-seventh
Court of Claims Reports, 403, and the annuities thereby established (the perpetual
being capitalized) Congress appropriated
in all $156,658.50, the Commissioner of Indian Affairs being charged with the
distribution of the funds, subject, however, to the payment of the amount due
for legal services rendered in the prosecution and recovery of the same. Thereupon
deponent, having a contract with the Indians he represented fixing his compensation
at 10 per cent upon the amount recovered, requested the Department to adjust
and pay for his legal services in the premises, upon which he had received nothing,
but had, in fact, himself paid whatever was incumbent upon his clients to pay
in the prosecution of the business. After abandoning several pretexts for not
paying him, the Department finally settled down upon an alleged reason in an
opinion by an Assistant Attorney-General of the Interior Department dated December
21, 1895, reading as follows:
There appears
to be no doubt Mr. Shipman rendered valuable professional services in the trial
of the case in the Court of Claims and in the Supreme Court, but the objection
made to his claim by the Commissioner of Indian Affairs that Mr. Shipman has
failed to show that the Indians employing him were entitled to participate in
the distribution of the moneys awarded the Pottawatomie Indians seems to be
decisive.
This opinion
was not sent deponent, however, by the Secretary until
May 2,
1896.
Upon being
advised of the opinion deponent sent the Department
at Washington,
D. C., a letter dated May 18, 1896, by mail postage prepaid, inclosing therein
a communication from Hon. William A. Richardson, then chief justice of the Court
of Claims, dated May 11, 1896, and deponent's affidavit, copies of the letter
and of the affidavit so far as they have a bearing upon the question raised
and the communication of the chief justice in full, being as follows:
COLDWATER, MICH., May .18, 1898. Hon. HOKE Smith, Secretary of the Interior:
In relation
to my claim for payment of professional services in the prosecution and recovery
of claims of the Pottawatomie Indians of Michigan and Indiana under the Indian
appropriation bill of March 2, 1895 (28 Stat. L., 885), the following, with
Enclosures, is submitted:
It would
seem the Assistant Attorney-General in his opinion in relation to it of December
21, 1895, had overlooked Finding XII in the decision of the Court of Claims
(27 Ct. Cls. R., 403), which expressly decides and declares that the Indians
who were entitled to the fund were "represented in both petitions,"
that is to say, in mine as well as in Mr. Critcher's.
Indeed it is impossible to distinguish between the rights of the two by that
decision. The Supreme Court (148 U. S., 691) in no way changed this, but merely
affirmed the decision below, while as to this finding of fact it could not change
it under the rules governing the action of these two tribunals.
The appellate
court, in the opinion given, simply recognized this as a fact found and existing
and there left it. The matter was not at all in controversy in the Supreme Court
nor in the court below, for all admitted that part of my "clients were
entitled to distribution" of whatever sum was awarded the claimants, the
only contention being over how many of them were entitled to share in it—that
is to say, whether the Indians in northern Michigan were or were not—and upon
this the Supreme Court held with the Court of Claims that they were not. Had
none been entitled my petition would have been entirely dismissed out of court
at the final hearing.
However,
as the opinion of the Assistant Attorney-General requires me to show that I
represented Indians who are entitled to distribution under the decision of the
fund in question as a condition precedent to the payment of my professional
services in recovering it for the Indians and of the value of which be is kind
enough to admit there is no doubt, I comply, and inclose
herewith the certificate of the chief justice of the Court of Claims which is
conclusive upon it. I also inclose my own affidavit,
although I presume unnecessary. * * * Of course, if I acted for the Indians "entitled
to participate in the distribution of the moneys awarded" as the chief
justice of the Court of Claims certifies, not only as a matter of fact, which
was admitted in the trial. but as "appears by the findings of the court."
and these services
were valuable,
as is also admitted by the Assistant Attorney-General in his opinion mentioned,
then the law implies a promise to pay for them so much as they were reasonably
worth, without any rate of compensation being fixed between us (the Indians
being citizens), especially while in addition it appears by the powers of attorney
filed and without which under the rules of the Court of Claims, I would not
have been permitted to act for them at all in that court, that I performed these
professional services at their special request.
In doing this of course I helped the Indians Mr. Critcher represented as well
as those in my petition. This right to compensation, whether the services were
performed under a special bargain or not, brings me entirely within and under
the provision of the Act of March 2, 1895, above referred to, and entitled
me to payment for the services out of the moneys going to those Indians.
I sent
this additional showing, as required by the opinion of the Assistant Attorney-General,
and respectfully request a review of the application mentioned with the hope
that I may receive as favorable consideration as Mr. Critcher, between whose
clients and mine neither of the courts made the slightest discrimination.
I also
ask to be at once advised of it when a conclusion is reached.
