BEFORE THE INDIAN CLAIMS COMMISSION

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10 Ind. C l . Comm. 137
BEFORE THE INDIAN CLAIMS COMMISSION
THE SISSETON AND W.AHPETON BANDS 1
OR TRIBES, ETC., 1 Docket No. 142
1
THE LOWER SIOUX INDIAN CO>IPNNITY, ETC . , 1 Docket Nos. 359 - 363
1
THE YANKTON SIOUS TRIBE, 1 Docket No. 332-A
1
Petitioners, 1
1
v. 1
1
THE UNITED STfEES OF APIERICA, )
)
Defendant. 1
Decided: January 12, 1962
Appearances :
Docket No. 142 - Marvin J. Sonosky;
Docket Nos. 359-363 --Emerson Hopp,
John S. White, Louis Rochmes;
Docket No. 332-A - Ernest L. Wilkinson,
and John W. Cragun, Attorneys
for Petitioners .
James J. Monogue, with whom was Mr.
Assistant Attorney General Ramsey
Clark, Attorneys for Defendant.
OPINION OF THE COMMISSIOH
Watkins, Chief Commissioner, delivered the opinion of the Commission.
There are five principal Sioux claimants i n t h i s consolidated matter
who are seeking additional coinpensation for lands zllegedly taken by the
United States by treaty or otherwise. In Dockets 359 through 363, there
are set forth the claims of the Medadcanton and Wahpdcoota bands of Sioux,
e
and Docket 142 embodies the claim of the Sisseton and Wahpeton bands of
Sioux. Collectively these four bands are more readily identified as the
10 Ind. C l . C ~ n m . 137
Mississippi Sioux. Docket 332-A involves the claims of the Yankton Sioux
tribe, who along with the Yanktonai and Teton Sioux t r i b e s , are known as
the Missouri Sioux. me subject areas in the respective dockets are
contiguous. They have a combined acreage in the neighborhood of some
thirty five million acres, and are located for the most part i n the s t a t e
of Minnesota with some areas extending into Wisconsin and Iowa.
With respect to Medawakanton and Wahpakoota claims asserted i n
Dockets 359 through 363, there are five separate petitioning Indian communities,
to-wit, the Santee Sioux Tribe of the Santee Reservation in
Nebraska, the Flandreau Santee Sioux Tribe of South Dakota, the Lower Sioux
Indian Community in Mimesota, the Prairie Island Indian Commu~ity in
Minnesota, and the 'iipper Sioux Indian Community i n Minnesota. Their
present membership is comprised chiefly of descendants of the original
bands of Medawakanton and Wafipakoota bands of Mississippi as they existed
during the t i m e s pertinent to the claims asserted herein. There are also
several individual petitioners who are blood descendants of the original
members of the Medawakanton and Wahpakoota Sioux bands. These f i v e
communities are entitled to bring and maintain the Medawakanton and
Wahpakoota Sioux claims on behalf of a l l their members as well as a l l
descendants of the original Medawakanton and Wahpakoota bands similarly
situated. In like manner the individual petitioners are e n t i t l e d t o
bring and maintain these s u i t s on behalf of themselves and a l l other
descendants of the original Medawakanton and Wahpakoota Sioux bands
similarly situated.
10 Ind. C l . C m . 137
There are two petitioning Indian Communities, to w i t , the Sisseton
and Wahpeton Tribe of Sioux Indians of the Sisseton Reservation in South
Dakota, and the Sisseton and Wahpeton Tribe of Sioux Indians of the Fort
Totten Reservation in North Dakota, whose membership comprises descendants
of the original members of the Sisseton and Wallpeton bands of Mississippi
Sioux as they existed during the times pertinent to the claims asserted
in Docket 142. As such the two petitioning communities are e n t i t l e d . t o
bring and maintain the claims i n Docket 142 under the provisions of the
Indian Claims Commission Act, for and on behalf of i t s members and a l l
other descendants of the original bands of Sisseton and Wallpeton Sioux
similarly situated.
The petitioner, the Yankton Sioux Tribe, in Docket 332-A is authorized
under the prwisions of our Act t o bring that s u i t orr behalf of its members.
We shall, however, a t . t h i s time t r e a t f i r s t with the Mississippi Sioux clzims
in Dockets 142, 359 through 363.
The traditional association of the Mississippi Sioux bands with tke
early development and growth of the Minnesota t e r r i t o r y , arrd the adjacent
northwest areas has been presented to the Commission with great emphasis
i n the abundance of historical documents now in the record. These Indians
were no strangers to the white man. As early as 1670 the French had corrtacted
the "Nadaiesiotrx" along w i t h the other tribes that roamed the vast
expanse that lay to the west and southwest of Green Bay and Lake Superior.
Beginning with Finding 8, the Commission has evaluated the numerous reports
of the FrencS and English explorers and traders that spelled out continuous
Sioux activity and occupancy of the Minnesota lands along the upper
. ,. -
LO Ind. C l . Corm. 137
Mississippi River and the neighboring rivers and lakes. It seems unnecessary
to repeat again these h i s t o r i c a l facts as s e t down in our findings. A t the
time the United States established i t s jurisdiction over the Upper Mississippi
region in 1803, the Sioux and the Chippewa t o the north had pretty well divided
up the Minnesota territory between them.
In 1805 Zebulon Pike reached the Upper Mississippi Valley where he had
no difficulty finding Sioux villages along the west bank of the Mississippi
River. t i t t l e Crow, the Medawakanton Chief, was encamped i n the only v i l l a g e
of any consequence situated on the east side of the Mississippi. Pike had
been instructed among other things to look for suitable positions that would
accommodate military outposts. He decided upon two small t r a c t s , one situated
a t the mouth of the St. Croh River, the other at the f a l l s of St. Anthony
.\I
further up the Mississippi, The St, Croix River t r a c t was nine m i l e s square
and contained 51,840 acres. The t r a c t beginning a t the collfluence or' the
St. Peters and Mississippi River, and extending up the Mississippi t o include
the f a l l s of St. Anthony, was 9 miles by 18 m i l e s and contained 103,680 acres.
Pike lost no time i n concluding an agreement on September 23, 1805, for the
conveyance of Sioux interest in the two t r a c t s . He dealt exclusively with
the Medawakantons whose chief, L i t t l e Crow, signed the agreement. On
April 16, 1808, the United States Senate r a t i f i e d "Pike's Purchase", while
a t the same time fixing the consideration to be paid to the Sioux at $2,000
or its equivalent in goods and merchandise. The Commission finds precious
little i f any thing in the record that would contravene the facts pointing
to Medawakanton aboriginal ownership of the two t r a c t s conveyed t o the
United States under the 1805 agreement. The Commission therefore finds
10 fad. C l . Comm. 137
and concludes that as of the effective date of the 1805 agreement the
Medawakanton Sioux had Indian t i t l e to the two t r a c t s involved in "Pike's
Purchase" which are the subject of the claims asserted in Docket

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No. 361.
Following the 1805 purchase of the two smalL t r a c t s along the
Mississippi River, there were no further Sioux Land cessions u n t i l the
year 1830. However, i n 1825 there was concluded a t Prairie des Chien a
most significant treaty between the United States and the t r i b e s of the
upper Mississippi regions.
It was in the 1820's that Congress began t o focus serious attention
upon increasing i n t e r t r i b a l Indian disturbances in the northwest which
\
constantly threatened to erupt into open warfare. Besides disrupting
normal trading activity, it created havoc with the serious attempts to
establish permanent white settlements i n the area. It was the Mississippi
Sioux who fouad themselves embroiled with t h e i r traditional enemies, the
Chippewa, along fheir northern frontier, while *to the south they were being
challenged by the Sac and Fox and Iowa Indians for the c3oicer hmting areas.
A t the urging of the United States, t5e interested t r i b e s were assembled
at Prairie des Chien for the purpose of entering into negotiaC,io%s aimed at
establishing permanent boundary lices and prornot ing peace.
Besides the four Mississippi Sioux bands, there was in attendance the
chiefs and headmen of the Chippewa, Sac and Fox, Iowa, Winnebago, Menominee,
as w e l l as representatives of the United Chippewa, Ottawa, =d Pottawatmie
t r i b e s of Indians. Although invited, the Yankton Sioux t r i b e did not attend.
After cozcluding the necessary preliminaries, each t r i b e thrmgh its
10 Ind. CI. Comm. 137
spokesmen outlined i t s t e r r i t o r i a l claims. Certain conflicts were compromised,
while others were made the subject of future negotiations. No
land cessions were made, nor were they contemplated. Finally, on August 19,
1825, the formal treaty was concluded with the aforementioned tribes
subscribing their assent to the stipulations and conditions contained
therein.
As stated in the preamble, the overall purpose of the treaty was,
I' . . . to promote peace among these tribes, and t o
establish boundaries annorzg them and the other t r i b e s
k&o live in their vicinity and thereby to remove a l l
causes of future difficulty. . ." (7 Stat. 272)
Under Article 2 of the treaty, the boundary line was fixed between
the Mississippi Sioux and their southern neighbors, the Sac and Fox Nation.
