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, Appellants/Cross-Appellees,
v.
TOPEKA CHAMBERS INDUSTRIAL DEVELOPMENT CORPORATION, a Kansas corporation, and Security Benefit Life Insurance Company, a Kansas corporation, for all persons claiming an interest in Kaw half-breed reserves 1-23, Shawnee and Jefferson Counties, Kansas, Appellees/Cross-Appellants.

Nos. 81-2376, 81-2494.

United States Court of Appeals,
Tenth Circuit.

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.

Judgment affirmed.

Honorable Ewing T. Kerr, United States District Judge for the District of Wyoming, sitting by designation

===============================

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

103d CONGRESS

2d Session

S. J. RES. 213

To provide for the payment of fair and equitable consideration in satisfaction of the claims of certain Kaw Indians.

IN THE SENATE OF THE UNITED STATES

July 22 (legislative day, JULY 20), 1994

Mr. NICKLES (for himself and Mr. BOREN) introduced the following joint resolution; which was read twice and referred to the Committee on Indian Affairs

JOINT RESOLUTION

To provide for the payment of fair and equitable consideration in satisfaction of the claims of certain Kaw Indians.

Whereas, under Article Six of the Treaty of June 3, 1825 (7 Stat. 244, 245), between the United States and the Kanza Nation of Indians, 23 reservations of one square mile each were set aside for the Half-Breed Kaw Indians in what is now the State of Kansas;

Whereas following the beginning of the period of non-Indian settlement in the Territory of Kansas until 1860 the lands set aside and reserved for the Kaw Half-Breed Indians were subjected to settlement by squatters having no claim by right to the lands; that timber and natural resources were taken from the lands without compensation to the rightful owners; that efforts were made by fraud and deceit and other unlawful means to take title to the lands from the Indian owners thereof; and during this period, despite requests from the Indian Agent in charge, the United States failed to protect the Kaw Half-Breed Indians from the depredations of the non-Indian settlers, including shooting of cattle and burning of houses;

Whereas, by the Act of May 26, 1860 (12 Stat. 21), Congress in substance declared all prior contracts for the purchase of such lands null and void and vested fee title to such lands in the original reservees or their heirs free of any such contracts or other purported encumbrances; directed the Secretary of the Interior to determine such heirs and issue patents for such lands; authorized the Secretary, upon request of such reservees or their heirs, to sell such property; and authorized the Secretary to sell those lands for which there was no surviving reservee or heirs and use the proceeds of such sale or sales equally for the benefit of the living reservees and their heirs, and the heirs of those predeceased reservees;

Whereas, by Act of July 17, 1862, before the Secretary of the Interior could finalize his determination of the heirs of the original reservees and issue patents to them or sell the lands of those original reservees who had died without heirs, Congress repealed those provisions of the Act of May 26, 1860, which vested title in the heirs of the original reservees, and repealed the provisions which authorized the Secretary of the Interior to sell lands of deceased original reservees who had died without heirs and apply the proceeds for the benefit of the surviving original reservees and the heirs of deceased reservees, and repealed that portion of the Act which required sale of the lands through the Secretary of the Interior;

Whereas as a consequence of these Acts of Congress and the failure of the United States to honor its treaty commitments and provide protection and assistance to the Kaw Half-Breed reservees and their heirs, the entirety of the lands set aside for the Kaw Half-Breeds in the State of Kansas were lost, either through denial of titles, fraud and corruption, or through transactions that did not meet the standards of fair and honorable dealing set forth in the Indian Claims Commission Act of 1946;

Whereas, by Act of August 8, 1968 (Private Law 90-318), Congress recognized the responsibility of the United States and provided legislation to compensate the heirs of the Kaw Half-Breed Indians, but such legislation failed to provide for payment of interest on the claims;

Whereas, in the 91st Congress, Senator Sam Irvin introduced legislation to provide for payment of interest on the claim, and by Senate Resolution 162 the matter was referred to the United States Claims Court for a determination of the legal or equitable liability of the United States to the Kaw Half-Breed heirs;

