The Peoria Tribe of Indians of Oklahoma v. The United States , 369 F.2d 1001 ( 1966 )

OPINION

COWEN, Chief Judge.

The Peoria Tribe seeks review of two adverse portions of a decision of the Indian Claims Commission which was generally favorable to the tribe. Two separate issues are involved on the appeal. The first concerns the payment given the Indians in place of certain annuities which they relinquished in 1854. Before that year, the Weas and the Piankeshaws were the beneficiaries of permanent annuities coming to $3,800 per year. By the Treaty of May 30, 1854, 10 Stat. 1082, these groups joined with others to form the single Peoria Tribe (see The Peoria Tribe of Indians of Oklahoma v. United States, 169 Ct.Cl. 1009 (1965)), and all agreed to give up those annuities (Art. 6). “[I]n consideration of the re-linquishments and releases aforesaid”, the United States agreed to pay the united tribe a total of $66,000 in six installments from 1854 to 1859, “and also to furnish said tribe with an interpreter and a blacksmith for five years, and supply the smith shop with iron, steel, and tools, for a like period.”¹ The Indian Claims Commission found that the United States actually paid a total of $70,820 in discharge of these obligations, and appellants do not now contest that figure. The Commission then found that the commuted value, as of 1854, of the released annuities (computed at a 5 percent interest rate) would be $76,000. Appellants also agree with this conclusion. But the Commission refused to award the tribe the difference between $76,000 and $70,820 (i. e., $5,180), ruling that the consideration paid was not unconscionable even though it fell short by $5,180 of the true value of the released annuities. Appellants urge that this was error, and that they are entitled to a judgment for the $5,180.

We agree with the Commission that in the circumstances the payment of $70,820 for annuities worth $76,000 did not represent an unconscionable consideration, or indicate something less than fair and honorable dealings. The amount ultimately paid was 93 percent of the full value. This is a small discrepancy, both in percent and in absolute figures. Moreover, as the Commission pointed out, the consideration, according to the treaty, was to be $66,000 in cash plus the supplying of certain goods and services for 5 years; “it may well have been that the United States anticipated that the materials and services would amount to $10,000.00 thereby requiring the total of $76,000.00 to satisfy the obligations under Article 6.” 11 Ind.Cl.Comm. 171, 178 (1962). At the time of the signing of the treaty this would have been a reasonable forecast, and it is proper to assess the worth of the consideration at that date rather than upon the basis of what may actually have occurred during the ensuing 5-year period from 1854 to 1859.

The Miami Tribe of Oklahoma v. United States, 281 F.2d 202, 211-212, 150 Ct.Cl. 725, 740-742 (1960), cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961), does not require reversal of the Commission’s determination. The court held that the consideration for a commuted annuity must be adequate, but in that instance the United States paid only 78 percent of the value and the difference in monetary terms was the large sum of $118,136.50; in addition, Miami Tribe did not have the factor of promised supplies and services which could reasonably be valued, prospectively, as making up the difference.

Nez Perce Tribe of Indians v. United States, 176 Ct.Cl. (July 1966), is distinguishable on comparable grounds. The court’s opinion points out the significantly different elements supporting that claim: a minimum discrepancy of 33% percent depriving the claimant of at least $566,045.77, with a consequent probable loss of interest of $200,000, thus raising the minimum discrepancy to about 50 per cent — a large figure. The court carefully declared that it was not departing from the rule that, before a price disparity can be labeled unconscionable, it must be “very gross”. In the present case we cannot call the small disparity “gross”, let alone “very gross”.

The second claim involves another provision of the 1854 treaty. Under Article 4, 10 Stat. 1083, the Federal Government agreed to sell some land owned by the Indians in Kansas at public auction, and “to pay to the said Indians, as hereinafter provided, all the moneys arising from the sales of said lands after deducting therefrom the actual cost of surveying, managing, and selling the same”. The Commission held that the United States breached these obligations by allowing white “settlers” to buy the lands at an appraised price, rather than selling the property in a freely competitive market at higher levels. The difference between the appraised values and the fair market value was found to be $172,726.04, and recovery was ordered in that amount² Neither side questions this figure. The appellants urge, however, that the Commission erred in refusing to grant interest on this award from 1857 to the date of payment.

