After the hearing of the former appeal in this case,
170 U. S. 170 U.S.
1, and after the decree of this Court determining the rights of the
parties and remanding the case to the Court of Claims with
instructions to enter a new judgment for the net amount actually
received by the government for the Kansas lands, without interest,
less the amount of lands upon the basis of which settlement was
made with the Tonawandas, and other just deductions, etc., and
after the Court of Claims had complied with this mandate in
accordance with its terms, a motion on the part of the United
States to this Court to direct the Court of Claims to find further
facts comes too late.
As the judgment of the Court of Claims now appealed from was in
exact accordance with the mandate of this Court, the appeal from it
is dismissed.
This case arose from a motion by the Indians to dismiss the
appeal of the United States for want of jurisdiction, or, in the
alternative, to affirm the judgment of the Court of Claims upon the
ground that the question involved is so frivolous as not to need
further argument, and also from a counter-motion by the United
States for an order upon the Court of Claims to make a further
finding of facts.
Page 173 U. S. 465
By an Act of Congress passed January 28, 1893, c. 52, 27 Stat.
426, the Court of Claims was authorized to hear and determine, and
to enter up judgment upon, the claims of the Indians "who were
parties to the Treaty of Buffalo Creek, New York," of January 15,
1838, to enforce an alleged liability of the United States for the
value of certain lands in Kansas set apart for these Indians and
subsequently sold by the United States, as well as for certain
amounts of money agreed to be paid upon their removal.
In its findings of fact, the Court of Claims decided that the
Indians described in the jurisdictional act above referred to
as
"the New York Indians, being those Indians who were parties to
the Treaty of Buffalo Creek, New York, on the 15th of January,
1838, were the following: Senecas, Onondagas, Onondagas residing on
the Seneca reservation, Onondagas at Onondaga, Cayugas, Cayugas
residing on the Seneca reservation, Cayuga Indians residing in the
State of New York, Tuscaroras, Tuscaroras residing in the State of
New York, Oneidas residing in New York at Green Bay (Wisconsin),
and in the Seneca reservation, Oneidas, St. Regis, St. Regis in New
York (the American party of the St. Regis resided in the State of
New York), Stockbridges, Munsees, Brothertowns."
Upon the whole case, however, the Court of Claims found, as a
conclusion of law from the facts, that the Indians had abandoned
their claim, and accordingly dismissed their petition. On appeal to
this Court under the act of Congress above mentioned, the judgment
of the Court of Claims was reversed,
170 U. S. 170 U.S.
1, this Court being of opinion:
1. That the title acquired by the Indians under the treaty was a
grant
in praesenti of a legal title to a defined tract,
described by metes and bounds, containing 1,824,000 acres, in the
now State of Kansas.
2. That there was no uncertainty as to the land granted, or as
to the identity of the grantees.
3. That the tribes for whom the Kansas lands were intended as a
future home were the Senecas, Onondagas, Cayugas, Tuscaroras,
Oneidas, St. Regis, Stockbridges, Munsees, and Brothertowns,
Page 173 U. S. 466
residing in the State of New York, as found in the first finding
of fact by the Court of Claims.
4. That the grant to the Indians was of the entire tract, as
specified in article two of the treaty, and not an allotment to
them of 320 acres for each emigrant.
5. That the government had received the full consideration
stipulated by the treaty, so far as such consideration was a
valuable one for the Kansas lands, and had neglected to render any
account of the same.
6. That the Indians had neither forfeited nor abandoned their
interest in the Kansas lands, and that they were entitled to a
judgment.
Thereupon the case was remanded to the Court of Claims with
instructions
"to enter a new judgment for the net amount actually received by
the government for the Kansas lands, without interest, less any
increase in value attributable to the fact that certain of these
lands were donated for public purposes, as well as the net amount
which the court below may find could have been obtained for the
lands otherwise disposed of, if they had all been sold as public
lands, less the amount of land upon the basis of which settlement
was made with the Tonawandas, and less 10,240 acres allotted to the
thirty-two New York Indians, as set forth in finding 12, together
with such deductions as may seem to the court below to the just,
and for such other proceedings as may be necessary and in
conformity with this opinion."