Whereas in argument of this cause the Government acknowledged that the United States guaranteed, by Article 10 of the Treaty of June 3, 1825 (7 Stat. 244), to any Indian a full indemnification for property which might be stolen from them, and that the failure of the United States to protect the Kaw Half-Breed Indians from trespassers may have been a breach of that indemnity clause giving rise to a `moral justification' for the payment of the Kaw Half-Breed claims, but that such breach was only a `breach of contractual rights [and] is not a `taking' of property so as to require the payment of interest.';

Whereas after analyses of the evidence the Claims Court concluded that there was no `constructive taking' by the United States of the lands referred to in the Act of August 8, 1968, and therefore no determination of entitlement to interest was regarded by the court as being required under the resolution;

Whereas the resolution of the Kaw Half-Breed claim should not be determined on the principles of Constitutional fifth amendment takings, but should be resolved on the same principles of `fair and honorable dealings' that were established under the Indian Claims Commission Act of 1946 applied to recognized titles in the tribes;

Whereas it appears that the average value of the 14,720 acres of Kaw Half-Breed lands at the time the Indians were removed from the lands or title to the lands was otherwise lost, title to the lands was estimated by the Indian Agent in charge of said area in 1858 as $32.50 per acre for a total value of $478,400 for the entirety of the land, and the value of timber removed from the land by non-Indian squatters prior to the Act of May 26, 1860 (12 Stat. 21) was estimated in the Walsh-Coombs Report filed with the Secretary of the Interior in 1860 to exceed by five times the value of all improvements on such lands, for an estimated total value of $280,963 for a total estimated loss of land and timber of $759,363 as of 1855;

Whereas subsequent to the action in the United States Court of Claims, a class action was instituted in the United States District Court for the District of Kansas captioned Dennison, et al. v. Topeka Chambers Industrial Development Corporation, et al. (Civil Action No. 79-1668) to declare that the heirs of the 23 Kaw Half-Breeds were the owners of `all right, title, and interest in and to the land, which comprises approximately 14,720 acres stretching along the north bank of the Kaw River from North Topeka, Kansas, to east of Perry, Kansas';

Whereas the Honorable Frank G. Theis, the United States District Court Judge presiding in the above captioned action, concluded that while `a great injustice was probably done to some of the Kansas half-breeds in allowing forcible entries and inequitable or fraudulent conveyances to stand', nevertheless, the court found two legal bases for barring the claims of the plaintiffs: (1) that the effect of the 1860 and 1862 Acts of Congress effectively removed the requirement for approval of the Secretary of the Interior for any conveyance of lands, and the laws of the State of Kansas regarding adverse possession and statutes of limitation thus barred the claims, and (2) that `the language and the legislative history of Private Law 90-318 (the Act of August 8, 1968) demonstrate that the law was designed to extinguish all claims of the heirs of the 23 individual reserves against anyone arising out of the events related to the 1825 Treaty';

Whereas on appeal the 10th Circuit Court of Appeals acknowledged that the Kaw Half-Breed reservees and their heirs were entitled to the protection of Article 11 of the Treaty of June 3, 1825 (7 Stat. 244) but sustained the holding of the United States District Court;

Whereas to this day it remains common practice in transactions involving title to lands within the original 23 Kaw Half-Breed reservations in the State of Kansas to institute a quiet title action as a protective measure in any conveyance or transaction involving such lands to assure that there be no cloud on title to lands; and

Whereas it is the conclusion of Congress that the Kaw Half-Breeds are entitled to compensation for the taking of such lands at the value of such lands as estimated by the Indian agent in 1858, plus the value of timber removed as extrapolated from the Walsh-Coombs Report in 1860, with interest thereon at the rate of 5 percent simple interest from October 1, 1855, and that upon payment of such compensation, less any sums paid under the Act of August 8, 1968 (Private Law 90-318), any claims of the heirs of the Kaw Half-Breed reservees or their heirs or assigns should be extinguished and title to such lands should be quieted in favor of those persons claiming titles or interests in such lands under the laws of the State of Kansas: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. PAYMENT.

