Delaware Indian Judg­ment Fund

When the U.S. Gov­ern­ment, fol­low­ing Supreme Court deci­sions and con­gres­sional action, began to break the log­jam of lit­i­ga­tion and claims set­tle­ments involv­ing Native Amer­i­cans dur­ing the  ’70’s,  it became appar­ent to the old­est Delaware descen­dants in Idaho that they were enti­tled to a share of the dock­eted funds. Their atten­tion to this mat­ter, despite appar­ent con­spir­a­cies to keep them out, attests to their con­nec­tion with events in a larger world than that bounded by their own time and place alone. Accu­rately, the elders per­ceived a need to mobi­lize and orga­nize the Delaware descen­dants. This would be accom­plished on sev­eral lev­els concurrently.

Con­gres­sional com­mit­tee hear­ings held in 1980 pit­ted the inter­ests of two groups of Delaware peo­ple, the Kansas and Idaho groups, against each other through respec­tive bills for the set­tle­ment of Delaware claims to share in judg­ment funds allo­cated by the Con­gress. The report issued (U.S. Sen­ate 1980) is the best avail­able doc­u­ment sum­ma­riz­ing the legal com­plex­i­ties of Delaware set­tle­ment claims. The fol­low­ing sec­tion is taken largely from those data and it should be remem­bered that they were not com­piled orig­i­nally for his­tor­i­cal pur­poses, but for legal pur­poses. Although biased for the claimant, they are not nec­es­sar­ily inac­cu­rate.  They sum­ma­rize the chain of occur­rences which have cul­mi­nated in the present legal and his­tor­i­cal posi­tion of the Delawares of Idaho.

The Delaware Indi­ans moved to Kansas in 1829. In 1854, they made a treaty with the U.S. to sell a part of their “trust” lands at pub­lic auc­tion.  The funds to be derived from such sales were to be put in a trust fund for the ben­e­fit of the Delaware peo­ple and such fund was to draw inter­est at 5% per annum. These lands were sold in a man­ner con­trary to the terms of the 1854 treaty and the trust fund was thereby dimin­ished by $1,385,617.81 of 1854 cur­rency. This was deter­mined by the Indian Claims Com­mis­sion.  The ances­tors of the present day Idaho Delaware Indi­ans were mem­bers of the tribe in 1854 and suf­fered equally with all other mem­bers of the tribe the diminu­tion of the tribal funds by the breach of the treaty of 1854.

In 1860, the Delaware Indian lands were allot­ted to indi­vid­u­als, each receiv­ing an 80 acre tract, but no patents were issued. In 1866, the tribe entered into a treaty with the U.S. under which the tribe agreed to move to Indian coun­try.  It is prob­a­ble that the tribe expected to move as a tribe and would con­tinue to be a polit­i­cal entity in Indian coun­try after the move. The 1866 treaty pro­vided that the allot­ments of each Indian who moved would be sold and the allot­tee would receive indi­vid­u­ally the cash value of his allot­ment (Arti­cle 6).  The unal­lot­ted lands were to be sold and the pro­ceeds were to be added to the trust fund which had been cre­ated by the sales of lands pur­suant to the 1854 treaty.

Arti­cle 3 of the treaty pro­vided that each adult Delaware Indian was given an option to remain in Kansas. Their allot­ments and the allot­ments of their minor chil­dren were not to be sold but were to be held by them in “sev­er­ally”. Arti­cle 9 of the treaty pro­vided that each adult Delaware who elected to remain in Kansas, upon proof that he was “suf­fi­ciently intel­li­gent and pru­dent to con­trol his own affairs and inter­ests “would receive U.S. cit­i­zen­ship and 80  acres  of Kansas.