In obedience to this mandate, the Court of Claims on November
14, 1898, made certain further findings of fact, set forth in the
margin,
* and as a
conclusion of law decreed
Page 173 U. S. 467
that the claimants recover from the United States the sum of
$1,967,056, whereupon the United States took this appeal, and now
move the court that the Court of Claims be ordered to further find
and certify to this Court:
"First. What constituted the Onondagas at Onondaga, Oneidas at
Green Bay, Stockbridges, Munsees, and Brothertowns, parties to the
Treaty of Buffalo Creek, as proclaimed April 4, 1840?"
"Second. Whether or not the Oneidas at Green Bay, Stockbridges,
Munsees, and Brothertowns resided in the State of
Page 173 U. S. 468
New York when the Treaty of Buffalo Creek was proclaimed, or
when they became parties thereto."
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As a disposition of either one of these motions will practically
dispose of the other, both may properly be considered together.
The preamble to the Treaty of Buffalo Creek of January 28, 1838,
7 Stat. 550, recites that
"the following articles of a treaty are entered into between the
United States of America and the several tribes of the New York
Indians, the names of whose chiefs, headmen, and warriors are
hereto subscribed, and those who may hereafter assent to this
treaty, in writing, within such time as the President shall
appoint."
The second article of the treaty also recites that
"it is understood and agreed that the above described country
[the land ceded] is intended a a future home for the following
tribes, to-wit, the Senecas, Onondagas, Cayugas, Tuscaroras,
Oneidas, St. Regis, Stockbridges, Munsees, and Brothertowns
residing in the State of New York, and the same is to be divided
equally among them according to their respective numbers, as
mentioned in the schedule hereunto annexed."
The treaty purports to be signed by the headmen of the Senecas,
Tuscaroras, Oneidas residing in the State of New York as well as at
Green Bay, St. Regis, Onondagas residing on the Seneca reservation,
the principal Onondaga warriors, Cayugas, and the principal Cayuga
warriors; but the schedule, immediately following the signatures,
contains also the names of the Stockbridges, Munsees, and
Brothertowns. The commissioner on behalf of the United States
certifies that this schedule was made before the execution
Page 173 U. S. 469
of the treaty. Following this there are certain certificates by
the commissioner to the effect that the treaty was assented to by
the Senecas, Tuscaroras, St. Regis, Oneidas, Cayugas, and
Onondagas. On January 22, 1839, the President sent the treaty to
the Senate, with the following message:
"To the Senate of the United States: I transmit a treaty
negotiated with the New York Indians which was submitted to your
body in June last, and amended."
"The amendments have, in pursuance of the requirement of the
Senate, been submitted to each of the tribes assembled in council
for their free and voluntary assent or dissent thereto. In respect
to all the tribes, except the Senecas, the result of this
application has been entirely satisfactory. It will be seen by the
accompanying papers that of this tribe, the most important of those
concerned, the assent of forty-two out of eighty-one chiefs has
been obtained. I deem it advisable under the circumstances to
submit the treaty in its modified form to the Senate for its advice
in regard of the sufficiency of the assent of the Senecas to the
amendment proposed."
"[Signed] M. Van Buren"
"Washington, 21st January, 1839"
The assent of the Senecas having been procured, the treaty was
afterwards ratified.
The question was thus presented to the Court of Claims whether
the Stockbridges, Munsees, and Brothertowns, who did not actually
sign the treaty, gave their assent, and the Court of Claims found
as a fact that they were actually parties to it. There was
certainly some evidence in support of this finding, which also
accorded with the opinion of this Court in
Fellows v.
Blacksmith, 19 How. 366, in which an objection was
taken on the argument to the validity of the treaty on the ground
that the Tonawanda band of the Seneca Indians was not represented
by the chief and headmen of the band in the negotiations and
execution of it. "But," said the court,
"the answer to this is that the treaty, after executed and
Page 173 U. S. 470
ratified by the proper authorities of the government, becomes
the supreme law of the land, and the courts can no more go behind
it for the purpose of annulling its effect and operation than they
can behind an act of Congress."
But we are now asked to direct the Court of Claims to find:
First. What constituted the Onondagas at Onondaga, Oneidas at
Green Bay, Stockbridges, Munsees, and Brothertowns parties to the
Treaty of Buffalo Creek, as proclaimed April 4, 1840?