(a) ACCOUNT- That the Secretary of the Treasury shall establish a separate interest bearing account in the Department of the Treasury for the payment of claims of the Kaw Half-Breeds and to pay into such account, out of any money in the Treasury not otherwise appropriated, the sum of $759,363 plus 5 percent simple interest from October 1, 1855, less any sums paid under the Act of August 8, 1968 (Private Law 90-318). Subject to the restrictions provided in subsection (e) of this section, the Secretary of the Treasury is further authorized and directed to pay out of this account to the persons certified by the Secretary of the Interior as entitled to payment under section 2 of the Act of August 8, 1968 (Private Law 90-318; 82 Stat. 1420) their proportionate share of the sum deposited in such account as determined by the Secretary of the Interior.

(b) HEIRS- In the case of any such individual who is not living on the date of the approval of this resolution, the Secretary of the Treasury shall pay the proportionate sums to the heirs or assigns of that individual as certified as entitled to payment under section 2 of the Act of August 8, 1968.

(c) MINORS- In the case of any individual entitled to a payment under section 1 of this resolution who is a minor, the Secretary of the Interior shall hold such individual's share in trust in an interest bearing account for the use and benefit of such individual, with the remainder of the corpus of the trust, if any, payable to such individual when that individual reaches his or her majority.

(d) CLAIMS- Any claim by an individual asserting a right to share in the distribution of any amount under this section shall be filed with the Secretary of the Interior not later than 180 days after the date the Secretary promulgates regulations establishing the procedure and criteria for application for participation in the distribution.

(e) LIMITATION- No payment to any one individual lineal descendant shall exceed 10 percent of the value of any one survey. Any sum in excess of such amount the individual would be entitled to but for this limitation shall be paid into the Trust established in section 2 of this resolution.

SEC. 2. TRUST FUND.

(a) The Secretary of the Treasury shall pay, out of any money in the Treasury not otherwise appropriated, interest on amounts owed to Elizabeth Datcherute, Joseph Butler, William Rodgers, and Joseph Cote, to the Secretary of the Interior to be held in trust for the use and benefit of the lineal descendants of any individual named in the first section of this resolution as determined by the Secretary of the Interior under subsection (b) of this section.

(b) The Secretary of the Interior shall develop the initial roll of lineal descendants who are eligible for benefits under the provisions of this section in accordance with such regulations as the Secretary may prescribe. Any claim by an individual asserting a right to be included on this Secretarial roll must file such claim with the Secretary not later than 270 days after promulgation of such regulations. Thereafter, any person asserting a right to benefits under the trust must file his or her application with the board of directors of the charitable trust provided for in subsection (c).

(c) The lineal descendants described in subsection (a) of this section are authorized to form a charitable trust under the laws of the State of Oklahoma, which shall be subject to the laws of the State of Oklahoma governing charitable trusts and shall be subject to the jurisdiction of the courts of the State of Oklahoma. The Board of Directors of this charitable trust shall have, at a minimum, one lineal descendant who is an enrolled member of the Kaw Indian Tribe; one lineal descendant who is an enrolled member of the Osage Tribe; one lineal descendant who is an enrolled member of either the Otoe-Missouri Tribe, the Pottawatomie Tribe, or the Ponca Tribe; one lineal descendant who is not carried on any Indian tribal roll; and one member to be designated by the Secretary of the Interior who is an employee of the Bureau of Indian Affairs or an employee of the Office of the Solicitor, Division of Indian Affairs. The initial Board of Directors shall be selected and appointed by the Secretary of the Interior from a list of candidates prepared in consultation with representatives of the effected lineal descendant group. Thereafter the members of the board shall be selected and appointed in accordance with the procedure to be established in the charter of incorporation or bylaws adopted thereunder.

(d) Upon completion of the organization of the charitable trust as provided in subsection (c), the Secretary of the Interior shall pay over to the Trust the entirety of those funds, plus any interest or earnings of such funds, held by the Secretary under the provisions of subsection (a) of this section. Upon payment of these funds to the Trust, the responsibility of the United States in the further administration of such funds shall be limited to that of any member of a board of directors of a charitable trust as prescribed by the laws of the State of Oklahoma.