Informally, the line commences at the mouth of the Iowa River on the west
bank of the Mississippi River, proceeds generally in a west southw~st
direction to the upper fork of the Desmoines River, thence i n a s t r a i g h t
line, west northwest to the lower fork of the Calumet or Big Siwa River,
and down that river to its junction with the Missouri. This Commission
has already determined i n a separate proceeding that the lower fork of the
Calumet River is the same as the "Rock River'!. (See Commission's Order of
November 25, 1959) Provision was also made in Article 2 for obtaining the
assent of the absent Yankton Sioux a t a later date to that portion of the
Article 2 line which commences at the .forks of the Desmoines River and
eventually terminates at the confluence of the Calumet or Big Sioux River
and the Missouri River.
Pursuant to Article 5 of the treaty a boundary line was established
between the Mississippi Sioux and the Chippewa Nation to the north. This
LO Ind. C l . Comm. 1.37
Article 5 li9e commences at a point described as,
11 . . . at the Chippcwa River, half a Oay's march below
the f a l l s . . . I I
?&is location i s at the present s i t e of Porter Mills, Wisconsin. From
its starting point the Article 5 Line courses approximately west northwest
where it crosses the Mississippi River just above St. Cloud, Minnesota.
From this point it moves in the same general direction to a point near
the -town of Garfield, Minnesota, in Douglas County. From that location
it takes a more northerly course until reaching the confluence of ~ u f f a l o
River and Red River; thence it descends the Red River to the "mouth of
Outard or Goose Creek."
Article 5 of the 1825 Treaty also fixed the eastern boundary line of
Sioux country. This line commences a t the .mouth of the Iowa River on the
Mississippi, which s i t e is also the starting point of the Article 2 line,
or southern Sioux boundary line. It then follo~qs northward along the
Mississippi River until it reaches the mouth of Black,River. From t h i s
point the treaty c a l l moves the Line,
". . . from Black river to half a day's march below
the Falls of the Chippewa River ."
'Thus, the Sioux boundary line on the east terminates at the same point
where the Article 5, Sioux-Chippewa or northern boundary line begins.
The treaty calls in Article 2 and 5 of the 1825 Prairie des Chien .
. . -. . Treaty, circumscribed a vast area west of the Big Sioux River and Lake
Traverse, which traditionally and historically has been associated with
the Mississippi Sioux tribes.' Within this defined area each of the four
bands can be identified with a certain section. Starting from the Iowa
LO Ind. C l . Comm. 137
State line the Medawakan~on territory and villages Lay for the most part
west of and along the Mississippi River extending to just north of the
St. Peters River. Some of their land was east of the Mississippi River
and w e s t of Black River, and abutted the Chippewa lands to the north. The
closely associated Wahpakoota band occupied the country below and west of
the Medawakantons, south of the St. Peters River, and near the sources of
the Cannon and Blue Earth Rivers. Together these two bands did range
westward as far as the Big Sioux River, which river was the natural dividing
line between them and the Yankton Sioux on the w e s t . North and w e s t of the
Wahpakoota were the Wahpeton Band of Sioux, whose villages extended w e l l
up the St. Peters River near its sources. Further w e s t and southwest, and
as far as Jacques or James River in the Dakota t e r r i t o r y , were the Sisseton
Band of Sioux. For the most part the Sissetons and Wahpetons lived and
hunted togetker .
Pursuant t o Article 10 of the 1825 treaty, each of the participating
parties acknowledged the supremacy of the United States, and the United
States agreed to and recognized the boundaries as fixed.
This Commission has already interpreted the L825 P r a i r i e des Chien
as conferring the benefits of recognized title to the lands belonging t o
the Iowa, Sac and Eox, and Winnebago tribes of Indians as described in
the 1825 treaty and agreed upon by the other tribes. We find no compelling
reason t o deny that: the Mississippi Sioux bands in like'manner had a
recognized t i t l e to the lands described as belonging to them under Articles
2 and 5 thereof. See The Sac and Fox Tribe of Indians, e t al., v. United
States, 5 Ind. CL, Comm. 367; The Winneba~o Tribe and Nation of Indians,
et al., v. The United States, 8 Ind. C1. C m . 78.
LO Ind. C l . Comm. 137
We cannot equate our ruling in the recent case of Minnesota Chippewa
Tribe, et al., v, United States, 8 Ind. C i . Comm. 815, Docket 18-13, as
defendant would have us do, with the situation in t h i s case. In the
Cfii~pewa case, we held merely that the facts therein show that with respect
t o the Chippewa Indians, the Commission could find no congressional intent
under the 1825 Prairie des Chien '&eaty to confer upon these Indians a
recognized t i t l e to a vast undefined and unlimited area north of the
Article 5, Sioux-Chippewa line. Furthermore, we could fidd not5ing i n any
of the subsequent dealings between the United States and the Chippewa
Indians that would point to a l a t e r confirmation of Chippewa t i t l e to
t h e i r claimed areas, Here in the instant case we are not confronted w i t h
.the problem of an undefined and unlimited Mississippi Siotur area.
+. In finding government recognition of Mississippi Sioux t i t l e t o the
area bounded as described in Articles 2 and 5 of the 1825 P r a i r i e des Chien
Treaty, the need of proving aboriginal t i t l e has been eliminated with respect
t o the following areas which are the subject of claims asserted herein.
1. Royce Area 153. This t r a c t was ceded under Article 3 of the Treaty
of July 15, 1830, 7 Stat. 328, by the four bands of Mississippi Sioux, which
area is situated i n northern Iowa and comprises about two million acres.
Rbyce Area 153 is the subject of claims asserted by the p e t i t i o a e r s
Medawakanton and Wahpakoota Sioux in ~ o c k e t3 59.
2. Royce Area 243. With the exception of that portion lying east of
a. l i n e beginning a t the mouth of the Black River and terminating at t 3 a t
poirzt described in Article 5 of the 1825 Prairie des Chien Treaty as "half a
LO Ind. C l . C m . 137
day's march below the Falls of the Chippewa River," this tract contains
over 4 million acres in east central Minnesota and west central Wisconsin.
Royce Area 243 was ceded by the Medawakanton Sioux under the Treaty of
September 29, 1837, 7 Stat. 538, and is the subject of the claims asserted
by the petitioners, Medawakanton and Wahpakoota Sioux in

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Docket 360,
3. Royce Area 289. This cession contains about 25 million acres in
southern ~innesota, northern Iowa, and a small portion in eastern South
Dzkota. The area was ceded to the United States by the Sisseton and Wahpeton
bands under the Treaty of Traverse des Sioux of July 23, 1851, 10 Stat. 949,
and the Medawakanton and Wahpakoota bands under the Treaty of Mendota of
August 5, 1851, 10 Stat. 954. Royce Area 289 is the subject of the
principal claim asserted by the four barids of Mississippi Sioux i n Dockets
142 and 362.
The petition in Docket 359 also included a claim by the Medawakanton
and Wahpakoota bands of Mississippi Sioux to Royce Area 151, AS set forth
in Finding 31 herein, the Mississippi Sioux have disclaimed any further
i n t e r e s t i n Royce Area 151. %Je have found that the evidence i n the record
-
supports t h i s action, and the Commission w i l l therefore dismiss the petitioners'
claim to Royce Area 151.
In connection w i t h Royce Area 243, the Commission has taken issue
w i t h petitioners concerning the location of a part of the eastern boundary '
of the Sioux territory as fixed under Article 5 of the 1825 Treaty, In otk
considered judgment, Royce has inaccurately pictured that portion of the
eastern boundary line of Area 243 described in Article 5 of the 1825 treaty
which commences at the mouth of the Black River and terminates at a point
LO Ind. C l . Comm. 137
that is designated as "half a day's march below the Falls of the Chippewa
River." As shoxm on the map, Wisconsin 1, 18th Annual Report, Bureau of
American Ethnology, 1896-37, Part 1, that segment of the l i n e i s depicted
as proceeding up the Black River from its mouth to a point estinated to
be just south of the source of the Clear Water or Eau Claire River. At
this point the line leaves the Black River, and proceeds to the source of
the Clear Water River, then follows the meanders of the Clear Water River
t o its confluence witb the Chippewa River, thence down the Chippewa River
to that point designated as a half a day's march below the Chippewa Falls.
It is our view that, if correctly drawn in conformity with the unmbiguous
language i n Article 5 of the 1825 treaty, that segment of the eastern Sioux
boundary of Royce Area 243 would follow a straight line from the, mollth of
the Black River to half a day's march below the Falls of the Chippewa River.
In so doing, we are of course w e l l aware of the Conmission's recent
and somewhat contradictory statements i n the case of the Winnebaqo Tribe
and Nation of Izzdians, e t al., v. United States, 8 Ind. C l . Comm. 78,
Dockets 243, 244, and 245. In Finding 13 of the Wimebago case the Commission
concluded that under Article 5 of the 1825 Prairie des Chien Treaty,
the eastern boundary of Royce Area 243 followed the Black River and reac3ed
the Chippewa ails as depicted by Royce on map, Wisconsin .I. We theref ore
found t h i s segment of the eastern boundary of Royce Area 243 t o be coextensive
w i t h the northwest boundary line of Royce Area 245 which is Winnebago country
as described in Article 6 of the 1825 Prairie des Chien Treaty. Finding 13
" i n that case is superfluous to a proper delineation of the western lixiits
of the Winnebago territory (Royce Area 245), and our apparent reliance on
LO Ind. C l . Conun. 137
Royce in that regard was indeed unfortunate. The Commission therefore
repudiates Finding 13 in the Winnebago case, as well as certain statements
in the opinio3 of like import. Our action this date does not change or
affect the Commission's determination of the Winnebago t i t l e to lands
claimed by them in &at case.
