22 Ind. C i . Corn. 92

IRA SYLVESTER GODFROY , WILLIAM ALLOLLA GODFROY, JOHN A. OWENS, on relation of THE MIAXI INDIkd TRIBE and MUMI TRIBE OF INDIAXA, and esch on behalf of others similarly situated and on behalf of THE MIAMI IWIAN TRISE and various bznds and groups of each of theii, comprising the MIAMI TRIBE AND NATION,

Plaintiffs,

THE PEORLA TRIBE OF INDIAES OF OKLAtiOMA and AMOS ROBINSON SKYE on behalf of the WEA NATION,

Plaintiffs,

THE UNITED STATES OF AMERICA,

Defendant.

Decided: November 26, 1969

Appearances : Edwin A. Rothschild, Louis L. Rochmes, Attorneys for Plaintiffs in Docket No. 253

Jack Joseph, Attorney for Plaintiffs in Docket No. 3 1 4 - D

Walter H. Maloney, David L. Kiley, Albert C. Harker and Robert C. Bell, Jr., Attorneys :or ?laictiffs in Docket KO. 131

David M. Marshall with whom was Mr. Assistant Attorney General, Clyde 0. Martz, Attorneys for Defendant.

22 Ind. C l . Corn. 92

OPINION

Commissioner P ierce de l ivered the opinion of the Commission.

This dec i s ion supplements the c om mission's dec i s ion of June 4 ,

1957, i n Docket Nos. 253, 131, 314, 15-H, 317, 307, and 29-P, 5 Ind.

C 1 . Com. 180, holding t h a t t he p l a i n t i f f s here , t he Miami and Wea

Tr ibes of Indians , were authorized t o prosecute claims f o r compen-

s a t i o n f o r t h r e e t r a c t s of land i n Indiana ceded t o t he United S t a t e s

by the t r e a t i e s c i t e d below. The Comiss ion must now determine the

va lue of t he lands so ceded, whether the p l a i n t i f f s have a r i g h t t o

compensation, and, i f so , the amount thereof under the Ind ian C l a i m s

Commission Act (60 S t a t . 1049). I n add i t i on , t h e i n t e r e s t of t h e

r e s p e c t i v e p l a i n t i f f s i n t h e sepa ra t e t r a c t s he re involved must be

determined.

I n a r e g u l a r l y scheduled hearing the re fo r , t he p a r t i e s presented - testimony and e x h i b i t s r e l a t i n g t o the va lua t ion of t he l ands and

t h e cons ide ra t ion paid by the United S t a t e s f o r t he lands. I n a

subsequent hear ing , testimony and e x h i b i t s r e l a t i n g t o t h e i n t e r e s t

of t h e r e s p e c t i v e p a r t i e s i n the sepa ra t e t r a c t s were presented and

l a t e r a s h o r t hearing on o f f s e t s was held.

I n t h e t i t l e dec is ion i n t h i s case , 5 Ind. C 1 . Corn. 180 supra,

t h e Commission found t h a t on August 3 , 1795, t h e United S t a t e s

en t e red i n t o t h e Greenevi l le Treaty with a number of Indian t r i b e s

i nc lud ing t h e Potawatomis, Miamis, Eel-River, Weas, and Kickapoos

(7 S t a t . 4 9 ) . A r t i c l e I I I o f . the t r e a t y f ixed the genera l boundary

2 2 Ind. C 1 . Comm. 92

l i n e between the lands of he Unite5 Sts res and t h e l ands of t h e

s igna to ry Indian t r i b e s .

Under A r t i c l e I V of the t r e a t y , t he United S t a t e s r e l i n q u i s h e d ,

s u b j e c t t o s p e c i f i c except ions, i t s c l a i m t o Indian lands norch of

t he Ohio River, e a s t of t he Miss i s s ipp i River , and west and south of

t h e Grea t Lakes. Under A r t i c l e V, t he Indians agreed n o t K O s e l l o r

d i spose of t h e i r l ands except t o the United S t a t e s .

I n i t s dec i s ion of June 4, 1957, the Coinmission he ld t h a t by

A r t i c l e s I V and V of t he Greenevi l le Trea ty , t h e United S t a t e s recognized

t h e r i g h t of each of t h e Indian t r i b e s s ign ing t h e t r e a t y t o i t s l a n d s

but t h e United S t a t e s was unable then t o confirm a d i v i s i o n of t h e

f Indian t e r r i t o r y among t h e r e spec t ive t r i b e s o r t o e s t a b l i s h s e p a r a t e

boundaries of t h e s igna to ry t r i b e s . 5 Ind. C 1 . Comm. 181, 188

The Commission found f u r t h e r t h a t i t was t h e po l i cy of the United

S t a t e s t o purchase Indian lands recognized by t h e Greenev i l l e T rea ty

by a s e r i e s of t r e a t i e s under which ind iv idua l Indian t r i b e s ceded

t o t h e United S t a t e s s p e c i f i c t r a c t s of land f o r which t h e t r i b e s

were compensated; and t h a t these t r e a t i e s confirmed t h e boundaries

of t h e land recognized a s belonging t o t he va r ious t r i b e s by t h e

Greenev i l l e T-reaty . Ey t h e Trea ty of Grouseland, Indiana T e r r i t o r y , en t e red i n t o

August 21, 1805 ( 7 S t a t . 91) , the United S t a i e s confirmed t h e bound-

a r i e s of l and (Royce Area 56) ceded t o the United S t a t e s which had

been recognized by the Greenevi l le Treaty a s belonging t o t h e

22 Ind. C 1 . Corn. 92

p l a i n t i f f s . 5 Ind. C 1 . Comm. 195

By t h e Treaty of September 30, 1809, a t Fort Wayne with t h e

Miami, Eel River, Delaware and P o t a w a t a i T r ibes (7 S t a t . 113, 115) ,

t he Miaini and Eel River Tr ibes ceded cwo c r a c t s (Royce Areas 7 1 and

72) t o t h e United S t a t e s . 5 Ind. C 1 . Comm. 195, 196 Under a

s e p a r a t e agreement with t h e Wea Tr ibe a t Vincennes on October 26, 1809

(7 S t a t . 116) , the Weas agreed t o t h e ces s ion of Royce Area 71. 5 Ind.

C1. Comm. 196, These t r a c t s a r e w i t h i n t h e t e r r i t o r y re l inquished

by t h e United S t a t e s t o t he Indians under t he Greenevi l le Treaty.

(The above cess ions a r e shown as Areas 56, 7 1 and 72 on the Indiana

I map i n Royce, Indian Land Cessions i n t h e United S t a t e s , P a r t 2 ,

1 8 t h Annual Report of t he Bureau of American Ethnology (1899)). The

t r a c t s w i l l be r e f e r r ed t o by t h e s e a r e a numbers he rea f t e r .

I n t h e dec is ion of June 4, 1957, t he Cormnission found t h a t t h e

Miami Tr ibe of Oklahoma and t h e Eel River Tr ibe , p l a i n t i f f s i n Docket

No. 253; t h e Peoria Tr ibe of Indians of Oklahoma, a c t i n g f o r and on

behal f of t h e Wea Nation of Indians , p l a i n t i f f s i n Docket No. 314;

and t h e M i a m i Tr ibe of Indiana, p l a i n t i f f s i n Docket No. 131, were

a u t h o r i z e d by the Indian Claims Commission Act of August 13, 1946,

(60 S t a t . 1049) t o prosecute t h e claims f o r conpensation s e t f o r t h i n

t h e i r r e s p e c t i v e p e t i t i o n s which a r o s e out of the cess ions t o defendant

of i ands by t h e p l a i n t i f f s i n s a i d dockets under the Grouseland Trea ty ,

and t h e T r e a t y of September 30, 1809, supra, known a s the F o r t Wayne

Trea ty ; t h a t the p l a i n t i f f , t h e M i a m i Tr ibe of Oklahoma, and t h e

2 2 Ind . C1. C m . 9 2 9 6

p l a i n t i f f s , t h s xisr,i Tr ibe of Indiana , c o ~ ~ s c i t u t e and r e p r e s e n t zil

/ descendants of members cf the a a m i Tribe of Americsn I n a k n s . - The Comiss ion found t h a t the Eel River T r i j e was o r i g i n a l l y and 2c

a l l t imes here in r e f e r r e d t o , a p a r t of t he M i a m i . The Wea TrLbe ~ Z S

o r i g i n a l l y a l s o a p a r t of the Miami Tr ibe b u t a f t e r 1805 se2arateC from

the Mizmi.

Each of the p l a i n t i f f s c laims compensa~ion under s e c t i o n 2 ( 3 )

of the Indian Claims Commission ~ c t on the ground t h a t t h e cons idera-

t i o n pa id by the United S t a t e s f o r t h e land was unconscionable.

A t t h e o u t s e t , t h e i n t e r e s t of the r e spec t ive p l a i n t i f f s i n t h e

s e p a r a t e areas w i l l be determined.

The Miamis, the Eel River, t he Weas, t h e Deiawares, and Potawatomis

were p a r t i e s t o t h e Trea ty of Grouseland, supra, r a t i f i e d A p r i l 24,

1806.

The Miaini and Eel River T r ibes , p l a i n t i f f s i n Docket Eo. 253,

t he M i a m i Tr ibe of Indiana ( the M i a m i Ind ian Tr ibe ) , p l a i n t i f f s i n

1/ A number of complaints consol ida ted f o r hearing on t h e ques t ion of - t i t l e have been el iminated from t h i s proceeding. In che d e c i s i o n of June 4 , 1957, the Commission dismissed the p e t i t i o n of t h e C i t i z e n Band of Potawatomi and the Potawatomi Nation, Docket 307, a s t h e s e p l a i n t i f f s amended t h e i r p e t i t i o n and e l imina ted a i l c iaim t o lands ceded by che 1805 and 1809 t r e a t i e s . The p e t i t i o n of t he Kickapoo T r i b e of i k n s a s , e t a l . , 3ocket So. 317, was d i s n i s s e d , they having o f f e r e d no proof and having s t a t e d in the opening hearing before the Comrr.issioa t h z t they were i n ~ e r e s t e d only i n boycr Area 73 which was e l imina ted f rn cons ide ra t ion i n t h i s proceeding. The Bannahville Indian Comdnicy e t a l . , Docket 29-F, o f f e red no prsof i n the t i t l e proceeding. Con- sequent ly t h e i r claim was dismissed. The p e t i t i o n i n Docket 15-H by the Pottawatomi Tr ibe of Indians , the P r a i r i e Band of t he PotCawatmi Tr ibe of Indians e t a l . , was a l s o dismissed.