Respectfully
submitted.
Jno. B. SHIPMAN.
STATE OF MICHIGAN, County of Branch, SR:
John B.
Shipman, in said county and State, being duly sworn, upon his oath says that
he is the person named in the opinion of the Assistant Attorney-General of the
Department of the Interior, dated December 21, 1895, as having made application
for payment for professional services rendered in the prosecution and recovery
of the claims of the Pottawatomie Indians of Michigan and Indiana against the
United States, a copy of which opinion was sent deponent not until May 2, 1896,
by the Secretary of the Interior.
Deponent
further says when he came into the matter a bill was pending in Congress to
refer the claims to the Court of Claims, which was defective, and it did not
pass. Deponent then drew another bill to cure the defect, which at the first
of the succeeding Congress was introduced by Senator Stockbridge, of Michigan,
in the Senate and ultimately became the law under which the Court of Claims
acted in rendering the judgment therein. From the questions made by counsel
for the Government upon the trial and agreement of the cause, however, and the
open-court replies of the judges thereto, based directly upon the new matters
so written in the bill by deponent, the deponent does not hesitate to say that
without such charges which were so made by him the claims would have been defeated
upon said trial.
Deponent
further says, upon receiving the Secretary's communication May 2,1896, with
the inclosure, he sent a copy of the opinion of
the Assistant Attorney-General mentioned (excepting that part containing the
terms of the contract) to Hon. Lawrence Weldon, the judge who delivered the
opinion in the Court of Claims in said cause and which is referred to by the
Assistant Attorney-General, as reported in Twenty-seventh Court of Claims Reports,
403, requesting a statement upon the objection urged by the Assistant Attorney-General
and the Commissioner of Indian Affairs against the payment for deponent's services
in the prosecution and recovery of the claims, to which Judge Weldon, May 11,
1896, replied:
"I
inclose you a statement in the Indian case, which
I think substantially covers the grounds of your request in your recent letter.
The fact that it was conceded on the trial that you represented Indians who
were entitled to recover does not appear of record and the statement embraces
that fact."
The statement or certificate referred to was from Hon. William A. Richardson,
chief justice of the Court of Claims, the original document being herewith inclosed
and made a part hereof. * * *
Deponent
further Says no one but John Critcher and deponent represented Indians who recovered
in said cause; that while deponent represented Several hundreds who did not
come within the class entitled to recover under the decision rendered therein,
yet he also represented a large number who were entitled to recover under it
and who were and are heirs of those Indians mentioned and designated in the
findings of the Court of Claims in said cause as the Indians entitled to recover;
that their names are stated in the petition, as well as signed to the powers
of attorney and ratifications
mentioned
in the files of Court of Claims and while he is unable from the means at hand
to state their number with exactness, yet according to the
beet of his knowledge, information, and belief,
he believes the Indians employing him and who are entitled to participate in
the distribution of the moneys awarded to the Pottawatomie Indians under the
decision of the Supreme Court (which simply affirmed and in no way changed the
decision or findings of the Court of Claims) number over two hundred; but that
he is able to state exactly the number Mr. Critcher claimed the right to act
for. In the petition he referred to his contract in the Indian office as the
source of his authority. Regarding this also as its limit, deponent says
the said Critcher had the right to represent only 91 Indians, as appears by
that contract found in volume 2 of Miscellaneous Records in said office, beginning
at page 84.
JNO. B.
SHIPMAN.
Subscribed
and sworn to before me May 18, 1896.
[SEAL.] FRANK D. NEWBERRY, Notary Public.
COURT
OF Claims, May 11, 1896.
SIR: In
the case of the Pottawatomie Indians the court did not pass upon any issue except
that of the whole number of Indians entitled to recover against the United States.
It rejected those in northern Michigan, and in estimating the proportion of
those who remained to those who went west took only those who remained in southern
Michigan, leaving it to the Interior Department to determine who those individual
Indians were and the number thereof.
That Mr.
Shipman represented Indians who came within the class entitled to recover appears
by the findings of the court, but as the number was not material in the judgment
of the court the relative numbers represented in both cases were not determined.
It was conceded at the trial and argument of the case that Mr. Shipman did
represent Indians who remained in Southern Michigan, and who were entitled to
recover, but the number was not stated.
Respectfully,
yours, etc.,
WILLIAM A.
RICHARDSON
Chief
Justice.
Mr. JOHN
B. SHIPMAN.
July 20, 1896, a report was received upon these documents through the Secretary's
office (dated, however, May 27, 1896), made by another Assistant Attorney-General,
stating nothing in them changed the opinion previously given, but also adding:
I am satisfied
that he has rendered valuable services to his clients, but he has not shown
that a solitary individual of those Indians whom he represented in the Court
of Claims and in the Supreme Court is entitled to share in the fund.