(e) The charitable trust established under the provisions of subsection (c) shall--

(1) have the authority to invest the corpus of the trust in any income producing investments authorized by the laws of the State of Oklahoma;

(2) have the authority to determine through its charter or bylaws the nature of benefits it shall extend to the beneficiaries of the trust and establish the eligibility criteria which will govern the extension of benefits under the trust;

(3) only the interest and investment income accrued on the principal of the trust shall be available for payment of benefits under this trust; and

(4) not less than 10 percent of the income earned by the trust shall be retained by the trust and added to the principal annually.

(f) The charitable trust established under the provisions of this section shall cause an annual audit to be made to ensure that it is being administered in accordance with the terms of trust and the laws of the State of Oklahoma. The results of such audit shall be available for inspection by any recognized beneficiary of the trust.

SEC. 3. FUNDS NOT SUBJECT TO TAXES.

None of the funds held in trust by the United States under this resolution or held by the Trust established under section 2 of this resolution (including interest and investment income accrued on such funds while such funds are held in trust by the United States or the Trust), and none of the funds distributed per capita under section 1 of this resolution, or made available to individuals under the Trust established by section 2 of this resolution, shall be subject to Federal, State, or local income taxes, nor shall such funds nor their availability be considered as income or resources or otherwise utilized as the basis for denying or reducing the financial assistance or other benefits to which such household or member would otherwise be entitled under the Social Security Act or, except for per capita payments in excess of $2,000, any other Federal or federally assisted program.

SEC. 4. FEES AND EXPENSES.

A reasonable fee, plus costs and expenses, as determined by the Secretary of the Interior, for agents or attorneys on account of services rendered in connection with the payment of funds under section 1 of this resolution may be paid out of the amount provided pursuant to that section.

SEC. 5. EXTINGUISHMENT OF CLAIMS AND CONFIRMATION OF TITLE.

Upon establishment of the account and payment of funds by the Secretary of the Treasury into the separate account required to be established under section 1 of this resolution, the Secretary of the Treasury shall publish notice in the Federal Register of the establishment of such account and upon such publication of such notice, any and all claims arising from events arising out of Article 6 of the Treaty of June 3, 1825 (7 Stat. 244), shall be extinguished, and the titles and interests of all persons or entities claiming title or interests in and to lands within the boundaries of the 23 Kaw Half-Breed reserves under the laws of the State of Kansas shall be confirmed.

