|ARTICLE 1.||The Kansas do hereby cede to the United States all the lands lying within the State of Missouri, to which the said nation have title or claim; and do further cede and relinquish, to the said United States, all other lands which they now occupy, or to which they have title or claim, lying West of the said State of Missouri, and within the following boundaries: beginning at the entrance of the Kansas river into the Missouri river; from thence North to the North-West corner of the State of Missouri; from thence Westwardly to the Nodewa river, thirty miles from its entrance into the Missouri; from thence to the entrance of the big Nemahaw river into the Missouri, and with that river to its source; from thence to the source of the Kansas river, leaving the old village of the Pania Republic to the West; from thence, on the ridge dividing the waters of the Kansas river from those of the Arkansas, to the Western boundary of the State line of Missouri and with that line, thirty miles, to the place of beginning.|
|ARTICLE 2.||From the cession aforesaid, the following reservation for the use of the Kansas nation of Indians shall be made, of a tract of land, to begin twenty leagues up the Kansas river, and to include their village on that river; extending West thirty miles in width, through the lands ceded in the first Article, to be surveyed and marked under the direction of the President, and to such extent as he may deem necessary, and at the expense of the United States. The agents for the Kansas, and the persons attached to the agency, and such teachers and instructors as the President shall authorize to reside near the Kansas, shall occupy, during his pleasure, such lands as may be necessary for them within this reservation.|
|ARTICLE 3.||In consideration of the cession of land and relinquishments of claims, made in the first Articles, the United States agree to pay to the Kansas nation of Indians, three thousand five hundred dollars per annum, for twenty successive years, at their villages, or at the entrance of the Kansas river, either in money, merchandise, provisions, or domestic animals, at the option of the aforesaid Nation; and when the said annuities, or any part thereof., is paid in merchandise, it shall be delivered to them at the first cost of the goods in Saint Louis, free of transportation.|
|ARTICLE 4.||The United States, immediately upon the ratification of this convention, or as soon thereafter as may be, shall cause to be furnished to the Kansas Nation, three hundred head of cattle, three hundred hogs, five hundred domestic fowls, three yoke of oxen, and two carts, with such implements of agriculture as the Superintendant of Indian Affairs may think necessary; and shall employ such persons to aid and instruct them in their agriculture, as the President of the United States may deem expedient; and shall provide and support a blacksmith for them.|
|ARTICLE 5.||Out of the lands herein ceded by the Kansas Nation to the United States, the Commissioner aforesaid, in behalf of the said United States, doth further covenant and agree, that thirty-six sections of good lands, on the Big Blue river, shall be laid out under the direction of the President of the United States, and sold for the purpose of raising a fund, to be applied, under the direction of the President, to the support of schools for the education of the Kanzas children, within their Nation.|
|ARTICLE 6.||From the lands above ceded to the United States, there shall be made
the following reservations, of one mile square, for each of the half
breeds of the Kanzas nation, viz:
For Adel and Clement, the two children of Clement; for Josette, Julie, Pelagie, and Victoire, the four children of Louis Gonvil; for Marie and Lafleche, the two children of Baptiste of Gonvil; for Laventure, the son of Francis Laventure; for Elizabeth and Pierre Carbonau, the children of Pierre Brisa; for Louis Joncas; for Basil Joncas; for James Joncas; for Elizabeth Datcherute, daughter of Baptiste Datcherute; for Joseph Butler; for William Rodgers; for Joseph Coté; for the four children of Cicili Compáre, each one mile square; and one for Joseph James, to be located on the North side of the Kanzas river, in the order above named, commencing at the line of the Kanzas reservation, and extending down the Kanzas river for quantity.
