[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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