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.
	William Clark,
Witnesses present:
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, Russel Farnham, 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 Ke-bah-ra-hu 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, =============================== Private Law 90-318 August 8, 1968 H.R. 8391 AN ACT For the Relief of Adel Lessert Bellmard, Clement Lessert, Josphine Gonvil Pappan, Julie Gonvil Pappan, Pelagie Gonvil Franceour de Aubri, Victore Gonvil Pappan, Marie Gonvil, Lafleche Gonvil, Louis Laventure, Elizabeth Carbonau Vertifelle, PierreCarbomau, Louis Joncas, Basil Joncas, James Joncas, Elizabeth Datcherute, Joseph Butler, William Rodger, Joseph Cote, four children of Cicili Compare and Joseph James, or the heirs of any who may be deceased. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury is authorized to pay, out of any money in the Treasury not otherwise appropriated , to the persons determined by the Secretary of the Interior to be the heirs of the following named opposite their ancestor's names: Adel Lessert Bellmard .............................................$ 3,200 Clement Lessert ...................................................... $ 3,200 Josephine Gonvil Pappan ........................................ $ 3,200 Julie Gonvil Pappan ................................................. $ 3,200 Pelagi Gonvil Franceour de Aubri ........................... $ 3,200 Victoire Gonvil Pappan ............................................ $ 3,200 Marie Gonvil ............................................................ $ 3,200 Lafleche Gonvil ........................................................ $ 3,200 Louis Laventure ........................................................$ 3,200 Elizabeth Carbonau Vertifelle ...................................$ 3,200 Pierre Carbonau..........................................................$ 3,200 Louis Joncas ...............................................................$ 3,200 Basil Joncas ................................................................$ 3,200 James Joncas ..............................................................$ 3,200 Elizabeth Datcherute ..................................................$ 3,200 Joseph Butler ..............................................................$ 3,200 William Rodgers .........................................................$ 3,200 Joseph Cote ................................................................$ 3,200 Four Children of Cicili Compare First .............................................................................$ 3,200 Second ..........................................................................$ 3,200 Third ............................................................................$ 3,200 Fourth ...........................................................................$ 3,200 Joseph James ..............................................................$ 3,200 The amounts paid under this authority of this Act shall be paid in full and final satisfaction of all claims of the named individuals or their heirs against the United States based upon the loss of Indian lands included in the twenty-three halfbreed Kaw allotments granted the above named individuals under article 6 of the treaty of June 3, 1825 (7 Stat. 244) in the Territory of Kansas and in full satisfaction of any claims of the original allottees or his heirs for the consequent loss of use of the land. Section 2 The Secretary of the Interior is authorized and directed to determine the heirs at law of the above named individuals in accordance with the laws of intestate succession of the State of Kansas and his determinations as to heirship and entitlement under this Act shall be final and conclusive. Persons asserting rights to share in the distribution of amounts as provided in this Act as heirs of the persons named in Section 1 shall file their claims with the Secretary of the Interior within one year of the effective date of this Act and in accordance with such regulations as the Secretary may prescribe. In the event that the Secretary determines that any of the individuals named in Section one had no living heirs on the effective date of this Act, he shall make a formal determination of this fact, and his determination of the absence of heirs at law shall be final and conclusive as of the date of the expiration of the time for the filing of claims under this Act. Upon determination of heirship as provided for herein, the Secretary of the Interior shall certify the names of the persons entitled to payment to the Secretary of the Treasury together with the amounts he has found to be due in each instance and his determinations as to the amount and person entitled to receive it shall be final and not subject to appeal. Section 3 The amounts paid under the authority of this Act are to be free and clear of any obligations, debts or claims of the original allottees and any successors in interest and are not to be subject to State of Federal taxes. Approved August 8, 1968 =============================== 724 F2d 869 Jan. 4, 1984 Dennison v. 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, Appellants/Cross-Appellees, v. TOPEKA CHAMBERS INDUSTRIAL DEVELOPMENT CORPORATION, a Kansas corporation, and Security Benefit Life Insurance Company, a Kansas corporation, for all persons claiming an interest in Kaw half-breed reserves 1-23, Shawnee and Jefferson Counties, Kansas, Appellees/Cross-Appellants. Nos. 81-2376, 81-2494. United States Court of Appeals, Tenth Circuit. 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. 1 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. 2 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. 3 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. 4 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). 