Appellants concede that the Government, absent its consent, has always been immune from an obligation to pay interest. “The right to claim and recover interest from the United States is purely a matter of grace * * Richmond, F. & P. R. R. Co. v. United States, 95 Ct.Cl. 244, 259 (1942). The recovery of interest must be expressly provided for in a statute, treaty, or contract. Moreover, the consent necessary to waive governmental immunity from interest “must be affirmative, clear-cut, and unambiguous”. United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 590, 67 S.Ct. 398, 91 L.Ed. 521 (1947). As the Supreme Court stated in United States v. New York Rayon Importing Co., 329 U.S. 654, 659, 67 S.Ct. 601, 604, 91 L.Ed. 577 (1947):

[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed.

See also United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738 (1951); Cherokee Nation v. United States, 270 U.S. 476, 46 S.Ct. 428, 70 L.Ed. 694 (1926).³

There is no contention that there was a constitutional taking of appellants’ land. However, more than 100 years after the treaty was entered into and on the basis of a statute enacted many years later, the Indian Claims Commission determined that appellants are entitled to $172,726.04, an additional sum that would have been paid for the Indian lands if the Government had not breached its agreement to sell the lands at public auction. As a result of these events, appellants maintain that if the additional proceeds now determined to be due had been realized when the lands were sold, the language of the 1854 treaty would have required the United States to pay interest on the $172,726.04 and, therefore, that they are now entitled to such interest. The claim is based only on that portion of Article 7 of the 1854 treaty which reads:

And as the amount of the annual receipts from the sales of their lands, cannot now be ascertained, it is agreed that the President may, from time to time, and upon consultation with said Indians, determine how much of the net proceeds of said sales shall be paid them, and how much shall be invested in safe and profitable stocks, the in-

interest. The claim is based solely on that portion of Article 7 of the 1854 treaty which reads:

Whether we consider the foregoing language of the treaty separately and apart from the remainder of that document or whether we construe it in connection with other articles of the treaty, we arrive inescapably at the same conclusion : Article 7 of the treaty conferred discretion upon the President to invest the proceeds or not, as he saw fit. There is neither agreement nor consent by the United States to pay interest upon the proceeds.

The word “may” in Article 7 denotes that the signatories to the treaty vested in the President the discretion to pursue alternative courses of action. He could pay the proceeds directly to the Indians; he could invest them in “safe and profitable stocks”; or he could do both. There is no mandate that the President act in a single specified manner, and nowhere in the entire treaty may there be found an explicit promise by the Government to pay interest.⁴

When we turn to other provisions of the same treaty, it is apparent that the framers of the treaty knew how to impose a duty or to express a promise, and for such purposes they used clear and explicit language such as “shall”⁵ and “agree”.⁶ The framers also knew how to confer discretion; and when particular powers or actions called for discretion, the treaty spoke in terms of “may”.⁷ Thus the parties to the treaty knew how to express an “affirmative, clear-cut” obligation. United States v. Thayer-West Point Hotel Co., supra. They did not do so in Article 7 concerning disposition of the proceeds.⁸

In pressing their claim for interest, appellants rely mainly upon the decision of the Supreme Court in United States v. Blackfeather, 155 U.S. 180, 15 S.Ct. 64, 39 L.Ed. 114 (1894). However, an examination of that decision demonstrates quite clearly that the treaty there considered contained a direct and unequivocal promise by the United States to pay five percent per annum on the proceeds of the sale of Indian lands. In the seventh article of the treaty before the Supreme Court in that case, it was agreed that the proceeds of the sale of Indian lands, after certain deductions had been made, “shall constitute a fund for the future necessities of said tribe, parties to this compact, on which the United States agree to pay to the chiefs, for the use and general benefit of their people, annually, five per centum on the amount of said balance, as an annuity”. [Emphasis supplied.] 155 U.S. at 188, 15 S.Ct. at 67. Although the promise of the United States to pay five percent annually on the fund was denominated in the treaty as an annuity, the Supreme Court held that the unqualified promise of the United States to pay an annuity of five percent was substantially the same as an agreement to pay interest in the same amount. That decision cannot be made to fit the case at bar, because in the treaty involved here there was no equivalent affirmative obligation to pay the Indians interest or to make any other type of payment on the proceeds of the sale of their lands, no matter how such payment may be denominated.