22 Ind. C 1 . Comm. 9 2 97

Docket No. 131, and the Wea Tr ibe , p l a i n t i f f s i n Docket No. 314-D,

owned Royce Area 56 when it was ceded t o t h e defendant by the Treaty

of Grouseland. A s f a r a s a v a i l a b l e evidence i n d i c a t e s , no p a r t i c u l a r -.

por t ion of Area 56 belonged exc lus ive ly t o any one of i h e t h r e e t r i b e s .

I n A r t i c l e I V of t he Treaty of Grouseland, t he United S t a t e s

acknowledged and recognized t h a t i n 1805 t h e Miamis, Eel River, and

Wea Tr ibes were formerly and s t i l l considered themselves one na t ion .

A s assurance t h a t the United S t a t e s recognized these th ree t r i b e s a s

j o i n t owners of a l l t he country on t h e Wabash and i t s waters above t h e

Vincennes t r a c t which had not been ceded t o t h e United S t a t e s , t h e

un i t ed S t a t e s agreed t h a t i t would not purchase any p a r t of t he s a i d

country wi thout t he consent of each of t he t r i b e s .

By t h e Trea ty of September 30, 1809, t h e Miami and Eel River T r ibes

(and t h e Delawares and potawatomis a s t h e i r a l l i e s ) ceded t o t h e United

S t a t e s Royce Areas 71 and 72 f o r which the United S t a t e s agreed t o pay

t h e M i a m i s and the Eel River Tr ibe an annui ty . I n a supplementary

Trea ty of September 30, 1809, with t h e M i a m i and Eel River Tr ibes ,

t h e United S t a t e s agreed t o furn ish a d d i t i o n a l compensation (domestic

animals worth $500 f o r 3 separa te yea r s ) , as the g r e a t e r p a r t of t h e

lands (Areas 71 and 72) which was ceded on t h i s da t e was recognized

a s the e x c l u s i v e property of these Indians.

The f i f t h A r t i c l e of the Treaty of September 30, 1809, s t a t e d t h a t

t he consent of the Wea Tribe t o the ces s ion would be necessary t o

complete t i t l e t o Area 71 and provided f o r a separa te agreement

bezween t h e Wea Tribe and the k i t e d S t a t e s f o r t h a t purpose. By t h e

22 I n d . C i . Corn. 9 2 9 8

T r e a t y of October 2 6 , 1&09, t h e Wea T r i b e c o z s s n t e d t o che c e s s i o n by

t h e Miami and Eel River T r i b e s under rne T;eaty of September 30, 1809,

and r e l i n q u i s h e d t o t h e United S t a t e s t h e i n t e r e s t o f t h e Weas i n

Area 71.

I n t h e t i t l e phase o f t h i s c a s e t h e Commission found t h a t t h e

Wea T r i b e s e p a r a t e d f r m t h e Mianli T r i b e a f t e r 1805. The Commission

a l s o found t h a t w i t h i n Area 71, t h e Wea e x c l u s i v e l y dominated o r

c o n t r o l l e d 549,081 a c r e s t h e r e o f , be ing t h e p o r t i o n l y i n g west o f t h e

b l u e l i n e shown on p l a i n t i f f ' s E x h i b i t 83 i n Docket No. 253 ( F i n d i n g

1 2 , 5 Ind . C l . Corn. 180, 196. 1

The Commission d i d n o t make s e p a r a t e f i n d i n g s a b o u t Area 56 o r

Area 72 b u t found (Finding 13, 5 Ind . C 1 . Comm. L.80, 197) t h a t t h e

Miami, E e l R iver , and Wea T r i b e s had e x c l u s i v e t i t l e t o t h e l a n d s

d e s c r i b e d i n Royce Areas 56, 71, and 72 a t t h e t ime of t h e c e s s i o n s

t h e r e o f t o t h e United S t a t e s by t h e t r e a t i e s of 1805 and 1809.

The last mentioned f i n d i n g does n o t n o t e t h a t when Area 72 was

ceded by t h e T r e a t y of September 30, 1809, no i n t e r e s t o f t h e Wea

T r i b e i n t h a t a r e a was i n d i c a t e d i n t h e t r e a t y o r r e l a t e d documents.

There i s no evidence b e f o r e t h e C o m i s s i o n t h a t t h e Wea T r i b e had a n

i n t e r e s t i n Area 72 i n 1809 when i t w a s ceded t o t h e Uni ted S t a t e s

and we do n o t t h i n k ~ h a i Finding 13 was k t e n d e d t o h o l d o t h e r w i s e .

2 1 The l o c a t i o n and q u a n ~ i t y of Wea l a n d s w i t h i n Area 7 1 were z g r e e d - to by t h e p a r t i e s h e r e i n by s t i p u l a t i o n d a t e d November 1 7 , 1954, and f i l e d on November 18, 1954.

22 Ind. C 1 . Corn. 92 99

The use of the t e n "exc lus ive t i t l e " i n Finding 13 may have r e f e r r e d

t o t he f a c t t h a t the unsuccessful p l a i n t i f f s i n the t i t l e proceeding

(Potawatomis, Kickapoos, Hannahville Indian Community, s e e Note 1)

were not au thor ized t o prosecute claims f o r compensation i n t h i s pro-

ceeding because only t h e M i a m i s , Eel River , and Wea Ind ians had

recognized t i t l e t o t he t r a c t s he re involved. I f so, t h e phrase,

"exclusive t i t l e " had no bearing on the ques t ion of t he i n t e r e s t of

t he Weas, a s cornpased wi th the Eel River and Miamis ia t h e s e p a r a t e

t r a c t s . We read the term "exclusive t i t l e " i n Finding 1 3 as r e f e r r i n g

t o t h e unsuccessful p l a i n t i f f s i n t h e t i t l e proceeding.

Our Finding 14 i s intended t o c l a r i f y t h e matter by de f in ing t h e

ownership i n t e r e s t of t h e r e spec t ive p l a i n t i f f s i n t h e s e p a r a t e t r a c t s

as recognized i n t he t r e a t i e s ceding the t r a c t s . The t r e a t i e s i n d i c a t e

t h a t the M i a m i , Eel River, and Wea Tr ibes owned Areas 56 and 7 1 when

these t r a c t s were ceded t o the United S t a t e s i n 1805 and 1809. The

M i a m i and Eel River Tr ibes owned Area 72 i n 1809 a t t h e t ime of i t s

ces s ion t o t h e United S t a t e s . There i s no evidence of Wea ownership

of Area 72 when t h a t t r a c t was ceded.

We conclude t h a t a t t he time of ce s s ion of Areas 71 and 72 , t h e

Weas had Ind ian t i t l e t o the western po r t ion of Area 71 a s descr ibed

by t h e Commission i n Finding 12 i n t he t i t l e opinion i n t h i s proceeding,

5 Ind . C 1 . Comm. 180, 196-197. The Miami and E e l River T r ibes owned

the e a s t e r n po r t ion of Area 71 and a l l of Area 72. The Weas d i d no t

own the e a s t e r n po r t ion of Area 71 o r any of Area 72.

2 2 I n d . C 1 . Corn. 92

We t u r n now L O s a t t e r s a f f e c t i n g t h e v s l u e of t h e s e Royce Areas

on e v a i u e ~ i o n d a t e s .

The S t a t e of I n d i a n a , i n t h e e a s t n o r t h c e n t r a l Uni ted S t a t e s , i s

bounded on t h e s o u t h by t h e Ohio R i v e r , and , a l o n g a s u b s a n t i & l ? ~ r ~ l o n

of i t s w e s t e r n boundary, by t h e Wabash River. Wny s t r e a m s i n t h e

n o r t h e r n p a r t of t h e s t a t e a r e interwoven w i t h r i v e r s which r u n i n t o

Lake Michigan a long p a r t of I n d i a n a ' s n o r t h e r n boundary and i n t o

Lake E r i e t o the east i n Ohio. The system of s t r e a m s from n o r t h e r n

I n d i a n a wes t p rov ided , a t t imes of h i g h w a t e r , a n a v i g a b i e waterway

between t h e G r e a t Lakes and t h e M i s s i s s i p p i R iver .

The n o r t h e r n t h r e e - f i f t h s of t h e s t a t e i s g e n e r a l l y l e v e l ,

f e r t i i e t i l l p l a i n o r r o l l i n g p l a t e a u which has been h e a v i l y g l a c i a t e d ,

t h e s o i l s o f which a r e d e r i v e d c h i e f l y from g l a c i a l t i l l . The s o i l s a r e

m o s t l y loams o r c l a y loams, w e l l - s u i t e d t o t h e p r o d u c t i o n o f s t a p l e

c r o p s such as corn , o a t s , and w i n t e r wheat. E igh ty p e r c e n t o f

I n d i a n a l a n d i s used f o r a g r i c u l t u r e , and I n d i a n a farms y i e l d w e l l .

The Ohio River a l o n g t h e s o u t h e r n boundary of I n d i a n a i s

bordered by a b e l t of b l u f f s and knobs, known as t h e Ohio h i l l s .

The s o u t h e r n t w o - f i f t h s of Ind iana i s rougher and h i l l i e r t h a n t h e

n o r t h e r n p o r t i o n and i s a n u n g l a c i a t e d e x t e n s i o n of t h e Appalachien

P l a t e z u , z n a r e a wi th s o i l s which a r e g e n e r a l l y s h a l l o w e r and less

prodr;ccLve ~ k i a n those i n n o r t h e r n &rid cent:-zl 1;ldiana. There is

good farming land i n t h i s p s r t of t h e s Late, however, and i n p i o n e e r

d a y s , t h e l a n d was g e n e r a l l y f a i r l y p r o d u c t i v e .

