Opinion of the Court The court decided that the plaintiffs were not entitled to recover. WILLIAMS, Judge, delivered the opinion of the court: The Chippewa Indians of Minnesota bring this suit under the act of May 14, 1926 (44 Stat. 555), as amended by the acts approved April 11, 1928 (45 Stat. 423), and June 18, 1934 (48 Stat. 979). The material provisions of the act of May 14, 1926, as amended, are set out in the Findings of Fact and need not be restated in detail here. The plaintiffs in the amended petition assert two claims against the United States, (1) for the alleged appropriation of timber by the defendant for its own use, and (2) for the alleged appropriation of lands, both without any consideration to plaintiffs therefor, and in violation of the expressed terms of the trust created by agreements entered into by the defendant with the plaintiffs in conformity with the authority contained in the act of January 14, 1889 (25 Stat. 642). The act of January 14, 1889, authorized the President to appoint commissioners to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the State of Minnesota, except so much of the White Earth and Red Lake Reservations as in the judgment of the commission would be required to make and fill the allotments provided for in the Act, and not reserved by the commissioners for said purpose. The cessions were not to become effective until approved by the President, which approval, the Act declared, should "be deemed full and ample proof of the assent of the Indians and" should "operate as a complete extinguishment of the Indian title without any other or further Act or ceremony whatsoever for the purposes and upon the terms in this act provided." The terms of the cession as provided in the Act were: Section 4 required the Commissioner of the General Land Office to cause all the ceded lands to be surveyed in the manner provided by law for the survey of public lands, and Opinion of the Court directed the Secretary of the Interior to appoint competent and experienced examiners to personally make a careful, complete, and thorough examination of the said lands by 40 acre lots, for the purpose of ascertaining on which lots there was standing or growing pine timber, and to classify all such lots as "pine lands," and make due entry thereof in books provided for that purpose showing with particularity the amount and quality of all pine timber standing or growing on any lot so classified, the amount to be estimated in the manner usual in estimating such timber, and submit reports of their work to the Commissioner of the General Land Office. Thereupon the Commissioner was directed to make a list of all such "pine lands" describing each 40 acre lot separately, and opposite each such description to place the actual cash value of the lot (which should include the value of the land as well as all timber thereon) according to his best judgment and information, but in no event to fix the valuation of the lot at less than the value of the pine timber thereon computed at a rate not less than $3.00 per thousand feet board measure. The lists so prepared were subject to the approval or rejection of the Secretary of the Interior, and if approved, fixed the minimum price for which each lot could be sold. SECS. 4 and 6. All the ceded lands not classified as "pine lands" were directed to be classified as "agricultural lands” and disposed of under the Homestead Laws at $1.25 per acre. SEC. 5. All lands classified as "pine lands" when the listing thereof had been approved by the Secretary of the Interior as directed in Section 4, were directed to be proclaimed as in market, and each lot offered for sale separately, and after advertisement, as required by the Act, sold at public auction to the highest bidder for cash at not less than its appraised value. SEC. 7. The net proceeds received from all the ceded lands were directed to be placed "in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund; to draw interest at the rate of 5% per annum, payable annually for the period of 50 years, three-fourths of said interest to be paid annually to the Indians in cash and one-fourth to be expended for their Opinion of the Court education." At the expiration of the 50 year period the permanent fund was directed to be "divided and paid to the said Indians and their issue then living, in cash in equal shares." Commissioners were duly appointed in accordance with the act of January 14, 1889, and entered upon agreements of cession with all the bands and tribes of Chippewa Indians of Minnesota, in which they ceded all their lands in the State of Minnesota to the United States upon the terms stated in the act, and these agreements were approved by the President March 4, 1890, as required by the act. It appears that the Chippewa Indians of Minnesota ceded all their lands in the State of Minnesota, and the timber thereon, to the United States upon the clearly defined trust declared in the act of January 14, 1889, which the United States was obligated to execute for the purposes set forth in the act, and to account to the Indians for the proceeds derived from such lands and timber upon their disposal. The act of January 14, 1889, was first amended by the act of June 27, 1902 (32 Stat. 400). This act amended section 5 of the act of 1889, in the following respect: the pine timber was directed to be sold separate from the land; the Secretary was authorized, after advertisement, to receive bids for the timber on not exceeding 10 sections in any one bid; all sales were to be made upon separate sealed bids for the timber on each lot; no sale was to be approved for less than the minimum price of $4.00 per thousand feet board measure for Norway pine and $5.00 per thousand feet board measure for white pine; the Secretary was authorized to accept any, or reject all, bids; all timber sold was to be cut, banked, and scaled in the log according to Scribners' Rules, and paid for at the sale price per thousand feet, with the proviso, that 200,000 acres of the ceded lands classified as "pine lands," and 5% of the pine timber standing thereon, should be reserved for forestry purposes, and that in addition thereto all lands and timber on 10 sections, and certain islands and points therein described should be likewise reserved from sale, for forestry purposes. When the merchantable pine timber on any tract classified as "pine lands" (except on the Opinion of the Court lands reserved for forestry purposes) was removed, the tract was to be opened to homestead entry and disposed of at $1.25 per acre. When 95% of all the merchantable pine timber on any tract reserved for forestry purposes, except the 10 sections, islands, and points, was cut, such tract was, without further act, resolution, or proclamation, to forthwith become and be a part of a forest reserve, the same as though set apart by proclamation of the President in accordance with the act of Congress approved March 3, 1891, and subsequent laws amending and supplementing the same. The act of May 23, 1908 (35 Stat. 268), further amended the act of 1889 as amended by the act of 1902. Section 1 of this act created a national forest, describing the same by metes and bounds. The national forest so created included a part of the 200,000 acres of forestry lands selected by the Forester under the act of 1902 and the 10 sections, islands, and points, specifically referred to in that act, and "also 160 acres at the extremity of Sugar Point, on Leech Lake, and the peninsula known as Pine Point." By section 2 provision was made for the permanent withdrawal of all the lands described in the act, and all timber on the 10 sections, islands, and points for the reservation from sale of the 5% of the timber reserved by the act of June 27, 1902, and of 10% of the "merchantable pine timber" standing on the uncut portions of the reserved lands, outside of the 10 sections, islands, and points; and, for the sale by the Secretary of the Interior, from time to time, of so much of the timber on the 10 sections, islands, and points as the Forester might deem advisable in the conduct of a national forest, provided that a commission of three persons should "at once" be appointed, consisting of one person to be designated by the President, one by the Secretary of the Interior, and one by a general council of the Indians from four reservations therein named. The proviso directed the commission to "proceed forthwith" to appraise the value of the 5% of merchantable pine timber reserved under the act of June 27, 1902, the 10% reserved under "this Act", and the timber upon the 10 sections, islands, and points, and to add to the value of said timber an amount equal to $1.25 for each and every acre of land directed by "this Act" to be included in Opinion of the Court the reserve, and to certify their findings to the Secretary of the Interior. The Indians at the council, heretofore referred to, were authorized to select a representative, to serve without compensation, who was authorized, within 60 days. after the commission certified its findings to the Secretary, to appeal therefrom to the President. The action of the President was made final, and the amount approved by him was directed to be certified by the Secretary of the Interior to the Secretary of the Treasury, and placed to the credit of all the Chippewas in the State of Minnesota in their trust fund, to draw interest at the rate of 5% per annum as provided in the act of January 14, 1889. The commission authorized in section 2 of the act of 1908 to be "at once" appointed was not named until December 18, 1922. However, the Commissioner of Indian Affairs prior to that date, on July 29, 1922, designated a committee consisting of a representative of the Indian Office, a representative of the Forestry Service, and a Chippewa Indian, to make preliminary investigations of claims, both legal and equitable, of the Chippewa Indians, for the land and timber taken by the act of May 23, 1908. On November 17, 1922, the committee filed its report with the Commissioner of Indian Affairs. Thereafter, on December 18, 1922, the three persons who composed the committee making preliminary investigation were regularly appointed and commissioned members of the commission to carry out the provisions of the act of May 23, 1908. The commission adopted and used as a basis for its findings the report of the committee, and on January 16, 1923, certified to the Secretary of the Interior an award as follows: 190,944.93 acres at $1.25 Values of all timber on 10 sections, islands and points__ Total award.... $238, 681. 16 914, 830. 09 336, 684. 33 $1,490, 195. 58 The award made by the commission was approved by the President and certified to the Secretary of the Treasury for payment, who on May 31, 1923, placed the amount of the award to the credit of the Chippewa Indians of Minnesota in their interest bearing trust fund. |