United States of America et al., Plaintiffs,
v.
State of Michigan et al., Defendants.
No. M26-73 C.A.
United States District Court, W.D. Michigan, N.D.
May 7, 1979.
James S. Brady, U.S. Atty., J. Terrance Dillon,
Asst. U.S. Atty,. Dept. of Justice, Grand Rapids, Mich., Elmer T.
Nitzschke, Dept. of Interior, St. Paul, Minn,. Bruce R. Greene, Native
American Rights fund, Boulder, Colo., Kathryn L. Tierney, Bay Mills
Indian Community, Brimley, Mich., William J. James, James Jannetta,
Legal Services, and Daniel T. Green, Sault Ste. Marie Tribe Bay Mills
Indian Community, Sault Ste. Marie, Mich., for plaintiffs. Gregory T.
Taylor, Asst. Atty. Gen., Lansing, Mich., for defendants
Opinion
Preface
FOX, Chief Judge
"No one can deny that the constitution of the
United States is the supreme law of the land; and consequently, no act
of any state legislature, or of congress, which is repugnant to it, can
be of any validity. Now, if an act of a state legislature be repugnant
to the constitution of the state, the state court will declare it void;
and if such act be repugnant to the constitution the Union, or a law
made under that constitution, which is declared to be the supreme law of
the land, is it not equally void? And under such circumstances, if this
court should shrink, from a discharge of their duty, in giving effect
to the supreme law of the land, would they not violate their oath, prove
traitors to the constitution, and forfeit all just claim to the public
confidence?" Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 571-2, 8 L.Ed.
483 (1832)(McLean, J. concurring) (emphasis supplied).
When matters of great public and constitutional
significance involving fundamental duties of the United States come here
for resolution, this court assumes an extra duty of care in explaining
the reasons for its decision. As always, the court states the factual
basis and legal standards on which its conclusion rests so that the
appellate court will know the lega grounds for this court's decision.
Equally important, however, this court assumes also an affirmative
obligation to attempt to educate the public concerning the basic
principles underlying our constitutional democracy and the practical
application of these principles in our public affairs. See, Oliver v
Kalamazoo Bd. of Education, 368 F.Supp. 143 (W.D. Mich. 1973).
NORTHWEST ORDINANCE
THE NORTHWEST TERRITORIAL GOVERNMENT 1787
THE CONFEDERATE CONGRESS, JULY 13, 1787
AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY
OF THE UNITED STATES NORTHWEST OF THE RIVER OHIO
ARTICLE III
Religion, morality, and knowledge being
necessary to good government and the happiness of mankind, schools, and
the means of education shall forever be encouraged. The utmost good
faith shall always be observed towards the Indians; their lands and
property shall never be taken from them without their consent; and in
their property rights, and liberty they never shall be invaded or
disturbed, unless in just and lawful wars authorized by Congress; but
laws founded in justice and humanity shall, from time to time, be made,
for preventing wrongs being done to them, and for preserving peace and
friendship with them. (Emphasis supplied.)
The above language, taken from the Northwest
Ordinance, first enacted by the Confederated Congress in 1787 and
reenacted by the First Congress of the United States at its very first
session in 1789, is the backdrop for this action. It will be discussed
in detail in the course of this opinion.
Also a backdrop of this case is the history of
the American treatment of the Indians. In 1869 President Grant appointed
a commission (pursuant to Act of Congress of April 10, 1869) composed
of "nine men, representing the influence and philanthropy of six leading
States, to visit the different Indian reservations, and to examine all
matters appertaining to Indian affairs."' Their report includes the
following language:
While it cannot be denied that the government of
the United States, in the general terms and temer of its legislation,
has evinced a desire to deal generously with the Indians, it must be
admitted that the actual treatment they have received has been unjust
and iniquitous beyond the power of words to express. Taught by the
government that they had rights entitled to respect; when those rights
have been assailed by the rapacity of the white man, the arm which
should have been raised to protect them has been ever ready to sustain
the aggressor. The history of the government connections with the
Indians is a shameful record of broken treaties and unfulfilled
promises.
The history of the border white man's connection
with the Indians is a sickening record of murder, outrage, robbery, and
wrongs committed by the former as the rule, and occasional savage
outbreaks and unspeakably barbarous deeds of retaliation by the latter
as the exception.
The class of hardy men on the frontier who
represent the highest type of the energy and enterprise of the American
people, and are just and honorable in their sense of moral obligation
and their appreciations of the rights of others, have been powerless to
prevent these wrongs, and have been too often the innocent sufferers
from the Indians' revenge.
That there are many good men on the border is a
subject of congratulation, and the files of the Indian Bureau attest
that among them are found some of the most earnest remonstrants against
the evils we are compelled so strongly to condemn. The testimony of
some of the highest military of officers of the United States is on
record to the effect that, in our Indian wars, almost without exception,
the first aggressions have been made by the white man, and the
assertion is supported by every civilian of reputation who has studied
the subject.
In addition to the class of robbers and outlaws
who find impunity in their nefarious pursuits upon the frontiers, there
is a large class of professedly reputable men who use every means in
their power to bring on Indian wars, for the sake of the profit to be
realized from the presence of troops and the expenditure of government
funds in their midst. They proclaim death to the Indians at all times,
in words and publications, making no distinction between the innocent
and the guilty. They incite the lowest class of men to the perpetuation
of the darkest deeds against their victims, and, as judges and jurymen,
shield them from the justice due to their crimes. Every crime committed
by a white man against an Indian is concealed or palliated; every
offense committed by one Indian against a white man is borne on the
wings of the post or the telegraph to the remotest comer of the land,
clothed with all the horrors which the reality or imagination can throw
around it. Against such influences as these the people of the United
States need to be warned. The murders, robberies, drunken riots, and
outrages perpetuated by Indians in time of peace taking into
consideration the relative population of the races on the frontier do
not amount to a tithe of the number of like crimes committed by white
men in the border settlements and towns. Against the inhuman idea that
the Indian is only fit to be exterminated, and the influence of the men
who propagate it, the military arm of the government cannot be too
strongly guarded.
It is hardly to be wondered at that
inexperienced officers, ambitious for distinction, when surrounded by
such influences, have been incited to attack Indian bands without
adequate cause, and involve the nation in an unjust war. It should, at
least, be understood that in the future such blunders should cost the
officer his commission, and that such destruction is an infamy.
[Footnote to a 1978 Detroit Free Press article by Tom Opre documenting contemporary violence omitted.]
Report of Commission of Citizens (November 23, 1869), cited in Report of Commission of Indian Affairs, 47-48 (1869).
Senator Clay made similar points on the floor of
the Senate in 1835. Speaking of the Cherokee Indians of Georgia, he
said, as reported in the Congressional Globe for February 4, 1835:
Mr. C. said he wished to turn the attention
of the Senate to the nature of the wrongs this people had suffered to
the present condition of the Cherokees, whose lands had been guaranteed
by the United Sates. He went into the examination with the utmost
feelings of sorrow and regret at the miserable state to which these
tribes were reduced by the laws of the States. But he would assure the
honorable Senators from Georgia he was actuated by no hostile intentions
to that State. Georgia was the first that made these encroachments; she
originated the plan of invading the Indian rights, and she had carried
it far beyond all others. He had not all these various laws before him.
It was not necessary to go into details; it was sufficient to notice the
results. By the first act Georgia abolished the Government of the
Cherokee nation. No nation (said Mr. C.) can exist without a Government
of some kind. These people had formed and established a Government in
imitation of our own. But it was wholly immaterial what the humble form
of that Government might be. Georgia had abolished it. She next
proceeded to divide their territories into counties, and distribute them
by lotteries among their citizens every head of a family being entitled
to the land drawn against his number. She did indeed reserve a small
pittance of a few acres for those Indians who wished to remain within
her limits, but under circumstances that rendered them worthless. She
gave them no rights, no franchise, no single privilege. They were denied
the power of testifying in courts of justice. No Indian could be a
witness in favor of his fellows.
The present case is not a 14th Amendment case,
as defendants advocate. It is an Indian treaty case in which the State
asks the court to abrogate the Indians' aboriginal rights which have
survived for over 12,000 years and are valid to this day, and which were
guaranteed to the Indians by the Treaty of Ghent and the Treaties of
1836 and 1855. This case deals only with the jurisdiction of the Federal
government over the Indian and its authority to enter into treaties
which bind the states. Const. Art. 6, cl. 2; Art. 1, 8.
Michigan would take the Indians' subsistence and
livelihood, their right to fish, and divide it by a modern-day lottery,
the Indians being permitted to compete for licenses equally with those
who have taken their rights from them.
I. Introduction
On April 9, 1973, the United States of America
in its own behalf and in behalf of the Bay Mills Indian Community,
initiated this litigation in order to protect the tribe's rights to fish
in certain waters of the Great Lakes vested in the tribe by virtue of
aboriginal occupation and use, the Treaty of Ghent of 1814, and the
Treaty with the Ottawa and Chippewa Nation of 1836. In its complaint,
the United States asked that the State be enjoined from interfering with
the Indians' treaty confirmed rights to fish in the Great Lakes.
The Bay Mills Indian Community intervened in the
action on December 12, 1974, and added certain individual officials of
the Michigan Department of Natural Resources as defendants in its
complaint. Bay Mills also expanded the scope of the complaint by
alleging that it possessed a reserved exclusive fishing right in
Whitefish Bay of Lake Superior and a right to fish in the remaining
waters of Lake Superior free of state regulation. Accordingly, Bay Mills
asked the court for declaratory and injunctive relief to prohibit the
State from interfering with these fishing rights, and an affirmative
order that the State must exercise its police power to regulate any
non-Indian fishing which would be in derogation of these rights. Bay
Mills amended its complaint on October 28, 1975, added the Michigan
Department of Natural Resources as a defendant, and again expanded the
scope of the complaint by alleging a treaty protected, reserved right to
fish in all of the area of the Great Lakes ceded to the United States
in a treaty signed in 1836. This ceded area covered large portions of
Lakes Michigan, Superior, and Huron.
The Sault Ste. Marie tribe of Chippewa Indians, a
tribe organized in 1975 under the Indian Reorganization Act, 25 U..S.C.
. sect; 476, intervened in this action and filed a complaint against
the above-named defendants on December 12, 1975. In its complaint, the
tribe alleged a treaty-protected, reserved right to fish in Lake
Superior free from state regulation. On June 17, 1976, the Chippewa
tribe filed an amended complaint in which it alleged an exclusive right
to fish in the waters reserved to the Indians in the Treaty of 1836, and
a right to fish in the ceded waters of the Great Lakes free from state
regulation.
The United States amended its complaint in June
of 1976 to comply with the intervenors' complaints, with minor
differences. The United States did not allege that there existed "ceded
waters" under the 1836 treaty, but instead alleged that the Indians had
an aboriginal right to fish in the waters adjacent to the lands ceded
under the 1836 treaty and adjacent to the lands reserved in that treaty.
Also, the United States did not ask for a declaratory judgment that the
tribes have exclusive fishing rights in all the waters adjacent to land
reservations contained in the 1836 treaty, but instead asked the court
to determine that the State had no jurisdiction to regulate anyone
fishing within the Bay Mills Indian Community reservation, which it
alleges included Whitefish Bay. In effect, the United States' complaint
excluded the Chippewa tribe's allegation that it has exclusive fishing
rights in certain waters of the Great Lakes adjacent to 1836 treaty
reservation areas in addition to Whitefish Bay.
The plaintiffs' pleas for relief are grounded in the Supremacy Clause of the United States Constitution, Article 6, Clause 2.
The State of Michigan, in its answer, disputed
the interpretation given the Treaty of 1836 by the plaintiffs,
questioned the continued existence of the tribes which were signatories
to the Treaty, and alleged as defenses: ( I ) that the treaty was a
removal treaty, and therefore the Indians intended to relinquish any
aboriginal fishing rights they may have held in 1836; (2) a subsequent
treaty in 1855 discharged all prior rights under the 1836 treaty; (3)
this 1855 treaty was an accord and satisfaction extinguishing all prior
rights; (4) the Indians did not have any aboriginal rights over the
Great Lakes; (5) Article 13th of the 1836 Treaty which granted the
Indians the right to use the fruits of the land until the land is
required for settlement acted as a reservation upon a condition
subsequent, and that condition having occurred, the use is extinguished;
(6) the land reservations made in the 1836 Treaty have expired by the
terms of the Treaty; (7) even though there may be a treaty-protected
right to fish, the State of Michigan may still regulate this right in
the interest of conservation or under other state police powers; (8) the
expansion of the Sault Ste. Marie Chippewa reservation may be done only
with the consent of the state; (9) the Chippewa Tribe was dissolved by
the 1855 Treaty, and the Chippewa tribe from Sault Ste. Marie is not in
privity with the original signatories to the treaty.