But neither
of these officers attempted to explain how his services could have been "valuable
to his clients" unless those clients were benefited by the judgment obtained.
Besides even Cadman's census, as made on the roll of 1866 and then on file in
the Department, contained the names of many Indians whose names and residences
were given in the petition filed by deponent in the case mentioned wherein said
judgment was rendered (27 C. Cls. R. 403) and for whom he appeared and acted
by the "special appointments" mentioned in the decision of the court
in that case, as deponent has since ascertained but notwithstanding all this
nothing was ever paid deponent for his services or disbursements in the matter,
while Critcher, under his contract representing but 91 Indians and en titled
to but 12 per cent, managed to get through the Indian Office as pay for legal
services $36,563.
Although he was thus ignored by the Department, deponent did not believe the
officers of the Government would violate their plain duty under the judgment,
the act of Congress appropriating the funds to pay it, and the order of the
Secretary in distributing the money among the Indians. But toward the fall of
1896 many of the Indians grew daily more and more alarmed at the prospect of
being unfairly used by the Government, and finally deponent attached to the
names of. the "over 150 Indians," whom the Court of Claims in its
finding of fact numbered 3 and 4 in the case reported in Thirty-sixth Court
of Claims Reports, 427, have found were claimants and entitled to be enrolled
and share in the distribution of said funds (some others being. included therein),
three affidavits and sent the whole to the Secretary of the Interior by mail,
postage prepaid, at Washington, D. C., the following being copies of said affidavits:
STATE
OF MICHIGAN, Saginaw County, as:
John R.
Robinson, being duly sworn, says he is over seventy years of age and a minister
of the gospel, residing at Chapin, in said county; that he is part Indian, and
a large portion of his life has been spent in missionary work among the Indians
in Michigan and he is especially well acquainted with the Pottawatomie Indians
in Michigan, among whom he labored for many years of his life; that deponent
was educated at Mackinaw Island, and speaks fluently both the Pottawatomie and
English languages and equally well; that while he has no pecuniary interest
in it he has examined with great care the findings and opinion of the Court
of Claims of Washington, D. C. (affirmed by the Supreme Court), in the two
cases which were consolidated and heard as one against the United States, involving
the right of the Pottawatomie Indians to certain annuities, and especially that
part of the decision and finding holding that those Indians entitled to recover
were "those parts of the Pokagons and Nottawasepi bands, to whom the payments
mentioned in the said letter of Hon. E. B. French were made," meaning and
referring thereby to a letter of May 4, 1871, of the Second Auditor of the Treasury,
containing a statement of payments to the Pottawatomie Indians from the years
1843 to 1866, inclusive, such payments for the first two years being made by
Robert Stuart, and as to those payments inclusive he further says:
That he
acted as interpreter for all the Government agents making them named in said
letter, except two; that he has seen and examined copies of the pay roll for
the years 1843 and 1844 containing names of Pokagon and Nottawasepi Indians
paid and referred to in said letter and which appear in the printed evidence
used on the hearing in the Court of Claims, and he has investigated with great
care and diligence, and solely with a desire to find out the truth, who and
what living Indians were entitled to share in and receive the fund appropriated
by Congress to pay the judgment allowed and going to the Indians in said cause
under the decision and findings therein, and as a result of such investigation,
he says, the paper hereto annexed marked "Exhibit 1" contains a list
of the heirs and descendants of the Indians named therein and who are named
on the said pay rolls belonging to the Nottawasepi and Pokagon bands paid by
Government agents in 1843 and 1844, who were represented by John B. Shipman,
of Coldwater, Mich., in said causes in the courts mentioned, all of whom are
entitled to-share in said judgment and he believes are named and appear in the
petition filed by him therein, which deponent has also examined.
That this
statement is made from personal acquaintance with nearly all the Indians whose
names appear on said pay rolls at the numbers appearing in said "Exhibit
1" and from personal knowledge of them, their families, and descendants
since, and he has no doubt of its correctness, although he does not pretend
to say that "Exhibit 1" contains a list of all the Indians he represented
in said matter. He verily believes the Indians in said list cannot be ignored
in the distribution of said fund without doing a great wrong to them.
Rev. JOHN
R. ROBINSON.
Subscribed
and sworn to before me this 29th day of October, 1896.
[SEAL.] T. P. STEADMAN, Notary Public.