Mille Lac Band of Chippewas v. United States, 47 Ct.Cl. 415 (1912), rev’d, 229 U.S. 498, 33 S.Ct. 811, 57 L.Ed. 1299 (1913), which is also relied upon by appellants, is equally inapplicable, because that case arose under the Act of January 14, 1889, 25 Stat. 642, which expressly provided for the payment of interest at the rate of five percent per annum on sums received from the sale of the Indian lands. 47 Ct.Cl. at 462.

In summary, the 1854 treaty clearly specified that the disposition of the proceeds of the land sales was left to the discretion of the President. Therefore, it would be judicial treaty-writing for us to read into that agreement an express promise by the Government to pay interest.⁹

For the reasons stated above, we hold that appellants are not entitled to prevail on either of the issues raised in this appeal, and we therefore affirm the determinations of the Indian Claims Commission.

Affirmed.

1 . Article 6 provided: “The said Kaskaskias and Peonas, and the said Piankeshaws and Weas, have now, by virtue of the stipulations of former treaties, permanent annuities amounting in all to three thousand eight hundred dollars per annum, which they hereby relinquished and release, and from the further payment of which they forever absolve the United States; and they also release and discharge the United States from all claims or damages of every kind by reason of the non-fulfilment of former treaty stipulations, or of injuries to or losses of stock or other property by the wrongful acts of citizens of the United States; and in consideration of the relinquishments and releases aforesaid, the United States agree to pay to said united tribe, under the direction of the President, the sum of sixty-six thousand dollars, in six annual instalments, as follows: In the month of October, in each of the years one thousand eight hundred and fifty-four, one thousand eight hundred and fifty-five, and one thousand eight hundred and fifty-six, the sum of thirteen thousand dollars, and in the same month in each of the years one thousand eight hundred and fifty-seven, one thousand eight hundred and fifty-eight, and one thousand eight hundred and fifty-nine, nine thousand dollars, and also to furnish said tribe with an interpreter and a blacksmith for five years, and supply the smith shop with iron, steel, and tools, for a like period.”

2 . The Commission found the fair market value of the land to have been $2.50 per acre in June-July 1857 (the time of sale). Since 207,758.85 acres were involved, the tribe should have received $519,397.13. The sum it actually received was $346,671.09. The difference is $172,-726.04.

3 . For an example of how strictly such a waiver of immunity has been construed, see Anglin & Stevenson v. United States, 160 F.2d 670 (10th Cir. 1947), cert. denied, 331 U.S. 834, 67 S.Ct. 1514, 91 L.Ed. 1847 (1947), in which Rule 25 of the Circuit Court, in conformity with the related statute and having the force of law, provided that when a lower court judgment is affirmed “interest thereon shall be calculated and levied from the date of the judgment * * Id. at 672. The court held that this allowance of interest did not apply to a judgment against the United States, since Congress had not expressly consented to the payment of interest by the United States. Cf. Nez Perce Tribe of Indians v. United States, supra, slip op. pp. 12-13.

4 . Such a promise cannot, of course, be implied. United States v. New York Rayon Importing Co., supra.

5 . See, e. g., Articles 3, 4, and 5.

6 . See Article 6.

7 . See, e. g., Articles 3, 4, 9, and 11.

8 . Therefore, we do not consider appellants’ argument that Congress in the years immediately preceding the signing of the treaty construed a promise to invest in safe and profitable stocks as equivalent to a promise by the United States to pay interest on the sum to be “invested”. Our concern here is solely with what the United States obligated itself to do; and as shown above, the United States did not even obligate itself to invest the proceeds. To invest or not was discretionary; hence, even if we were to find the claimed equivalency, we could find no promise to pay interest.

9 . Admittedly no interest is allowable for the breach of an obligation to pay over money to the Indians. Confederated Salish and Kootenai Tribes v. United States, 175 Ct.Cl. (May 1966), cert. denied, 385 U.S. 921, 87 S.Ct. 228, 17 L.Ed.2d 145, and Ramsey v. United States, 101 F.Supp. 353, 121 Ct.Cl. 426, 431-432 (1951), cert. denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952). Any argument that the President was implicitly precluded from paying over more than was necessary to maintain the reasonable wants of the Indians is without merit. If such a limitation had been desired, it would have been expressly so provided in the treaty. Cf. Treaty with the Delawares, May 6, 1854, Art. 7,10 Stat. 1048, 1050.