The irony in this stip­u­la­tion can­not be over­looked in its mon­strous pater­nal­ism and lack of match with the his­tor­i­cal pic­ture painted of the Delawares from ear­li­est times to the present. The irony resides in the image yielded by repeated obser­va­tions of the Delawares as a broadly adapted Indian group. They pos­sessed a large tool kit for get­ting a liv­ing from a wide vari­ety of con­di­tions. Forced to be seden­tary by con­di­tions, they were adept at farm­ing and rais­ing ani­mals.  On the move, they were quite capa­ble of hunt­ing, fish­ing and foraging.

If the Indian “had shown that he had adopted the habits of civ­i­lized life, and has been able to sup­port, for at least five years, him­self and fam­ily”, he could become a U.S. cit­i­zen. Each adult who thus became a cit­i­zen was enti­tled to receive a patent to the 80 acre allot­ment held in sev­er­ally and “his just pro­por­tion”, of the cred­its of the tribe, then held in trust by the U.S. In addi­tion, each was to receive “as the same may be received, his pro­por­tion of the pro­ceeds of the sale of lands under the pro­vi­sions of the 1866 treaty, when he shall cease to be a mem­ber of said tribe”.

This is an inter­est­ing con­cept, and one which has been put into effect in many instances when Native Amer­i­cans have been asked to give up some­thing of their own, and accept instead some­thing also their own. The present Idaho Delawares are descen­dants of Delaware Indi­ans who elected to nei­ther move to the Chero­kee Nation in Okla­homa under the terms of the 1867 agree­ment and who did not receive lands in Kansas nor become U.S. cit­i­zens under the pro­vi­sions of Arti­cle 9 of the treaty of 1866. The 1906 pay­roll of the Delaware band resid­ing in the Chero­kee Nation did not, for reason(s) unknown, include the Idaho Delawares, although their ances­tors were on the 1866 Reg­istry of Delawares and were with the tribe at the times that the wrongs were com­mit­ted for which the sub­ject Indian Claims Com­mis­sion awards were granted to the Delaware Indians.

The law gov­ern­ing dis­tri­b­u­tion of judg­ment funds han­dles the prob­lem of fam­ily dis­crete­ness sur­pris­ingly well in spite of its prob­a­ble intent, namely to “lump” scat­tered dis­crete fam­ily units into one pyra­mi­dal “tribe” with lead­ers hav­ing the power to con­duct impor­tant busi­ness with the implied con­sent of the gov­erned par­ties. Indi­vid­ual fam­ily rights are actu­ally main­tained within the terms of the set­tle­ment, even, it might be claimed, fos­tered, since all descen­dants of “reg­is­tered” ances­tors are guar­an­teed enfran­chise­ment by statute. This mode of dis­tri­b­u­tion cre­ates an ideal con­di­tion for the for­ma­tion of local band/corporations to adapt to the real­ity of being under the legal rule of the larger soci­ety and sub­ject to the juris­dic­tion of state, region, county and munic­i­pal gov­ern­ments.  The addi­tion of a cul­tural ele­ment to the legal con­text jus­ti­fies the view that an ongo­ing process (eth­ni­fi­ca­tion) is occur­ring of which the ety­mo­log­i­cal and evo­lu­tion­ary result is the ethny.  It is of inter­est that a response of one mem­ber fam­ily,  to an appeal by  cor­po­rate lead­er­ship for legal sol­i­dar­ity, was avowed reluc­tance to “sign over their rights” to the par­ent cor­po­ra­tion, even for the pur­pose of seek­ing a finan­cial ben­e­fit from a share in the claim set­tle­ment which indi­vid­u­als and their fam­i­lies had no prospect of obtain­ing otherwise.

The leg­isla­tive his­tory shows that Con­gress intended to include all present descen­dants of per­sons who were with the tribe in 1854 and thought that by adopt­ing the act as pro­posed by the Indian groups, it was includ­ing all such per­sons. The omis­sion of the Kansas and Idaho Delawares by the adop­tion of Pub­lic Law 92 – 456 was sim­ply an over­sight and was not an inten­tional omission.