2 2 Ind. C 1 . Comm. 9 2

Climate and Health

The c l imate i n aoyce Areas 56, 7 1 , and 72 i s s i m i l a r t o t h a t i n

o t h e r po r t ions of t he no r th c e n t r a l United S t a t e s . The lands a r e i n

t h e temperate zone with seasonal v a r i a t i o n s t y p i c a l of t hese a r e a s .

Having growing seasons from 170 t o 180 days, t h e average mean summer

temperatures range from 70 t o 90 degrees Farenhei t and win te r temperatures

average from 28 t o 30 degrees. Winters , though cold, were considered

by t r a v e l e r s i n pioneer days t o be mild i n comparison wi th mew England

w i n t e r s .

Indiana i s f r equen t ly descr ibed a s humid, having an annual r a i n -

f a l l of 40" f a i r l y evenly d i s t r i b u t e d throughout t he s t a t e . The average

a l t i t u d e i s 700 f e e t above sea l e v e l .

The prevalence of i l l n e s s and l a c k of medical a i d were o b s t a c l e s

i n t h e e a r l y se t t lement of Indiana. Not inf requent ly , e n t i r e f a m i l i e s

and most of t h e r e s i d e n t s of a community became s i c k and were unable

t o o b t s i n proper ca re .

Loca t ion and Acreage

The d e s c r i p t i o n of Royce Area 56 i n t h e Treaty of Grouseland i s

quoied i n Finding 9 i n the t i t l e dec i s ion i n t h i s case (5 fnd. C1.*

Corn. 194) and the d e s c r i p t i o n i n t h e Trea ty of September 30, 1809,

of Areas 71 and 72 i s contained i n Finding 11 i n the t i t l e dec i s ion .

5 I n d . C1. Corn. i95.

Area 72, o f t e n r e fe r r ed t o a s t he Twelve-mile S t r i p because i t s

width approximates 1 2 miles along i t s 70-mile length i s a long, narrow

22 Ind. C 1 . C m . 92

t r a c t c l o s e t o t h e e a s t e r n boundary of south-cent ra l Indiane. The

sma l l e s t of t he t h r e e t r a c t s he re involved, i t conta ins 547,630 a c r e s .

Area 56, a l a r g e i r r e g u l a r t r a c t containing 1,537,366 a c r e s a d j o i n s

t h e southern boundary of Area 72 i n e a s t south-cent ra l Ind iana , con-

t i n u i n g south t o t h e Ohio River which forms i t s southern boundary f o r

about 35 miles . The t r a c t extends i r r e g u l a r l y northwest t o south-

c e n t r a l Indiana where i t a d j o i n s Area 71.

Area 71, known a s Har r i son ' s Purchase, i s a n i r r e g u l a r t r a c t

extending northwest d i agona l ly from south-central Indiana nea r

Brownstown t o t h e Wabash River. Its western boundary f o r 60 m i l e s i s

t h e Wabash River from 20 m i l e s nor th of Vincennes no r th t o t h e mouth

of Big Racoon Creek. The no r the rn boundary of Area 71 i s a d iagonal

extending sou theas t from t h e mouth of Big Racoon Creek t o a p o i n t

on the White River about 3 miles n o r t h of Brownstown i n sou th -cen t r a l

Ind iana . Area 71 con ta ins 2,095,688 acres .

The t h r e e t r a c t s , being contiguous, from a n i r r e g u l a r V-shaped

area extending ac ros s t h e width of t h e s t a t e , d iv id ing i t i n two

through south-cent ra l Ind iana , wi th Area 72 on the e a s t , 56 i n t h e

c e n t e r , and 71 on the west. (See Appendix A, Royce Map of Indiana

o u t l i n i n g t h e s e a r e a s . )

H i s t o r i c a l Background

A t t h i s po in t w e no te b r i e f l y a number of background m a t t e r s

r e l a t i n g t o t h e va lue of Royce Areas 56, 71, and 72 on t h e e v a l u a t i o n

d a t e s .

22 Ind. C1. Corn. 92 103

The Northwest Territory, often referred to as the Old Northwest,

th2 area between the Ohio and Mississippi Rivers and touching on the

Great Lakes, includes the present states of Ohio, Indiana, Illinois,

Michigan, Wisconsin, and part of Minnesota.

Indiana as part of the Northwest Territory was claimed by France

in the early 18th century but was ceded to England in 1762-1763, and

became a part of the United States in 1783. The whole Northwest Terri-

tory was organized as a single territory for governmental purposes by

the Ordinance of 1787.

The boundary line between Indian lands and those of the United

States defined by the Greeneville Treaty of August 3, 1795, supra,

designated virtually all of present day Indiana as Indian land with

the exception of Vincennes and other French and European settlements,

Indian title to which had been extinguished. In addition, a small

narrow triangular tract of land now in the southeasternmost part of

Indiana known as the ''Gore" was a part of the Northwest Territory ceded

to the United States along with much of Ohio under the Greeneville

Treaty. (See Royce Area 11, Indiana Map 1.) The Gore was added to

Indiana Territory at thetime the boundaries of the State of Ohio were

established by the Act of April 30, 1802 (2 Stat. 173-174) enabling the

people of the eastern division of the Northwest Territory to organize

as a state and to form a state government. The western boundary of the

Gore is the eastern boundary of Area 72 and Area 56 (~oyce Area 11,

Indiana Map 1, Appendix A).

-

22 I n d . C 1 . Comn. 92

Land P o l i c i e s of the Ea t ioca l Government

From c o l o n i a l tines u n t i l 1788, a f r equec t zetkod of s e l l L q I ~ r n ? ‘z

t r a c t s of publ ic land was t o g r a n t them t o ~ r l v a t e Jevelopzent cox-

p a n i e s o r wealthy ind iv idua l s who couid a f fo rd t o open i h a t o s e t t l e -

ment. The United S t a t e s has not s o l d land f o r r e s a l e e t p r i v a t e p r o f i t

s i n c e then but i n 1788, l a r g e t r a c t s of pub l i c domain i n present Zay

Ohio ( p a r t s of which had been claimed by seve ra l of the o r i g i n a l colo-

n i e s and ceded t o the United S t a t e s ) were disposed of i n v s r ious wzys.

The United S t a t e s so ld seve ra l l a r g e t r a c t s i n southern and western

Ohio t o two p r i v a t e companies, t he Ohio Company and the Sc io to Company,

and t o a p r i v a t e land developer, John Symmes, f o r development and -. , .

1 j r e s a l e . The Ohio Company, a f a i r l y succes s fu l venture, e s t a b l i s h e d

..-? -- M a r i e t t a i n 1788, t he f i r s t s e t t l emen t i n Ohio. The Sc io to company's

bus ines s was an i n f l a t e d specu la t ion which co l lapsed before long and

many persons who t r i e d t o o b t a i n land through Symmes l o s t s u b s t a n t i a l

amounts. Congress passed s p e c i a l l e g i s l a t i o n on a number of occas ions

t o p r o t e c t purchasers i n t h e i r a t tempts t o o b t a i n land through p r i v a t e

deve lope r s . (See Acts of March 3 , 1801, and May 1, 1802 [2 S t a t . 112,

1791 g r a n t i n g preemption r i g h t s t o c e r t a i n persons who cont rac ted t o

a c q u i r e l and through Symnes .)

The system of disposing of huge t r a c t s of publ ic domain t o p r i v a t e

pe r sons f o r development came i n t o d i s r e p u t e because of f raud and n i s - 3 1 -

management, and was not used a f t e r t h e n a t i o n a l Government provided

31 See n o t e 6 The Miami Tr ibe of Oklahoma, e t a1 v. The United S t a t e s , - 1 4 6 C t . C 1 . 421, 467 ( l959) , regarding the r epu ta t ion of land specu- l a t i n g companies during t h i s period.

22 Ind. C 1 , Comm. 92 105

t h a t i t would s e l l d i r e c t l y t o s e t t l e r s the unreserved area i n the

Northwest Terr i tory by the Act of May 18, 1796 (1 S t a t . 464). Under

the 1796 Act, public land i n the Northwest Terr i tory could be sold

a t $2.00 an acre a f t e r survey according t o what amounts, s u b s t a n t i a l l y ,

t o the present rectangular system of survey of the public lands. Only

lands i n the present S ta te of Ohio were sold under the 1796 s t a t u t e .

The s t a tu to ry minimum price of $2.00 an ac re f o r public land adopted

i n 1796 continued u n t i l 1820.

The Act of May 10, 1800 (2. S t a t . 73), i n i t i a t e d the system of d i s -

pos i t ion of public domain lands through land o f f i ces located i n de-

f ined land d i s t r i c t s . Four land o f f i c e s were located i n the T e r r i t o r y

of Ohio through which Greeneville Treaty and other Ohio lands were

so ld f o r the benef i t of the United S ta tes . The land o f f i c e s s o es-

tabl ished were located a t Cincinnati , Chil l icothe, Mariet ta , and

Steubenvil le . Lands i n the Gore ( in southeastern Indiana T e r r i t o r y

a f t e r 1802) and lands i n Royce Area 72 were sold from the Cincinnat i

Land Office. (See Sec. 2, Act of March 3, 1805, 2 S t a t . 343 . )

Unt i l 1800, the minimum amount of public land avai lable f o r pur-

chase was 320 acres. The Act of May 10, 1800, reduced the minimum

purchase t o 160 acres. The 1800 Act a l s o permitted, upon payment of

one-quarter of the purchase p r i ce down, payment of the remainder of

t h e p r i c e on c r e d i t within four years i n equal yearly ins ta l lments , 41 -

with a discount of 8% for advance payments. A 320-acre farm could be

41 Under t h e Act of March 26, 1804 (2 S t a t . 277, 281), providing f o r - t h e d isposal of public lands i n Indiana Terr i tory , no i n t e r e s t was re - quired on the installments if punctually paid (see Sec. I1 of t h e Act) .

