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124 C. Cls.

FIXED FEE.

See Contracts XXXIV, XXXV, XXXVI, XXXVII, XXXVIII,

XXXIX, XL, XLI, XLII, XLIII.
FRAUD.

See Contracts XII, XXI, XXII, XXIII, XXIV, XXV.
INCENTIVE PAY.

See Pay and Allowances I, II, III, IV, V, VI, VII.
INDIAN CLAIMS COMMISSION, APPEALS FROM.

I. On a claim for compensation for 14,160,000 acres of

land which, the appellant contended, had been
promised the Cherokee Indians during the nego-
tiation of a treaty made between them and the
United States in 1817, but which, by mistake, was
not included in that treaty and was never there-
after transferred to them, where the Indian Claims
Commission decided that the claim prosecuted
before the Commission by appellants was without
merit and the claim was dismissed, it is held that
whatever obligation can be inferred from the lan-
guage used by Government officials during and
after the negotiation of the treaty was fulfilled
fairly and in good faith by the Government's sub-
sequent conduct in regard to the Cherokee Indians
and the decision of the Indian Claims Commission,
dismissing the claim, is affirmed. Cherokee Na-

tion (App. 2-52), 127.

Indians Om 11.
II. It is held that the Indian Claims Commission's de-

cision was sufficiently supported by the evidence,
which consisted of documents and historical rec-
ords and statements, from which the Commission
made findings of facts which quoted the pertinent
documents and which fully supported the con-

clusions of the Commission. Id.

United States Om 105, 113.
III. The land for which compensation was sought before

the Indian Claims Commission in the instant case
is the strip, containing 14,160,000 acres, bounded
on the east by the 100th meridian, west longitude,
on the west by the Rio Grande River, in New
Mexico, and lying between the 36th and 37th
parallels of north latitude, commonly known as

the Cherokee "outlet”. Id.
Indians Om 11.

124 C. Cls.

INDIAN CLAIMS COMMISSION, APPEALS FROM-Con.

IV. The claim is based upon the alleged oral promise

made by the United States Treaty Commissioners
during the negotiations resulting in the execution
of the treaty of July 8, 1817 (7 Stat. 156). The
claim asserts that the promise was omitted by
mistake from the terms of the treaty as written
but was acknowledged and confirmed many times
thereafter by the officers of the United States.

Id.
Indians Om 11.
V. It is held, on the record presented to the Commission,

that the assurances of an outlet given in connec-
tion with and after the treaty of 1817, were vague,
indefinite and incapable of administration without
further negotiation and agreement, and it was
recognized that the Cherokees were entitled to
have these negotiations carried on in keeping with
the spirit of the vague assurances which had been
given to them. The treaty of 1828 (7 Stat. 311),
whereby the Cherokees exchanged all their lands
in Arkansas for a tract of 7,000,000 acres west of
the western boundary of Arkansas, recognized in
the most explicit terms that the Cherokees were
entitled to more than the lands which had been
previously surveyed and definitely bounded for
them, and the question whether the "outlet"
meant absolute ownership or merely a right of
passage or use was resolved in their favor by the
issuance in 1838 of an outright patent to them of

the lands all the way to the 100th meridian. Id.

Indians Om 11.
VI. The Cherokee Nation of Indians in Oklahoma, in

behalf of the Western Cherokee Indians, filed a
petition with the Indian Claims Commission, to
recover the true value of two-thirds of a tract of
13,574,135.14 acres of land in the Indian Territory
which, the petitioners alleged, was owned ex-
clusively by the Western Cherokees but which
was taken from them by the United States when
the Government in 1838 settled the Eastern Chero-
kees upon that part of the land. By an agree-
ment of the parties, approved by the Indian Claims
Commission, the proceeding before the Commis-
sion was limited, in the first instance, to the ques-
tion whether the Western Cherokees were the ex-
clusive owners of the land on which the Eastern

124 C. Ols.

INDIAN CLAIMS COMMISSION, APPEALS FROM-Con.

Cherokees were settled. The Commission made
findings of fact and rendered an opinion deter-
mining that the Western Cherokees were not the
exclusive owners, and dismissing the petition.
The case comes before the Court of Claims on
appeal from the Commission's decision. Upon
the basis of the pertinent history, treaties and
other documents, it is held that the decision of the
Indian Claims Commission is adequately sup-
ported and is correct and the decision is affirmed.

Cherokee Nation (App. 3–52), 315.

Indians am 11.
VII. The Cherokee Indians were originally settled in

Western North Carolina, Eastern Tennessee and
Northern Georgia. The “Lower Cherokees,” who
lived principally by hunting, desired to move
west of the Mississippi, where they would not be
encroached upon by the whites, and at the sug-
gestion of President Jefferson they sent an ex-
ploring party to Arkansas to see if a suitable
location could be found. Under the Treaty of
July 8, 1817 (7 Stat. 156), which resulted, an
exchange of lands was provided as well as pro-
portionate division of existing annuities between
the Cherokees who remained in the east and those

who went west. Id.