5 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. 6 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. 7 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). 8 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. 9 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. 10 Judgment affirmed. Honorable Ewing T. Kerr, United States District Judge for the District of Wyoming, sitting by designation =============================== 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 103d CONGRESS 2d Session S. J. RES. 213 To provide for the payment of fair and equitable consideration in satisfaction of the claims of certain Kaw Indians. IN THE SENATE OF THE UNITED STATES July 22 (legislative day, JULY 20), 1994 Mr. NICKLES (for himself and Mr. BOREN) introduced the following joint resolution; which was read twice and referred to the Committee on Indian Affairs JOINT RESOLUTION To provide for the payment of fair and equitable consideration in satisfaction of the claims of certain Kaw Indians. Whereas, under Article Six of the Treaty of June 3, 1825 (7 Stat. 244, 245), between the United States and the Kanza Nation of Indians, 23 reservations of one square mile each were set aside for the Half-Breed Kaw Indians in what is now the State of Kansas; Whereas following the beginning of the period of non-Indian settlement in the Territory of Kansas until 1860 the lands set aside and reserved for the Kaw Half-Breed Indians were subjected to settlement by squatters having no claim by right to the lands; that timber and natural resources were taken from the lands without compensation to the rightful owners; that efforts were made by fraud and deceit and other unlawful means to take title to the lands from the Indian owners thereof; and during this period, despite requests from the Indian Agent in charge, the United States failed to protect the Kaw Half-Breed Indians from the depredations of the non-Indian settlers, including shooting of cattle and burning of houses; Whereas, by the Act of May 26, 1860 (12 Stat. 21), Congress in substance declared all prior contracts for the purchase of such lands null and void and vested fee title to such lands in the original reservees or their heirs free of any such contracts or other purported encumbrances; directed the Secretary of the Interior to determine such heirs and issue patents for such lands; authorized the Secretary, upon request of such reservees or their heirs, to sell such property; and authorized the Secretary to sell those lands for which there was no surviving reservee or heirs and use the proceeds of such sale or sales equally for the benefit of the living reservees and their heirs, and the heirs of those predeceased reservees; Whereas, by Act of July 17, 1862, before the Secretary of the Interior could finalize his determination of the heirs of the original reservees and issue patents to them or sell the lands of those original reservees who had died without heirs, Congress repealed those provisions of the Act of May 26, 1860, which vested title in the heirs of the original reservees, and repealed the provisions which authorized the Secretary of the Interior to sell lands of deceased original reservees who had died without heirs and apply the proceeds for the benefit of the surviving original reservees and the heirs of deceased reservees, and repealed that portion of the Act which required sale of the lands through the Secretary of the Interior; Whereas as a consequence of these Acts of Congress and the failure of the United States to honor its treaty commitments and provide protection and assistance to the Kaw Half-Breed reservees and their heirs, the entirety of the lands set aside for the Kaw Half-Breeds in the State of Kansas were lost, either through denial of titles, fraud and corruption, or through transactions that did not meet the standards of fair and honorable dealing set forth in the Indian Claims Commission Act of 1946; Whereas, by Act of August 8, 1968 (Private Law 90-318), Congress recognized the responsibility of the United States and provided legislation to compensate the heirs of the Kaw Half-Breed Indians, but such legislation failed to provide for payment of interest on the claims; Whereas, in the 91st Congress, Senator Sam Irvin introduced legislation to provide for payment of interest on the claim, and by Senate Resolution 162 the matter was referred to the United States Claims Court for a determination of the legal or equitable liability of the United States to the Kaw Half-Breed heirs; Whereas in argument of this cause the Government acknowledged that the United States guaranteed, by Article 10 of the Treaty of June 3, 1825 (7 Stat. 244), to any Indian a full indemnification for property which might be stolen from them, and that the failure of the United States to protect the Kaw Half-Breed Indians from trespassers may have been a breach of that indemnity clause giving rise to a `moral justification' for the payment of the Kaw Half-Breed claims, but that such breach was only a `breach of contractual rights [and] is not a `taking' of property so as to require the payment of interest.'; Whereas after analyses of the evidence the Claims Court concluded that there was no `constructive taking' by the United States of the lands referred to in the Act of August 8, 1968, and therefore no determination of entitlement to interest was regarded by the court as being required under the resolution; Whereas the resolution of the Kaw Half-Breed claim should not be determined on the principles of Constitutional fifth amendment takings, but should be resolved on the same principles of `fair and honorable dealings' that were established under the Indian Claims Commission Act of 1946 applied to recognized titles in the tribes; Whereas it appears that the average value of the 14,720 acres of Kaw Half-Breed lands