22 Ind. C i . Comm. 92 106

bought f o r $160 cash and payment of the remainder within four years .

S e t t l e r s s t rongly favored the c r e d i t and l i b e r a l i z e d payment pro-

v i s i o n s of the 1800 Act under which they could, by making payinents

without delay, purchase land f o r $1.64 an acre.

Public lands were no t open t o set t lement and purchase u n t i l a f t e r

survey under the Acts of May 18, 1796, May 10, 1800, and subsequent

s t a t u t e s governing s a l e of the ~ u b l i c domain. However, s e t t l e r s

( squa t t e r s ) took up land much as they wished, i e ly ing on the l a t e r

enactment of preemption laws and public opinion t o p ro tec t t h e i r

choice of land from s a l e t o another bidder a t public auct ion a f t e r

t h e land was opened o f f i c i a l l y f o r s a l e . For example, lands i n Area --">

-3 72, p a r t i c u l a r l y i n the region of the Whitewater River, were s e t t l e d

- 9 by pioneers a s e a r l y a s 1803 and 1804 though Indian t i t l e was not ex-

t inguished u n t i l 1810 when the t r e a t y ceding the area was r a t i f i e d .

The i n t e r e s t of the Federal Government i n encouraging t h e s e t t l e -

ment.and development of public lands i n the Northwest T e r r i t o r y was

evidenced by the enactment of the+-s ta tu tes summarized above and by t h e

enactment l a t e r of numerous specia l a c t s t o r e l i e v e s e t t l e r s from the

penal ty provis ions of the law f o r s a l e and f o r f e i t u r e upon d e f a u l t i n

payment of the purchase p r i ce (see Finding 24). I n addi t ion , the con-

t inued nego t i a t ion by representa t ives of the Federal Government t o

ar range f o r t h e cession t o the United S ta tes of Indian lands i n f r o n t i e r

a reas and t h e grants by the Federal Government f o r public roads and

publ ic schools were a c t s indica t ing t h a t when these lands were ceded

22 Ind. C 1 . Corm. 92 107

vigorous p o l i t i c a l and soc ia l forces favored the set t lement and

development of f r o n t i e r ereas.

P o l i t i c a l and Economic Background

The evaluation dates are April 24, 1806, f o r Area 50,and

January 16, 1810, fo r Areas 7 1 and 7 2 . Indiana T e r r i t o r y was no t

s t a t i c i n those years. By 1802, when Ohio was organized as a sepa-

r a t e S t a t e and what remained of the Northwest T e r r i t o r y became Indiana

Ter r i to ry , the movement of s e t t l e r s northwest from the e a s t and south

reinforced pressures leading to the Louisiana purchase of 1803, l a t e r

t o the War of 1812, and the fu r the r expansion and development of a g r i -

cu l tu re and industry i n the north cen t ra l United S ta tes .

A t the end of the Revolutionary War, the Miss iss ippi River was t h e

western boundary of the lands which formerly had been English. S e t t l e r s

moving across the Alleghenies in to the Ohio Valley wanted a f r e e water

route to the Gulf. One of the pr incipal motives f o r the purchase of

Louisiana from France was f o r t h i s country t o acquire control of t h e

Por t of New Orleans, prevent r e s t r i c t i o n on export t rade by a fo re ign

power, and keep France out. Our control of the Miss iss ippi River and

the Port of New Orleans through the Louisiana purchase was favorable

f o r t rade and fu r the r stimulated migration i n t o Indiana T e r r i t o r y

which i n t u r n affected the value of land i n the Terr i tory . I n addi t ion ,

the purchase added to the country the western ha l f of one of t h e

r i c h e s t a g r i c u l t u r a l r ive r basins i n the world and gave g rea t impetus

t o the d e v e l o p e n t of the Northwest Ter r i to ry ,

The p r inc ipa l spokesman of s e t t l e r s i n the Northwest T e r r i t o r y

- 22 Ind. C 1 . Corn. 92

was Indiana's T e r r i t o r i a l Governor, William Henry Xarrison, l a t e r a

Congressman and the President of the United States. He demanded t ha t

Indian occupancy of lands i n t h i s f r o n t i e r area be ended, i n p a r t t o

open the land to increasingly large numbers of s e t t l e r s and i n par t

because the Indians cooperated with the Bri t i sh who were s t i l l occu-

pying Detroi t and other set t lements (contrary t o the peace t r e a t y of

17831, t o fu r the r Br i t i sh i n t e r e s t s i n the f u r trade. These were

among the important soc ia l and p o l i t i c a l conditions which a f fec ted the

demand and a v a i l a b i l i t y of f r o n t i e r land, including tha t i n the North-

west Terr i tory . -

Economic conditions a f fec t ing land prices i n the Northwest Ter r i - -- -

-\ J;

t o ry when Areas 56, 71, and 72 were ceded were, i n the main, the -2

4.? f a c t o r s which affected the market p r ices f o r agr icu l tu ra l products

from the region, a s agr icu l tu re was the basis of the economy of the

Northwest Terr i tory . The bar te r system had developed f o r much l oca l

t r ad ing because of the scarc i ty of money. Trading beyond l o c a l markets

was mostly the shipnent of agr icu l tu ra l products by f l a tboa t down the

Ohio River t o New Orleans.

Before the adoption of the Embargo Act i n 1807, prices f o r American

a g r i c u l t u r a l produce were high a s a r e s u l t of the European demand during

t h e years of the ear ly Napoleonic wars. I n 1805 and 1806 American

fanners , merchants, and shipowners were extremely prosperous, exports

of a g r i c u l t u r a l products approximating an annual average of $30,000,000.

A f t e r a depression i n 1807-1808, when exports of agr icul tura l products

f e l l t o $5,000,000 because of the Embargo Act, the United S t a t e s went

22 Ind. C 1 . Corn. 92

through a mild revival i n business between 1809 and 1812.

American trade with Europe had been h u r t by French end English

f ight ing, each country t ry ing t o cut off the foreign t r ade of the

other. Because of in ter ference with American shipping t o fo re ign

por ts , Congress, on ~ e f f e r s o n ' s recommendation, passed the Embargo

Act on December 22, 1807, prohibit ing the s a i l i n g of any s h i p from

the United S ta tes to any fore ign port. The protes t and ob jec t ions

aga ins t the A c t were so general--(the shipping indust ry might be

ruined, unemployment resul ted i n the commercial s t a t e s , and agr icu l -

t u r a l production declined i n o ther areas)-- that the Act was repealed

i n 1809 by the Nonintercourse Act which prohibited t rade wi th France

and Great Br i t a in u n t i l they discontinued t h e i r object ionable pract ices .

I n May 1810 the Nonintercourse Act was repealed, but was revived again

i n 1811 a f t e r more trouble with ~ r a n c e ' s se izure of American ships.

With the repeal of the Embargo Act, commerce and shipping quickly

revived. I n 1810 the value of foreign trade was t h r e e - f i f t h s t h a t of

1807.

I n surmnary, business boomed i n 1805-1806, the va lua t ion d a t e f o r

Area 56, and a condition of mixed prosperi ty and depression e x i s t e d

i n 1810, the valuation da te f o r Areas 71 and 72. Wholesale p r i c e s i n

t h e United S t a t e s were r e l a t i v e l y high i n both 1806 and 1810.

Population Movement and Settlement

Among t h e most important f ac to r s af fec t ing the value of lands

l i k e the th ree t r a c t s here involved were the population movement and

r a t e of set t lement of nearby areas which indicated the demand f o r land

-.

22 Ind. C l . Comm. 92 110

by persons wanting t o s e t t l e end meke t h e i r l ive l ihood i n the area.

The record shows t h a t i n 1806 and i n 1810 there was an increas ing

movement i n t o Indiana T e r r i t o r y of s e t t l e r s from eas te rn and southern

s t a t e s . It was the search f o r good farm land by these migrants from

es tab l i shed s t a t e s which provided a strong and steady demand f o r lands

i n Indiana T e r r i t o r y during the va lua t ion years, the bes t lands i n

Ohio having been purchased and s e t t l e d before t h i s time. The popu-

l a t i o n of non-Indians i n Indiana, est imated a t most t o be a few

thousand, increased t o 24,520 i n 1810, and desp i t e the War of 1812

It should be noted t h a t the amount of public land ava i l ab le f o r

. f s a l e a t the valuat ion dates was much l e s s extensive than the quanti- -

t ies ceded by Indian t r e a t i e s up t o the time would indicate. Occupancy

of o r claims t o p a r t s of the Northwest T e r r i t o r y by Indians who were

n o t p a r t i e s t o ex i s t ing cession agreements, the uncertainty about

t i t l e s i n many a reas formerly occupied by the French, the lack of

t r a n s p o r t a t i o n f a c i l i t i e s , the i n a c c e s s i b i l i t y , even f o r s&ey, of

l a r g e p a r t s of the public domain, and Indian h o s t i l i t i e s i n f r o n t i e r

a r e a s a r e among the f a c t o r s which g r e a t l y l imi ted the choices of the

pioneer. (See Finding 31.)

The record ind ica tes t h a t Indians l i v i n g near the subject a reas

complained t o American o f f i c i a l s t h a t s e t t l e r s were taking lands which

had been guaranteed to the Indians under t h e Greeneville Treaty,

i n d i c a t i n g , of course, t h a t Indian lands i n t h i s area were a t once

a c c e s s i b l e and des i rable t o pioneer s e t t l e r s . I f the supply of

22 Ind. C1. C m . 92 ill

s u i t a b l e land had been abundant o r unlimited f o r pioneer s e t t l e r s

f ron the e a s t end the south, the praceice of s e t t l e r s ' d h t u r b i n g

Indians i n t h e i r occupancy of lands w5Lch had been recognized a s be-

longing to them by the United Sta tes would have been l e s s c m o n ,

presumably, than chis record indicates , (See Note 8, Finding 3i.)