The Commission also concludes that the evidence i n the record does
not s q p o r t Sioux aboriginal claims west of that line drawn from the mouth
of Black River to Chippewa Falls. By 1832, the Winnebago were freely
hunting
side of
i n t h i s
the Black River area. They had established a village on the south
Black River near La Crosse, Wisconsin. There were no Sioux villages
particular area at any time. The Menminee Indians were another
group who had easy access to the Black River and made use of it. By the
1837 Treaty, the Sioux were interested only i n the lumbering operations
conducted on the Menuminee River which is a branch of the Chippewa River.
This river lies a considerable distance west of the ~ l a k kR iver-Chippewa
Falls line, and wit5in the area recognized under the 1825 Prairie des
Chien Treaty as Sioux cotmtry. Furthermore, as we noted in our findings,
the testimony of petitioners' expert, Dt. Wallace, lends l i t t l e i f any e
support t o exclusive Sioux me and oc: lpancy of any area west of the
Chippewa River by 1837.
The f i n a l Mississippi Sioux claim, which is. asserted'by the petitioners,
Medawakanton, and Wahpakoota bands, involves Royce Area 413.
Royce Area 413, is a tract of land containing about 320,000 acres
that is located on the north side of the Minnesota River i n southwestern
Minnesota. It was ceded to the United States by the Medawakantons and
Wahpa.ko otas under the Treaty of June 19, 1858, 12 Szat. 1031.
10 Ind. C l . Co;mn. 137
The Commission has found that as of the effective date of the 1858
Treaty of Cession, the M&aw&anton and Wahpakoota bands had good t i t l e
to Royce Area 413, which t i t l e was confirmed unto these Indians by s t a t u t e
in 1860, and under the following circumstances:
AS originally drafted, the two 1851 Mississippi Sioux t r e a t i e s of
cession, the Mendota and Traverse des Sioux t r e a t i e s , provided for two
reservations on the Minnesota River, one for the "Upper Siouxt', meaning
the Sisseton and Wahpeton bands, and the other for the "Lower Sio-a",
the Medawakantons and Wahpakootas. However, the Senate struck those
provisions a t the time of r a t i f i c a t i o n of the two t r e a t i e s , and it was
.thereafter contemplated that the four bands would eventually be relocated
on reservations outside the ceded area. In the interim these Indias
were to be permitted to rgmain a t &eir present homesites u n t i l the
President selected new reservations. However, the President did not set
aside any land without the ceded area, but instead authorized these Indisns
to occupy the reservation originally designated in 1851 t r e a t i e s as t h e i r
permanent home. Because of the doubtful validity of the Indian t i t l e t o
these t r a c t s , Congress, by the Act of July 31, 1854, 10 Stat.

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315,
authorized fhe President "to confirm t o the Sioux of Minnesota forever,
the reserve on the Minnesota River now occupied by them . . ." Apparently,
the President never acted under t h i s specific authority.
The increasing demands of the white settlers for more lands i n i t i a t e d
treaty negotiations with the Mississippi Sioux for the cession of t h a t
part of t\eir reservation on the north side of the Minnesota River. On
June 19, 1958, the Medawakantons and Wahpakoota bands, by treaty, ceded
10 Ind. Cl. Contm. 137
their part of the reservation on the north side of the Minnesota River
(12 Stat. 1031). This is Royce Area 413. Under this treaty, the lands
on t5e south side were confirmed unto the Medawakanton and Wahpakoota
bands. (The Sisseton and Wahpeton bands executed a similar treaty of
cession on June 19, 1858, 12 Stat. 1037, and were also confirmed an
interest in the reservation lands on the south side of the Minnesota
River). The reservation on the south side of the Minnesota River is
known as Royce Area 440. (Minnesota 1, 18th Annual Report, Bureau of
Aqerican Ethnology, 1896- '97, Part I1 .)
Although the 1858 treaty provided for the disposition of the Lands
on the north side of the Minnesota River, it noted the failure of the
President to confirm title to the Indians under the 1854 Act. Therefore
a special provision was made for submitting to the-Senate for determination
the question of the validity of Indian title to the ceded lands, On June 27,
1860, the Senate resolved thLs question as follows:
It . . . that said Indians possessed a just and valid
right and title to said reservations . . . which by
the treaties of June, 1858, they have relinquished
and given up to the United States," (12 Stat. 1042)
Throughout &is case, the defendant has sought to interpose as a
jurisdictional defense to the Mississippi Sioux claims the Act of February
16, 1863, 12 Stat. 1863. Any attack on the Commission's jurisdiction is
certainly of singular importance and needs to be answered.
The 1863 Act referred to above is more tommonly alluded to as $he
"Forfeiture Act." Its passage was the result of Congressional retribution
stemming f ~ o mth e outbreak of the notorious Sioux uprising in Minnesota in
1862. In August of that year,a rebellious band of "Lower Sioux" left
.10 Ind. C1. Comm. 137
their reservation on the Minnesota and embarked on 3 lnurdcrous rampage
across the neighboring countqside, k i l l i n s and wc7'cj:fiing nzmerous s e t t l e r s
and destroying a great deal of property.
In the spring of 1863 the military f i r a l l y sup2ressed the uprising.
Many of the Sioux were captured and confirred, while o t h e r s , principally
the upper Sioux bands, fled t o the northwest and i n t o Canada.
AS a punitive measure, and i n order t o provide ccmpensatiol t o those
settlers who suffered i n j q and depredatiol, Congress passed t5e Act of
February 16, 1863, 12 Stat. 652, which a c t , besides c a l l i n g for payment
of damages sustained by the settlers, sought to aniiul aad abrogate a l l
t r e a t i e s heretofore made and entered i n t o by the four b2nds of Mississippi
Sioux, but only i n . . . "so far 2s said t r e a t i e s or a5y of t 5 e m pII:rvort
t o impose azy fzture obliqatio :n:o t5e U?.i&
States and a l l larrds and r i g h t s of oczupar:cy
within the State of Mimeseta ar,d a l l amuities
and claims heretofore accorded ts said Ixdians
of any of them t o be f o r f e i t e d t o the United
States." (Urzderscoring supplied)
The inunediate effect was t o cut off t5e amuity payments then due
under the prior t r e a t i e s , and t o f o r f e i t tSe e x i s t i c g r e s e r v a t i o n i n t3e
State pf Minnesota. But one might ask what about those acts arrd t r a n s a c t i o c s
completed under t r e a t i e s which do not impose a f u t u r e o b l i g a t i o a cpm tke
United States? Were past t r e a t i e s of cession t o be axiulled i n t o t o a2d
the Land returned to the Indians? It is upon these treaties of cession a n t i -
dating the 1863 Act that the p e t i t i o n e r s , the Mississippi Sioux, have based
t h e i r present claims.
The possible retroactive e f f e c t of the 1863 A c t up03 p r i o r treaties
_ * - , . - -- -t. .
10 Ind. C l . Conra. 137
was specifically discussed on the floor of the Senate i n the course of
the deliberations upon the b i l l which lay before that body. In the
Congressional Globe of January 26, 1863, on page 516, Senator Fessenden,
i n the course of h i s remarks, alluded to the question of the r e t r o a c t i v e
e f f e c t of the b i l l as drawn in the following manner:
I I . . . but l e t us look a t the matter, as the section
was drawn i n the f i r s t place, and as it now stands i n
the b i l l . The effect of it i f passed without a l t e r a t i o n
w i l l be that every acre of land which was granted t o us
by these treaties w i l l return t o the Indians. It simply
annuls the treaty. I f yau annul the t r e a t i e s without
making any sort of explanation it a l l goes back just where
it was before. The lands go back to the Indians and the
money, i f we can get it, comes back t o us.
In order t o meet t h i s objection of Senator Fessenden to the e x i s t i n g
language i n the b i l l presently before the Senate, an amendment was offered
by Senator Howard. He suggested the phrase which now appears i n the
f i n a l .act and which reads as follows :
"So f a r as said t r e a t i e s or any of them purport t o
impose any future obligations upon the United States.".
In offering t h i s unendment, Senator Howard explained that its purpose was,
"Not t o annul the treaties as t o the e f f e c t s which
they have already had i n transferring lands from the
Indians t o the United States, but simply t o relieve
the United States from a l l treaty obligations t o the
Indians." (P. 517, Cong. Globe, Jan. 26, 1863) .