The State of Michigan set forth a counterclaim
in its answer in which it asked the court to declare that the Indians
involved in this action are not exempt from state regulation. The Court
views this counterclaim as a repetition of the denials and defenses set
forth above, however.
The Michigan United Conservation Clubs (MUCC), a
sportsman's group, petitioned tints court for permission to intervene
in the action. That petition was denied for reasons set forth in an
earlier opinion of this court; MUCC has been permitted to act as an
amicus curiae, however.
After numerous pretrial motions were disposed
of, trial began on February 27, 1978. The Court heard extensive
historical evidence and received voluminous documentation meant to
provide a basis for interpreting the often ambiguous treaties in issue
in this case. Extensive briefs and arguments considered the issue of
whether the State of Michigan or the United States alone has the right
to regulat fishing by the plaintiff tribes in the Upper Great Lakes.
[1] Before the filing of the complaint and
continuously during the Course of these proceedings, the State of
Michigan and certain individually named state officials have acted in
derogation of the vested aboriginal and federal rights of the plaintiff
Indian tribes. The conflict between the state and tribal fisherman is
notorious; scarcely a day goes by without an article appearing in one or
more of the state's major newspapers concerning the controversy. That
it is a passionate issue is exemplified by a recent wholly improper
attempt to influence this Court through the circulation of petitions
amongst sports fishermen which urged that the court rule against the
Indians. The circulation of petitions is an action diametrically at odds
with the methods of access to the courts mandated by the Federal rules
of Civil Procedure. This misguided action gave thousands of people the
erroneous impression that constitutional rights are a matter of popular
contest. This was a corruption of the concept of the Federal Judicial
system. In a democracy, many times people violate Constitutional and
Inalienable rights. The United States Courts exist to ensure guaranteed
constitutional rights against the TYRANNY OF POPULAR MAJORITIES. Federal
Court Judges are, or ought to be, custodians of secured constitutional
right.
Before giving my specific findings of fact and
conclusions of law, and in the effort to foster public understanding, I
present the following more exhaustive statement of the issues and law
involved in this case.
The United States, guided by the Nixon
administration and acting in its role as trustee for the Indians, filed
this action against the State of Michigan to secure Indian rights which
it says were reaffirmed by an 1836 Treaty with the Ottawa and Chippewa
Indians. In so doing it was merely accepting obligations imposed by the
Northwest Ordinance, supra. The Northwest Ordinance not only provided
for Michigan's first government but simultaneously set the standard by
which the territorial government and the United States would be obliged
to deal with the Indians of the Territory.
By this enactment, the Founding Father declared a
guardian-ward relationship between the United States and the Michigan
Indians. Trained as they were in denominational schools, where their
routine assignments included translation of the bible from English to
Latin and from Latin to Greek, the Founding Fathers did not hesitate to
found this relationship on moral and religious principles, the
principles which, generally, they transformed into political principles
when they formulated our present government, including them in the
Declaration of Independence and the Preamble to the Constitution as well
as here in interpreting the treaties and in measuring the transactions
between the United States and its wards, the Indians. To do otherwise
would be in violation not only of the laws of man but also of the laws
of "nature and nature's God," which are, or ought to be the Supreme Law
of this land.
Also, before Michigan's statehood, the United
States entered into a treaty with Great Britain in which it offered its
most solemn word as a nation, in formal treaty, to honor all rights of
the Michigan Indians.
ARTICLE THE NINTH
The United States of America engage to put an
end, immediately after the ratification of the present treaty, to
hostilities with all tribes of nations of Indians with whom they may be
at war at the time of such ratification; and forthwith to restore to
such tribes or nations, respectively, all the possessions, rights, and
privileges, which they may have enjoyed or been entitled to in one
thousand eight hundred and eleven, previous to such hostilities:
Provided always, That such tribes or nations shall agree to desist from
all hostilities, against the United States of America, their citizens
and subjects, upon the ratification of the present treaty being notified
to such tribes or nations, and shall so desist accordingly. And his
Britannic majesty engages, on his part, to pu an end immediately after
the ratification of the present treaty, to hostilities with all the
tribes or nations of Indians with whom he may be at war at the time of
such ratification, and forthwith to restore to such tribes or nations,
respectively, all the possessions, rights, and privileges, which they
may have enjoyed or been entitled to, in one thousand eight hundred and
eleven, previous to such hostilities; Provided always. That such tribes
or nations shall agree to desist from all hostilities against his
Britannic majesty, and his subjects, upon the ratification of the
present treaty being notified to such tribes or nations, and shall so
desist accordingly.
This provision of the Treaty of Ghent, signed on
December 24, 1814 (8 Stat. 218), was not mere rhetoric; it was a
compromise position secured from Britain, which threatened indefinite
continuation of the War of 1812 unless the United States restored the
rights of Britain's Indian allies. Both nations pledged to restore to
such tribes or nations all the possessions, rights and privileges which
they may have enjoyed or been entitled to in 1811, before such
hostilities. Both nations assumed the guardianship of the Indians and
acknowledged all aboriginal Indian rights to use land, sea and air in
the New World, excluding all whites from their territory until and
unless the United States had secured the lands from the Indians by
valid, just, humane treaties. As guardian, the United States was obliged
to acquire the lands and other property not on the best terms it could
get for itself, but on the best terms it could get for the Indians. At
all times it was required to protect the Indians' interests. In the
Treaty of Ghent, Britain effected its duty as guardian of the Indians of
the lands it surrendered to the United States by securing a promise
from the United States to assume a guardian relationship toward those
Indians. The United States agreed to treat these Indians not as a
defeated enemy, but as a ward fully possessed of all rights arising by
virtue o original occupancy and use of the lands. The United States
accepted this obligation in exchange for an identical promise by Great
Britain and in order to end the War of 1812. Indians of the Northwest
Territory who had allied with Great Britain were possessed of aboriginal
rights, vested by virtue of original occupancy and use and
International treaty and protected by the obligations of their guardian,
the United States.
[2, 3] In our constitutional system of
government the states cannot enter into treaties with foreign
governments only the federal government can. When acting within its
power to deal with foreign governments, the federal government can make
treaties which give it authority in areas which otherwise would belong
solely to the states. In such cases the state no longer has authority in
areas governed by the treaty. Federal control of migratory waterfowl,
for instance, derives from a treaty with Great Britain. In this case the
federal government has entered into a treaty with Indians, a matter
which, like foreign affairs, is within its sole jurisdiction. One
question presented here is whether this treaty with the Indians deprives
the state of all authority to regulate matters covered by the treaty,
specifically Indian fishing in certain waters of the Great Lakes.
From the earliest times the United States has
been ambivalent about its assumed role as trustee for the Indians,
expressing noble sentiments executed by ignoble actions. During the 18th
and 19th centuries the United States typically dealt with the Indians
by treaty, as co-sovereign nations. Typically also, the United States
secured Indian lands on terms which were little short of conquest and
carried out the treaty in such fashion as to complete the vanquishment.
Michigan has staked most of its case on an 1830
Act of Congress called "An Act to provide for an exchange of lands with
the Indians residing in any of the states or territories, and for their
removal west of the river Mississippi," (4 Stat. 411) and referred to as
the "Removal Act." ongress did nothing in this Act to lessen the
obligation of the Executive toward the Indians. (American Heritage Pictorial History of the Presidents,
Vol. I, p. 224 [1968]) The principal authorization of the Act is to
make it lawful for the President to offer lands belonging to the United
States west of the Mississippi to the Indians who chose to exchange
their present lands. Section 7 of the Act indicates that the Act does
not contemplate any variation in Indian policy: "Provided, That
nothing in this act contained shad be construed as authorizing or
directing the violation of any existing treaty between the United States
and any of the Indian tribes."
Of necessity, this court has had an opportunity
to review the actions of almost every administration in the history of
our country. The removal policy in question began during the Presidency
of Thomas Jefferson. Piecemeal removal began during Monroe's
administration but slowed down during the administration of John Quincy
Adams, who had a humane and paternal attitude toward the Indians. Andrew
Jackson ran for office supporting the policy and received authorization
from Congress to implement it. During Jackson's term Henry Schoolcraft
was appointed to secure from the Indian bands, whose progeny make up the
plaintiff tribes, lands which would become the State of Michigan.
During Van Buren's presidency, pressure for removal of Indians to lands
west of the Mississippi waned. The Indians stayed in Michigan, but were
deprived of their rights under the 1836 treaty, and many others, almost
as quickly as they were signed. By the time Pierce became President,
even many of the eastern states wanted to keep Indians on their
ancestoral homes. A new treaty was signed with the Michigan Indians
during his administration which gave the Indians permanent reservations
(most of which no longer exist) in exchange for releasing the United
States from its unfulfilled financial and personal property obligations
under earlier treaties.
In an effort to provide a perspective on the
RemovalPolicy of the United States, I quote the following accounts of
noted historians who the State's own expert testified are authoritative
and reliable.(Tr. 1716.)
3. Removal of the Eastern Indians
An American journalist who had spent several
years in India, and whose small children had come to love the Indians,
came home in 1958. Shortly thereafter he found the boys crying as they
watched a TV "Western" because, as one moaned, "They're killing Indians
!" Papa had to explain that these were not Indians of India but Red
Indians, and that to kill them was part of the American Way of Life.
The only extenuation of American policy toward
the natives of North America is that it continued an old-world process
of one race or people pushing a weaker one out of an area that it
wanted. Almost every European today is a descendant of Asiatic intruders
into Europe; almost every North African the descendant or Arab
intruders. "The country is a land for cattle," said the children of
Reuben to Moses when they saw the land of Gilead, "and thy servants have
cattle; wherefore, said they, if we have found grace in thy sight, let
this land be given unto thy servants for a possession." In the United
States, as elsewhere in the nineteenth century, this process of conquest
and expansion took the form of a relatively highly developed
civilization pushing out a backward people who could not or would not be
absorbed, and who were too few in number and weak in technique long to
resist But some of the Indians put up a very good fight.
The problem of United States-Indian relations,
which for many years had involved international rivalries, became
localized after the Florida treaty was ratified in 1821. "Foreign
interference" could no longer be used as an excuse for abusing the
Indians. And there was no more need to placate them to prevent their
siding with the British, French, or Spanish.
Efforts to maintain Indian reservations within
the Eastem states were generally unsuccessful, although a few small
ones, such as that of the Abnaki in Oldown, Maine, and the Tuscarora
reservation near Niagara Falls, still endure, menaced or sliced away by
the bulldozer. Conditions for a reservation's lasting were a partial
adoption by Indians of the American Way of Life, and a strong government
service to protect them from the white man's trickery and alcohol. But,
for fifty years after American independence, the Indians did not wish
to conform, many federal agents were political hacks, government trading
posts were unable to compete with unauthorized private traders who
supplied the Indians with liquor, and frontiersmen everywhere coveted
the Indians' land.
Monroe's administration bowed to demands of the
West by adopting a removal policy. Plans for concentrating the tribes
west of the Mississippi now began to take shape, and piecemeal removal
began in the 1820's from the Old Northwest and the lower South, to
segments of what had been the domains of the Caddo, the Quapaw, and the
Osage. Tribesmen with well-developed farms, especially influential
half-breeds, were given the choice of removal, or staying put and
becoming American citizens. Those who preferred to leave, exchanged
their property for new lands in the West and were promised payment for
travel expenses and the value of improvements on their relinquished
property. The assent of the Indians was often merely nominal; federal
commissioners bribed important chiefs, and, if necessary, got them drunk
enough to sign anything. "Persuasion" often took the form of urging the
Indians to sell improvements for cash with which to pay off debts to
white traders. This removal policy slowed down during the administration
of John Quincy Adams, whose attitude toward the Indians was humane and
paternal, but picked up momentum and was carried to a successful
conclusion (from the white point of view) under Jackson. The President,
having negotiated several removal treaties during his military career,
knew very well the hardship involved, but regarded this as the only
possible way to save the Indians from extinction. They were aced with
the irresistible force of a white expansion which the Democrats had no
intention of checking.
Soon after Jackson's inauguration, Georgia,
Alabama, and Mississippi asserted jurisdiction over Indian reservations,
in contemptuous disregard of federal treaties, and even set up county
governments to be put in operation as soon as the rightful owners of the
soil were expelled. Congress then passed an Indian Removal Act (1830),
appropriating half a million dollars for the purpose. The President was
authorized to grant lands in the unorganized part of the Louisiana
Purchase in exchange for those relinquished in the East, to protect the
Indians in their new reservations, to pay expenses of removal and one
year's subsistence, and compensate them for improvements on the
relinquished land.