Although land was s t i l l avai lable i n the eas tern s t a t e s a t f a i r l y

cheap pr ices during the valuation years, land i n New England was not

very good farm land nor well adapted to agr icul ture . S t o r i e s of

opportunity i n the Northwest Terr i tory a t t r a c t e d many s e t t l e r s . The

Indian Agent a t Fort Wayne described Areas 71 and 72, ceded i n 1809,

a s containing some of the f i n e s t land i n the United Sta tes . Lands on

the Wabash had long been renowned f o r t h e i r productiveness. The

descr ip t ions of Indiana lands by t r ave le r s i n the years antedat ing

va lua t ion da tes commonly emphasized the f e r t i l i t y of the s o i l , t h e

f i n e p r a i r i e s , fo res t and water resources.

The increasing movement of s e t t l e r s t o the Northwest T e r r i t o r y

a f t e r 1800 was ref lec ted i n public land s a l e s which reached a peak of

over ha l f a mi l l ion acres i n the Ter r i to ry i n the years 1805 and 1806.

From 1804 through 1810 s e t t l e r s moved continually from Kentucky, t h e

Carolinas, and Pennsylvania in to the Gore and on in to Area 72.

The s i z e and population of settlements along the Ohio River i n

Area 56 a l s o increased great ly between 1800 and 1810. After the

separa t ion of the I l l i n o i s Terri tory from Indiana i n 1809, the T e r r i -

t o r y of Indiana continued to develop separately a s a Sta te . By 1810,

Clark County i n southeastern Indiana with the Ohio River a s i t s

--

22 Ind. C1. Corn. 92

southern boundary, Karrison County i n the south-central p a r t of the

s t a t e , and Dearbon County along the s t a t e ' s eas tern boundary, con-

ta ined almost 70% of the s t a t e ' s population. Ere population was

centered i n the southern ha l f of Indiana p a r t l y because navigable

streams made t h i s p a r t of the s t a t e more access ib le to s e t t l e r s from

es tabl ished t r anspor ta t ion routes and pa r t ly because the United S t a t e s

obtained cessions from the Indians of lands i n the southern p a r t of

Indiana before the northern and c e n t r a l port ions of the s t a t e were

ceded. By 1812 more than 250,000 people l ived i n Ohio, and the whole

region nor th and west of the Greenevil le Treaty l i n e ( in Indiana T e r r i -

tory) was described a s beginning t o resemble an eas te rn state with -. -.

roads and towns and extensive ac res of cu l t iva ted f i e l d s , although

- -7 -Y

Indian t i t l e t o much of i t had been extinguished only a few years

e a r l i e r . Travel by road between t h e northern p a r t of Area 72 (near

Richmond), and Cincinnati was reasonably comfortable through a country-

s i d e of developed fanu lands.

Transpor ta t ion and Trade

A c c e s s i b i l i t y from southern and eas tern s t a t e s and successful

e a r l i e r se t t lement i n the v i c i n i t y were important i n determining t h e

demand f o r Royce Areas 56, 71, and 72.

Migrat ion from eas te rn United S t a t e s t o the west depended upon

t r a v e l rou tes available. I n 1769, Daniel Boone found the Cumberland

Gap, opened Wilderness Road, and 70,000 people passed through t h e Gap

and used t h e road between 1774 and 1790, They s e t t l e d i n the Missis-

s i p p i Valley south of the Northwest Ter r i to ry , t o which they migrated

22 Ind. C1. Comm. 92 113

in increasing numbers after 1800. From 1788 on, the Ohio River was

used commonly by settlers in the northwest from Neg England, Pennsyl-

venia, and the east. Explorers and settlers in the frontier generally

followed Indian and buffalo treils and the dry beds of streams in

addition to the common use of waterways for routes of travel.

Most roads were hazardous, dangerous, unimproved, and overflowed

in wet seasons. The cost of transportation overland was so great as

to limit settlements any great distance from navigable waters.

In 1806, Congress, which had considered a national road as

early as 1802, authorized survey of a road from Cumberland, Maryland,

to the Ohio River. The route, which followed the old Braddock trail

much of the way, went through Uniontown, Pennsylvania, to the Ohio

River at Wheeling. Though actual construction was not begun until

long after the evaluation dates, survey and plans for building a good

wagon road to the Ohio River which would increase the accessibility of

Indiana Territory to settlers from the east coast was a stimulating

factor on the value of lands in the portions of Areas 56 and 72 which 5 1 -

were accessible from the Ohio. In the Act of April 30, 1802, supra,

enabling the people of the eastern division of the Northwest Territory

5 1 In a report to Congress in 1808, Albert Gallatin recommended - Federal expenditures for a system of internal improvements for east- west and north-south connections by a system of rivers, canals, and roads, including a canal around the falls of the Ohio and good roads from Pittsburgh to Detroit, to St. Louis and to New Orleans. In January 1810, a bill was introduced in Congress to authorize a system of internal improvements substantially the same as that recommended by Gallatin. Action was not taken, and the War of 1812 required postponement of Federal internal improvement projects.

-- 22 Ind. C 1 . Corn. 92

t o organize for admission to the Union, Congress agreed to s e t aside

5% of the proceeds of the public land sales i n the scate fo r a fund

fo r constructing roads to the west i f the s t a t e would not tax public

lands fo r 5 years a f t e r sale , In 1803 Congress amended t h i s provision

and granted to the State of Ohio 3% of the proceeds of the public land

sa les i n the s t a t e fo r the construction of public roads. Such pro-

vis ions were intended to stimulate f ron t i e r settlement.

Indiana Territory contained many miles of navigable waters which

were the basis of the early transportation system. The Ohio River

flows along the southern boundary of Indiana fo r 472 miles. The

Wabash i s navigable fo r 470 miles; the White River and i t s forks, f o r

160; both the Blue River and Whitewater River, for 40 miles. A s i n

-, many areas, the ear ly Indiana settlements were along the navigable

r ivers , the oldest and most populous of these being Vincennes on the

Wabash River, Clarksville, Jeffersonville, and Madison along the Ohio,

and Connersville on the Whitewater.

The Great Lakes region, accessible from Canada, was important

t o the f u r trade i n the 17th and ear ly 18th century. With trading

posts fror;. Quebec through the Great Lakes region and Wabash val ley

down the Kississippi River the fu r trade was an important fac tor i n

the conf l i c t s leading to the War of 1812. On the evaluation dates,

Knox County, i n which Vincennes i s located, was the oldest and most

populous pa r t of Indiana. Vincennes was established as a f u r trading

center about 1727 and the fur trade long continued to be i t s chief

source of income. About 1816, the f u r business i n Vincennes was

valued a t approximately $2 5,000 annually. (During the evaluation

years, Vincennes was important a lso as the capi tol of the Indiana

Ter r i to r i a l Government,)

Produce for markets frani the f ront ie r settlements i n Indiana

was sent by f la tboa t to New Orleans. Before the steamboat, keel

boats with sail or oars and poles were used for moving goods up the

r iver . Though there were frequent delays from floods, ice, obstacles

i n the r iver , or low water, and though transportation upstream was

often a l l but impossible, the f la tboats , keels and numerous small

boats carrying persona and f re ight down the Wabash and the Ohio and

the i r t r ibutary s treama made extensive use of Indiana' 3 navigable

r ivers for transportation,

The success of the steamboat on the Hudson i n 1807 was not

universally regarded as applicable t o the Ohio u n t i l in 1811 the

f i r s t steamboat went down the Ohio from Pittsburgh - on t o New Orleans.

From then on, steamboats were used extensively on the Ohio. Both

f re ight rates and passenger fares from Pittsburgh t o New Orleans

were decreased by more than one-half after the steamboat came into

use. By 1818, thirty-one steamboats were carrying passengers and

freight on the Mississippi and Ohio.

The Secretary of the Treasury reported that for I m b n a

Territory for 1810, the estimated value of manufacturers was

$300,000. Since most of the population lived in the southern portion

of the s tate , the manufacturing presumably took place i n and close to

22 Ind. C1. C m . 92 1 1 6

Royce Area 56 near the Ohio River, or n e a r Vincennes on the Wabash

o r near the s e t t l e m e n t s of Area 72 within 30 m i l e s o f Cinc innat i .

The repor t shows that substantial q u a n t i t i e s of textiles (cotton,

l i n e n , woolen, and mixed goods) were manufac tured at that time.

S p i n n i n g wheels, n o i l e r i e s , t a n n e r i e s , d i s t i l l e r i e s , and gunpowder

manufac t l r re rs were a l s o 1Ls ted, rill b e i n g products t o supp ly a local

a g r i c u l t u r a l economy.

P h y s i c a l ( :ha rc tc te r iu t i c s - S o i l and R e l a t e d Resources

I n choos ing a place t o l i v e , f e r t i l i t y of t h e l and was of para-

mount importance to s e t t l e r s , though n o t always easily recognized.

Oac i n d i c a t i o n r e l i e d on was whether vegetation grew on the land in

its n a t i v e s t a t e , L a n d s covered with trees and f o r e s t s were u s u a l l y

regarded a s f e r t i l e by s e t t l e r s i i z the Sorthwest T e r r i t o r y . I n a d d i -

t i o n , n s u p p l y of good timber IJLIS valuable as m a t e r i a l for cons t ruc t i ng

hotlscs, b a r n s , f ences , and household a r t i c l e s , The u s e of wood as

f u e l by thc pioneers greatly increased the value of wooded lands t o

thorn, and thcy considered forested areas nore valuable than the prairie

for s e t t l e m e n t . Thcrc was n o t , however, a commercial market for timber

from the I n d i a n a frontier on v~lucltion d a t e s .

The X i a m i s were , r e p u t e d l y , p r o p r i e t o r s of excel lent lands and

cul t ivated large q u e n t i t ies of I n d i m corn . Travelers reported that

soils i n I n ~ i i i l n a on l a n d s ceded by the Xiamis, p a r t i c u l a r l y those nea r

the Wabash and other r i v e r v a l l e y s , were rich and fertile, often for

many feet deep . A t r ave le r i n 1817 observed tha t the best proof of

22 ind. C:. Corn. 92 117

the excellence of the land on the upper Wabash was the circumstance

t h a t i t was the locat ion of many Indians, adding t h a t the Indians a r e

good judges of land, a re ra re ly i f ever found on barren s o i l .