Senator Sumner had t h i s to say about the amendment offered by Senator
Fessenden,
"It recognizks the validity of the t r e a t i e s down to our
l e g i s lation, therefore, a l l the lands which have been
transferred by virtue of those t r e a t i e s w i l l continue
i n the hands which now hold them. The t i t l e t o them w i l l
be undisturbed, but for the future we s h a l l recognize no
obligation under those treaties." (Underscoring supplied)
LO Ind. C1. Cortml. 137 1 94
The Commission can only conclude from the above that it never was the
intent of Congress in enacting the 1863 Forfeiture Act to disturb, change
or even resurrect those treaty transactions completed under t r e a t i e s
executed prior to the passage of the Act. We therefore cannot agree with
defendant's position that we are powerless under the Indian Claims
Commission Act to hear these present Mississippi Sioux claims wbich are
based on the several treaties of cession, sme of which had been completed
many years prior to the 1863 Act.
In summation, the Commission finds that Mississippi Sioux bands have
shown good t i t l e in the lands ceded under the following t r e a t i e s . In
Docket 351, the fiiedawakanton Sioux have proven aboriginal t i t l e t o all
laads involved in the transactions known as "Pike's Purchase", zs of
the effective date of the agreement of September 23, 1805. In

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Docket 359
the Medawakanton and Wahpakoota have a recognized t i t l e t o and an undivided
interest with the Sisseton and Wahpeton bands of Mississippi Sioux i n
Royce Area 153 by virtue of the Treaty of August 19, 1825, 7 Stat. 272,
at Prairie des Chien. Tie Medawakanton and Wahpdcoota bands ceded t h e i r
interest in Royce Area 153 under the treaty of July 15, 1830, 7 Stat. 328.
7x11 Docket 360, the Medawakafiton band has recogcized title under the afore-
-mentioned 1825 treaty to that part of Royce Area 243 west of a l i n e drawn
from the mouth of the Black River to that point described as half a day's
march below the Chippewa Falls. To the area east of said line, none of
the Mississippi Sioux bands have either a recognized or aboriginal t i t l e .
In Dockets 142-362, the four bands of Mississippi Siornr have a recognized
10 Ind. CL, Corn. 137
t i t l e under the aforementioned 1825 treaty to a l l of Royce Area 289, wllich
they ceded to the United States under the 185L Treaties of Mendota and
Traverse des Sio-a; a d , in Docket 363, the Medawakanton and Wahpakoota
Sioux have a reservation title to Royce Area 413, which was confirmed unto
said Indians by the Senate Resolution of June 27, 1860, 12 Stat. 1042, and
which area was ceded by them to the United States by the Treaty of June 19,
1858, 12 Stat. 1031.
Docket No. 332-A
On August 11, 1951, the Yankton Sioux Tribe or Band of Indians f i l e d
an original petition docketed as No. 332 wherein there were set forth
two d i s t i n c t land claims for which additional compensation was sought,
and a general accounting claim. Thereafter on February 12, 1958, with
the apprwai of the Commission, the Yankton Sioux f i l e d an amended p e t i t i o n
docketed as No. 332-A which contained only the two Lad claims as originally
pleaded. The general accounting claim was also refiled before the Commission
i n an amended petition docketed as NO. 332-B. It is of no concern
to us in the present controversy.
Of the two land claims i n Docket 332-A, the one set forth i n
paragraph 13 of the amended petition i s based solely upon the Yankton
Sioux Treaty of April 19, 1858 (11 Stat. 743), and the Yankton Sioux
claim for additional compensation for Royce Area 410 and the Fort ~aramie
lands. Royce Area 410 and the Fort Laramie lands are completely and
t o t a l l y outside of any of' the areas claimed by the Mississippi Sioux i n
the case and therefore are not a part of t h i s consolidated action.
LO Ind. C l . Comm. 137
That claim asserted in Docket 332-A which caused the Mississippi
Sioux tribes to f i l e t h e i r motion t o consolidate, is the claim set
forth in paragraphs 9 through 11 of this amended petition.
This Yankton Sioux claim, captioned "Taking of July 23, and August 5,
1851", asserts in plain unanbiguous language a claim for additional compensation
for Lands allegedly "owned or occupied by the petitioner" and taken
by the United States without the benefit of treaty. The lands involved,
according t o the Yankton Sioux, were included i n the approximately
35,000,000 acres that the four Mississippi Sioux bands ceded t o the United
States under the July 23, 1851, Treaty of Traverse des Sioux (10 Stzt. 949)
and the August 5, 1851 Treaty of Mendota (10 Stat. 954). This area is
Royce Arez 289, title t o which we have just determined t o be i n the
Mississippi Sioux bands, i n Dockets 362 and 142, Although the Yankton
Sioux did not participate in the two 1851 t r e a t i e s , they nevertheless
claimed loss of whatever i n t e r e s t they might have had i n the ceded lands
by virtue of the fact that, subsequent to the r a t i f i c a t i o n of the aforesaid
treaties, the United States assumed immediate control over these lands and
disposed of the swe without compensating the petitioners.
At t r i a l , the Yankton Sioux formally disclaimed any i n t e r e s t in
-'Royce Area 289. In so doing no evidence was proffered.in support of
Yankton use and occupancy therein. The Commission, however, has examined
and evaluated all the evidence i n the record concerning possible Yankton
. Sioux t i t l e to any part of Royce Area 289. We have found no such use and
4
occupancy, and our conclusions in t h i s regard have been set out in
Findings 56, 57, and 58. The Commission in accordance w i t h these findings,
LO Ind. C l . Cmm. 137
agrees with the petitioner, Ya&ton Siom;.that they have no cornpensable
interest in Royce Area 289.
Having retreated from their claim to Royce Area 289, the petitioners
now seek recovery for t h e i r interest, i f any, to that portion of Royce
Area 151 north of the Article 2 or "Yankton" line as it i s established
under the 1825 Prairie des Chien Treaty. According to the contention of
&c Yankton Sioux a t t r i a l they ceded unequivocally a l l their i n t e r e s t in
Royce Area 151 to the United States for an unconsc5onal~lc considcraticn
under the Treaty of Jaly 15, 1830, 7 Stat. 328, znd thc Treaty of Octob2r 21,
1837, 7 Stat. 542. They are now asking for additional compensation to
right that alleged wrong without benefit of a petition setting forth any
such claim on which a favorable judgnent might be entered. The Commission
is unable t o find within the bounds of the original petition in Docket 332
as w e l l as i n the amended petition, any la&age which could reasbnably be
interpreted as a statement by the petitioner tribe of a claim for additional
compensation for the lands within Royce Area I51 that were ceded by the pet
i t i o n e r t r i b e to the United States under the aforementioned 1830 and 1837
treaties. The Commission is therefore not confronted with a m e r e deficiency
-in form. The apparent mission t o plead properly a cause of action is more
substantiai thansthat since it f a i l s to mzet the basic statutory requirements
of our Act, and in particular section 12 thereof.
Section 12 of our Act established the five year period from August 13,

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1946 within \Yhich a l l accrued claims had to be f i l e d before the Commission.
This five year period is not merely a statute of limitations, -a procedural
LO Ind. C l . Comm. 137
bar, but is in fact a positive limitation on the right to bring the action.
This seems to be the clear Congressional intent for it is further stated
i n Section L2 that,
I 1 . . .no claim existing before such date but not
presented within such period may thereafter be submitted
to any court or administrative agency for
consideration, nor w i l l such claim thereafter be
entertained by the Congress." (2 12, 60 Stat. 1052)
There being no claim presented before the Commission for lands taken
under the 1830 and 1837 t r e a t i e s , the petitioner can take little comfort
in the f a c t that the jurisdictional defect was never raised by the defendant,
or that it auparently acquiesced to the right of the Yankton
Sioux to bring and maintain t h i s suit. While the issues involving this
claim have now been tried, the Commission cznnot allow any amendment of
the pleadings to ccnfor;n vit5 the evidecce if such be the case, To allow
any such clarifying amendment with respect to this particular Yankton
claim would require us at least to find some language i n the pleadings as
originally f i l e d which would i n f a c t include i n some forin the stated claimupon
wfiich recovery now sought could reasonably be based. This is not the
case even though we are cognizant of the Yankton Sioux lengthy declaration
contained i n paragraph 8-b of the amended petition. There it is stated i n
Part *at1'the petitioner, . . owned or occupied certain portions of lands
enclosed by the following boundaries. . .," and then there follows a lengthy
description of a vast area encompassing some nine s t a t e s and some 85 million
acres, including a l l of Royce Area 151. This statement says nothing more-
" -It is' j u s t a statement of a possible fact to which the defendant would not be.
10 fnd. CL. C m . L37
required to answer or defend, since it falLs far short of alleging any
cause of action for additional compensation for lands taken under the
1830 and 1837 treaties. Nor would it have made the slightest difference
if the petitioner had stated that the Yankton Sioux owned or occupied
certain portions of lands west of the Mississippi River, or better s t i l l ,
within the continental limits of the United States. We therefore do not
agree with the defendant's rather surprising and candid appraisal of the
extent of petitioners' claims in this case, to w i t ,
"It (the petitioner) sought compensation for lands i n
the 9 states of Minnesota, Iowa, Wisconsin, Missouri,
North Dakota, South Dakota, Wyoming, Montana, and
Nebraska," (Defendant's Hemorandurn in Support of
Motion For Slcmnary Judgment 7/30/58) .