The liquidation of Indian reservations in the
Old Northwest was largely accomplished between 1829 and 1843. Mixed
bands of Shawnee, Delaware, Wyandot, and others were persuaded to accept
new reservations west of Missouri. Their numbers were drastically
reduced by disease on the journey. Theft by federal officials of what
was due to the Indians, and funeral rites for those who died en route,
exhausted their resources long before this "trial of tears," [sic] as it
was aptly called by later writers sympathetic to the Indians, came to
an end. Many groups were unable to make the journey in one season and
suffered intensely at improvised winter quarters. A cholera epidemic
broke out in 1832; measles took hundreds of lives. Further trials
awaited the survivors, especially those who hoped to till the soil; the
cost of equipment reduced them to penury or debt long before they could
raise a crop or draw upon tribal annuities. Money from the sale of
improvements at the old village ordinarily went into the expenses of
travel, if it did not stick in the pockets of federal agents.
At one point during these removals, hostilities
broke out. Black Hawk, chief of the Sauk and Fox, who had fought on the
British side in 1812, tried to retain his anient tribal seat at the
mouth of Rock. river, Illinois, opposite Davenport, Iowa. White
squatters encroached on the village and enclosed the Indians'
cornfields.. After the governor of Illinois had threatened him, Black
Hawk agreed that after crossing the Mississippi for his annual winter
hunt, he would never return. But his people, threatened by hostile
Sioux, ran out of food. Hoping to find a vacant prairie in which to
plant a corn crop, Black Hawk recrossed the Mississippi in the spring of
[ 1832] with about 1000 members of his tribe. The governor of Illinois,
assuming this to be a hostile expedition, called out the militia
(Abraham Lincoln commanding a company) and pursued the starving Indians
up the Rock river into the Wisconsin wilderness. It was a disgraceful
frontier frolic, stained by wanton massacre of Indians, including women
and children. The only redeeming feature was the chivalrous
consideration of Black Hawk by Lieutenant Jefferson Davis of the regular
army, when the captured chief was placed in his charge; forty years
later, Davis referred to Black Hawk's rear-guard action at Wisconsin
Heights as the most gallant fight he had ever witnessed. Black Hawk
subsequently visited the "Great White Father" in Washington and was
presented with a sword and a medal by President Jackson. But he lost his
tribal lands.
The four great Indian nations of the Old
Southwest, the Chickasaw, Creek, Choctaw, and Cherokee, were Jackson's
particular problem. In 1830 the Choctaw of Mississippi signed a treaty
providing for their removal within three years. As with others, this
migration brought death, suffering, and poverty. In 1832 a treaty was
signed with the Creek nation to wind up their large reservation in
Alabama. Some members kept individual allotments and faced the cunning
of new white neighbors who poured into their reservation before they
could leave. Many died on the journey. By 1860 the Creek nation had lost
about 40 per cent of its population. The rest settled in the Indian
Territory, near the Choctaw. The Chickasaw of Mississippi, a fairly
small group, fared better and obtained fairly good prices for their
improvements, since their land was desirable for cotton plantations.
These three nations were agricultural and
sedentary; some even held Negro slaves. The Cherokee, whose nation
spread over northwest Georgia into Alabama and around Chickamauga,
Tennessee, were even more advanced, by European standards. It had always
been a white grievance against the Indians that they rejected
"civilization." The Cherokee, unfortunately for themselves, took the
pale-faces at their word. George Gist, a halfbreed whose Indian name was
anglicized as Sequoyah, provided the necessary spark. Convinced that
literacy was the key to Indian survival, Sequoyah invented a simple form
of writing and printing the Cherokee language; Bibles, other books and
even a weekly newspaper The Cherokee Phoenix were printed. These Indians
welcomed Christian missionaries, built roads, houses, and churches,
adopted a constitution for the Cherokee nation and elected a
legislature. They became more civilized than the Georgia "crackers" and
"hill-billies" who coveted their lands. Nor, for that matter, do the
inhabitants of Faulkner's Yoknapatawoha [sic] County appear to be an
improvement over the Chickasaw whom they replaced.
The independence of the Cherokee nation had been
guaranteed by the United States in a treaty of 1791, but the State of
Georgia had been chopping away at their lands for over thirty years, and
regarded the treaty as obsolete. Discovery of gold in the Cherokee
country in 1828 brought this controversy to a head, and a rough class of
whites to the spot. Here was a case of federal supremacy against the
state rights, as clear at [sic] that of South Carolina; but President
Jackson let Georgia have her own way. His secretary of war, Peggy
Eaton's husband, informed the Cherokee that they were mere tenants at
will. The federal troops sent by President Adams to protect the Indians
were withdrawn, and Major Ethan Allen Hitchcock, sent by the war
deartment to investigate frauds against them, made so devastating a
report that the department suppressed. Chief Justice Marshall decided,
in a test case brought by a missionary (the Reverend Samuel C. Worcester
of Vermont), that the laws of Georgia rightly had no force within
Cherokee territory. Jackson commented, "John Marshall has made his
decision. Now let him enforce it." As Georgia held a lottery to dispose
of their lands, and no friends in power appeared to help them, the
Cherokee were forced to accept removal. Agents of the Indian
administration negotiated a treaty with a small minority of the chiefs
in 1835, but most of them refused to attend the negotiations, and few
departed within the three-year limit set by the treaty. A protest to
President Van Buren, signed by 15,665 Indians, was blandly ignored. So,
in 1838, regular troops under General Winfield Scott rounded up the
Cherokee and started them on the long trial [sic] to Indian Territory.
This journey cost them one-quarter of their number, but the remainder
reorganized their national government, prospered, and have retained
their language and alphabet to the present day. Several hundred diehards
in the Great Smokies, who resisted removal, were eventually given the
Qualla reservation in North Carolina.
A similar controversy with the Seminole of
Florida ended in war. A tricky treaty of removal, negotiated in 1832
with a few chiefs, was repudiated by the greater portion of the tribe,
led by a brave chieftain named Osceola. Secure in the fastness of the
Everglades, Osceola baffled the United States army for years, and was
only captured by treachery at a truce conference. Many Seminoles were
rounded up and sent west, but others kept up the fight until 1842. By
that time they had cost the United States some $20 million and 1500
lives. A few thousand remained in the Everglades. Their descendants,
known as the Miccosukee Seminoles, are the only occupants of some
200,000 acres of swampland north of the Tamiami trail. They live, like
their ancestors, by hunting, fishing, and a little agriculture. Never
having made peace with the United States, they are currently threatened
by drainage and development projects, and a "progress" which they do not
want.
The only Western statesman to denounce these
shabby and dishonorable proceedings was Henry Clay. His speech in the
Senate on 14 February 1835 is the more praiseworthy because the Indians
had no votes, and because his Kentucky constituents cared nothing for
them. He quoted the long list of treaties guaranteeing to the Cherokee
their lands, and the still longer list of acts of the State of Georgia
which violated not only these treaties, but the most elementary
principles of justice and decency. He drew tears from the eyes of the
senators, but they did nothing for the Cherokee except to expedite their
removal.
President Jackson seems to have kept a good
conscience about all this, and several friends of the Indians, such as
Lewis Cass and Thomas L. McKenney, head of the war department's bureau
of Indian affairs, supported removal as the only alternative to
extermination. Jackson's rationale of Indian removal appears in his
Farewell Address of March 1837: "The states which had so long been
retarded in their improvement by the Indian tribes residing in the midst
of them are at length relieved from the evil, and this unhappy race the
original dwellers in our land are now placed in a situation where we
may well hope that they will share in the blessings of civilization."
Lewis Cass went the General one better, piously invoking the theory that
God intended the earth to be cultivated. Cherokee cultivation evidently
did not count.
By the end of Van Buren's presidential term, it
was assumed, at least by the Democrats, that the Indian question had
been solved. All important Eastern tribes those who, in Jackson's
phrase, had "retarded improvement" (i.e. resisted white land
grabbers)-had been provided for behind a barrier that ran from Lake
Superior through Wisconsin and Iowa Territories, thence along the
western boundaries of Misouri and Arkansas to the Red river on the Texas
border. Behind this line the tribes were guaranteed possession "as long
as grass grows and water runs"; and thence most of them were eventually
ousted, when the tide of white settlement lapped around them and
slaughtered their game. But, in a sense, the removal policy was
justified by the later history of the "five civilized Indian Nations"
Creek, Cherokee, Choctaw, Chickasaw, and Seminole in Oklahoma. Removal
gave them the necessary respite to recover their morale, and until the
Civil War they succeeded in keeping white men out.
Looking backward it is now evident that, in view
of the irresistible push of the westward movement, Indian removal was
the lesser evil. It had to be, but, the process was carried out with
unnecessary hardship to the victims.
In many instances missionaries and other
individuals managed to protect the Indians. The Ojibway or Chippewa had a
reservation along the Bad river of Wisconsin, which was taken under the
protection of the Reverend L. H. Wheeler, a Protestant missionary at La
Pointe. When, in 1850, white pioneers began lobbying Congress to remove
these Indians west of the Mississippi and acquire their lands, Wheeler
visited the proposed site of the resettlement and reported that it would
be a deed of mercy to shoot every Ojibway rather than send them there.
Congress reconsidered, and in 1854 guaranteed these Indians three small
reservations on the south shore of Lake Superior, which they still hold
in 1964. Other tribes were not so fortunate. Between 1853 and 1856 the
United States negotiated no fewer than fifty-two treaties, mostly with
nations in the Mississippi valley or west of the great river, by virtue
of which it added 174 million more acres to the public domain.
Remnants of the Six Nations who had been
guaranteed possession or reservations in New York State, by treaties
concluded as far back as 1784, have been fighting a losing battle. Chief
Red Jacket of the Seneca long managed to preserve the integrity of his
people intheir reservation, which is now covered by the City of Buffalo.
After his death in 1830, a group of New York speculators known as the
Ogden Land Company began an intensive drive to get possession of the
Seneca reservation. By bribing greedy individuals to act as "chiefs" and
sign away land, this company managed to rob the tribe of almost their
entire heritage. President Van Buren, to his credit, denounced the
subsequent "treaty" as a steal, but it passed the Senate, by the casting
vote of Vice President Johnson, the reputed slayer of Tecumseh.
Samuel Eliot Morison, The Oxford History of the American People (1965) at 445-52.
Similarly, the American Heritage Pictorial History of the Presidents (1968). Vol. 1, states:
TRAIL OF TEARS
Although the Indian Removal Act of 1830 simply
authorized the President to negotiate for land, Andrew Jackson's
"requests" were in fact orders. Resigned to their fate, the Choctaw and
Chickasaw began the long journey from the Southeast to Arkansas and
Oklahoma. But the Creek, who had disastrously encountered Jackson in
1813 and 1817, knew better than to believe his promise of guaranteed
territory west of the Mississippi. Standing their ground in 1832, they
extracted a treaty that said "they shall be free to go or stay, as they
please." Four years later, their chiefs in chains and guns at their
backs, the Creek joined the exodus. In 1832, the Sauk were driven from
their Illinois villages and across the Mississippi, leaving possessions
and food stores behind. When Chief Black Hawk sent his braves to
negotiate with the military, their white flags were ignored. After
several skirmishes, the desperate leader tried to lead his starving
people back home, but they were stopped at the river. That pathetic
series of events, known as the Black Hawk War, cost hundreds of Indian
lives. In Georgia, the peaceful Cherokee sought and won from the Supreme
Court a favorable decision, to which neither the state officials nor
President Jackson paid any attention. Like the other Indian tribes, the
Cheroke embarked on a long journey to the West, along a "trail of
tears."
During the 20th century these Indians attempted
to secure rights previously denied them. During Theodore Roosevelt's
presidency, Congress passed a law which permitted them to appear before
the Court of Claims to settle the ownership of monies held in trust by
the United States at the time of the 1855 Treaty. The Ottawas and
Chippewas filed suit, and, in 1907, were able to show that the United
States still owed them monies which were to have been paid twenty years
after the signing of the original treaty. Ottawa and Chippewa Indians v.
United States, 42 Ct.Cl. 240 (1907). In 1946, during the Truman
administration, Congres established the Indian Claims Commission. The
Bay Mills Indians filed suit and proved that their land had been worth
approximately seven times what they were paid in the 1836 treaty. Bay
Mills Indians v. United States, 26 I.C.C. 538 (1971), Indian Claims
Commission Docket # 18E and 58.
The present action marks the first time during
the long history of these Indian peoples that the United States has not
been the opposing party in their effort to secure rights granted to them
by solemn treaties. The action was initiated by the United States
during the Nixon administration, was pressed during the Ford
administration, and carried forward during the Carter administration. As
the case presently stands, the United States and the plaintiff Indian
tribes, the parties to the two treaties here in question, have come to
this court agreeing thar their treaties reserved Indian fishing rights
in the Upper Great Lakes.