Second. Whether or not the Oneidas at Green Bay, Stockbridges,
Munsees, and Brothertowns resided in the State of New York when the
Treaty of Buffalo Creek was proclaimed, or when they became parties
thereto.
But if these be material facts, they were equally so when the
findings were made at the first hearing, and the attention of the
court should have been then called to the matter, and a more
particular finding requested. The motion contemplates an order upon
the court to send up the testimony upon which it had found the
ultimate fact, that these three tribes were parties to the treaty,
and inferentially for us to pass upon the sufficiency of that
testimony to establish such ultimate fact. If the finding of these
probative facts were deemed material, within the case of
United
States v. Pugh, 99 U. S. 265,
application should have been made when the case was first sent here
for a finding of such facts. In the
Pugh case, the Court
of Claims found certain circumstantial facts, and the question this
Court was called upon to decide was whether those facts were
sufficient to support the judgment. But this Court did not hold
that where the Court of Claims was satisfied that the evidence
before it fully established a fact, it was bound to insert all the
evidence upon that point if the losing party thought the court made
a mistake. This Court has repeatedly held that the findings of the
Court of Claims in an action at law determine all matters of fact,
like the verdict of a jury, and that, where there is any evidence
of a fact which they find, and no exception is taken, their finding
is final.
Stone v. United States, 164 U.
S. 380;
Desmore v. United
States, 93
Page 173 U. S. 471
U.S. 605;
Talbert v. United States, 155 U. S.
45. And in
McClure v. United States,
116 U. S. 145,
this Court distinctly held that it would not remand a case to the
Court of Claims, with directions to return whether certain distinct
propositions, in requests for findings of fact presented to that
court at the trial of the case were established and proved by the
evidence, if it appeared that the object of the request to have it
so remanded was to ask this Court to determine questions of fact
upon the evidence. In
The Santa
Maria, 10 Wheat. 431,
23 U. S. 444,
it was said by Mr. Justice Story:
"We think, therefore, that upon principle, every existing claim
which the party has omitted to make at the hearing upon the merits,
and before the final decree, is to be considered as waived by him,
and is not to be entertained in any future proceedings, and when a
decree has been made which is in its own terms absolute, it is to
be carried into effect according to those terms, and excludes all
inquiry between the litigating parties as to liens or claims which
might have been attached to it by the court if they had been
previously brought to its notice."
See also Hickman v. Fort Scott, 141 U.
S. 415.
But it is difficult to see how the proposed findings, if made,
could be deemed material. This Court held that the Treaty of
Buffalo Creek was a grant
in praesenti of a certain tract
of lands in Kansas, described by metes and bounds. The second
article of the treaty indicates that the grant was made upon the
basis of 320 acres for each inhabitant, the recital being "320
acres for each soul of said Indians, as their numbers are at
present computed." But the grant was not of 320 acres for each
soul, but of a tract of land
en bloc. Under the decision
of the court, a present title thereto passed to the Indians. This
being the case, the United States are in no position to show that
the government erred in its computation of souls, or that certain
tribes who are named in the treaty did not assent to it. If the
land passed under the treaty, then it is only a question between
the Indians themselves who were signatories thereto or assented to
its terms. The only object of the proposed order, though it is but
faintly outlined in the briefs, must be to show that if the
Stockbridges, Munsees, and Brothertowns
Page 173 U. S. 472
never assented to the treaty, the grant should be reduced in the
proportion of 320 acres to each member of these tribes. But this is
an indirect attack upon the decree. The case was remanded to the
Court of Claims not to determine who were actually parties to the
treaty, or to recompute the number of souls, or in any other way to
reduce the extent of the grant, but to render a judgment for the
amount received by the government for the Kansas lands, less an
amount of lands upon the basis of which settlement had been made
with the Tonawandas, and less the 10,240 acres allowed to 32 New
York Indians, "together with such other deductions as may seem to
the court below to be just." But there is nothing to indicate that
the Court of Claims was at liberty to redetermine who were parties
to the treaty and entitled to the benefit of its provisions. That
question had already been settled beyond recall. The motion for
additional findings must therefore be denied.