We conclude without further camnent that the Yankton Sioux are
not entitled to recover on a claim for additional compensation for the
cession t o the United States of their interest in Royce Area 151 under
the treaties of July 15, 1830 (7 Stat. 328) and October 21, 1837' (7 Stat.
542). Such a claim, not having been duly filed pursuant to section 12
of the Indian CLaims Commission Act, has been extinguished by operation
of law.
Arthur V , Watkins
Chief Commissioner
I concur:
kb. M. Holt
Associate Commissioner
Scott, Associate Cmissioner, concurring in part and dissenting i n part.
10 Ind. C1. Conun. 137
Scott, Associate Commissioner, concurs!ing in part and dissenting i n part:
I concur in a l l of the findings of fact and opinion in these matters
set out t h i s date except as to Finding number 55 and that portion of the
opinion which relates to the pleadings and incident procedural matters
involved i n Docket 332-A, The Yanlcton Sioux Tribe v. U. S., and the
portion of land in Royce Area No. 151 Iowa which is connected with that
petition.
The Commission has found in Finding No. 55 that the petitioner, the
Yankton Sioux have failed to set out i n Docket 332-A any c l a i m or claims
for any portion of lands i n Royce Area 151 under the taking t r e a t i e s of
July 15, 1830 and October 31, 1837, as it has correctly found i n findings
54-a and b were the basis of cessions of a portioa of Royce Area 151 t o
defendant by these instruments; that t5e statutory requirements of section
12 OF our organic act are a positive limitation on the right to bring the
actiox; and that the petitioners' cause of action has now been extinguished
by operation of l-aw and the Commission is without jurisdiction t o grant the
petitfoners any r e l i e f upon its claim for Royce Area 151. The reasons for
this finding are set i n the opinion,
I agree that the statutory requirements of section 12 of our organic
act i f not m e t are a positive limitation on t h e r i g h t t o bring an action;
but i n consideration of the entire record i n t h i s matter disagree with the
balance of the finding and the reasoning of the opinion.
1 would emphasize that while I am i n disagreement with my colleagues
on this procedural point, I share any dim view which they may have of the
LO Ind. C l . Corn. 137 ?O 1
form of pleading presented in the portion of this pztition relating to
the land involved in Royce Area 151 (Peragraph 8-b). It is my understanding,
however, that the form was used because of lack of specific
knowledge by petitioners at the time and through an abundence of caution
by counsel.
Congress wisely provided in section 12 of our orgznic Act that our
jurisdiction should be limited to those clains f i l e d within five years
af.Zer thC date of apprcval of the Act. Tile lcgisletivc history of t h i s

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Act, however, clearly reveals the intent of Con~rcss thzt a l l claims
arising prior to the date of the approvzl of the Act, which are duly
f i l e d , shall be disposed of i f a t a11 possible. As a r e s u l t of the
enormous a.-ount of legislati;e time and e f f o r t which had h i t h e r t o been
involved in jurisdictional acts, it was the hope of Congress that the
Commission would dispose of these matters once and for a l l time and that
never again would they cone back to t h e i r doorstep--It is my opinion
that if t h i s matter is closed out to the petitioner on the record herein
on the procedural grounds found and stated, the petitioner w i l l indeed be
back knocking on the door of Congress.
Section 9 of the Indian Claims Commission Act provides t h a t it should
have the power to establish its own rules of procedure. Accordingly, the
Commission wisely adopted as i t s Rules 13-a, b, and c, the language of the
Federal Rules of Civil Procedure for the United States D i s t r i c t Courts.
I assume thz Cmission carefully considered the substantial background
of precedent, the thorough prepsration and resesrch , and the extended
10 Ind. C I . C m . 137
confereaces wbich had formed the backgro~ad in the estzblishment of the
rules for Coxts. These were most z~propriate also since the
functions of the Commission are such as to constitute it as a court in
every sense of the word. If such rules were effective in attaining
justice in litigatiox betveen t5e &ite citizens of our country and
between the white citizens and the United Staces, it would seem there
was even more reason for their application in disputes between the
hdians and the United States presented to the Indian Claims Conmission.
Tine Ccmission's Rule 13(b) rcAs as f o l l o ~ s :
(b) k~.endiaents to conform to the midcnce. k?len issues
not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in a l l respects
. as i f they had been raised in the pleadings. Such unmdrr,ent
of the pleadings as may be necessary to cause them to conform
to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but
failure to so mend does not effect the result of the t r i a l
of these issues. If evidence not within the issues made
by the pleadings is offered a t a hearing held by a Commissioner
or an examiner, upon objection such evidence
shall be rejected; wfiereupon the party may make an offer
of proof. Upon motion to anend the pleading the Commission
shall after notice to the adverse party allow the
pleading to be amended to conform to the offered evidence
and shall do so freely when the presentation of the merits
of the claim or defense w i l l be subserved thereby and the
objecting party f a i l s to satisfy the Commission that the
amendment of the pleading and the admission of such evidence
would prejudice it in maintaining its claim or defense.
The Conmission may grant a continuance to enable
the objecting party to meet such evidence.
It is my opinion that our Rule 13(b) -/;me as Rule 15(b) of the -
Federal Rules of Civil Procedure for the U. S. District Courts/ is
10 Ind. C l . Conrm. 137
organic Act to make pleadings timely filed thereunder operative.
The pertinent facts in chronological order are as foL1ows:
The original petition in this matter was timely filed on August 10,
1951, In paragraph 8(b) thereof petitioners claimed ownership of an
area of land which included that portion of Royce Area I51 in the present
State of Iowa imrolved herein. Relevant to the issue presented by the
majority opinion herein is th2 fact that the words "* * * the petitioner
* * * owned or occupied * * 9' are in the past tense, indicating that
as of the date of the petition the said lands were no longer "owned or
occupied" by petitioner.
Other lands were involved in the claim which were .alleged to have
been taken by certain treaties as set out in the petition.
In paragraph 17 of the petition the preamble reads as follok-s:
"Fair and Honorable Dealings. Defendant, under the
circumstances set fortn in paragraph 7 hereof and being
under a high degree of fiduciary obligation as set forth
in paragraph 6 hereof, was bound to deal f a i r l y and
honorably with the petitioner, but failed to do so in,
but not limited to, the following particdlars, namely:"
-(Paragraph 7 alleged the petitioner Indians to be ignorant
and defenseless, Emphasis supplied).
In paragraph 21 relief was prayed for specifically and "for such
other relief as to the Commission may seem f a i r and equitable."
On July 31, 1957, the Commission made certain findings of fact and
rendered an opinion in the consolidated cases i n Docket If-A, Otoe and
Missouria Tribe of Indians v. U. S. and Docket 138, The Iowa Tribe. e t
&, v, U S 5 Ind. Cl, Comm. 316-368. These involved the t i t l e 0 .,
phases of these cases. Among other things, the Commission found: .
LO Ind. 'Cl. Comm. 137
(1) that the Yankton Sioux had made certain claims of land which.is a
part of said Royce Area 151 (Finding No. 6) ; and (2) that the Article 2
line of the Treaty of August 19, 1825, 7 Stat. 272, 2 Kapp. 250, was
recognized by the United States as the southern boundary of Sioux
territory and "Frrrther, by the L825 treaty, the Sioux (except the
Yankton) agreed that the said Article 2 line constituted the southern
boundary of Sioux territory, and on October 13, 1830, the Yankton Sioux

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ratified said line" (id), Finding 21 reads as follows:
"After extended negotiations, the northern line of the
Sac and Fox and Iowa claim as described by its spokesman,
quoted above, was agreed upon by the Sac and Fox and Sioux
representatives at the treaty as the boundary dividing their
respective lands. This line is described more precisely i n
Article 2 of the 1825 treaty, and is hereinafter sometimes
referred to as the Sac and Fox-Sioux line, 2nd sometimes as
the Article 2 line.. It was further agreed that the western
section of the line from the upper fork of the Des Ibines
to the lower fork of the Calumet or Big Sioux River, was
not to be deemed to be settled until assented to by the
Yancton Band of the Sioux which was not represented at
the treaty. This section of the line is sometimes hereinafter
referred to as the Yancton line. It was later agreed
to by a l l parties concerned."
Finding No. 46 reads in part a3 follows:
''The treaty of July 15, 1830 ceded to the'united States
a11 the interest of the participating tribes .in Royce Cession
151, including that north of the Yancton line (which is not,
however, involved herein) * *' *."
The Ccnnmission did not in said decision of July 15, 1957, ..fix the
exact geographical description of the Yankton boundary line, This was
yet to be determined.
Orz. February 23, 1958, on motion of the .petitioner, the Commission
Y
issued rn order permitting separation.of causes of.action as between
10 Ind. C l . Comm. 137
land and accounting claims. As a result the amended petition 332-A was
filed as to the land claims with the same allegations as the original
petition except that the prayer for relief became No.18 whereas in the
otiginal it was No. 21.
The defendant answered the amended petition on June 10, 1958.