That there are persons within the state whose
rights to fish derive from federal (as opposed to state) law has been
totally unacceptable to the state and its Department of Natural
Resources. The state's position on this fundamental concept was stated
by its course in his opening argument:
There is no question but that the State now and
always has stood ready to provide fishing privileges to all our
citizens, commercial fishing privileges to all our citizens on an equal
basis, including Indians or others of whatever race or ethnic
background.
(Tr. 1210.) The state obdurately adheres to this
position despite the fact that the Supreme Court of the United States
long ago rejected the identical contention. In United States v. Winans,
198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Supreme Court
reviewed a lower court decision which held, in effect, that the Indians
were to be treated just like any other citizen of the State of
Washington, notwithstanding their treaty reserved the right to fish at
their usual and accustomed sites. The Court first stated the lower
court's ruling and then articulated unambiguously its disapproval:
In other words, it was decided [by the lower
court] that the Indians acquired no rights but what any inhabitant of
the territory or state would have. Indeed, acquired no rights but such
as they would have without the treaty. This is certainly an impotent
outcome to negotiations and a convention which seemed to promise more,
and give the word of the nation for more.
Id. at 380, 25 S.Ct. at 644. See also Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).
Although the United States before 1836 exercised
dominion over the area which was later to become the State of Michigan,
it had not as of that time taken steps to extinguish aboriginal title
in the Ottawas and Chippewas. The southern portion of the Michigan
territory was becoming settled in the early 1800's and there could be no
assurance of cloudless title in non-Indian settlers so long as the
Indians' aboriginal title to the land remained unextinguished. While the
United States had several options available to it in order to
accomplish an extinction of Indian title, it chose the most common
method of that time and negotiated a treaty of cession with the Ottawa
and Chippewa living in the northwestern portion of the lower peninsula
and eastern half of the Upper Peninsula of what is now the State of
Michigan.
[4,5] Central tothe plaintiffs' contentions and
rooted in United States v. Winans, supra, is the concept that under the
treaty the Indians were the grantors of a significant land cession and
the United States was the grantee. As in any land transaction (not just
those involving the Indians), the grant extends only to those interests
and rights specifically conveyed and to none others. When the Indians
granted to the United States their ownership in the land and waters of
the Great Lakes described in Article First of the 1836 treaty, they
retained all those rights not specifically conveyed. Among the retained
rights was their aboriginal right to continue to fish in the ceded
waters of the Great Lakes.
[6, 7] A misunderstanding quickly arises if the
transaction between the United States and the Indians is thought of as
the ordinary land transaction where the seller conveys all of his rights
in the property he sees. Under this interpretation, it would be
necessary for the Indians to be able to show that the United States
granted them the right to fish. The transaction is better understood if
the focus is upon the concept of "reservation." The Indians gave up some
rights, reserving all those not specifically conveyed. In a Washington
treaty, for instance, the Indians explicitly reserved a right to fish at
"all usual and accustomed places." They then conveyed their land,
without conveying to the United States the right to exclude the Indians
from the land adjoining the places where they fished. The owners who
purchased the land adjoining these fishing places did not have the right
to exclude Indians from the land because the Indians implicitly
reserved a right to cross it, there being no other way to exercise their
fishing right. The white owners only had the right to exclude
non-Indian trespassers. Likewise, certain Western Indian tribes
explicitly reserved land for agricultural purposes, the treaty not
specifically conveying all the water of adjacent rivers to the United
States. The tribes reserved whatever water they needed to make use of
their land. White settlers with similarly arid lands were not provided
for by the treaties, and were not entitled to any water used by the
Indians. The reservation was implied from the fact that the Indians
could not otherwise use their lands for agriculture. The Michigan
Indians here claim that they never granted their right to fish to the
United States, but reserved it so that they could continue to exercise
their way of life while living in Michigan, a right they reserved under
the treaty. They are not obliged to show that the United States granted
them the right to fish, but only that they reserved it. They need not
show that they explicitly reserved it.
[8, 9] Of course, not every treaty of cession
leaves the Indian grantors with reserved fishing rights. In order for
the right to exist in the first instance, it must be shown that the
Indians were in fact using the resource, i.e., that they exercised this
right, subsumed within their larger, aboriginal right to their land and
water. Thus, the factual predicate for the reserved fishing right is the
documented historic, ethno-historic, anthropologic and archaeologic
evidence proving that commercial and subsistence fishing was of
significance to the Indians during treaty times. Plaintiffs' testimony
at trial overwhelmingly established this factual predicate. Having
established these facts, the reserved right to fish arises by
implication. Thus, the Indians impliedly reserved the right to
subsistence and commercial fishing because of this resource's importance
to the Indian community at and before the time they entered into the
treaty.
[10] In addition to the implied right to fish,
plaintiffs also rely on explicit language in the treaty in support of
their claims. Article XIII provides that:
The Indians stipulate for the right of hunting
on the lands ceded, with the other usual privileges of occupancy, until
the land is required for settlement.
7 Stat. 495. This language constitutes an
explicit reservation of a right broad enough to include the takingof
fish from the Great Lakes for subsistence and commercial purposes.
Because the language of the treaties is general,
vague and ambiguous, the issues before this court involve not only the
treaties themselves but also the history of their negotiation and the
entire history of the Michigan Indians. This is the way the case has
been tried by the parties. The plaintiffs submitted evidence that, in
this northern region of the present United States, where agriculture has
always been difficult but fish have been in abundance, Indians have
relied upon fishing as basic to their livelihood since 10,000 years
before Christ. They submitted evidence that the Indians adopted gin nets
from their eastern cousins shortly after the bird of Christ, and used
them productively for centuries, even though, as defendants said, white
men could not get a catch from such nets unless made of much finer
materials. The plaintiffs presented experts who testified that the
Michigan Indians grew to depend upon the fisheries to secure European
goods and that their earliest participation in the European market
economy rested upon their expertise at fishing. It is this sort of
evidence which this court had to evaluate in order to determine whether
the Ottawas and Chippewas so depended upon subsistence and commercial
fishing at the time they signed the treaty of 1836 that they could not
have knowingly signed away their right to fish.
The lands ceded by the treaty of 1836 were less
explored than many regions of the far west. More desirable lands in
Michigan had been secured by prior treaties.*
[*The Treaty of Saginaw of 1819, 7 Stat. 203
(1819), secured the area around the thumb of the lower peninsula. The
negotiation of that treaty is not only typical of treaty negotiations,
but also reveals how General Lewis Cass, Secretary of War in 1836, dealt
with the Indians in 1819, when he was a commissioner. When General Cass
was leaving for the negotiations in which he planned to "procure a
cession of that valuable territory, " he realized he had a very ifficult
assignment because the Indians had not received the annuity they had
been promised in an 1807 Treaty. Treaty of Nov. 17, 1807 (7 Stat. 105.)
Accordingly, he secured a personal bank loan for the amount of the
"annuity" (which was in fact a grant) so that he might have silver to
place before the Indians during the negotiation. As Cass put it, he got
the money so that he would "be able to comply with past engagements
before I call upon the Indians lo perform others. " F. Dustin, The
Saginaw Treaty of 1819, 8 (1919). He displayed the silver during the
negotiations and gave it to the Indians only after they signed the new
treaty. Thus, the consideration from the first treaty served to secure
not only the first treaty, but the second also.
Although Cass had made extensive
preparations to ensure that the Indians would be there when he arrived,
few Indians had come. He sent out runners to gather missing chiefs and
tribal leaders, but did not wait for them to arrive. He began
negotiations at once. S. Gross. Indians, Jack and Pines, 1962, at p. 17
Cass' actions were an aggressive pursuit of his objective of acquiring
"that valuable land. " The Indians were primitive and uncivilized, but
they knew what they wanted, and they did not want to move out of
Michigan beyond the Mississippi. They wanted to stay on d their hunting
grounds.
The Chief. O-Ge-maw-ke-to. addressed Cass'
proposal of cession as follows: "You do not know our wishes. Our people
wonder what has brought you so far from your homes. Your young men have
invited us to come and light the council fire. We are hereto smoke the
pipe of peace, but not to sell our lands. Our American Father Wants
them. Our English Father treats us better. He has never asked for them
Your people trespass upon our hunting grounds. You flock to our shores.
Our waters grow warm; our land melts like a cake of ice. Our possessions
grow smaller and smaller. The warm wave of the white man rolls in upon
us and melts us away Our women reproach us. Our children want homes.
Shall we sell from under them the spot where
they spread their blankets? We have not called you here. We smoke with
you the pipe of peace. "' History of Saginaw County, 151 (1881).
The account of Cass' speech reads as
follows: "To this the Commissioner replied with earnestness, reproving
the speaker for arrogant assumption, that their Great Father at
Washington had just closed a war in which he had whipped their Father,
the English king, and the Indians too; that their lands were forfeited
in fact by the rules of war, but that he did not purpose to take them
without rendering back an equivalent, notwithstanding their late acts of
hostility; that their women and children should have secured to them
ample tribal reserves on which they could live, unmolested by their
white neighbors, where they could spread their blankets and be aided and
instructed in agriculture. " History of Saginaw County, 151 (l88l).
This humiliation was in fact contrary to the
provisions of the Treaty of Ghent with Great Britain ending the War of
1812. Under that treaty the Indians regained in full the rights which
Cass, impelled by the zest of his heroism, declares do not exist. After
this initial session, negotiations continued in the presence of Cass'
soldiers and 60 other whites, until a treaty was signed in ceremony for
which Cass supplied 5 barrels of whiskey. Saginaw Treaty of 1819, 17 (1919).
To meet the resistance brought about by the
Indians' desire to retain their hunting grounds, Cass assured them they
could continue to hunt in the forests. S. Gross, supra, at 17. By this
deception and by granting them the silver vested under the earlier
treaty, Cass induced the Indians to believe, mistakenly, that they had
won a victory and could retain their lands and their earlier treaty
rights.
It is reported that in other negotiations
Cass told Ohio Indians he would take a cession of their lands from
Michigan Indians if the Ohio Indians did not sell. He brought the
Michigan Indians to Ohio for the negotiations. (Tr. 493.)]
The lands of Upper Michigan were bpassed by
settlers who sought agricultural lands further west. Only a few thousand
Indians, organized into bands, inhabited the entire area along with a
few traders and military men. These Indians used the land and water,
seasonally migrating over the land to secure the resources of the area.
In the 1830's some of the Indians wanted to
acquire annuities like their Potawatomie brothers and realized that the
United States would give such payments in exchange for land. One group
indicated that it would cede Drummond Island in Lake Huron; chiefs of
questionable authority offered to cede lands belonging to other Indians
in order to get an annuity. Even these groups had so little
understanding of American property law that they expected to continue
using the land as before even after a cession.
Lewis Cass, Secretary of War, and Henry
Schoolcraft, Indian Agent in Michigan, were not interested in such
proposals. They ordered representatives of all area Indian bands to
Washington, escorted by traders chosen because of their known influence
over the Indians and who were rewarded by the terms of the subsequent
treaty. Away from their forest homes for over four months, many for the
first time in their lives, unable to engage in their ordinary pursuits,
housed in buildings and transported over streets, the Indians signed a
treaty written by white traders, explained to them by white interpreters
and fostered by men who had supplied them with firewater for years.
They were then permitted to return to their homes.*
[*Similar coercion was effected in different
fashion in treaty negotiations with the Osages: On the 8th of November,
1808, Peter Chouteau, the United States' agent for the Osages, arrived
at Fort Clark. On the 10th he assembled the Chiefs and warriors of the
Great and Little Osages in council and proceeded to state to them the
substance of a treaty, which, he said, Governor Lewis had deputed him to
offer the Osages, and to execute with them. Having briefly explained to
them the purport of the treaty, he addressed the to this effect, in my
hearing, and very nearly in the following words: "You have heard this
treaty explained to you. Those who now come forward and sign it, shall
be considered friends of the United States and treated accordingly.
Those who refuse to come forward and sign it shall be considered enemies
of the United States, and treated accordingly. " The Osages replied in
substance, "that if their great American father wanted a part of their
land he must have it, that he was strong and powerful, they were poor
and pitiful, what could they do? He had demanded their land and thought
proper to offer them something in return for It. They had no choice,
they must either sign the treaty or be declared enemies of the United
States. " George C. Silbey, factor at Fon Osage, cited in Schmeckebier,
the Office of Indian Affairs, Its History, Activities, and Organization
(1927), pp. 59-60.]