at the time the Indians were removed from the lands or title to the lands was otherwise lost, title to the lands was estimated by the Indian Agent in charge of said area in 1858 as $32.50 per acre for a total value of $478,400 for the entirety of the land, and the value of timber removed from the land by non-Indian squatters prior to the Act of May 26, 1860 (12 Stat. 21) was estimated in the Walsh-Coombs Report filed with the Secretary of the Interior in 1860 to exceed by five times the value of all improvements on such lands, for an estimated total value of $280,963 for a total estimated loss of land and timber of $759,363 as of 1855; Whereas subsequent to the action in the United States Court of Claims, a class action was instituted in the United States District Court for the District of Kansas captioned Dennison, et al. v. Topeka Chambers Industrial Development Corporation, et al. (Civil Action No. 79-1668) to declare that the heirs of the 23 Kaw Half-Breeds were the owners of `all right, title, and interest in and to the land, which comprises approximately 14,720 acres stretching along the north bank of the Kaw River from North Topeka, Kansas, to east of Perry, Kansas'; Whereas the Honorable Frank G. Theis, the United States District Court Judge presiding in the above captioned action, concluded that while `a great injustice was probably done to some of the Kansas half-breeds in allowing forcible entries and inequitable or fraudulent conveyances to stand', nevertheless, the court found two legal bases for barring the claims of the plaintiffs: (1) that the effect of the 1860 and 1862 Acts of Congress effectively removed the requirement for approval of the Secretary of the Interior for any conveyance of lands, and the laws of the State of Kansas regarding adverse possession and statutes of limitation thus barred the claims, and (2) that `the language and the legislative history of Private Law 90-318 (the Act of August 8, 1968) demonstrate that the law was designed to extinguish all claims of the heirs of the 23 individual reserves against anyone arising out of the events related to the 1825 Treaty'; Whereas on appeal the 10th Circuit Court of Appeals acknowledged that the Kaw Half-Breed reservees and their heirs were entitled to the protection of Article 11 of the Treaty of June 3, 1825 (7 Stat. 244) but sustained the holding of the United States District Court; Whereas to this day it remains common practice in transactions involving title to lands within the original 23 Kaw Half-Breed reservations in the State of Kansas to institute a quiet title action as a protective measure in any conveyance or transaction involving such lands to assure that there be no cloud on title to lands; and Whereas it is the conclusion of Congress that the Kaw Half-Breeds are entitled to compensation for the taking of such lands at the value of such lands as estimated by the Indian agent in 1858, plus the value of timber removed as extrapolated from the Walsh-Coombs Report in 1860, with interest thereon at the rate of 5 percent simple interest from October 1, 1855, and that upon payment of such compensation, less any sums paid under the Act of August 8, 1968 (Private Law 90-318), any claims of the heirs of the Kaw Half-Breed reservees or their heirs or assigns should be extinguished and title to such lands should be quieted in favor of those persons claiming titles or interests in such lands under the laws of the State of Kansas: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. PAYMENT. (a) ACCOUNT- That the Secretary of the Treasury shall establish a separate interest bearing account in the Department of the Treasury for the payment of claims of the Kaw Half-Breeds and to pay into such account, out of any money in the Treasury not otherwise appropriated, the sum of $759,363 plus 5 percent simple interest from October 1, 1855, less any sums paid under the Act of August 8, 1968 (Private Law 90-318). Subject to the restrictions provided in subsection (e) of this section, the Secretary of the Treasury is further authorized and directed to pay out of this account to the persons certified by the Secretary of the Interior as entitled to payment under section 2 of the Act of August 8, 1968 (Private Law 90-318; 82 Stat. 1420) their proportionate share of the sum deposited in such account as determined by the Secretary of the Interior. (b) HEIRS- In the case of any such individual who is not living on the date of the approval of this resolution, the Secretary of the Treasury shall pay the proportionate sums to the heirs or assigns of that individual as certified as entitled to payment under section 2 of the Act of August 8, 1968. (c) MINORS- In the case of any individual entitled to a payment under section 1 of this resolution who is a minor, the Secretary of the Interior shall hold such individual's share in trust in an interest bearing account for the use and benefit of such individual, with the remainder of the corpus of the trust, if any, payable to such individual when that individual reaches his or her majority. (d) CLAIMS- Any claim by an individual asserting a right to share in the distribution of any amount under this section shall be filed with the Secretary of the Interior not later than 180 days after the date the Secretary promulgates regulations establishing the procedure and criteria for application for participation in the distribution. (e) LIMITATION- No payment to any one individual lineal descendant shall exceed 10 percent of the value of any one survey. Any sum in excess of such amount the individual would be entitled to but for this limitation shall be paid into the Trust established in section 2 of this resolution. SEC. 2. TRUST FUND. (a) The Secretary of the Treasury shall pay, out of any money in the Treasury not otherwise appropriated, interest on amounts owed to Elizabeth