|ARTICLE 7.||With the view of quieting all animosities which may at present exist between a part of the white citizens of Missouri and the Kanzas nation, in consequence of the lawless depredations of the latter, the United States do further agree to pay their own citizens, the full value of such property as they can legally prove to have been stolen or destroyed since the year 1815: Provided, The sum so to be paid by the United States shall not exceed the sum of three thousand dollars.|
|ARTICLE 8.||And whereas the Kanzas are indebted to Francis G. Choteau, for credits given them in trade, which they are unable to pay, and which they have particularly requested to have included and settled in the present Treaty; it is, therefore, agreed on, by and between the parties to these presents, that the sum of five hundred dollars, towards the liquidation of said debt, shall be paid by the United States to the said Francois G. Choteau.|
|ARTICLE 9.||There shall be selected at this place such merchandise as may be desired, amounting to two thousand dollars, to be delivered at the Kanzas river, with as little delay as possible; and there shall be paid to the deputation now here, two-thousand dollars in merchandise and horses, the receipt of which is hereby acknowledged; which, together with the amount agreed on in the 3d and 4th articles, and the provisions made in the other articles of this Treaty, shall be considered as a full compensation for the cession herein made.|
|ARTICLE 10.||Lest the friendship which is now established between the United States and the said Indian Nation should be interrupted by the misconduct of individuals, it is hereby agreed, that for injuries done by individuals, no private revenge or retaliation shall take place, but instead thereof, complaints shall be made by the party injured, to the other by the said nation, to the Superintendent, or other person appointed by the President to the Chiefs of said nation. And it shall be the duty of the said Chiefs, upon complaints being made as aforesaid, to deliver up the person or persons against whom the complaint is made, to the end that he or they may be punished, agreeably to the laws of the State or Territory where the offence may have been committed; and in like manner, if any robbery, violence, or murder, shall be committed on any Indian or Indians belonging to said nation, the person or persons so offending shall be tried, and, if found guilty, shall be punished in like manner as if the injury had been done to a white man. And it is agreed, that the Chiefs of the Kanzas shall, to the utmost of their power, exert themselves to recover horses or other property which may be stolen from any citizen or citizens of the United States, by any individual or individuals of the Nation; and the property so recovered shall be forthwith delivered to the Superintendent, or other person authorized to receive it, that it may be restored to its proper owner; and in cases where the exertions of the Chiefs shall be ineffectual in recovering the property stolen as aforesaid, if sufficient proof can be adduced that such property was actually stolen, by any Indian or Indians belonging to the said nation, the Superintendent or other officer may deduct from the annuity of the said nation a sum equal to the value of the property which has been stolen. And the United States hereby guarantee, to any Indian or Indians, a full indemnification for any horses or other property which may be stolen from them by any of their citizens: Provided, That he property so stolen cannot be recovered, and that sufficient proof is produced that it was actually stolen by a citizen of the United States. And the said Nation of Kanzas engage, on the requisition or demand of the President of the United States, or of the Superintendent, to deliver up any white man resident amongst them.|
|ARTICLE 11.||It is further agreed on, by and between the parties to these presents, that the United States shall forever enjoy the right to navigate freely all water courses or navigable streams within the limits of the tract of country herein reserved to the Kanzas Nation; and that the said Kanzas Nation shall never sell, relinquish, or in any manner dispose of the lands herein reserved, to any other nation, person or persons whatever, without the permission of the United States for that purpose first had and obtained. And shall ever remain under the protection of the United States, and in friendship with them.|
|ARTICLE 12.||This Treaty shall take effect, and be obligatory on the contracting parties, as soon as the same shall be ratified by the President, by and with the consent and advice of the Senate of the United States.|
|In testimony whereof, the said William Clark, commissioner as aforesaid, and the deputation, chiefs, head men, and warriors of the Kanzas nation of Indians, as aforesaid, have hereunto set their hands and seals, this third day of June, in the year of our Lord eighteen hundred and twenty-five, and of the independence of the United States of America the forty-ninth year.|
|R. Wash, secretary,|
W. B. Alexander, sub Indian agent,
John F. A. Sanford,
G. C. Sibley, United States Commissioner,
Baronet Vasquez, United States sale agent,
Jno. K. Walker,
Jno. Simonds, Jr.
Nom-pa-wa-rah, or the White Plume
Ky-he-ga-wa-ti-nin-ka, or the Full Chief
Ky-he-ga-wa-che-he, or the Chief of Great Valour
Ky-he-ga-shin-ga, or the Little Chief
Me-chu-ghin-ga, or the Little White Bear
Hu-ru-ah-te, his x mark, or the Real Eagle,
Ca-she-se-gra, his x mark, or the track that sees far,
Wa-can-da-ga-tun-ga, his x mark, or the Great Doctor,
O-pa-she-ga, his x mark, or the Cooper,
Cha-ho-nush, his x mark,
Ma-he-ton-ga, his x mark, or the American,
=============================== AN ACT Be it enacted by the Senate and House of Representatives
Be it enacted by the Senate and House of Representatives
724 F2d 869 Jan. 4, 1984
Topeka Chambers Industrial Development Corporation 1-23
724 F.2d 869
Tommy Joe DENNISON and Leonard Franklin Dennison, for
certain heirs of twenty-three Kaw half-breed Indians,
Nos. 81-2376, 81-2494.
United States Court of Appeals,
Jan. 4, 1984.
David Burlingame, Denver, Colo. (Martin M. Berliner of O'Connor & Hannan, Denver, Colo., and J.B. Craig of Bachmann, Arnold, Graybill & Craig, Wichita, Kan., with him on brief), for appellants/cross-appellees.
John C. Christie, Jr., Washington, D.C. (J. William Hayton, Stephen J. Landes, and Lucinda O. McConathy of Bell, Boyd & Lloyd, Washington, D.C., and Donald R. Newkirk and Gregory J. Stucky of Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., with him on brief), for appellees/cross-appellants.
Before SETH, Chief Judge, McWILLIAMS, Circuit Judge, and KERR, District Judge.