Before and during its negotiation and by the
language of the treaty, they were assured that they could continue to
use the land when they resumed to their homes, as before. Had they felt
anxious about their fishing grounds before the negotiations, those fears
were allayed: areas sought by whites were granted exclusively to the
Indians, and no mention was made that the treaty might take any other
fishing rights away.
By the terms of the treaty monies granted to the
Indians for their land were assigned to traders to pay for Indian
debts, and Henry Schoolcraft negotiated over $50,000 for his relatives.
The Indians got their annuities, certain services, reservations at their
traditional fishing grounds and a promise of land in the West.
But, the white men were not through with the
Indians. The Senate ratified the treaty with an amendment limiting the
terms of the reservations to five years or longer, as the United States
might permit. This put the Indians on notice that things had not gone as
they had understood them. But, Schoolcraft allayed their fears by
assuring them they could continue to use all of their lands as before,
leading them to understand that this use would go on without limit.
Satisfied, the Indians signed the pact.
The United States did not pay all of the
annuities promised; took the most important of the fishing grounds to
build a canal and permitted settlers to come into the territory to such
an extent that the Indians feared they would lose their reservations and
there would be no land left for them. The United States wanted to
secure clear title over Indian lands so that they could be sold to
settlers and to concentrate the Indians in fewer locations on less land.
These motivations led to a new treaty in 1855. In that treaty, signed
in Detroit, the United States granted the Indians reservations and
assumed specific obligations to provide services and benefits in
exchange for a release from the prior treaty financial and personal
property obligations it had not fulfilled. The reservations were again
placed near traditional fishing grounds. In a separate treaty, the
United States offered compensation for the fishing grounds granted in
perpetuity and which it had destroyed at Sault Ste. Marie.
After the 1855 treaty, the United States dealt
with the treaty Indians on a local basis, no longer pretending that
there was an Ottawa and Chippewa Nation. More recently, it recognized
the Bay Mills tribe under the Indian Reorganization Act as an Indian
tribe entitled to the benefits of prior Indian treaties. Most recently,
it did the same for the Sault Ste. Marie band of Chippewa Indians.
[11] When a court is called upon to construe an
Indian treaty, the Supreme Court has mandated that it employ the
following principles which flow from the guardian-ward relationship of
the United States to the Indians: The treaty must be construed as the
Indians would have understood it; doubtful expressions must be resolved
in favor of the Indians, and treaties must be construed liberally in
favor of the Indians. Generally, these principles are laid down so that
Indian tribes, usually numbering little more than a few thousand, are
not wholly disadvantaged y the strength and resources of the United
States. In this case every justification ever given in support of these
principles is satisfied. The treaty was imposed by subtle, invidious and
incidious [sic] negotiators who sought only signatures without regard
for whether they were a product of free consent; the treaties binding
the Indians were written in English, although the Indians knew no
English and their language arose out of a hunting and fishing tradition
without a concept of property; interpreters could only describe general
outlines of the agreement; details were left to the good faith of the
drafters; the final version of the treaty was drafted behind closed
doors by Henry Schoolcraft and the traders who escorted the Indians to
Washington; these men had conflicts of interest and each was rewarded
handsomely by the treaty, altogether receiving over a quarter of a
million dollars.
[12] From the history of the negotiations of the
1836 and 1855 treaties, evidence of the sort of use the Indians made of
the Great Lakes fisheries at the time of the 1836 Treaty, and bound as I
am to construe the treaties as they would have been understood by the
Indians, I am compelled to conclude that the Ottawa and Chippewa
Indians, and the plaintiff tribes as their successors, reserved an
aboriginal right to fish in the waters of the Great Lakes ceded by the
Treaty of 1836, which right they may exercise without regulation by the
State of Michigan.
Specific findings of fact and conclusions of law are contained in a following section of this opinion.
Insofar as any motion has been of significance,
it has been ruled upon at the appropriate time. Certain insubstantial
motions remain and will be dealt with summarily.
[13] The State has before the court a motion to
require the joinder of all necessary and indispensable parties. It
argued that this order was necessary to bring into the action all
Indians claiming fishing rights as descendants of the signatories to the
1836 Treaty. The court recognizes the position that the State fids
itself in is difficult. However, a substantially similar argument was
advanced by the State in support of its second motion for partial
summary judgment. In that motion, the State asked that the court bring
into the action all individuals who may possess any individual fishing
rights as a result of the dissolution of the tribal organizations by the
Treaty of 1855. The court denied that motion, and indicated that the
present parties were sufficient to enable the court to pass on Phase I
issues before it.
[14] The individual defendants have petitioned
this court for the right to a jury trial. Because this action involves
prospective injunctive relief sought by plaintiffs, and because
plaintiffs have not presented any evidence of tortious conduct by any of
the named individual defendants, there is no basis for requiring a jury
trial, and defendants' motion is denied.
[15] The State's motion for a three-judge court is likewise easily disposed of.*
[*Because this action commenced before the
repeal of 28 U.S.C. sect; 2281 on August 12, 1976, that statute and
interpretative case law applies to this motion. See, Pub.L. 94-381, 7.]
The sole basis upon which plaintiffs have
prosecuted this action is that the Indians possess an aboriginal fishing
right which has been confirmed by treaty with the United States. Under
the United States Constitution, Article VI, clause 2, a treaty made
under the authority of the United States becomes the supreme law of the
land. Consequently, because a treaty provision maintains the same status
as a federal statute, the State cannot regulate what federal law
preempts. This is the foundation of plaintiffs' allegation that the
State of Michigan may not regulate federally protected fishing rights.
Obviously, the plaintiffs are relying upon the Supremacy Clause of the
Constitution to support their claim. The Supreme Court of the United
States has indicated that a three-judge court is not necessary where the
action is based on the Supremacy Clause.*
[*Swift v. Wickham, 382 U.S. 111, 122, 124-2, 86
S.Ct. 258, 15 LEd.2d 194 (1965); see also, Moe v. Confederated Salish
and Kootenia Tribes, 425 U.S. 463, 481 n. 17, 96 S.Ct. 1634, 48 L.Ed.2d
96 (1976).]
Further, any relief plaintiffs request is also
premised on that constitutional ground. For these reasons, the State's
motion is denied.
The State has indicated that several motions to
compel discovery have not been ruled upon. To the contrary, the court
ruled in an Order of July 30, 1976 that these motions were moot and need
not be decided.
I have not considered plaintiffs' Exhibits P- 1, P-2 or P-3 in my deliberations in this matter or in this opinion.
II. Jurisdiction, Issues and Parties
(1) Jurisdiction is vested in this Court by
virtue of: (a) 28 U.S.C. sect; 1345, in that the United States brings
this action on its own behalf and on behalf of the Bay Mills Indian
Community and the Sault Ste. Marie Tribe of Chippewa Indians, federally
recognized Indian tribes, in connection with its administration of
Indian affairs and in fulfillment of its fiduciary duties; (b) 28 U.S.C.
sect; 1331, in that the matter in controversy involves the fishing
rights of the plaintiff tribes, which in both instances have a value in
excess of $10,000, exclusive of interests and costs, which are claimed
to exist and to be secured under the Constitution, laws and treaties of
the United States; and (c) 28 U.S.C. sect; 1362, in that this action is
brought by Indian tribes with governing bodies duly recognized by the
Secretary of the Interior alleging violations of their rights under the
Constitution, laws and treaties of the United States.
(2) Each of the plaintiffs has standing to maintain the claims asserted in this action.
(3) An actual controversy exists between each of
the plaintiffs on the one hand and the defendants on the other, as to
the meaning of the treaties at issue herein and the existence of any
tribal right to fish in the Michigan waters of the Great Lakes under
those treaties.
(4) A declaratory judgment is properly sought pursuant to 28 U.S.C. sect; 2201 nd 2202, and this court may grant such relief.
(5) Venue is properly laid in this court under
28 U.S.C. sect; 1391(b) in that all defendants reside within the Western
District of Michigan.
(6) This trial has been limited to the issues
identified for separate trial by this Court in its Order of July 30,
1976, which are: (a) Whether the Indians reserved or retained fishing
rights in the Great Lakes waters purportedly ceded by them under the
Treaty of 1836 (7 Stat. 491); (b) If the Indians reserved rights to fish
in those waters, were those rights abrogated in whole or in part by the
Treaty of 1855 (11 Stat. 621); and (c) Assuming those reserved fishing
rights were not abrogated, does the State possess any jurisdiction to
regulate the exercise of those rights by treaty tribe members?
The United States of America is a party
plaintiff which brought this suit in its own behalf and in behalf of
plaintiff-intervenor Bay Mills Indian Community and Sault Ste. Marie
Tribe of Chippewa Indians pursuant to its federal trust responsibility
toward those tribes.
The Sault Ste. Marie Tribe of Chippewa Indians
is a present-day tribal entity which, with respect to the matters which
are the subject of this litigation, is a political successor in interest
to the Indians who were party to the Treaty of 1836. It is recognized
by the United States as a currently functioning Indian tribe maintaining
a tribal government. This tribe is organized pursuant to Section 16 of
the Indian Reorganization Act, 25 U.S.C. 476. Its membership is
determined in accordance with its Constitution and By Laws, and the
membership criteria require proof that the member is an Indian of the
treaty area. (Tr. 1127-29; Ex. P-120.)
The Bay Mills Indian Community is a present-day
tribal entity which, with respect to the matters that are the subject of
this litigation, is a political successor in interest to the Indians
who were party to the Treaty of 1836. It is recognized by the United
States as a currently functioning Indian tribe maintaining a tribal
governmen on the Bay Mills Reservation. This tribe is organized pursuant
to the Indian Reorganization Act, 25 U.S.C. 476. Its membership is
determined in accordance with its Constitution and By-Laws and the
membership criteria require proof that the member is an Indian of the
treaty area. (Tr. 1059-62; Ex. P-119.)
Defendants in this cause are the State of
Michigan, its Natural Resources Commission, and certain officials of the
Michigan Department of Natural Resources. The State of Michigan
exercises regulatory power over the Great Lakes fishery within its
borders. This power is exercised by and through defendant Natural
Resources Commission, which is the state administrative agency with
responsibility for regulating the Great Lakes fishery.
Defendant Howard Tanner is the Director of the
Department of Natural Resources. As such he is the chief executive
officer of the Department, with overall responsibility for administering
the state's fisheries program and enforcing state fishing laws and
regulations. John Scott is the Chief of the Fisheries Division of the
Department, and as such is responsible for the administration of the
state's fisheries program. Louis Gray is the Acting Chief of the Law
Enforcement Division of the Department, and as such is responsible for
the enforcement of state fishing laws and regulations.*
[*The Department of Natural Resources
officers were sued in their official capacities. Names of the current
holders of the positions have been substituted for those named in the
Amended Complaint. See Fed R. Civ. P. 25(d)(1).]
Together those officials are responsible for
administering and enforcing the statutes, regulations, orders and
policies governing the Great Lakes fishery which are challenged by
plaintiffs in this case.
III. Witnesses
Plaintiffs' expert witness Helen Hornbeck Tanner
is an ethnohistorian who has studied American Indian tribes for
approximately thirty years, and who has concentrated for the last
sixteen years on the study of Indian tribes of the Upper Great Lakes.
She has testified a an expert witness in other cases involving issues of
Indian culture and history. Her training and experience have been
concentrated in analyzing and interpreting the history, culture and
lifestyle of Upper Great Lakes Indian tribes. (Tr. 53-56, 66-74; Ex. P-
130.)
Plaintiffs' expert witness Charles E. Cleland is
an anthropologist specializing in archaeology and ethnozoology. he has
spent the majority of his professional career in personally
investigating and analyzing Upper Great Lakes Indian tribes and their
relationship to the animal species found in that area in historical and
prehistoric times. (Tr. 658-92; Ex. P- 141.)
Plaintiffs' expert witness James A. Clifton is
an anthropologist and ethnohistorian who has specialized in the study of
Indian tribes' responses to changes in their aboriginal culture brought
about by European contact and dominance. He has spent more than half of
his professional career in the particular study of Indian tribes of the
Upper Great Lakes and the Ohio valley, including the removal policy and
its implementation in that area. Further, he has extensive experience
in the analysis of Algonquian personal names as written by Europeans and
Americans in order to determine the pronunciation and identity of the
named persons. The testimony showed that from his early training at the
University of Chicago he did not follow the traditional subject matter
breakdowns of American higher education but prepared to engage in the
broad, reliable cultural investigations which were especially helpful to
this court. The defendants' effort to impeach him for lack of
compartmentalized academic certifications was comparable to an effort to
disqualify Thomas Edison as an expert on electricity. (Tr. 2058-2109;
Ex. P-177.)