The allegations of Paragraphs 7, 8, 17 and 18 referred to abwe as
relevant to the claim involved here were denied. Thus, the Commission
was presented with the issues of (I) past ownership by petitioner of the
land ixvolved; and (2) f a i r and honorable dealings with petitioner as to
particulars which were not limited to sub-paragraphs 17(a-el and as to
whether the Commission should grant !'such other relief as * * 9' may
seem fair and equitable as prayed for in paragraph 18. These were a l l
issues as to subject matters over which the Commission was clothed with
jurisdiction. Presumably the Conrmission, in the interim had read the
amended petition, since it granted the said motion of February 13, 1958;
and, the Commission had, in the previous year, made the aforementioned
findings in Dockets 11-A and 138 as to the Yankton line in Royce Area 151
as involved in the aforesaid treaties of I825 and 1830.
On June 26, 1958, only 16 days after the answer of the defendant,
Docket 332-A was consolidated by order of the Commission to the extent
of overlapping claims w i t h Dockets 142, 359-362. On October 20 and 21,
1958, a t r i a l was held on the said matters. A t this t r i a l , counsel for
the Yankton Sioux in this docket in his opening statement said (Transcript,
pp. 13, 14):
LO Ind. C1. Corn. 137
MR. CRAGIT: * * * The Yankton Sioux are here only with
respect to t e r r i t o r y which i s involved in the claims f i l e d
by the Mississippi Sioux, the term I understand which
describes a l l of M r . Sonosky's clients collectively.
There are other aspects of the claim of the Yankton
Siom which w i l l be heard a t some other time, * * *.
I might say the substaatial interest of the Yanktons
in tSis country, which was a l l included out of an abundance
of cauti.02 in the petition of the Yankton Siouxs, there . %
described by metes and bounds, relates to the portion of
Royce 151, which lies north of the line provided by the
Treaty of 1825, Prairie des Chiens, to bring about a
settlemezt of the warri3g t r i b e s h i c k were there corrcerned.
That line, as the Yanktons w i l l demonstrate from the
documents, is erroneously shown in Royce to l i e between
the north forks of the Des Moines on the east and the
Big Sioux on the w e s t , but instead should have been shown
by Royce, as it xas required and understood by the parties
a t the treaty, to the mouth of the f i r s t creek above the
confluence of the Big Siom River and the Missouri.
Thst particular area was Yankton area, as between the
Yankton Sioms and other Sioux, and was dealt with not only
i n the Treaty of 1825, t o which the Yanktons were
not parties, although the treaty specifically says the
Yanktoris &e the Sioux principally concerned with t h i s
land, but in the Treaty of 1830, to which the Yanktons
were parties, and the Yanktons finally ceded t h e i r i n t e r e s t ' -
i n that area by the Treaty of St. Louis of 1837.
That is the portion of Mr. Sonosky's claim with which.
the Yanktons are concerned at this time.
We also have employed Dr. Wallace t o make a f u l l
canvass of the ethnographic and h i s t o r i c a l materials from
an ethnological standpoint i n order t o ascertain,. as w e l l
as we can, and put before the Commission every b i t of information
we have as t o the i n t e r e s t of the yanktons i n the
e n t i r e territory.
That, however, is the conclusion that we have come t o --
that the Yankton country which is involved here is the northern
portion of Royce 151, taking into account the line as properly
drawn, and I)r. WalX.ace1s testimony w i l l so show, together with
some 76 exhibits which we have lodged with the ~onrmission.
(Emphasis supplied)
10 Ind. Ct..Comm. 137
AT the t r i a l held on October 20, 21, 1958, the petitioners submitted
73 exhibits which were received in evidence by the Commission and the
testimony of the petitioners' expert, Dr. Anthony Wallace, was heard by
the Canmission. Defendant presented i t s evidence and expert testimony.
Defendant did not a h i t Liability but raised no point at the hearing as
to the lack of jurisdiction by the Commission to hear evidence on the
issues presented.
On July 20, 1959, petitioner herein mwed to intervene i n the proceedings
to be held i n the aforesaid dockets 11-A and 138 for the purpose
of presenting evidence as to the correct geographical description of the
Yankton line in Royce Cession 151 established as the northern boundary
of the petitioners in Dockets 11-A and 138 in the aforesaid t r e a t i e s of

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1825 and 1830, as so found by the Commission, hereinabove referred to.
The motion reads as foLLows:
MOTION FOR THE YANKTON SIOUX TRIBE OR BAND OF INDIANS
(PETITIONE3 IN DOCKET NO; 332-A) FOR INTERVENTION
IN DOCKET NOS. I l - A AM> 138
Came now the Yanktbn Siom Tribe or Band of Indians,
herein referred to as intemeners, through t h e i r attorneys,
- and move the Commission to allow interveners t o intervene
in Otoe and Missouria Tribe of Indians v. United States,
Docket No, 11-A, and the Iowa Tribe, e t a l , v, k i t e d States,
Docket No. 138, for the limited p- urp- ose of the determination
by t h i s omm mission of the location of the line described i n
Article 2 of the Treaty of August 19, 1825 (7 Stat. 27 2) ,
sometimes called the "Article 2 line", the "Sac and Fox-Sioux
line", and the "Yankton line".
1. Petitioners in Docket Nos. 11-A and 138 sought
recovery for a part of the tract of land known as Royce Cession
151 south of the 1825 Article 2 line. The Yankton Sioux,
petitioner in Docket No. 332-A, on October 20, 1958, before
LO Ind. Cl. Cormn. 137
the Commission, in a hearing consolidated wit3 Docket Nos.
142 and 359-363, alleged an exclusive right to recover for
tke area in Royce 151 north of the Article 2 line of the
1825 Treaty. Petitioners in Docket Nos. 142 and 359-363 in
that proceeding made no claim adverse to interveners to the
area in Royce 151 nort3 of the Article 2 line (wherever the
Article 2 line may be). As a result, interveners are the
sole party in interest as to land in Royce 151 north of the
Article 2 line. The proper fixing of that line requires the
presence tn the proceeding of interveners whose interests
are adverse to those of petitioners in Docket Nos. 11-A and
138 as to the fixing of the Article 2 Line.
2. On July 31, 1957, in consolidated Docket Nos.
11-A and 138, 5 Ind. 61. Corn. 316, the Commission held that
petitioners in 11-A and 138 were entitled to recover for
lands in Royce 151 south of the Article 2 line, and the Commission
further held that said petitioners had no interest
in the land in Royce 151 north of the Article 2 line,
3. The Commission made no finding as to the location
of the Article 2 line, and said line is not shown or
fixed by Royce. Petitioners in Docket Nos. ll-A axd 138 hzve,
in maps prepared to iilustrate their .contentions, snow the
Article 2 line as running from the Upper Fork of the Des Moines
River to a point known as "Rock River". Petitioner, the Yankton
Sioux in Docket No. 332-A, alleged that the line shown by petitioners
in Docket Nos. 11-A and 138 is erroneous, and that the
true location of the Article 2 line of t5e 1825 Treaty 'strikes
a point on the Missouri River much farther south than that
shown by petitioners in ll-A and 138.
WHEREFORE interveners respectfully request that the
Cammission issue an appropriate order allowing the Yankton
Sioux to intervene in Docket Nos. 138 and ll-A for the purpose
of participating in the proceeding to determine the true location
of the Article 2 line of the Treaty of August 19, 1825.
Respectfully submitted,
/s/ Ernest L. Wilkinson
Ernest L. Wilkinson
Attorney of Record
744 Jackson Place, N. W.
Washington 6, D.. C.
10 Ind. C l . Comm. 137
Thereafter the following orders of September 2, 8 and 23, 1959, were
issued by the Commission:
0RI)ER VACATING THE COMMISSION'S ORDER OF AUGUST 18, 1959
AND GRANTING EXTENSION OF TIME FOR FILING FINDINGS OF FACT
AND BRIEF RELATING TO ROYCE AREA 151
It appearing to the Cormnission that the petitioner in Docket
NO. 332-A, the Yankton Sioux Tribe, filed a motion on July 20,
1959, for an order extending the time for filing findings of fact
and brief to 30 days from -the date the Commission fixes the
location of the line in the area known as Royce 151 described
in Article 2 of the Treaty of August 19, 1825, and that on
August 18, 1959, the Commission entered an order granting the
petitioner's request, and it now appearing that said order
should have been limited to an extension of time for the f i l i n g
of findings and brief relating to Area I.51 in Docket No. 332-A
and i n Docket No. 359, and it having been represented by petitioners
in Docket No. 359 that they do not appear to have
any interest i n Royce 151, and by petitioner in Docket No. 332-A
that it does not appear to have any interest in any of the
cessions i n Docket Nos. 142, 359 through 363 except Royce
Area 151 in Docket No. 359,
Ti! IS THEREFORE ORDERED, That the omm mission' s order of
August 18, 1959, i n Docket No. 332-A is hereby vacaeed and i n
lieu thereof it is ordered as follows:
1. That the petitioners in Docket Nos. 332-A and 359 s h a l l
have t o and including 30 days from the date the Commission fixes
the location of the line in the area knam as Royce 151 described
i n Article 2 of the Treaty of August 19, 1825 (7 Stat. 27 2) ,
sometimes called the "Article 2 line," and "Sac and Fox - Sioux
line," and the "Yankton Line" within which to f i l e findings of
fact and brief;
2, That this order shall not extend the time for f i l i n g
findings of fact and briefs i n Docket 332-A as to i n these
consolidated cases outside of Royce area 151, nor in Docket Nos.