Indians Om 11.
VIII. Under the Treaty of February 27, 1819 (7 Stat. 195),

the Eastern Cherokees were assured that the lands
already conveyed by the Cherokee Nation to the
United States in exchange for the lands in the
west were in full settlement of all claims against

the Cherokees in that regard. Id.

Indians Om 11.
IX. Upon the encroaching of white men in Arkansas,

the Cherokees settled there desired to go farther
west. By the Treaty of May 6, 1828 (7 Stat. 311),
the United States granted what turned out to be
more than 13,000,000 acres of land in the Indian
Territory in exchange for the 3,285,000 acres in
Arkansas then held by the Cherokees. Under the
terms of this treaty, it is held that provision was
then being made for all the Cherokees, including
those in the east, or as many of them as might later

come to the lands granted by the treaty. There
249444-53- -88

124 C. Cls.

INDIAN CLAIMS COMMISSION, APPEALS FROM-Con.

is nothing in the 1828 treaty or in the history of
the times to indicate that when or if the Eastern
Cherokees did come to the western territory they
would have only limited political or property

rights. Id.
Indians Om 11.
X. By the Treaty of December 29, 1835 (7 Stat. 478),

the Cherokees purported to cede to the United
States all their lands east of the Mississippi River
for five million dollars and agreed to remove, within
two years, to the lands in Indian Territory, but
this treaty was made by unauthorized persons and
was repudiated by the responsible representatives
of the Eastern Cherokees. However, the faction
of the Eastern Cherokees which made the 1835
treaty migrated west and were taken in by the
Western Cherokees under their government and
laws. The rest of the Eastern Cherokees were
forcibly removed to the Cherokee lands in the

Indian Territory. Id.

Indians Com 11.
XI. The Eastern Cherokees, forcibly removed, refused

to submit to the established government of the
Western Cherokees, and set up their own laws and
government. There ensued a period of con-
troversy and conflict. The matters in controversy
were referred, by agreement, to a commission ap-
pointed in 1846 by the President. This com-
mission decided, with regard to the claim of the
Western Cherokees to the exclusive title to the
lands granted by the Treaty of 1828, that the
claim was not valid. The decision of the com-

mission is persuasive, if not conclusive. Id.

Indians Om 11.
XII. The correctness of the decision of the commission

depended upon the meaning of the Treaty of 1828,
and the Western Cherokees were under no duress

when they made that treaty. Id.

Indians Om 11.
XIII. The Treaty of August 6, 1846 (9 Stat. 871), entered

into only a few days after the decision of the com-
mission appointed by the President, merely em-
bodied the commission's decision, so far as the

ownership of the lands was concerned. Id.
Indians om 11.

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124 C. Cls.

INDIAN CLAIMS COMMISSION, APPEALS FROM-Con.

XIV. On an appeal from a decision of the Indian Claims

Commission (I. C. C. Docket No. 10) determining
that the Pawnee Tribe was entitled to recover
specific amounts under claims 6 and 7 but was not
entitled to recover on its other claims for just com-
pensation for land taken by or ceded to the United
States, it is held that the Commission's deter-
mination as to claim 6 and 7 was proper and that
the Commission's determination adverse to the
tribe should be set aside and the claim remanded
to the Commission for further proceedings not
inconsistent with the opinion of the Court of

Claims. Pawnee Indian Tribe, 324.

United States Om 113.
XV. Where it is shown that the evidence presented to

the Indian Claims Commission was entirely
inadequate to form a basis for just, equitable and
final disposition of the instant claim; it is held that
the Commission should have referred the case to
its Investigation Division for inquiry and report.

Id.

United States Om 113.
XVI. The United States Court of Claims in reviewing on

appeal a decision of the Indian Claims Com-
mission has authority to examine and consider
facts contained in official documents pertinent to
the claim whether or not the Commission took
judicial notice of such historical facts and docu-

ments. Id.

United States no 113.
XVII. Where it is shown that the record presented to the

Indian Claims Commission in the instant case was
entirely inadequate to afford a basis for a just,
equitable and final disposition of all the claims
involved, it is ordered that the Commission's
determination adverse to the Pawnee Tribe be set
aside and the claim remanded to the Commission

for further proceedings. Id.

United States Om 113.
XVIII. On all the facts and circumstances, and from the

language of the 1892 Agreement with the Pawnees
and the Act of 1893 ratifying and confirming such
agreement, the Commission's determination is
affirmed that title to the land involved in the 6th
and 7th claims passed to the United States on

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