Defendants' expert witness Phillip P. Mason is
an historian and archivist whose academic training and research have
concentrated on American social and economic history. The witness is
not, by either training or experience, thoroughly familiar with the
culture of the Upper Great Lakes Indins. His familiarity with the facts
in this case rests primarily upon his work in editing the papers of
Henry Schoolcraft and upon examination of documents since being retained
by defendants. The limited perspective of his experience and his
academic discipline, limited as they are to written accounts of the
matters in issue here, prevented him from enlightening the court as to
the total circumstances of the treaties. (Tr. 1214-25, 1237-47, 1252-55,
D. Ex. 291.)
Defendants' witness Asa T. Wright is a fisheries
biologist who has been employed by defendants in that capacity for most
of his professional career. He has no educational background or
experience in either history or anthropology, nor has he been trained in
the research or analysis of historic documents. This lack of training,
background and familiarity permitted him to offer opinions from his
field of expertise which are at odds with the facts. (Tr. 1844-53,
1859-63, D. Ex. 313.)
The oral testimony of the tribal witnesses
educated in the history and customs of their people by tribal elders is
found to be reasonable and credible factual data regarding certain
relevant aspects of Indian life at and after treaty times. (Tr. 130-32,
776-77, 1066-70, 1095-98, 1105-06, 1113-15, 1129-33.)
IV. Findings of Fact
A. THE INDIANS OF THE TREATY AREA.
While the term "Ottawa and Chippewa Nations" is
used in the treaty and by this court in its opinion, the term is a
non-Indian term used to describe Indian peoples of a similar culture,
and was not used by the Indians themselves in describing their political
organization. The primary unit of political and economic organization
was the band, which was frequently associated with a village. Political
authority was weak; decisions were usually reached by consensus, and
persons became "chiefs" for ad hoc purposes based upon skill. From both a
political and Indian cultural perspective, there was no such thing as
an Ottawa-Chippewa tribe or nation. (Tr. 100-02, 596, 772-76, 779-81.)
Four different but related tribes of Indian have
been associated with the area later included within the State of
Michigan the Ottawa, Chippewa (or Ojibway), Potawatomi and Wyandot (or
Huron). (Tr. 93.) The Ottawa, Chippewa and Potawatomi had an early
tradition of closeness and referred to themselves as the Three Fires.
(Tr.93.) The Ottawa and Chippewa share a common language. According to
Chippewa tradition, they were located originally in the valley of the
St. Lawrence River and migrated westward to the northern peninsula of
Michigan somewhere near the year 1500. Some Chippewa bands moved farther
west to Wisconsin. (Tr. 93) The Ottawas, which means "traders," were
historically identified with Manitoulin Island in Lake Huron, which is a
part of Canada. (Tr.94.) The Ottawas too advanced westward and settled
in the lower peninsula of Michigan with concentrations near the Straits
of Mackinac. (Tr. 94.) The Wyandots lived in the area of present day
Detroit since at least the early 1700's. The Potawatomis of Michigan
have been identified with the southern por tion of the state.
Of the four tribes discussed, only the Ottawa
and Chippewa were signatories of the Treaty of 1836. (Tr. 96.) The names
of the bands and their locations are as follows: In the Upper
Peninsula, there was a band on Lake Superior opposite Grand Island which
bore that name (Tr. 97); the eastern end of Whitefish Bay was the home
of the Tahquamenon Bay band (Tr. 97); closer to Sault Ste. Marie, but
still in Whitefish Bay, was the Waishkee Bay band (Tr.123); the Sault
Ste. Marie band was located in and around the city of the same name (Tr.
97); there was a Garden River band whose members spent much time in
Canada and on Sugar Island located in the St. Mary's River (Tr. 98).
Also near the St. Mary's River in Lake Huron was the Drummond Island
band. (7 Stat. 495.) On the northern shore of Lake Michigan there was a
band at the Les Cheneaux Islands (Tr. 98); there were bands at Big and
Little Bay de Noc (Tr. 98); at the Beaver Islands (Tr. 98); at Little
and Grand Traverse Bays (Tr. 98); and on Lke Huron there were bands at
St. Ignace, Thunder Bay and Cheboygan. (Tr. 98.) The southern portion of
the ceded area was the home of the grand River bands (Tr. 98). Included
among these bands were beneficiaries of the Treaty of Ghent, which
ended the War of 1812. (Tr. 1060-61, 1064, 1128, 1179.)
The bands located within the area of cession
were Ottawa, Chippewa and a mixture of both. (Tr. 98.) Henry Schoolcraft
described the Indians of the Treaty area as "intercalated," a
mineralogical [sic] term to describe stratified layers of rock. (Tr.
99.) In other words, there were some distinct Ottawa groups, some
distinct Chippewa groups and some groups consisting of both. (Tr.99.) It
was not possible before 1836 to draw a precise line on a map showing
distinct areas occupied exclusively by either Ottawa or Chippewa. (Tr.
100.) The Ottawa and Chippewa lived at peace together in their
intercalated relationship. (Tr.94-100, 177, Ex. P-17.)
The first significant American contact with the
Indians of the treaty area probably began in 1820 with the Cass
expedition. (Tr. 105.) Lewis Cass led an expedition into the northern
portion of the Lower Peninsula and the Upper Peninsula of Michigan at a
time before its exploration by any other Americans. (Tr. 105.) Before
the Americans, the Indians of the treaty area had contact with the
French, beginning in the middle seventeenth century, followed by the
British. (Tr. 106.)
The life style of the Ottawa and Chippewa during
the period leading up to the 1836 Treaty was cyclical in nature.
Springtime activity was devoted to the making of maple sugar. Sometimes
the sugar was their only source of food during the harsh months of
February and March. (Tr. 111.) In early May, the spring fishing season
started and some agricultural activities were conducted, depending upon
the location of a band. (Tr. 111.) The 140-day growing season line
extends across Michigan at a point south of Traverse City. Thus, Indians
north of that line were engaged in very limited agricultural pursuits.
(Tr. 111.)
Canoe making was another springtime activity
because this was the best time of the year for removing the bark from
birch trees. (Tr. 111.) In the summer, food gathering occurred. In
August, those crops available were harvested and shortly thereafter were
gathered. (Tr. 112.)
In the fall, there was another significant
fishing season and substantial time was devoted to this activity. (Tr.
112) Before departing for winter hunting stations, supplies were
procured from traders which were often advanced against the furs the
Indians expected to trap. (Tr. 112.) The Indians dealt with traders on
the basis of barter. (Tr. 112.) They traded furs and fish for supplies
the traders carried. (Tr. 112- 13.) It was not until after the 1836
Treaty with its provisions for annuities that the Indians had cash
available to use for obtaining supplies. (Tr. 113.)
Indians were traders, of course, even before
European contact. (Tr. 106.) As previously stated, the word "Ottawa"
means "trader." One of the principal trade centers in the treaty area
was at the Straits of Mackinac. (Tr. 106.) Early trade routes extended
from Montreal down to the Gulf of Mexico and were dependent upon the
Great Lakes and the Mississippi River for transportation. (Tr. 107.)
After European contact, trading by the Indians continued and expanded
because the Indians were then able to obtain manufactured goods like
iron kettles, hooks, axes, hatchets, needles, awls and firearms. (Tr.
109.)
B. ROLE OF FISHING IN THE LIFESTYLE OF THE INDIANS OF THE TREATY AREA.
The prehistoric and historic record of the Upper
Great Lakes shows a long evolutionary sequence extending back at least
12,000 years during which fishing in the Great Lakes has been of
increasing importance to the Indian people of the treaty area. The
nature of the fishery resource has helped to shape the Indian culture of
this area. Ecologically, the Upper Great Lakes area is a transitional
area between the pine forest to the north and the hardwood forest to the
south. It was low in many natural resources including mammals. (Tr.
697-98.) The Great Lakes contained a productive fishery, however, which
was characterized by Rostlund in his authoritative monograph on the
aboriginal fisheries of North America as the "Inland Shore Fishing
Complex." This fishery (shown on the map, Ex. P- 143) lies generally
north at a line demarcating 140 frost-free days. As prehistoric Indian
culture evolved after the retreat of the glaciers, the Indians south of
that line turned increasingly to agriculture as the main subsistence
activity, while those north of the line turned increasingly to fishing.
Though fish did not occur in the Great Lakes in the abundance that
characterized other aboriginal fisheries, the fish did concentrate in
relatively small areas in the spring and fall, primarily to spawn. This
bi-modal cycle with its periods of concentration allowed the Indians to
utilize the fishery resource. (Tr. 699-703.)
The earliest Indians of northern Michigan were
big game hunters. The first evidence of Indian fishing in the Upper
Great Lakes occurs in Late Archaic Period with archaeological sites
dated between 2000 and 1000 B.C. Although the Indians of this period
were primarily hunters, they began coming to the shores of the Great
Lakes in the spring, when spring spawners such as sturgeon were
gathered, and took fish by hook, gorge and spear. (Tr. 728-30.)
Even before this time, however, a new fishing
technology was being developed and applied on the Atlantic coast which
would eventually alter drastically the subsistence and lifestyle of the
Indians of the Upper Great Lakes. Fishing nets originated on the
Atlantic coast around 6000 B.C. and began spreading slowly westward
through the process of cultural diffusion. By 2500 B.C. nets were in use
on the Lower Great Lakes. From there they spread to the Upper Great
Lakes, where they appeared during the Middle Woodland Period at around
the time of the birth of Christ. (Tr. 744-45.) As with the earlier
fishing techniques, which remained in use, nets were first applied to
the spring fisery. However, during the Late Woodland Period (which
immediately preceded European contact), the primary fishery shifted the
spring to the fall, when species such as lake trout and whitefish were
taken. With this major change the fishery continued to become more
important and more productive. (Tr. 739-40)
The introduction of nets and the shift of the
fall fishery led to the development of the Late Woodland Period
settlement pattern which was encountered by the first Europeans to enter
the Upper Great Lakes. In the spring the Indians would gather in large
fishing villages of around 200 persons, where they would remain until
the onset of winter. In winter the village would break up into small
family groups which would disperse inland to hunt. When spring came the
cycle would be renewed. The warm weather fishing villages were located
on the shores of the Upper Great Lakes throughout the treaty area in
locations with convenient access to productive fishing grounds. (Tr.
121-23, 236-38, 733-43, 760-63, 825-30.)
By the time of first European contact around
1650 A.D. fishing had come to be of enormous importance to the Upper
Great Lakes Indians. All traditional fishing methods were still in use,
but the most productive was gill netting from canoes. The Indians caught
both spring-and fall-spawning species, including sturgeon, suckers,
pike, whitefish and lake trout. (Tr. 130, 758-60.) Fish was a very
crucial item in the Indian diet, comprising about 65% of the usable meat
consumed in the warm months. (Tr. 768-71.) British and French
settlements in the same area show significantly less dependence upon
fish in the European diet. (Tr. 769-71.) At first contact, as in earlier
and later times, fishing was the key to understanding the subsistence
and settlement patterns of the Upper Great Lakes Indians.
A written record of the Indians of the treaty
area began with the arrival of Europeans, though of course this record
was not kept by the Indians, but by the newcomers encountering a strange
culture. Nevertheless, these European and later, American observers
amply documented the continued extreme importance of fishing to the
Indians. Throughout the period from first contact to the 1830's,
missionaries, explorers, traders, and military and governmental
officials wrote of the Indian gill net fishery in the Great Lakes and of
its importance to the Indian inhabitants. For example, the Frenchman
Joutel wrote this detailed description of Indian gill netting at the
Straits of Mackinac in 1687 (Tr. 784-85):
They are very skillful at fishing and the
fishing is very good in those parts. There are fish of various kinds
which they catch with nets, made with a very good mesh; and although
they only make them of ordinary sewing thread, they will nevertheless
stop fish weighing over ten pounds. They go as far as a league out into
the lake to spread their nets, and to enable them to find them again,
they leave marks, namely, certain pieces of cedar wood which they call
"aquantiquants," which serve the same purpose as buoys or anchors. They
have nets as long as 200 fathoms and about 2 feet deep. At the lower
part of those nets they fasten stones to make them go to the bottom, and
on the upper pan they put pieces of cedar wood which the French people
who were then at this place called floats. Such nets are spread in the
water, like snares among crops, the fish being caught as they pass, like
partridge and quails in snares. The nets are sometimes spread in a
depth of more than 30 fathoms, and when bad weather comes, they are in
danger of being lost.