Datcherute, Joseph Butler, William Rodgers, and Joseph Cote, to the Secretary of the Interior to be held in trust for the use and benefit of the lineal descendants of any individual named in the first section of this resolution as determined by the Secretary of the Interior under subsection (b) of this section. (b) The Secretary of the Interior shall develop the initial roll of lineal descendants who are eligible for benefits under the provisions of this section in accordance with such regulations as the Secretary may prescribe. Any claim by an individual asserting a right to be included on this Secretarial roll must file such claim with the Secretary not later than 270 days after promulgation of such regulations. Thereafter, any person asserting a right to benefits under the trust must file his or her application with the board of directors of the charitable trust provided for in subsection (c). (c) The lineal descendants described in subsection (a) of this section are authorized to form a charitable trust under the laws of the State of Oklahoma, which shall be subject to the laws of the State of Oklahoma governing charitable trusts and shall be subject to the jurisdiction of the courts of the State of Oklahoma. The Board of Directors of this charitable trust shall have, at a minimum, one lineal descendant who is an enrolled member of the Kaw Indian Tribe; one lineal descendant who is an enrolled member of the Osage Tribe; one lineal descendant who is an enrolled member of either the Otoe-Missouri Tribe, the Pottawatomie Tribe, or the Ponca Tribe; one lineal descendant who is not carried on any Indian tribal roll; and one member to be designated by the Secretary of the Interior who is an employee of the Bureau of Indian Affairs or an employee of the Office of the Solicitor, Division of Indian Affairs. The initial Board of Directors shall be selected and appointed by the Secretary of the Interior from a list of candidates prepared in consultation with representatives of the effected lineal descendant group. Thereafter the members of the board shall be selected and appointed in accordance with the procedure to be established in the charter of incorporation or bylaws adopted thereunder. (d) Upon completion of the organization of the charitable trust as provided in subsection (c), the Secretary of the Interior shall pay over to the Trust the entirety of those funds, plus any interest or earnings of such funds, held by the Secretary under the provisions of subsection (a) of this section. Upon payment of these funds to the Trust, the responsibility of the United States in the further administration of such funds shall be limited to that of any member of a board of directors of a charitable trust as prescribed by the laws of the State of Oklahoma. (e) The charitable trust established under the provisions of subsection (c) shall-- (1) have the authority to invest the corpus of the trust in any income producing investments authorized by the laws of the State of Oklahoma; (2) have the authority to determine through its charter or bylaws the nature of benefits it shall extend to the beneficiaries of the trust and establish the eligibility criteria which will govern the extension of benefits under the trust; (3) only the interest and investment income accrued on the principal of the trust shall be available for payment of benefits under this trust; and (4) not less than 10 percent of the income earned by the trust shall be retained by the trust and added to the principal annually. (f) The charitable trust established under the provisions of this section shall cause an annual audit to be made to ensure that it is being administered in accordance with the terms of trust and the laws of the State of Oklahoma. The results of such audit shall be available for inspection by any recognized beneficiary of the trust. SEC. 3. FUNDS NOT SUBJECT TO TAXES. None of the funds held in trust by the United States under this resolution or held by the Trust established under section 2 of this resolution (including interest and investment income accrued on such funds while such funds are held in trust by the United States or the Trust), and none of the funds distributed per capita under section 1 of this resolution, or made available to individuals under the Trust established by section 2 of this resolution, shall be subject to Federal, State, or local income taxes, nor shall such funds nor their availability be considered as income or resources or otherwise utilized as the basis for denying or reducing the financial assistance or other benefits to which such household or member would otherwise be entitled under the Social Security Act or, except for per capita payments in excess of $2,000, any other Federal or federally assisted program. SEC. 4. FEES AND EXPENSES. A reasonable fee, plus costs and expenses, as determined by the Secretary of the Interior, for agents or attorneys on account of services rendered in connection with the payment of funds under section 1 of this resolution may be paid out of the amount provided pursuant to that section. SEC. 5. EXTINGUISHMENT OF CLAIMS AND CONFIRMATION OF TITLE. Upon establishment of the account and payment of funds by the Secretary of the Treasury into the separate account required to be established under section 1 of this resolution, the Secretary of the Treasury shall publish notice in the Federal Register of the establishment of such account and upon such publication of such notice, any and all claims arising from events arising out of Article 6 of the Treaty of June 3, 1825 (7 Stat. 244), shall be extinguished, and the titles and interests of all persons or entities claiming title or interests in and to lands within the boundaries of the 23 Kaw Half-Breed reserves under the laws of the State of Kansas shall be confirmed.

724 F2d 869 Jan. 4, 1984Dennison

v.