Approximately the northern three-fourths of Area 72 ( t h e s ~ l l e s t

and easternmost of the three Royce areas here involved) i s wi th in the

r i c h till p la in of northern and cen t ra l Indiana. The f e r t i l e ag r i -

c u l t u r a l lands of the Whitewater River va l l ey are i n t h i s port ion of

Area 72. The southern quarter of Area 72 is rougher than the northern

por t ion of the t r a c t but contains some good upland plateau and v a l l e y

lands. (See Finding 45.)

North and west of the Ohio River, the western port ion of Area 56

and the e a s t e r n port ion of Area 71 contain rough end rugged lands bu t

both t r a c t s a l s o contain good agr icu l tu ra l lands i n stream and r i v e r

va l l eys and va l l ey lands cal led the Scottsburg lowland which open up

between spurs of the knobstone escarpment extending west above the 6 / -

Ohio River.

The bottom lands of the White and Muscatatuck Rivers along the

western boundary of Area 56 and the eas tern boundary of Area 71 and

t h e t r i b u t a r i e s of these r i v e r s as well as the val ley lands of a

number of streams which flow i n t o the Ohio from twenty t o t h i r t y

6 1 S o i l s tud ies of these areas i n recent times emphasize t h a t the - produc t iv i ty of s o i l s which now a r e c lass i f i ed as l e s s than very good may have di f fered during the evaluation years. Product iv i ty of lands now subject t o severe erosion was often described a s q u i t e good dur ing f r o n t i e r times before the f o r e s t s had been eliminated from much of the land. Compared t o New England s o i l s , these lands wi th r i c h leaf humus top s o i l may have seemed very f e r t i l e t o pioneer s e t t l e r s .

-

22 Ind. C 1 . Corn;;,. 92

miles inland i n Area 50 contain f e r t i l e , a l l u v i a l s o i l . (See

Finding 43.)

The Wabash lowland, a g r e a t lowland t r a c t , genera l ly l e v e l with

a few upland h i l l s comprises about one-third of Area 71. I t conta ins 7 / -

deep s i l t loams, among the b e s t a g r i c u l t u r a l land i n southern Indiana,

and extensive depos i t s of bituminous coal which under l i e the Wabash

lowland. Early writers described these lands a s being of unsurpassed

f e r t i l i t y covered wi th f i n e g rass , the s o i l of which was s a i d t o

produce from 80 t o 100 bushels of corn per acre per year . An a s s i s t a n t

i n the survey of land near Terre Haute bordering the Wabash descr ibed

i t as exceeding anything hd had ever beheld f o r r i chness of s o i l and

3 i

beauty of s i t u a t i o n . Another descr ip t ion of Indiana lands published .--.

i n 1819 s t a t e d t h a t the common depth of the s o i l is from two t o th ree

f e e t but i n cons t ruct ing we l l s along the Wabash, the s o i l was found

t o be twenty-two f e e t .

Almost the whole S t a t e of Indiana was formerly covered wi th f i n e

f o r e s t s . A s noted above, wood was important t o pioneer sett lers f o r

f u e l and f o r bui ld ing. I n addi t ion , both nu t and f r u i t trees were

valued by the pioneers a s important sources of food supply f o r people

and f o r farm animals.

7 / Both p a r t i e s submitted i n evidence surveyors' f i e l d no tes of lands - i n these Royce areas . The conclusion i n surveyors' f i e l d notes on sec t ion l i n e c h a r a c t e r i s t i c s a re q u i t e cons is tent wi th the c l a s s i f i - ca t ion and s o i l s tud ies of these lands made i n recent years . (See Findings 46 , 47.)

22 Ind. C l . Corn. 92 119

Indiana i s r i c h i n coal but t h i s was not shown t o have affected

the value of the lznd a t the t ine of evalustion.

Par ts of Areas 71 and 56 contain excel lent limestone, eas i ly

accessible. The deposits were not developed commercially a t valuation

dates , but limestone was used fo r various construction purposes from

the very e a r l i e s t times of settlement i n Indiana.

Land Values

Whether the defendant i s l i ab l e under sect ion 2(3) of the Indian

Claims Commission Act depends upon whether the consideration paid was

so much l e s s than the f a i r market value of the land a t the time of

cession a s t o make the consideration grossly inadequate and therefore

unconscionable . Fai r market value i s " the highes t pr ice e s timated

i n terms of money which land w i l l bring i f exposed fo r s a l e i n the

open market f o r highest and best use a t the time of taking." Osage

Nation of Indians v. United States, 3 Ind. C l . Comm. 231, 236 (1954)d

Highest and bes t use commonly means that use which w i l l produce the

grea t e s t r e turn from the land.

Defendant introduced i n evidence the repor t of an experienced

r e a l e s t a t e appraiser, Richard B. Hall, who arrived a t h i s estimate

of the f a i r market value of each of the three separate Royce areas

here involved from the viewpoint of a prudent, experienced, and

informed land speculator l iv ing a t the times of the cessions, who

intended t o buy a l l of Area 56 on April 24, 1806, and a l l of Areas 71

and 72 on January 16, 1810. Among the factors which defendant's

22 Ind. C 1 . Corn. 92 12 0

appraiser assumed such a land speculator would consider were the

prices paid for land in very large t r ac t s , competitive lands

available, the ava i l ab i l i t y of cap i ta l and c red i t , the costs of

carrying the land for a long period of time, the access ib i l i ty of

the lands and the e f f e c t on resa le of Indian h o s t i l i t i e s i n the

Indiana Terri tory . The report emphasized the d i f f i cu l ty of obtaining

financing for purchasing and developing the land and the cos t of

holding i t pending resale . It assumed tha t the purchaser would have

t o dispose of the respective areas within 10 to 15 years and t h a t the

r e t a i l demand for the lands would be small so tha t a purchaser of the

- . '. whole t r a c t would have paid a very low r i s k price in each instance.

- $ -3 The appraisal report noted tha t Area 56 would have been the

l e a s t a t t r ac t ive of the three areas; that there was no special

a t t rac t ion t o lands fronting the Ohio River. Based on a l l the f ac to r s

which the appraiser considered pertinent, the report concluded t h a t

the 1806 land speculator would not have paid more than 15 cents an

acre for the land i n Area 56 on April 24, 1806, th i s amount being

one-fif th of 75 cents per acre which the appraiser concluded was the

average r e t a i l price for which the land could have been disposed of

under a comprehensive sales program within a reasonable time a f t e r

i ts purchase.

The appraisal report noted tha t Area 71 had a number of des i rab le

features a t the time of valuation, being bounded on the e a s t by the

White River, on the west by the Wabash, and with the west fork of the

22 Ind. C 1 . Comm. 92 12 1

White River meandering from north t o south through the middle of the

area. The report pointed out tha t portions of the eas tern and

southern par ts of the area were h i l l y and rough but t ha t the Wabash

lowlands would have been considered desirable farmland t o a po ten t ia l

purchaser. Despite h i s more favorable opinion of Area 71, defendant's

appraiser concluded t ha t i t s f a i r market value i n 1810 was iden t ica l

with the land i n Area 56, or 15 cents per acre.

The appraiser had a higher opinion of Area 72 because of i t s

locat ion near older settlements i n the Gore and i n western Ohio, i t s

favorable t e r ra in , and because i t s smaller s i z e would have made i t

ea s i e r f o r a speculator t o obtain cash fo r the purchase p r ice and f o r

exp lo i t ing the land. The appraiser assumed tha t h i s purchaser could

have expected to dispose of t h i s land within 10 years fo r an average

p r i ce of $1.25 an acre and therefore concluded that on January 16,

1810, t h i s land had a f a i r market value of one-quarter the r e sa l e

p r ice , or 31 1/4 cents per acre. . ' It was noted abwe tha t the defendant's appraiser assumed tha t

a s ing le purchaser would buy the whole of each of the areas. I n d i s -

cussing the purchase price of large t rac t s of land, the defendant's

appraisa l repor t re l i ed primarily on sa les of huge t r ac t s t o land

companies and speculators. Many of these sa les antedated the enact-

ment of Federal s t a tu tes governing the price and ava i l ab i l i t y of the

pub1 i c domain i n the Northwest Terri tory.

22 Ind. C 1 . Corm. 92 122

Sales of s t a t e lands or of l a rge t r a c t s t o p r iva te land compmies

and speculztors f o r development and resa le re fe r red to by the defend-

a n t ' s appraiser d i f fered from the s a l e s of Royce Areas 56, 71, and

72 i n Indiana Terr i tory i n a number of ways. The dates of purchase

o r acqu is i t ion of lands re l i ed on by the appraiser a r e , i n the main,

s o much e a r l i e r (1787-1798) tnan the valuat ion dates f o r these t r a c t s

(1806-1810) t ha t the comparisons have l imi ted i f any meaning. In

addi t ion, the s a l e o r t ransfer of l a rge t r a c t s t o p r iva te developers

i n the 18th century of ten required only a token payment, i f any, no t

payment o r financing f o r the e n t i r e t r a c t by the developer. And a t

- - the time the t r e a t i e s ceding Royce Areas 56, 71, and 72 were r a t i f i e d , i

d -2

most of the be s t agr icu l tu ra l land i n the three areas was avai lable

t o s e t t l e r s . The lands offered i n the l a t e 1700's by the various

land developers a re not shown t o have been comparable i n resources,

product iv i ty , or general de s i r ab i l i t y f o r homesite and ag r i cu l t u r a l

development with the Royce areas here under consideration. A f u r t h e r

d i f fe rence was that t i t l e s t o purchasers from some land developers

were defec t ive of ten enough to c a s t d isrepute on pr ivate land developers

and no t infrequently Federal l eg i s l a t i on was required t o prevent t o t a l

l o s s of lands t o s e t t l e r s as a r e s u l t of mismanagement by land

specula tors . (See Finding 20.) The pos s ib i l i t y of t i t l e d i f f i c u l t i e s

tended t o lower the value of land avai lable from pr ivate developers

a s compared with land purchased from the Government.