142, 359 as to Royce s e a 153, and Docket Nos. 360 through 363.
Dated at Washington, D. C., this 2nd day of September 1959.
/s/ EDC;AR E. WITT
Chief Commissioner
/s/ WM. M. HOLT
Associate Commissioner
10 Ind. C1. Conrm. 137
ORDER OF CONSOLIDATION FOR DETERMINATION
OF THE LINE DESCRIBED IN ARTICLE 2
OF THE AUGUST 19. 1825 TREATY
On July 20, 1959, the Yankton Sioux Tribe, petitioner in
Docket No. 332-A, filed a motion requesting that it be allowed
to intervene in the consolidated cases, Docket Nos. 11-A and
138, for the limited purpose of the determination by the Commission
of the location of the line described in Article 2 of
the Treaty of August 19, 1825 (7 Stat. 272). The p e t i t i o n e r s
i n Dockets l l - A and 138 have responded to said motion and
object to such intervention but are agreeable to a consolidated
hearing for the limited purpose of obtaining a determination
of the location of the Article 2 line, and the
defendant has f i l e d i t s response stating that it has no
objection to the granting of said motiorr; and the Commission
having considered $aid motian and responses thereto,
IT I S THEREFORE ORDERED, m a t Docket No. 332-A be and
it is hereby consolidated for t r i a l with Docket Nos. l l - A
and 138 for the limited purpose of determining the precise
location of that part of the l i n e described i n Article 2 of
&e Treaty of August 19, 1825, which runs through Royce area
151 i n the present State of Iowa.
IT IS FlR'I"Iw ORDERED, '&at &e issue set forth abwe is
set for hearing .at 10:OO a. m, on September 25, 1959, i n the
hearing room of the Commission i n Washington, D. C,
Dated at Washington, D. C., t h i s 8th day of September 1959.
/s/ Ednar E. W i t t
Chief Commissioner
/s/ Arthur V. Watkins
Associate Commissioner
/s/ Wm, M, Holt
Associate Cummissioner
ORDER STRIKING HEARING SET FOR SEPlTEMBER 25, 1959,
AND RESETTING FOR OCTOBER 2, 1959, AS TO BOUNDARY
.. Upon consideration of oral motion made by Petitioners i n
Docket 138, and it appearing t o the Commission that other
10 Ind. Cl. Cormn. 137
petitioners in the Consolidated Cases 11-A, 138 and 332-A
and the defendant, not objecting thereto;
IT IS HERESY ORDERED that the hearing which was set f o r
September 25, 1959, on the issue to determine the boundary line
described in Article 2 of the Treaty of August 19, 1825, which
runs through Royce Area 151 in the present State of Iowa, is
stricken from the calendar and reset for heating on October 2,
1959.
Dated a t Washington, D. C., t h i s 23rd day of September, 1959.
/a/ EDGAR E. WITT
Chief Commissioner
/s/ WM. M. HOLT
Associate Commissioner
/s/ ARTHUR V. WATHINS
Associate Commissioner
On October 2, 1959, a hearing t o receive evidence as t o the correct
geographical description of the said Yankton line was held, Numerous
documents were received and argment of counsel on the issues presented
were heard. The following statements of' counsel for the petitioner herein
were made in responsg t o questions by the Commission (Transcript, pp. 8- 11) :
CHIEF COMMISSIONER WITT: We w i l l . When t h i s hearing is
concluded, i f there should be any overlapping claim, then
t h a t will be a matter t o be taken up.
COMMISSIONER HOLT: May I ask, i n your 332-A,and offhand
I am not familiar with this, are you claiming some
interest i n the lands south of that line?
MR. CRAGUN: Yes, sir.
COMMISSIONER HOLT: Why wasn't your client made a party
t o t h i s consolidation previously, then?
MR. CRAGUN: Well, this is quite a long story, your Honor,
but we only learned, just before the jurisdiction of t h i s Commission
expired, of a matter we thought had been f u l f i l l e d with
10 Ind. C1. Comm. 137
the Yanlcton Sioux relating to an entirely different mattera
case w5ich we lost, by the way, in the Court of Claims --
a3d which was s t i l l viable and t5at we were therefore under
a duty to represent them and under great pressure we did get
a petition in. You can t e l l from the late number, 332, that
it was just up against closing time for filing here, but
under which we claimed a tremendous area of country.
COMMISSIONER HOLT: Yes ; I know that.
MR. CRAGUN: In connection with that claim, we go clear
to the Mississippi River and clear down to S t . Louis.
COMMISSIONE3 HOLT: Yes,
MR. CRAGUN: That is correct, and I think that as a result
of the hearings with which we were consolidated the eastern
Sioux, we were in there claiming an undivided interest in
the east and south of their country under rights that we
have east of the Big Sioux, except in this area, Area 151,
which w i l l be settled, and, as a result of this hearing and
further proceedings that w i l l came from it, I think our
rights east of the Missouri are pretty w e l l going to be
concluded.
From the vast amount of findings and information, we did
as well as we could to establish the aboriginal use and occupancy
of Yanktons there, but I think it w i l l be another
year before we can clean out a l l of these claims.
We still think it is interesting that the area was called
the Sioux and this was because of the occupation in the areas
claimed but there w i l l , of course, be further hearings in still
other cases before this Conmission. However, specifically, the
reason why we weren't included in any of these eastern land cases
is that we weren't entirely alert to what we had claimed, -- just
from anything that we could find it had never been claimed by the
Sioux -- because, indeed, we might have an undivided interest in
the whole area. We were claiming a11 of this and yet our proof
and, the Commission w i l l recall this, below t h i s northern line,
between the mouth of the Big Sioux and the upper forks of the
D@s Moines River in Royce 151, that is where our proof l e f t us
for aboriginal use and occupancy.
. We did own this area and we had claims clear d mt o the Boyer River and there is where we were l e f t and I am &aid
that a l l this other area east of Royce 151 is lost as a result
of failure of proof.
10 Ind. C1. Cma. 137
i
CONNISSIQXR HOLT: Well, then, the r e s u l t n q %?ell be t h a t ,
from what you say, the proof w i l l put you down to t h i s l i n e that
you show on pour Exhibit 78 as the southern boundary, but you
don't want to adnit that at t h i s time?
MR. CRAGX?: No, but what I was trying t o say vas that
I am not willing to admit that we have no i n t e r e s t in Royce 151
or the l a t e r trea;ies with the United States. There are the
Treaties of 1830 and 1837 r a t i f i e d i n 1838, to which the Yanktons
are p a r t i e s , which may very well make the t'adctons interested i n
the balance of 151 when you examine them and, to.ansx7er the question
of counsel, I wazt to say very frankly that I un not prepared to
waive .anything vkazevcr i n that connection. Vc cre not addressing
ourselves tc it today and a l l we arc tryins t o do end dl. wc want
t o do is to fix t%e Yarlkt-on Siom-Sac and Fos Article 2 l i n e .
A t t h i s hearing defenda~;t's counsel took the position that it had no
i n t e r e s t i n where the Yankton l i n e was f i n a l l y dram i f it was eventually
found defendant was l i a b l e on the north and the south. Counsel stated
(Transcript, p. 88):
No, I stated we have no i n t e r e s t s , so t o speak, i n where
the l i n e is, so f a r as any part of the case is concerned,
which is the area south of the Article 2 line.
Again at t h i s hearing, defendant's counsel, while not adnitting or
conceding anything as t o the merits f a i l e d t o raise an objection based
on lack of the j u r i s d i c t i o n of the Commission to hear evidence on the
t r i a l of the issues involved.
On November 25, 1959, the Commission issued the following arder
(accompanied by per curiam opinion) fixing the geogra~hicalb oundaries
of the Yankton line:
ORDER &ENDIXG FIhTLNG 2, DOCKETS KOS. 11-A Ah'D 138 - -- - DE~E&ITL'&I@~\T OF-~-HEL mlE DESCRIBED IN PATICLE 2 OE'
T E TREATY OF AUGUST 19, 1825 (7 Stac. 272)
By the Commission's order of September 8, 1959, the
p e t i t i o n e r , the Yankton Sioux Tribe, was allowed to intervene
i n the consolidated cases, Dockets Nos. l l - A and 138, for the
LO Ind. C1. Comm. 137
limited purpose of having the Commission determine the p r e c i s e
location of t h a t portion of the l i n e described i n P s t i c l e 2
of the Treaty of August 19, 1825 (7 S t a t . 272), which l i n e
runs through Royce Cession 151 i n the present s t a t e of Iowa.
Oral argument on the issue involved was heard before the
C m i s s i o n on October 2, 1959, and shortly t h e r e a f t e r b r i e f s
were submitted by a l l the p a r t i e s . Tne Coninission has now
been f u l l y advised, and a f t e r considering a l l the evidence and
the findings heretofore made i n Dockets Nos. 11-A and 138, t h e
Commission concLudcs t h a t Finding 2 made therein should now
be mended (5 Ind. C1. Comm. 316, 317).