Cadillac in 1695 described the same fishery as a
"daily manna, which never fails." (Tr. 785.) Many similar accounts were
placed on the record. (Tr. 105-08, 154, 113-20, 782-89, 791-94.) These
historic and ethnographic materials were summarized by Rostlund in his
authoritative work in this fashion (Tr. 796):
[A] gill net fishery par excellence in native
North America was found in this region of great interior lakes inhabited
by the whitefish family; and it may be added that this great food
resource could nt have been adequately exploited had the gill net been
unknown. * * * [A]s fisherman those people . . . were second to none in
the aboriginal North America.
Long before European contact, the Indians of the
Upper Great Lakes had participated in a far-flung trade and exchange
network which extended at least as far south as the Gulf of Mexico. (Tr.
106-07; Ex. P-142) This was not, however, a proper commercial network,
because commercial activity requires a market economy based upon a
system of exchange using understood equivalents, and such a market
economy was absent from the Upper Great Lakes in aboriginal times. The
Europeans brought with them their market economy, and with it an
opportunity for the Indians to participate in an entirely new aspect of
the fishery a commercial fishery. (Tr. 797-99.) From that time onward,
the commercial fishery as well as the subsistence fishery was important
to the Indians. As is also indicated by the Indians' adoption of nets,
the Indians' participation in commercial fishing as soon as this
opportunity presented itself, reveals that the Indians' participation in
the Great Lakes fishery was never static, but evolved as new
opportunities became available.
As early as the middle of the 18th century
Indians were participating in a commercial fishery by trading fish to
the French at Michilimackinac. (Ex. P-8, 9.) Before the 19th century,
however, the main Indian commercial activity was in the fur trade. The
fur trade was on the wane in the early 19th century. By that time the
Indians had become dependent upon manufactured trade goods and needed to
continue their participation in the market economy. The naturally
turned to fish as a commodity which could produce a surplus for trade.
(Tr. 124, 799-801) In the 1830's the fur companies began to turn to fish
as well. Foremost among them was the American Fur Co., which operated a
fishing enterprise on Lake Superior from 1835 through the early 1840's.
Its principal fishing operations were west of the treaty area, but it
did operate fishin stations at Whitefish Point and Grand Island. (State
Ex. 309) The American Fur Co. and its rivals developed a market for
Upper Great Lakes fish and provided a ready outlet for the purchase of
Indian fish and employment of Indian fishermen. (Tr. 153-55, 437-43,
801-07.) The fishermen for the American Fur Co. were largely Indians,
who were the major producers of fish in Northern Lake Michigan, Northern
Lake Huron, and Lake Superior for the entire first half of the
nineteenth century. (Tr. 281, 803-05, 807-09, 970, 973, 1559.) Indian
names do not appear in the employee roles of the American Fur Co.,
however, probably because Indians fished as subcontractors. (Tr.
1781-82.)
The evidence firmly establishes that the Indians
of the treaty area were heavily engaged in commercial fishing at the
time of the Treaty of 1836, both as employees and as independent
fishermen. The Blois Gazeteer of 1840 described one type of Indian
participation in the commercial fishery (Tr. 804):
At Mackinac, St. Mary's Strait, and Lake
Superior, the fishermen are composed of French, Indians, and Mestizoes
or halfbreeds. They are generally employed by capitalists and in Lake
Superior by the American Fur Company, furnished with necessary outfits,
and paid in such goods as their necessities may require.
Grace Lee Nute, in her article on the American
Fur Co., which was relied on by the experts on both sides, also
indicates that the American Fur Co. engaged Indian fishermen (State Ex.
309, P. 489), and a contract between an Indian fisherman and the company
for fishing at Whitefish Point in 1837 was also introduced. (State Ex.
226.) Indians also barrelled their own fish and sold them to traders
(State Ex. 50), and traders contracted with intermediaries like Charles
Butterfield to purchase fish from Indians. (Ex. P-176.) Indian
commercial fishing is evidenced in the treaty itself as well; under the
sixth provision of Article Fourth, the Indians were to receive 100
barrels of salt and 500 fish barrels annually for twenty years.
Subsistence fishing continued to be tremendously
important to the Indians of the treaty area in the 1830's. The
introduction of the market economy, the fur trade and the dependence of
the Indians on trade goods did not alter the subsistence dependence of
the Indians on the fishery; to the contrary, as Fitting reported in his
"Patterns of Acculturation at the Straits of Mackinac," those factors
actually increased and amplified the importance of fishing. (Tr. 766-
67.) Fish remained the staple of the Indian diet. This factor was
stressed by Lewis Cass, who in 1820 wrote that for the Indians of the
treaty area fish "constitute a considerable part of the food of all the
Indians upon this extensive frontier. Deprived of this means of support,
they must absolutely perish." (Tr. P-20 and 20A.)
In 1836 the settlement pattern of the Indians
was the same as it had been for centuries, since the introduction of
nets: in the warm months the Indians were concentrated in large fishing
villages, and in the winter the villages broke up into family groups who
went inland to hunt and trap. The Indians were living on the shores of
the Great Lakes throughout the treaty area adjacent to the productive
fishing grounds. (Tr. 97-100, 121-23, 236-38, 760 760-68, 825-30.) This
settlement pattern is shown in the Treaty of 1836 itself in the location
of the reservations and of the chiefs listed in the schedule plemental
to Article Tenth. It is also shown in Henry Schoolcraft's 1837 map and
census (Ex. P- 125; State Ex. 311) and in similar exhibits. (State Ex.
63, 284.)
Despite this settlement pattern and the
concentration of fishing in the areas of settlement, Indian fishing was
not confined to these areas. Indians of the treaty area, before and
during treaty times, traveled extensively, and to the most remote areas
of the Great Lakes. (Tr. 127-29, 753-54). They had various sizes of
canoes, adapted to different purposes, and used these in their travels.
(Tr. 469-71.)
In sum, in 1836, fishing in the waters of the
Great Lakes for both subsistence and commercialpurposes was extremely
important to the Indians of the treaty area. (Tr. 559, 807,1762-3, 1773,
1785, 1788-89, 1792-99, 1801, 1886.) Dr. Cleland described the Indian
fishery in 1836 as a "vitally important resource for the survival of
those people, and upon the advent of a commercial system, a means by
which they made their principal living during a very difficult era" and
as "the primary cornerstone of their cultural being." (Tr. 831.)
Fishing remained enormously important to the
Indians of the treaty area up to the Treaty of 1855. This is amply
documented by a variety of sources, from the Momlan leader Strang of
Beaver Island to the official reports by Indian agents. (Tr. 120-21,
156-63, 165-75, 808-09.) Store ledgers of local traders and merchants
indicate that Indians were obtaining cash credits for barrels of fish on
both a large and small scale. (Ex.P-166, 167, 168, 169, 170, 171, 172,
173, 174, 175.) A particularly fertile source for such evidence is the
annual reports of the Commissioner of Indian Affairs to Congress, which
include reports of local agents, subagents and the like. In the report
for 1842, for instance, the Indian school at St. Ignace complains of
poor attendance "caused by frequent absence of families from home,
pursuing their calling as fishermen." (State Ex. 269, No. 36.) The
report for 1844 states that an increased demand for fish has improved
the economic position of Indian fishermen. (Ex. P-66.) In 1848 the
Indians of the subagency at Sault Ste. Marie sold at least 1200 barrels
of fish. (Ex. P-72.) In 1852 Rev. Pitezel reported to the Commissioner
(Ex. P-75):
One means of their subsistence must be, from the
nature of things, fishing. Lake Superior abounds with the finest fish.
As long as they reside about the lake, this occupation must be to them
what the farm is to the farmer, or the trade to the mechanic.
Similar statements occur in other reports of the
period. (Ex. P-67, 69,70, 71,73, 77, 79.) In 1855 fishing in the Great
Lakes remained the primary Indian subsistence activity and was perhaps
an even more important commercial activity than at earlier times. (Tr.
169-70, 824-25, 831-32.)
Fishing remained an important activity of the
Indians of the treaty area throughout the remainder of the 19th century.
The Mackinac Agency reported to the Commissioner of Indian Affairs in
1861: "Those bands residing near the Great Lakes still depend, to a
great extent, on fishing for a livelihood." (Ex. P-98, p. 5) In 1860 the
first year in which Indians were counted the census for northern
Michigan showed that Indians and half-breeds dominated the commercial
fishery. (Tr. 809-14; Ex. P-156.) Indian participation remained high and
actually increased slightly by the 1880 census. (Tr. 815-18; Ex. P-157,
158.) Smith and Snell's survey of commercial fishing in the Great Lakes
in 1885 also showed heavy Indian participation in the fishery of the
northern Upper Great Lakes. (Tr. 818-23; Ex. P-4.)
Indian involvement in the Great Lakes fishery
has continued through this century to the present day. The Bay Mills
Indian Community is a fishing community whose members have always fished
for subsistence and commercial purposes. As one member, Don Parish, put
it: "[F]ishing was our way of life, it was our livelihood, and fishing
is our living, so we just had to fish." (Tr. 1116.) Other tribal
witnesses expressed similar sentiments. (Tr. 1064-66, 1075-79,
1094-1102, 1129-37,1160-64, 1184-86.) Indian fishermen still live in the
same areas and fish on the same fishing grounds as did their ancestors
for centuries past. (Tr. 1064-66, 1070-74, 1075-79, 1094-1102, 1113-16,
1138-39, 1161-62, 1171-73; Ex.P129E, 135, 135A, 136, 136A, 136B, 136C,
136D.) Indian fishing of today is remarkably like Indian fishing in
1836, and not much different from Indian fishing two millennia before
that.
C. NEGOTIATION OF THE TREATY OF 1836.
When the United States negotiated treaties with
the Indians of the Territory of Michigan, it was bound by certain
responsibilities imposed by previous Treaties and Laws. The first of
these is the Northwes Ordinance, discussed above. Additionally, the
United States undertook certain obligations towards the Indians, and
restored all aboriginal rights, through the treaty which ended the War
of 1812 with Great Britain, the Treaty of Ghent, signed on December 24,
1814 (8 Stat. 218). This Treaty was referred to by Henry Clay, Senator
from Kentucky, in a speech before the Senate on a Resolution concerning
Cherokee Indians in Georgia:
He alluded to the negotiations between Great
Britain and the United States, for the termination of the late war. The
hinge on which the negotiation turned, he had a distinct recollection,
was the claim brought forward by the British negotiators on behalf of
the Indians, and which they held as a sine qua non to the conclusion of a
treaty of peace that the Indians, her allies, should have a permanent
boundary assigned them, and that neither party should be at liberty to
purchase the lands they set apart. But the American commissioners would
not listen to the proposition so much as to refer it to their
Government, informing the British commissioners that, if they did so,
they were sure it would meet with the most prompt rejection. They stated
that the Indians lived under their own customs, and not the laws of the
United States, and that they were placed under the protection of the
United States alone, whether they were subjects or otherwise. The
correspondence finally terminated in a proposition to which the American
commissioners assented, that the United States should do their best
endeavors to restore peace with the Indians with which they were at war,
and restore to them all the rights and privileges they enjoyed prior to
the commencement of hostilities. And he declared it to be his belief
that, if the Indian rights bad not been thus declared, there would have
been a prolongation of the war.
The Congressional Globe, February 3,
1835, at 195. It should be noted that Henry Clay was a negotiator and
signatory of the Treaty of Ghent for the United States.*
[*The above comment on the negotiations on the Treaty of Ghent was placed in historical perspective by Samuel Eliot Morison in The Oxford History of the American People (1965) at 397-98:
To the astonishment and distress of the
American peace commissioners...their opposite numbers were instructed to
admit neither impressment nor neutral rights as even subjects of
discussion. The United States must abandon all claims to the
Newfoundland fisheries, the northeastern boundary must be revised to
provide a direct British road between St. John, N.B., and Quebec; and
the northwest boundary must also be rectified to give Canada access to
the Upper Mississippi. Finally, the old project of an Indian satellite
state north of the Ohio river was revived. Adams, an experienced
diplomat, expected the negotiations to terminate on this point, and
prepared to go home. Henry Clay, untrained in diplomacy but an expert
poker player, was confident the British would recede, as they did . On
16 September, the British commissioners were instructed to drop the
Indian project.]
A treaty can be analogized to a special kind of
contract and, like all contracts, the motivations of the parties can,
and often do, differ substantially. There were two principal parties to
the treaty the United States and the Indians but each party represented a
collection of individual interests. (Tr. 132.)
Some Indians in the treaty area were interested
in obtaining annuities like their neighbors the Potawatomis. (Tr. 133.)
Others wanted to protect their special, customary fishing grounds from
non-Indain fishermen. (Tr. 133.) Still others, in particular the Indians
in the Upper Peninsula wanted to secure blacksmith services to make and
repair metal equipment, especially implements used for fishing. (Tr.