22 Ind. C 1 . Corn. 92

Moreover, tne defendant's appraisal gzeatly mininizes the demand

for land by s e t t l e r s in Indiana Terr i tory on the evaluation dates.

The hypothetical purchaser re l ied on by the appraisal report d i s -

regards the increase i n Indiana' s population during those years,

the ear ly organization, under t e r r i t o r i a l law, of Indiana in to

counties, the f a c t tha t there were permanent settlements i n and near

these Royce areas before the land was offered for sale by the United

S ta tes and even before i t was ceded by the Indians, and similar evi-

dence of a strong and continuing demand fo r land by s e t t l e r s migrating

from eastern and southern s ta tes . The defendant's appraiser a l so

assumed tha t huge quanti t ies of public lands were competitive with

Royce Areas 56, 71, and 72 and were available for settlement by

pioneers on evaluation dates. The record does not support such an

assumption. The lands i n Royce Areas 56, 71, and 72 were both ehe

most accessible and the most su i tab le for settlement and development

of small farins of any areas i n Indiana Terr i tory t o which Indian

t i t l e had been extinguished on the evaluation dates.

The d is t inc t ions noted above between the sa le of a huge t r a c t

during the 18th century to private land speculators and developers

and the hypothetical sa le of each of the subject areas as an e n t i r e

t r a c t , the underes timate in the defendant ' s appraisal report of the

demand by s e t t l e r s for land i n Indiana Terri tory, and the exaggeration

of the amount of land which was accessible, suitable, and avai lable

2 2 Ind. C 1 . C m . 92 124

f o r settlement on the evaluat ion dates a r e the primary reasoris f o r

concluding tha t the defendant 's appra iser valued Royce Arsas 56, 7 1 ,

and 72 a t unduly low amounts.

The p l a i n t i f f s did not subni t an appra i sa l r epor t b u t r e l i e d

on p r i ces of s a l e s of public land i n Ohio, i n the Gore i n Indiana

T e r r i t o r y , and on sa les of pr iva te lands i n the area about the d a t e s

of evaluat ion i n support of t h e i r pos i t ion t h a t the $2.00 s t a t u t o r y

minimum pr ice was the f a i r market value of the land i n Royce Areas 56,

71, and 72 on the valuat ion dates. P l a i n t i f f s a l s o submitted both

technica l and general evidence regarding the s o i l and o t h e r f a c t o r s

A. - 7.. a f f e c t i n g land value. D r . John Long, an Associate Professor of

) History and Associate Dean of the School of Humanities and Sciences -+=

a t Southern Methodist University was offered by p l a i n t i f f s a s an

e x p e r t on h i s t o r y and geography of the M i a m i Indians based on yea r s

of s p e c i a l study i n these areas. Among other matters r e l a t i n g t o

the va lue of the land, he t e s t i f i e d a t length a t the hear ing a s t o

land types and s o i l s i n Royce Areas 56, 71, and 72. The m a t e r i a l

upon which Hs testimony was based and o ther documents r e l a t i n g t o

s o i l and land types were submitted by the p a r t i e s a s e x h i b i t s . These

furnished the most sa t i s fac to ry evidence, summarized above, of land

and s o i l types of these areas. (See Findings 42-47.)

The s e l l i n g prices of lands comparable i n qua l i ty and q u a n t i t y

t o those i n Aress 56, 71, and 72 made a t about the time of the

22 Ind. C 1 . Comm. 92 125

evaluation dates a r e among the bes t indicators of the market value

of the land i n these ereas.

P l a i n t i f f s ' evidence indicated t ha t a t about the time of

evaluation some public lands near Areas 56 and 72 i n the Gore i n

Indiana and other lands i n the Cincinnati D i s t r i c t sold a t more than

$2.00 an acre.

P l a i n t i f f s ' evidence shows fu r the r t h a t between 1805 and 1808

almost 3,000 acres of reserved public land i n Ohio and Indiana of the

same type and qua l i ty as nearby unreserved public domain were sold a t

the s t a t u to ry minimum of $8.00 an acre. This amounted t o about 1% of

the reserved land then avai lable . The minimum pr ice of reserved lands

was' reduced t o $4.00 an ac re by the Act of February 29, 1808, 2 S t a t .

470. Between 1808 and 1816 more than 116,000 acres of reserved lands

i n Ohio and Indiana, representing 38.9% of the reserved acreage

ava i lab le , were sold a t or above the $4.00 minimum pr ice . (See

Finding 61.)

P l a i n t i f f s ' summary of a tabulat ion of deed records of p r iva te

s a l e s has been noted, but we cannot place much re l i ance on i t i n

determining f a i r market value of the t r a c t s i n question. The deed

records involved a period from 1811 through 1818, some one t o e i gh t

years a f t e r the valuation da te involved. The sa les involved small

parcels (40 acres or more) which included improvements. The estimated

average value of improvements ($1.41 per acre) i s based on conjecture

--

22 Ind. C 1 . Comm. 92

and speculat ion. A wide variance i n the zathematical computations

can be produced by using other essumed f igures . For example, the

same improvements (a log czbin and 30 cleared acres) would a l s o have

been present on an 80-acre farm. And ac tua l ly 80 acres was the

preferred s i z e among the ear ly s e t t l e r s . Applying improvements of

$215.00 t o an 80 acre s a l e would have produced an average per ac re

value f o r improvements of $2.42. One could ea s i l y add other va l i d

Wrovement items such as wells, fences, e t c .

The Ccmnission has a l so noted the contemporaneous wr i t ings , and

we have entered f indings on some of the per t inent repor ts . But t h a t

mater ia l generally referred t o a period a f t e r our valuat ion dates ,

and the wr i t e r s were usually promoters of t he i r area. The lands

re fe r red t o were mostly the choicest avai lable and, of course, cannot

be considered indicative of the average value of the mil l ions of ac res

t o be valued i n the subject cases. We have, however, found the ev i -

dence he lp fu l i n indicating a top value fo r the very b e s t lands i n

the t r a c t s . The evidence a l so shows t ha t the general area was growing

i n d e s i r a b i l i t y , and land values were increasing.

Rates of Sale

Ohio lands within the Cincinnati Land D i s t r i c t northwest of the

Ohio and below the ~ i t t l e Miami River, ceded t o the United S t a t e s by

the Greeneville Treaty of August 3 , 1795, a re comparable i n a number

of ways here relevant to many of the lands within Royce Areas 56, 71,

22 Ind. C 1 . Comm. 92 12 7

and 72. The Indiana lands i n Royce Areas 56, 71, and 72, and the

Greeneville Treaty lands in the Cincinnati Laad D i s t r i c t a r e adjacent

lands located within the va l l ey of the Ohio River o r one of i t s p r inc ipa l

t r i bu t a r i e s . Royce Areas 56, 71, and 72 and the Greenevil le Treaty

lands i n the Cincinnati D i s t r i c t have s im i l a r climates. The rou tes

and means of transportat ion t o and the acce s s ib i l i t y of the respec t ive

areas i n Ohio and Indiana f o r pioneer s e t t l e r s did no t d i f f e r g r e a t l y

though Ohio was c loser than Indiana, of course, t o e a s t e rn s t a t e s .

I The time of opening the lands f o r purchase from the United S t a t e s was

about 1801 fo r the Greeneville Treaty lands and 1808, 1811, and 1816

f o r Royce Areas 56, 72, and 71 respect ively .

The average annual r a t e of s a l e between 1800 and 1818 of lands

wi thin the Cincinnati Land D i s t r i c t ceded t o the United S t a t e s under

the Greenevil le Treaty was about 4%.

The average annual r a t e of s a l e of Royce Areas 56, 71, and 72

f o r the f i r s t few years a f t e r the t r a c t s were placed on the market

compared favorably with the average annual r a t e of s a l e of the Greene-

v i l l e lands wi thin the Cincinnati Land D i s t r i c t during the ea r l y years

they were on the market despi te the g rea te r distance of the Royce

Areas from the s e t t l e d portions of the country than most of the

Greenevil le Treaty lands.

A s pointed out already, the pre-war years, 1806-1810, were mixed

times of business prosperity and depression, with 1806 being a boom

year and 1810 being a year of rev iva l a f t e r a severe depression.

22 Ind. C 1 . Corn. 92 128

The War of i812 presumbly resul ted i n a declice of land s a l e s i n

Indiana Terr i tory bu t wnere new lands were offered f o r s a l e a s were

Area 72 lands from the Cincinnati land o f f i ce , s a l e s increased

spectacular ly 2ron t h a t o f f i c e from i 8 l l through 1812 and ~ o r ~ t i n u e d

t o increase through the war years, 1813-1814. One wr i t e r concludes

t h a t the e f f e c t of the War of 1812 on s a l e s of public lands was s l i g h t ;

t h a t Indian campaigns were nothing new on the f r o n t i e r and were n o t

p a r t i c u l a r l y detr imental t o hameseeking and settlement unless d i r e c t l y

on the o u t s k i r t s of a set t lement.

Considering a l l the circumstances, we conclude t h a t the con-

s t a n t l y increasing number of people moving in to the Northwest T e r r i -

tory from the time of i t s organization i n 1787 t o the va lua t ion d a t e s ,

being mainly persons looking f o r lands on which t o settle and make

t h e i r l i v i n g , would ind ica te t o an informed buyer of Royce Areas 56,

71, and 72 t h a t the market f o r lands f o r homesteads could be

expected t o be a t l e a s t a s good f o r Indiana lands as i t had been f o r

Ohio lands , and t h a t the steady pr ice rise i n lands around Cincinnat i

between 1790 and 1806 could be expected t o prevail a s t o the good

a g r i c u l t u r a l lands i n Indiana, assuming a continuation of the i n f l u x

of s e t t l e r s i n t o Indiana.