McWILLIAMS, Circuit Judge.
An 1825 treaty between the United States and the Kansas or Kaw Indians reserved, inter alia, from the cession of land by the Kaws to the United States, one-mile square tracts of land for each of 23 named half-breeds. Treaty with the Kansas Nation of Indians, June 3, 1825, 7 Stat. 244. This proceeding seeks to determine present ownership of the land thus reserved in the 1825 treaty. The land involved comprises approximately 14,500 acres. It is located in the State of Kansas, on the north side of the Kansas River, and includes a portion of the City of Topeka.
The plaintiffs in the instant case are Tommy Joe Dennison and Leonard Franklin Dennison, acting on behalf of themselves and on behalf of a class of alleged heirs of the 23 Kaw half-breeds listed in the 1825 Treaty. The two named defendants have been sued individually and as representatives of all current owners of the 23 square miles reserved in the 1825 Treaty. The named defendants are Topeka Chambers Industrial Development Corporation, which owns a 225-acre tract within the area in question, and Security Benefit Life Insurance Company, which holds a mortgage on that property.
The complaint sets forth two causes of action. Jurisdiction is based on 28 U.S.C. Sec. 1331 and 28 U.S.C. Sec. 1332. In the first cause of action, the plaintiffs allege that Article 11 of the 1825 Treaty imposed a restriction on the half-breeds' ability to alienate the 23 tracts reserved to them under Article 6 of the Treaty, and that Article 11 required the United States to consent to any attempted transfer by the half-breeds to others. It was further alleged in the first cause of action that the restriction on alienation in the 1825 Treaty has never been changed, and has remained operative from 1825 to the present. The plaintiffs then allege that the United States has never consented to any transfer by any of the 23 half-breeds or their heirs, and that, accordingly, all transfers of these lands from 1825 until the present are invalid. In a second cause of action, the plaintiffs allege that the numerous transfers of these lands since 1825 are void, because the initial transfers from the half-breeds were based on fraud and duress.
By answer, the defendants alleged, inter alia, that plaintiffs' causes of action were barred by a Congressional Act of May 26, 1860, 12 Stat. 21 and a Congressional Resolution of July 17, 1862, 12 Stat. 628, by Private Law 90-318 of August 8, 1968, 82 Stat. 1420, by adverse possession and other property law doctrines, and by various Kansas statutes of limitation, including Kan.Stat.Ann. Secs. 60-503 through 60-507 (1976).
The defendants subsequently filed a motion for summary judgment, alleging that there were no genuine issues of material fact. By stipulation, the parties agreed that a number of documents contained in an appendix to the defendants' motion for summary judgment were authentic and admissible in evidence and could be received in evidence by the district court without further foundation or proof.
The defendants' position in support of their motion for summary judgment is as follows: (1) assuming the 1825 Treaty placed a restriction on alienation by the half-breeds of their reserved land, Congress, by legislation in 1860 and 1862 removed this restriction, rendering the lands freely alienable; (2) claims based on transfers prior to 1862 are barred by the statute of limitations; and (3) if the legislation of 1860 and 1862 did not lift the restrictions imposed in the 1825 Treaty, any claims of plaintiffs were extinguished by a 1968 Private Law, in which Congress compensated the heirs of the original reservee half-breeds.
The district court granted defendants' motion for summary judgment, entered judgment in their favor and assessed costs against the plaintiffs. In granting the defendants summary judgment, the district judge ruled that the 1825 Treaty did impose on the half-breeds and their heirs a restriction on the alienation; that such restriction was lifted by the Congressional Act of 1860 and Resolution of 1862; and that any remaining claims on the part of any of the plaintiffs were extinguished by the Private Law of 1968. It was on this general basis that summary judgment was entered in favor of the defendants. The opinion of the district court was published, and now appears as Dennison v. Topeka Chambers Industrial Development Corporation, 527 F.Supp. 611 (D.Kan.1981).
The plaintiffs appeal from the adverse judgment thus suffered. The defendants cross-appeal, asserting that should we, on appeal, find that the district court erred in holding that the plaintiffs' claims were barred because of the 1860 and 1862 legislation, or because of the 1968 legislation, then we should rule that the district court erred in holding that the 1825 Treaty imposed a restriction on the alienation of the 23 tracts here involved.
As indicated, the district judge, the Hon. Frank G. Theis, authored a lengthy and well documented opinion in the instant case. He carefully considered all of the issues and reviewed all pertinent authorities. Our study of the matter leads us to conclude that Judge Theis reached the correct result and we are in accord with his reasoning. Such being the case, we see no need to repeat here, or perhaps rephrase, that which has already been well said by Judge Theis. On that basis, we affirm.
To provide for the payment of fair and equitable consideration in satisfaction of the claims of certain Kaw Indians. (Introduced in Senate)
SJ 213 IS
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