133)
Representatives of the United States also had
differing motivations for treating with the Indians. Henry Schoolcraft,
principal negotiator for the United States, was concerned about national
security and wanted to secure the Upper Peninsula against British
encroachment. (Tr. 134, 163-65.) As a mineralogist, Schoolcraft believed
there were valuable mineral deposits in the area, such as salt and
coal, and he wanted to be sure there would be no impediments to the
government's exploitation of these minerals if rumors of their existence
later proved accurate. (Tr. 134.) Traders, who played a major role in
the treaty process, were owed large sums by the Indians and a treaty was
the best way to be certain these debts were paid. (Tr. 136.) There was
also significant pressure for statehood in the early 1830's. Early
Michigan leaders, like Lewis Cass and Senator Lucius Lyons, wanted to
attract settlers to the area and in order that there be available land,
the Indians' title had to be extinguished. (Tr. 135, 1305.) Michigan
territory in the early 1830's was not experiencing the same settlement
rate as in Ohio, Indiana and Illinois. (Tr. 1294.) Reasons included the
large Indian population in Michigan and settlers' fears of confrontation
with them; a lack of roads to allow settlement of the interior; harsh
weather conditions, and the like. (Tr. 1294.)
The dominant motive appears to have been to
cheat the Indians out of their lands and reduce their holdings to the
reservations. Thereby the Indians would be deprived of their natural
habit of roaming the range of the lands on their summer and winter
migrations. Thereby the Indians would be deprived of their lands before
they realized their eventual value. The figure received for the land 12
1/2-13 cents per acre indicates that the Indians were cheated out of
their land. (Tr. 210, 227, 275, 2134-36, 2380-84.)
By 1836, much of the Indians' aboriginal title
to Michigan land had already been extinguished through various treaties.
In 1807 the United States obtained the land around Detroit under the
Treaty of Detroit. (Tr. 1295.) The United States acquired land in
southwestern Michigan (below the Grand River) under the 1822 Treaty of
Chicago. Under the Treaty with the Saginaw Chippewas in 1819, the United
States acquired land in the eastern side of the Lowr Peninsula up to
Thunder Bay on Lake Huron. (Tr. 1295-96.)
In the fall of 1835, a small group of Indians
(primarily Ottawas) made their way to Washington, D.C., to talk to
government officials about a treaty. (Tr. 136.) The arrival of this
group of chiefs with limited authority provided Schoolcraft with
occasion to emulate Cass in the negotiation of the Treaty of Saginaw.
Having found out about this group, Schoolcraft hastily departed for
Washington, D.C., as well. (Tr. 139.) The United States seized upon
these events as an opportunity to purchase lands from all the Indians of
the area, and quickly expanded the scope of the purchase to include all
of the area of Michigan eventually ceded in the Treaty of 1836. (Tr.
135-36, 606-07, 1315-26). Schoolcraft aggressively sought other chiefs
in order to seize another tract of "that very valuable land." In early
1836, a larger delegation of Indians was escorted to Washington, D.C. in
order to negotiate a treaty. (Tr. 139.) Most of the escorts were
traders from throughout the area of cession. (Tr. 139.) The escorts were
arranged for, in most instances, by Schoolcraft and other government
officials. (Tr. 139.) Documents support the notion that the presence of
traders was essential if the United States was to accomplish a cession
of Indian lands. (Tr. 140; Ex. P-46 and 46A.) Some traders, such as
Robert Stuart, John Drew and Edward Biddle, were associated with the
American Fur Co. (Tr. 141-42.)
Dr. Helen Hornbeck Tanner, plaintiffs' principal ethnohistoric witness, testified that:
Fur traders were widely used as mediators in
effecting Indian treaties and were usually present, and in some cases,
beneficiaries of the Treaty. Their personal contacts with the Indian
people were important, in one way, and their influence over them appears
to have been considerable. (Tr. 142.)*
[*Defendants' Exhibit 3/2 contains a
detailed list of the claims traders submitted for payment under the
treaty. For example, Edward Biddle received more than $45,000 (Ex. 312,
Claim No. 63, Tr. 1621. Rix Robinson, Robert Stuart, John Holiday, John
Hulbert and Henry Levake received, in toto, approximately $57,000 as
claimants under the treaty. (Ex. 312, Tr. 1625-33.) Altogether,
claimants or creditors received $220,954.57 under the treaty. (Ex P-321,
Tr. 1633.) All these persons played a major role in the treaty process,
including accompanying various bands to Washington, D.C. Most of these
persons were listed at the end of the treaty signifying their attendance
and participation in the negotiation process. Perhaps the most
prominent figure in the treaty process was Henry Schoolcraft. His family
members received approximately $53,000 under the treaty as creditors to
the Indians. (Ex. P-132; Tr. 1636-42)]
In the spring of 1836, the process of selecting
Indian representatives and transporting them to Washington began. The
selection of the traders who accompanied the Indian was initiated and
controlled largely by the United States, acting through Henry
Schoolcraft and his agents. Schoolcraft sent for his relatives, Waishkee
and his son Waw-be-geeg, to represent some of the Upper Peninsula
bands. (Tr. 142.) At this same time, a power of sale was being
circulated amongst the Indians for their signatures (marks) to be
affixed. This power of safe (Ex. P-47 and 47A) was sent to Washington
and arrived while the treaty negotiations were taking place. (Tr. 143.)
Indian delegates came from Muskegon, Grand River, Michilimackinac, Sault
Ste. Marie, L'Arbre Croche and Grand Traverse. One group from Grand
River did not come under trader escort and a trader was summoned to
attend the negotiations. While in Washington the Indian delegates were
placed in charge of Rix Robinson, Robert Stuart, John Drew, H. A.
Lavake, William Lasley, George Moran, Lewis Moran, Augustus Hamelin, and
Leonard Slater. All were traders except Hamelin, an educated
half-breed, and Slater, a missionary. (Tr. 96, 13948, 14547, 177-79,
1326-30, 133447; Ex. P-15, 46, 47.) The United States paid all of the
expenses incurred by the Indians in order to trasport them to Washington
(Tr. 147), including providing them with clothes and other gifts.. Once
in Washington, the Indians were housed and fed at the expense of the
government.
Lewis Cass was the Secretary of War in President
Jackson's administration, and, being a military man, he knew full well
that "Andrew Jackson's 'requests' were in fact orders," when it came to
Indian matters. (American Heritage Pictorial History of the Presidents,
Vol. 1, p. 224 [1968]). This attitude was in turn conveyed to Henry
Schoolcraft in a letter authorizing him to treat with the Indians. (Ex.
P-53.) Cass' instructions directed Schoolcraft to obtain a cession of
Indian land, in part to facilitate the advancement of non-Indian
settlers. He was told not to allow individual reservations but if
reservations were provided for, the Indians should hold them in common
until later ceded to the United States. (Tr. 149.) Other instructions
required him to determine that the Indian representatives were genuine
and authorized to cede land and to obtain as large a cession as
possible. No claims for debts were to be settled in the treaty itself
unless the Indians insisted upon it. Annuities of twenty years duration
were to be provided. (Tr. 148-50, 134549; Ex. P-53, D. Ex. 16.)
Schoolcraft made an opening statement to the
assembled group in which he explained why the treaty was to be
negotiated with both the Ottawa and Chippewa rather than negotiating two
separate treaties. Schoolcraft stated the President of the United
States believed the Ottawa and Chippewa to be "brother tribes." Article
First of the treaty refers to "the Ottawa and Chippewa nations of
Indians." However, the Indians did not think of themselves as "nations"
nor were they organized politically at the tribal level. (Tr. 773.) The
term "nation" was coined by non-Indians to facilitate treating with the
Indians. (Tr. 101.) Treaties, after all, were used to memorialize
agreements between foreign countries. The analogue was applied to
agreements between the United States and Indian until 1871 when it was
outlawed by Congress. (25 U.S.C. 71) The Indians usually referred to
themselves as "the People." (Tr. 101.)
The treaty minutes also reflect that some Ottawa
bands from the Lower Peninsula did not want to sell their land while
the Indians in the Upper Peninsula were more willing to sell. (Tr. 178.)
The treaty commissioners tried to use the Chippewa's willingness to
sell to shame the Ottawas into agreeing to a cession. (Tr. 178-79; Ex.
P-17A, pp. 10-11.)
Interpreters, many of whom were inefficient,
were always required during treaty negotiations because the Indians,
with only minor exceptions, did not speak English. Of course, they could
not read or write English either and those signing the treaty did so
with a mark and not a signature. (Tr. 180.) In 1838 Schoolcraft
commented on the incompetence of interpreters as follows: "The
department is very much in the hands of ignorant and immoral
interpreters, who frequently misconceive the point to be interpreted.
Could we raise up a set of educated and moral men for this duty, the
department would stand on high grounds." Personal Memoirs, p. 583, cited
in Schmeckier, The Office of Indian Affairs, Its History, Activities and Organization (1927), p. 59.
The Indians referred to the treaty commissioners
as "Father" which was a sign of respect. (Tr. 187.) They saw human
relations in very personal terms (Tr. 187), and the term "Father" also
signified the Indians' understanding that the treaty commissioners were
authority figures. The Indians expected them to look out for Indian
interests, as they were obliged to do as trustees for the Indians.
The 1836 treaty minutes also reveal an important
matter which must not be overlooked. Discussions at the large sessions
were concerned with generalities and concepts only. Each band designated
its escort to sit down and formulate the actual treaty language and
provisions out of the presence of the Indians. The escorts, with the
sole exception of Augustus Hamelin, were all traders with a substantial
pecuniaryinterest in seeing that the treaty negotiations were
consummated. (Ex. P-17A, pp. 13-14; Tr. 183-87.) Unfortunately, there
are no records reflecting the nature of these closed door drafting
sessions. Dr. Tanner testified:
. . . but it does appear that the Treaty was
actually formulated when the traders got together. There is very little
discussion in these Treaty Minutes, if any, about the actual provisions
of the Treaty that was later presented to the Indian people, but there
is no record of what transpired when the group of Indian traders were
together in closed session and emerged with 13 articles of a Treaty that
was presented to the Indians to sign.
(Tr. 183-84.)
The language in the Treaty of 1836 is the
language of Henry Schoolcaft (Tr. 183, 1367) From an examination of the
transcript it can be determined that he was a subtle, invidious and
insidious negotiator who convinced the Indians to trust him in these
dealings. (Ex. P-17.)*
[*Schoolcraft's behavior as a negotiator is
also shown in another Michigan treaty . During the negotiations of an
1837 treaty with the Saginaw Chippewas Schoolcraft met an impasse. The
Indians would not sign unless the treaty granted 640 acres to a doctor
who served them during a smallpox epidemic. It did not: they refused to
sign and left. Schoolcraft later recalled them and assured them the
proposed version of the treaty contained the provision. They signed on
the basis of this representation. It still did not. History of Saginaw County (1881) p. 157.]
In shaming the reluctant Chippewas, Schoolcraft
evidenced his disdain for the Indians' intentions and interests. The
Ottawas declared: "We have decided we don't want to sell our land at
all." To this Schoolcraft responded: "Well all right. I will deal with
the Chippewa, and then they will go home with presents, and you will go
home with nothing and you will all be ashamed." (Tr. 179.) Quite simply,
he relied upon fraud and duress. (Tr. 493-96.) Judging from the amount
of territory which they ceded to the United States, and the paltry sum
which they received in exchange [the price per acre of ceded land
happens to coincide with the price traders charged per quart of whiskey
at the time. (Tr. 245.)], it is probable that when the Ottawa and
Chippewa Indian Chiefs signed the Treaty of 1836, they were under the
influence of alcohol and did not know what they were doing. Accounts by
Henry Schoolcraft and others indicate that these Indians were no longer
rational when the whites made alcohol available to them.
It is the use of ardent spirits, however (an article which is freely supplied), that
constitutes their chief bane, converting that which would otherwise be a
season of plenty and good humor, into a gloomy and revolting scene of
riot and drunkenness, followed not infrequency by disease, and sometimes
by death. This is not the whole . . . of the evil. The facility with
which the Indians part with their money becomes tile secret motive of
their being advised to call on the agents of the Government for their
vested funds; and they thus become dupes of the artful and designing.
(D. Ex.252, p.347.) (Emphasis supplied.)
Could ardent spirits be kept from these
unfortunate beings, it would be unnecessary ever to remove them.... A
considerable number have joined chat church, and appear to walk orderly,
but some of the heathen portion of these bands are much degraded by the
baneful effects of whiskey. They [sic.] American Fur Company, however,
and some other respectable traders in that vicinity, have now determined
to deal no more in spirituous liquors themselves, and are disposed to
give every aid they can to the Government to put a stop to this
nefarious traffic. (D. