By the time the Turtle Mountain
Reservation was created in 1882, however, Little Shell and his band had
become totally disenchanted with the treaty promises that had been made to
them. The federal government had failed to make good on the payments
promised at the Old Crossing in 1863. By 1882 Little Shell and most of his
Band were no longer willing to swap the 10,000,000 acres they owned in North
Dakota for a promise of 46,000 acres in the Turtle Mountains. The government
made various efforts to get the 10,000,000 acres by negotiation. Senate
Report No 693, Fifty Sixth Congress, First Session (App. p. 113-291) June
6, 1900 reported as follows:
"From time to time, prior to 1892, the
government had sought to secure a relinquishment of the Indian title to said
tract of land from this band [the Little Shell] without success. Id. …
"Attempts were also made by the Government to
secure the consent of these Indians for their removal to some other
reservation. [Fort Berthold] The said Band seemed greatly attached to their
home, [comprised of over 10 million acres] and no amount of persuasion could
induce them to remove therefore; finally, in 1892, by act of Congress a
commission, was appointed by the President to secure the relinquishment of
their Indian title to all territory claimed in the State of North Dakota,
and to induce this band to remove to some other location." Id.
For the Band's stubborn refusal
to be confined on a reservation, however, there was retribution by the
agents of the federal government. When Little Shell and his Band refused to
become reservation settlers, payment to them for their portion of the
$20,000 annual payments promised at the Old Crossing in 1863 were withheld.
The Little Shell were told they would only receive the benefits of the
payments if they would settle down on a reservation. This they refused to
do. As late as the 1890’s Little Shell and his band continued to fish, trap,
hunt, and engage in commerce with the white man.
One hundred years later the
descendants of this Band and the other Bands involved sued the United States
for its default in payments promised by the Treaty of 1863 (19 Ind.Cl.Comm.
205). In addition they alleged they had not received fair compensation for
what they had given up. On June 9, 1964, in Docket 18A, the Indian Claims
Commission awarded $2,034,889.56 to the lineal descendants of Moose Dung
(Red Lake Band) and Little Shell (Pembina Band). Of this amount $237,127.82
was determined to be the Little Shell Band’s share.
Plaintiff’s Second Cause of
Action in this lawsuit alleges that to this day the $237,127.82 has not been
paid to the Little Shell. They asked the lower court here to order an
accounting and take control of the funds.
When economic coercion to make
the Little Shell Band reservation Indians did not work, the government
recognized it was faced with a serious legal problem. There was no treaty in
place that would divest Little Shell’s Band of the 10 million or more acres
the government had already opened up to homesteaders. To deal with this
crisis Congress passed the Act of July 13, 1892. This Act established a
Commission headed by one P.J. McCumber (later a U.S. Senator from North
Dakota.) The sole purpose of the Commission was to convince these various
Indian Bands they should relinquish their aboriginal rights and move onto
reservations.
The McCumber delegation asked
the Indians bands to meet and engage in negotiations for a Treaty. They
gathered together at Belcourt, North Dakota on September 21, 1892. The
Commission offered 10 cents an acre for the roughly 10 million acres
involved.
Chief Little Shell balked. He
thought 10 cents an acre for 10 million acres of some of the richest
farmland in the nation was inadequate.
Little Shell insisted on a
large reservation and more money before his Band’s land would be ceded.
McCumber refused to budge on his 10-cent offer. Little Shell and his braves
got up and walked out, never to return to the negotiating table. To this day
the United States of America has never entered into a Treaty with the Little
Shell Band. Instead the Court of Claims awarded money damages for the
government's taking. In Docket No. 221 (App. p. 330-355), the court found
the Little Shell were entitled to be compensated. To this day none of the
money awarded has ever been distributed to them.
When Little Shell and his
braves left the bargaining table, the McCumber Commission did not want to
give up on the mission it had been sent to do. It had been charged with the
responsibility of returning to Washington D.C. with a treaty by which the
aboriginal rights of the Indians who inhabited most of the northeast
quadrant of North Dakota would be extinguished. When Little Shell refused to
sign the proposed treaty the McCumber Commission staff solicited 32 young,
male, Indians to sign a bogus treaty.
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