STATE
OF MICHIGAN, County of Branch, as:
Phineas
Pam to pee, being duly sworn, says that he is a Pottawatomie Indian, living
in Athens, Calhoun County, Mich., where he had resided many years. That he understands
English, and can write and speak it, although not very well. That he was one
of the petitioners named in the petition presented by John R. Shipman on behalf
of said Indians to establish their claim for certain unpaid annuities against
the United States in the Court of Claims at Washington, D. C., the case being
No. 16842. That he belongs to the Nottawasepi band of said tribe, and to that
part of said band which the court decided were entitled to share in the fund
awarded them by the court, and for which Congress has made an appropriation
to pay them; that he is a direct descendant and heir of Pain
thuh bee, whose name appears as No. 2 on the pay
rolls of 1843 and 1844, referred to in the findings in said cause as those entitled
to said allowance and designated as the "Nand
day wa see pee" band, which means the Nottawasepi
band, as now spelled; that he knows the other Indians included in said petition
by their said attorney, belonging to said band, a list of whom is hereto annexed
marked Exhibit 1, and that all of them are heirs and direct descendants of the
Indians whose names are on said pay rolls at the numbers and as
stated in
said list, and all of whom are entitled to Share in said fund, under and according
to the findings and decision of said court, except at Nos. 4 and 6, about whom
he does not know.
He further
says the person who it is said was to take a census of the Indians who were
descendants of those named on said rolls did not faithfully or properly perform
his duty in that regard in this, that he did not take a list or census of the
Nottawasepi portion of the band named on said pay rolls residing in and near
Athens aforesaid, among whom deponent has lived all his life, and with whom
he is familiar, and of which Exhibit 1 contains a partial list. That he knows
also other Indians named on said Exhibit 1 in the Pokagon list, but not well
enough to say how many are entitled to share in said fund of his own knowledge,
but he believes that all of them are from the best information he can get.
PHINEAS PAMPTOPE.
Subscribed
and sworn to before me October 30, 1896.
[SEAL.] I. W. McCAUSEY, Notary Public.
COUNTY OF BRANCH, ss:
Samuel
Mendokay, being duly sworn, says he is a Pottawatomie
Indian, belonging to the Nottawasepi band, residing at Athens, Calhoun County.
That he was one of the petitioners named in the petition referred to in the
above affidavit of Phineas Pam to pee, which he has heard read, although his
Indian name of Shawgaquot may have been used. That
he was educated at the Indian school in Kansas and speaks and writes English.
That he is an heir and direct descendant of the Men do
kay named on the said pay rolls of 1843 and 1844, as shown in said list
marked "Exhibit 1." He further says that the statements in the affidavit
above mentioned of Phineas Pam to pee, as to the other Indians on said list
who are entitled to share in said fund, are true, for he has known the Indians
and lived among them all his life, and knows the agent mentioned neglected them
and also neglected deponent, who is entitled to share in said fund. That John
B. Shipman represented all of them in said court.
SAMUEL MENDOKAY.
Subscribed
and sworn to before me October 30, 1896.
[SEAL.] J. W. MCCAUSEY, Notary Public.
No notice
being taken of this communication, deponent himself went to Washington and called
upon the Commissioner of Indian Affairs to get at the situation, only partially
succeeding, however; but he did find that the Cadman census, based on the roll
of 1866, was the one upon which the fund was to be paid out. He protested against
this injustice, and Mr. Browning, the Commissioner, was apparently convinced
of the justice of the protest, but he declined to do anything in the premises,
stating to deponent that the Secretary of the Interior had approved that census
roll and that payments must proceed upon it as now prepared. Deponent then saw
the Secretary of the Interior and endeavored to get him to correct the wrong,
but without success.
Deponent
then prepared a bill in equity in the supreme court of the District of Columbia,
as well on his own behalf as the Indians for whom he acted, praying for an injunction
against the Secretary of the Interior and the Commissioner of Indian Affairs
to enjoin them from paying out any of said money until the further order of
the court, and that a receiver of the fund be appointed pending the litigation,
which was designed to determine judicially the rights of all parties therein;
that while he did not file the bill in the court on the 10th day of November,
1896, he presented it to Mr. Justice Hagner, of said court, at chambers, for
the allowance of an injunction as prayed for; but the judge, doubting the power
of the equity court to enjoin an executive branch of the Government, declined
to allow the writ.
After all this the Department distributed to the Indians upon the census so
taken by Cadman under the roll of 1866 (two being added by
Shelby, who had escaped Cadman's search,
and one by the Department) the sum of $118,534.52. In its return to a call in
the last suit the Interior Department state its inability to furnish the date
of the first payment, but that the entire payment was made between November
13 and December 15, 1896. Not one of the 272 claimants mentioned in the caption
of this affidavit was paid a cent of said funds to the knowledge, information,
or belief of deponent.
Jno. B.
SHIPMAN.
Subscribed and sworn to before me this 24th day of January, A. D. 1903.
[SEAL.]
MARX S. ANDREWS,
Notary Public
in and for Branch, County, Mich.
Guest
