[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S.J. Res. 213 Introduced in Senate (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.
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