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United States v. Elliott

November 9, 1942

UNITED STATES
v.
ELLIOTT ET AL.



Appeal from the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge.

Phillips

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal by the United States from a judgment awarding compensation in a condemnation proceeding. The proceeding was instituted by the Grand River Dam Authority to condemn approximately 40 acres of land, known as Turkey Island,*fn1 situated within the reservoir area of the Grand River Dam in Oklahoma. The island lies east of the middle of the river. Both the Cherokee and Seneca Nations claim ownership of the island and claims for compensation were filed by the United States on behalf of both tribes. Commissioners were appointed to appraise the island. They returned an award of $2,960, which was confirmed by the trial court.

A stipulation of facts upon which the respective claims to title were based was filed.

By the terms of the treaty of February 28, 1831, 7 Stat. 348, the tribe of Seneca Indians, residing on Sandusky River, in the state of Ohio, ceded their Ohio lands to the United States and the United States in consideration thereof ceded to such tribe a tract of land extending westwardly from the western boundary of the state of Missouri, across that portion of the Grand River in which the island is situated, being seven miles from north to south and fifteen miles from east to west, and containing 67,000 acres.

By the treaty of July 20, 1831, 7 Stat. 351, the Seneca and Shawnee Indians, residing at and around Lewistown, in the state of Ohio, ceded their Ohio lands to the United States and the United States in consideration thereof ceded to such tribes a tract of land containing 60,000 acres and lying westerly from the lands granted to the Senecas of Sandusky.

It appears from the treaty of December 29, 1832, 7 Stat. 411, that after the United States had ceded the lands referred to and described in the treaties of 1831, the Senecas of Sandusky and the Shawnees of Lewistown became desirous of uniting as a tribe or nation, to be known as the "United Nation of Senecas and Shawnees," and to occupy their lands as tenants in common and to "have the whole of the country provided for them by the United States located on the east side of Ne-o-sho or Grand river, which runs through and now divides the same." The treaty of December 29, 1832, contained the following provisions:

"Article I. The United Tribe of Senecas and Shawnee Indians do hereby cede, relinquish and forever quit claim to the United States, all the land granted to them on the west side of Ne-o-sho or Grand river, by treaties made respectively with the Senecas of Sandusky and the mixed Band of Senecas and Shawnees of Lewistown, Ohio, on the 20th day of July, 1831, and on the 28th day of February, 1831.

"Article II. In consideration of said lands, described and ceded as aforesaid, the United States will grant, by letters patent, to the Tribe or Nation of Indians aforesaid, * * * the following tract of land lying on the east side of Ne-o-sho or Grand river, viz: bounded on the east by the west line of the State of Missouri; south by the present established line of the Cherokee Indians; west by Ne-o-sho or Grand river; and north by a line running parallel with said south line, and extending so far from the present north line of the Seneca Indians from Sandusky, as to contain sixty thousand acres, exclusive of the land now owned by said Seneca Indians, which said boundaries include, however, all the land heretofore granted said Senecas of Sandusky, on the east side of Grand river."

Thus, it will appear hat the Senecas, having been ceded a tract of land which extended across the Grand River and embraced the island, ceded, relinquished, and quitclaimed to the United States all the land granted to them "on the west side of Ne-o-sho or Grand river."

The patents referred to in the treaty of December 29, 1832, were never issued.

The lands ceded to the Senecas and not relinquished to the United States were subsequently allotted in severalty to the members of the United Nation, the allotments being made under and pursuant to the terms of the General Allotment Act, 24 Stat. 388, 25 U.S.C.A. ยง 331 et seq.

Under a treaty of May 6, 1828, the United STates had ceded 7,000,000 acres of land to the Cherokees. 7 Stat. 311. It was discovered that the southern part of this 7,000,000-acre grant included a portion of the country which the Creek Indians had a prior right to select and did select under their treaty of January 24, 1826. 7 Stat. 286; Royce, Indian Land Cessions in the United States (1900), p. 745. In order to make adjustment for the Creek selection of part of the lands within the 1828 grant, by a treaty of February 14, 1833, 7 Stat. 414, entered into with the Cherokee Nation, an additional grant was made to the Cherokees which extended their lands northward. The boundary line of the additional grant, in so far as it is here material, reads as follows: "Thence along ...


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