The denial of this motion practically disposes of the appeal, as
the action of the court below in its supplemental findings was in
strict conformity with the mandate of this Court. It found the
amount of land sold by the United States, the cost and expense of
surveying and platting said lands, the number of acres allowed to
the Tonawanda band, the number allotted to the 32 Indians, and,
after deducting the expense of surveying and platting, the amount
paid by the United States in settlement of the Tonawanda band and
32 Indians, there remained of the value of the land at $1.25 per
acre, the sum of $1,967,056. The court further found who the New
York Indians were, who were parties to the treaty, and, as a
conclusion of law, judgment was entered for the above amount. This
Court has repeatedly held that a second writ of error does not
bring up the whole record for reexamination, but only the
proceedings subsequent to the mandate, and if those proceedings are
merely such as the mandate commands, and are necessary to its
execution, the writ of error will be dismissed, as any other rule
would enable the losing party to delay the issuing of the mandate
indefinitely.
The Santa
Maria, 10 Wheat. 431;
Roberts v.
Cooper, 20 How. 467;
Tyler v.
Magwire, 17
Page 173 U. S. 473
Wall. 253;
The Lady Pike, 96 U. S.
461;
Supervisors v. Kenicott, 94 U. S.
498;
Stewart v. Salamon, 97 U. S.
361.
In
Stewart v. Salamon, supra, Mr. Chief Justice Waite
observed:
"An appeal will not be entertained by this Court from a decree
entered in a circuit or other inferior court in exact accordance
with our mandate upon a previous appeal. Such a decree, when
entered, is in effect our decree, and the appeal would be from
ourselves to ourselves. If such an appeal is taken, however, we
will, upon the application of the appellee, examine the decree
entered, and, if it conforms to the mandate, dismiss the case, with
costs. If it does not, the case will be remanded, with proper
directions for the correction of the error. The same rule applies
to writs of error."
Humphrey v. Baker, 103 U. S. 736;
Clark v. Keith, 106 U. S. 464;
Mackall v. Richards, 116 U. S. 45.
The appeal will therefore be
Dismissed.
THE CHIEF JUSTICE, MR. JUSTICE HARLAN, and MR. JUSTICE BREWER
dissented.
*
"
Findings"
"Assuming that the claimants were entitled to 1,824,000 acres of
land under the Treaty of January 15, 1838, the court finds that, of
these lands, the defendants sold 84,453.29 acres, for which they
received the sum of $1.25 per acre. They otherwise disposed of the
balance of said lands in granting the same for public purposes, and
for the lands disposed of for public purposes they could have
obtained the sum of $1.25 per acre."
"The land at $1.25 per acre amounts to the sum of $2,280,000.
The court, in finding that the defendants could have sold the land
at $1.25, does not take into consideration any increased value
given to such lands because of any donation of land for public
purposes, and the court finds that the price at which the
defendants sold the land was not increased because of any donation
of other lands for public purposes. The court finds that the cost
and expense of surveying and platting said lands was the sum of
$45,000. The court finds that the number of acres allowed the
Tonawanda band of the claimants in the settlement of their claim
was 208,000 acres, which, at the price of $1.25 per acre, less the
proportionate cost and expense of surveying and platting, amounts
to the sum of $254,800. The number of acres allotted to the 32
Indians, as set forth in finding 12, was 10,340 acres, which, at
the rate of $1.25 per acre, less the proportionate cost and expense
of surveying and platting, amounts to $12,544."
The court further finds that, after deducting the costs and
expense of surveying and platting said lands, the amount paid by
the defendants in the settlement with the Tonawanda band, and the
value of the allotment to the 32 Indians, there remains of said
$2,280,000 the sum of $1,967,056.
The court further finds: the New York Indians who were parties
to the Treaty of Buffalo Creek of 1838, as amended and proclaimed,
were the following:
Senecas . . . . . . . . . . . . . . . . 2,309
Onondagas on Senecas' reservation . . . 194
Cayugas . . . . . . . . . . . . . . . . 130
-----
2,633
Onondagas at Onondaga . . . . . . . . . 300
Tuscaroras. . . . . . . . . . . . . . . 273
Saint Regis in New York . . . . . . . . 350
Oneidas at Green Bay. . . . . . . . . . 600
Oneidas in New York . . . . . . . . . . 620
Stockbridges. . . . . . . . . . . . . . 217
Munsees . . . . . . . . . . . . . . . . 132
Brothertowns. . . . . . . . . . . . . . 360
-----
Total . . . . . . . . . . . . . . 5,485