IT IS THEREFOXE ORDERED:
That Finding 2 of Dockets Nos. 11-A and 138 is hereby
stricken and the foLlo~.:..-ing finding substituted i n l i e u thereof:
"2? The land involved i n the case is located
east of the Missouri River i n what is nov western
Iowa and northwestern Missouri. It forms a g r e a t e r
p a r t of t h a t area (known as Royce Cession 151)
described i n A r t i c l e I of the Treaty of July 15,
1830 (7 Stat. 328), and is located south of the
Sac and Fox-Sioux l i n e set f o r t h i n A r t i c l e 2 of
the Treaty of August 19, 1825 (7 Stat. 272) . The
western terninus of the Sac and Fox-Sioux Line
within Royce Cession 151 is a t the juncture of t h e
Rock River and the Calumet (or Big Sioux) River,
which point is referred t o i n A r t i c l e 2 of the 1825
t r e a t y as ' t h e lower fork of the Calumet River. '
Based upon the planimeter method of calculakion t h e
subject area contains approximately ten m i l l i o n
acres ."
Dated at Washington, D. C., t h i s 25th day of November, 1959.
/s/ Edgar E. W i t t
Chief Conmissioner
/s/ Wm. N. Holt
Associate Conmissioner
/s/ Arthur V. ldatkins
Associate Cormiss ioner
10 Ind. C1. Comrn. 137
Thereafter motions were made for a rehearing and after the receipt
of briefs thereon the Comnission issued an order of denial on February 17,
1960.
The matter was then briefed by counsel and oral arguinent had before
the Comission. A t no time during any stage of the proceedings set out
above did the defendant or the Conmission raise t h i s procedursl point.
1n.my opinion the Department of Justice representing the defendant
i s to be congratulated. It has vigorously defended this n z t t e r on the
merits but it has not made the technical procedural point which is reised
in the Commission's finding No. 55 herein. As I have emphasized above
I share with my colleagues any dim view they may have es to the form of
the pleadings; but I ask them how can it be reasonable that Congress
intended t5at the petitioner Indian tribes be foreclosed on a technical
point of pleading when the missing allegation, i. e., the taking of the
petitioners' land which is alleged to have been owned is as to facts of
common knowledge, and certainly within the knowledge of the Department
of,Justice? In the Congressional debates and reports leading t a the
passage of the Indian Claims Comission Act, in the history textbooks
used in our schools, in the encyclopaedia, the newspapers, the magazines,
etc., wer these many years, there can be no doubt that it is commonly
known that, except as they have entered private conmercial, agricultural
and cultural channels of l i f e the Indian tribes have long since ceased
to have aboriginal or recognized t i t l e to lands Fn th.e United States
except as these may coincide with their present reservations or alfot-
I ments in severaLty to their members.
LO fnd. CI. Corm. 137
Tne d e t a i l s of the taking by the defendant in Royce Area 151 were
known by defendant's counsel in the year prior to its answer t o the
amended p e t i t i o n herein. As sho~m above these d e t a i l s were brought in by
. counsel for the defendant in 1357 as a part of the defense i n the proceedings
i n Dockezs 11-A and 138. Under these circuxstances would it be reasonable
t o say said counsel for the defendant was without such knowledge i n 1958
when the znsver was f i l e d to t h i s mended petition? I think not, although
i n my opinion it x:ould have been better i f defendant's cour.sc1 I!ad m a l e a
s t a t e n m t for the rccord.
That the petitioner no longer (as of 1946) otmed the land area
described i n paragraph 8(b) of the amended p e t i t i o n and that the def
endant had long since made appropriate arrangements for white sc t'ileinent
i n one of the r i c h e s t and most productive agricultural areas of the United
States, northern Iowa, are facts of which the Comnission may take j u d i c i a l
knowledge.
Although the general f a c t that, with the exceptions stated, the
Indian t r i b e s no longer owned lands i n the United States was recognized
.by Congress, it provided in Section 13(b) of our organic Act as follows:
Sec. 13. (b) The Commission s h a l l establish an Investi-
' gatton -Division t o investigate all. claims referred t o it by
the Commission for the purpose of discovering the f a c t s rel
a t i n g thereto. The Division s h a l l make a complete and
thorough search for all evidence affecting each claim,
u t i l i z i n g a l l documents and records i n the possession of
the Court of Claims and the several Government d-epartments,
and s h a l l submit such evidence to the Commission. Tine
Division s h a l l malce available to the Indians concerned aild
t o any interested Federal agency any data i n its possession
r e l a t i e g t o the rights and claims of any Indian.
LO Ind. C1 Czmx. 137
I am not c r i t i c a l of the Ccsaission for fzilure t o e s t 2 b l l . r . i sucil a
Division, or, i f it did so, for not maintaining sznz, bec?.cse my
experience thus far has been that counsel for petitioners and the
defendant are thorou~S in their prcparztior. of ti:ese C X C S . In fact,
it is my impression that, while defendant's couns21, t11e Attorney
General, is aggressive aild thorough in the preparz.tlo2 a d prcsc:_?tction
of the defense agcinsc the claims f i l e d in thc varions p2titione t h : ~
tfiesc are co;nple:cl>- oo';ijeci;i.ve. 1lor.t c.? tLs tvirl?ncit j.s frc;:. cjZ;lici el
d o c r a i t z r y sources; a ~ pdrs cticaliy all. of thosc rye hou~cclb y ti:c c?z-3
fendant in a special Indian Claims section at the Xatlonal Archives. The
Library of congress also hzs a great many of these C ~ ~ C ~ I Z I ~ ~ IELoSth. of
these are as fully avail.able for use by the vzricus p t i t i o n e r s bcfore
the Coimission as they are to counsel for &fendat. Under thosc
circumstaces, the Comissioil must have f e l t that the said pro\~ision
made i n Section 13(b) would h2ve constituted a duplicate govcrru;icnt
expenditure. But the fact that Congress mede such provision is IDportant
here to shov that it realized that while the generzl f a c t of
taking by the defenda~t is and has been comnon knoi-rledpe for maxy years,
the precise details as to each Indian t r i b e ?-re' not a d have not been
known. Co~lgress intended that every reazonz5le mcans be talrsn whereby
the said Indian tribes would be informed of their sights so that tfiesc
cases could be tried before t h i s Co;imission once and fcrr a l l t i n e i f a t
a l l h ~ n ~ployssi ble,
From the facts recited above, I thirk it i s cl-e2.r thzt the issues.
i n t h i s matter necesszry to the disposition of the clairils 05 the prtitior.-..-r
10 Ind. C1. Cam. 137 2 18
relating to Royce Cession 151 i n Iowa were t r i e d by the irilpticd consent
of the defendant within the l e t t e r and s p i r i t of Rulc 13(b); and that
the record i s such that f a i l u r e of the Coxinission to decide the matter
on i t s merits on the basis of thj.s record 2nd i t s finding No. 54 with
which I concur is error.
I believe it unmcessnry f o r me to burdm t h i s opinion with a l c n ~ t h y
discussion cf the nary preccclcnts which for~~ecthl c background of R u l e 15(b)
of tfie Feckl-a1 Rules of Civil Pyoccdure f o r the D i s t r F c t Cc11.rr'is of the
cases i n which the Rule has been construed and applied since its edoption
are digested i n the 1360 Cmulative Supplement t o t h i s work a t pages 85-92 -
haragraphs nmbcred 15.13 and 15.127. Tine cocrts hzve not been tlnanirnous
or uniform i n t h e i r application of the Rule. Hoaever, the great weight of
authority as sho~m i n a majority of these decisions r e f l e c t s l i b e r a l application
of the Rule i n cases i 4 o l v i n g l i t i g a t i o n betwaen private p a r t i e s
and l i t i g a t i o n i n vrhich defendant herein was a party.
I, therefore, would apply our Rule 13(b) and decide t h i s matter on.
*he merits presented by the established record.
/s/ T. Harold Scott
Associate Coimnission?r
January 12, 1963.

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PDF] THE LEER INDIAN ... (10 Stat. 949) , and the Treaty of Mendota of August 5, 1851 (10 Stat. 954) .'
Under Article 3 of both treaties as originally drawn two reser- ...
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PDF] 1 1 1 1 1 1 1 1 1 1 by ... 949, and the Medawakanton and Wahpakoota bands under the Treaty of Mendota of August
5, 1851, 10 Stat. 954. Royce Area 289 is the subject of the ...
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PDF] Ind. SISSETON LOWER ... 538; the Treaty of July 23, 1851, 10 Stat. 949; the Treaty of August 5, 1851,
10 Stat. 954; and the Treaty of June 19, 1858, 12 Stat. 1031. ...
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INDIAN AFFAIRS: LAWS AND TREATIES. Vol. 2, Treaties ... 5. 1851. | 10 Stats., 954. | Proclamation Feb. 24, 1853. ... Page 591. Articles of a
treaty made and concluded at Mendota, in the Territory of Minnesota, on the ...
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PDF] OF 1. 2. were the ... to send a delegation to attend treaty negotiations being held at ... Under this treaty,
the sac 2nd Fox, Sioux, Omaha, Iowa, Otoe, and Missouria ...
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