MEMORIAL OF CERTAIN POTTOWATOMIE INDIANS 1904

Modified on Saturday, 31 March 2012 04:09 PM by Patricia Hamp — Categorized as: Annuities, Census

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.


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