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.