The r a p i d i t y of set t lement of these Royce Areas during the

years a f t e r they were f i r s t opened and the quick development of

Indiana from a t e r r i t o r y t o statehood a re convincing evidence of the

s t rong demand fo r the lands i n sa les of r e la t ive ly small t r a c t s t o

22 Ind. C 1 . Corn. 92 129

individuals. That prices subs t a n t i a l l y above the s t a tu to ry minimum

were paid for the most desirable portions of t h i s land when sold i n

small acreages i s persuasive evidence of the value of smell t r a c t s

i n these areas. However, Royce Areas 71 and 56 were very large

t r a c t s and Area 72 much larger than any of tne t r a c t s the sa les

prices of which were submitted i n support of p l a i n t i f f s ' posi t ion

tha t the value of a l l of the lands here under consideration was

$2.00 per acre on valuation dates. A prospective purchaser of the

more than two mill ion acres i n Area 71 would have t o weigh the g r e a t

demand and high pr ice obtainable f o r good agr icu l tu ra l land i n about

one-third of the area against the f a c t t h a t perhaps one-third of the

area was not good farm land. Other possible uses of the l e s s f e r t i l e

land, f o r fo res t ry or timber cul ture , f o r example, would not be a s

p rof i t ab le a s use of the land f o r homesites, a s there was not a

comerc i a l market fo r Indiana timber a t the time of valuation. The

p l a i n t i f f s ' evidence of prices paid during and shor t ly a f t e r

evaluation years_ f . . or re la t ive ly small parcels of good land by

s e t t l e r s i n and near these Royce areas i n support of the asse r t ion

tha t the f a i r market value of a l l of the lands on the evaluaaion

date was $2.00 per acre does not make allowance fo r the f a c t t h a t

the s i z e of these Royce Areas is much greater than t h a t of the lands

sold to s e t t l e r s . Moreover, none of the Royce areas here involved

contained uniformly good land whereas i t can be assumed tha t the

smaller t r a c t s sold by land off ices during the ear ly years of

22 Ind. C 1 . Corn. 92 130

sett lement of I idiaaa were tne lands tha t seemed most desirable

20 the ezr ly pioneers. A coasideration of these factors leads us

t o conclude tha t the p l a i n t i f f s overestimated the per-acre value

of the subject Royce areas.

F a i r Market Value

The Commission has found tha t the highest and best use of the

subject areas a t the valuation dates was fo r honesite settlement and

ag r i cu l t u r a l development, involving the s a l e of re la t ive ly small

acreages t o a large number of buyers.

Upon the bas i s of the e n t i r e record i n t h i s case and of the

matters discussed herein and i n the findings regarding Area 56, we --- .2 -2 - conclude t ha t the f a i r market value of Area 56 on April 24, 1806,

was $1,615,000.00 fo r the en t i r e t r a c t or about $1.05 an acre.

On the basis of the en t i re record, the findings, and the mat ters

discussed herein, we conclude t ha t the f a i r market value of Area 71

a s an e n t i r e t r a c t on January 16, 1810, was $2,620,000 or about

$1.2 5 an acre . Using the acreage found by the Commission i n the

t i t l e proceeding i n t h i s case as belonging t o the Weas, the f a i r market

value of the Weas' land i n Area 71 was approximately $686,400.00

and of the Miami and Eel River lands i n Area 71 approximately

$1,933,300.00. (See Findings 65 and Conclusions of Law, Area 71.)

Considering the whole record, rhe findings herein, and f o r the

reasons discussed i n t h i s decision, we find that the f a i r market

22 Ind. C 1 . Comm. 92 131

value of Area 72 on January 16, 1810, was $850,000.00, o r about

$1.55 an acre.

Consideration

The par t ies agree tha t the to ta l consideration which the United

States paid under the Treaty of Grouseland to the Miami, Eel River,

and Wea Indians fo r Royce Area 56 was $22,000; tha t the consideration

paid to the Weas under the Treaty of October 26, 1809 f o r t h e i r

i n t e r e s t in Area 71 was $7,500; and tha t the consideration paid t o

the Miami and Eel River Indians fo r Areas 71 and 72 under the Treaty

of September 30, 1809, was $18,728.00.

The consideration paid t o the p l a i n t i f f s as owners of Area 56

was about 1.4 cents an acre.

The consideration paid t o the Weas (p l a in t i f f s i n Docket No. 314-D)

fo r the i r i n t e r e s t i n Area 71 amounted t o l e s s than a cent and one-

half per acre.

The Treaties of September 30, 1809, with the M i a m i and Eel River

Indians for the cession of Areas 71 and 72 made no d i s t i nc t ion

between the two areas i n paying for them but agreed t o provide goods

and annuities as i f for a single t rac t . Nowever, the ownership

i n t e r e s t of the p l a in t i f f s herein is not the same with respect t o

each of the t rac t s and i n t h i s proceeding the value of Area 71 and 72

as separate t rac t s must be determined. Accordingly, the t o t a l con-

s iderat ion paid to the M i a m i and the Eel River Indians f o r Areas 71

- 22 Ind. C 1 . C m . 52

aad 72 under t he TreaCies of S ~ ? t e t i j e r 5 0 , 1609, was a?portioned

k c w e e n :he ~ w o cr-c;s o r :ts bzsis 35 : n ~ L r r e ~ p e c t i - , ~ e x i s a g e s i n

order C O deterr,inc the coasLSeratioz pzFd f o r c c h of the t r c c t s

separa te ly . (See l?indicg 65.) We heve found t h a t the p r i ce paid

by the United S t a t e s to the Miami and Eel River Tribes f o r t h e i r

i n t e r e s t i n Area 71 was approximately $13,764.80 and f o r Area 72 was

approximately $4,875.00. The per-acre p r i ce which the Miami and Eel

River Tribes were paid f o r t h e i r i n t e r e s t i n Area 71 and f o r Area 72

was approximately s.0089, l e s s than a cent. (See Finding 65 and Con-

c lus ions of Law, Area 71.)

Conclusion

'2.

:5 The considerat ion paid by the United S t a t e s , $22,000.00 f o r a l l - f

of Area 56 a t a t i m e when i t s f a i r market value was approximately

$1,615,000.00 was s o gross ly inadequate as t o be unconscionable.

Accordingly, the p l a i n t i f f s a re e n t i t l e d undsr sec t ion 2 (3) of the

Indian Claims Commission Act t o compensation f o r the d i f ference between

the a c t u a l considera t ion paid and the f a i r market value of the t r a c t .

This amounts t o $1,593,000, o r $531,000 f o r p l a i n t i f f i n Docket 314-D

and $1,062,000 t o the p l a i n t i f f s i n Dockets 253 and 131 on behalf of

the Miami and Eel River Tribes.

A t the time of cession of Area 71, the United S t a t e s pcid the

Weas, p l a i n t i f f s in Docket No. 314-D, $7,500 f o r t h e i r i n t e r e s t i n

lands i n the western p a r t of Area 71. We have found t h a t the f a i r

market value of those lands on the evaiuation date was approximately

$686,400.00. We conclude upon comparing the f a i r market value of the

22 Ind. C 1 . C a m . 92

lands wizh the cons idera t ion pa id , t h a t the cons ide ra t ion was so

g r o s s l y inadequate as t o be unconscionable. P l a i n t i f f i n Docket

No. 314-1) i s e n t i t l e d , therefore, under s e c t i o n 2 ( 3 ) of the Indian

Ciains Commission Act t o coinpensation f o r -he dif ference between the

f a i r market value of i t s lands i n Area 71 and the considerat ion paid

f o r those lands. This emounts t o $678,900.00.

The Miami and Eel River Tribes, p l a i n t i f f s i n Dockets 253 and

131, were paid approximately $13,766.80 f o r t h e i r i n t e r e s t on the I

eva luat ion date i n the eas tern port ion of Area 71, the f a i r market

value of which was approximately $1,933,300.00 on the bas i s of $1.25

per acre . We find that the considerat ion paid by the United S t a t e s

was so gross ly inadequate i n comparison wi th the f a i r market va lue

of the land a s t o be unconscionable. Accordingly, the p l a i n t i f f s i n

Dockets 253 and 131 a re e n t i t l e d t o compensation f o r the d i f fe rence

between the f a i r market value of t h e i r lands i n Area 71 and the

considera t ion paid fo r those lands. This amounts, a t $1.25 an ac re ,

t o $1,919,535.20 t o be awarded these p l a i n t i f f s .

The United Sta tes paid the Miami and Eel River Tribes, p l a i n t i f f s

i n Dockets 253 and 131, approximately $4,875 as considerat ion f o r

Area 72. On the evaluation date , the f a i r market value of the land

was $850,000. We have found t h a t the d i f fe rence between the con-

s i d e r a t i o n paid and the f a i r market value of the t r a c t i s so g r e a t

a s t o make the considerztion unconscionable. These p l a i n t i f f s a r e ,

22 Ind. C 1 . Corn. 92

accordingly, e n ~ i t l e d t o co;n?ensation under sec t ion 2 (3) of the

Indian Claims Commission Act f o r the d i f fe rence betxeen the f a i r

market value of Area 72 and the considerat ion paid by the United

S t a t e s . That amounts t o $845,125.00, t o be awarded p l a i n t i f f s i n

Dockets 253 and 131 on behalf of the Miami and Eel River Tribes.

(See Findings 14, 65,and Conclusions of Law, Area 72 .)

An order t h a t the p l a i n t i f f s a re e n t i t l e d t o recover the amounts

here s e t f o r t h w i l l be entered. There a r e no o f f s e t s t o be deducted

i n t h i s case. The Delaware Tribe of Indians and the Absentee Delaware

Tr ibe of Oklahoma, 21 Ind. C1. Comm. 18 (1969).

-curr ing : V

Commissioner Vance did not p a r t i c i p a t e i n t h i s decision.

BUREAU W AMERICAN ETHIIOLDCI

t Appendix A- EIGHTEEHTU ANCUAL REPORT. -L C X X ~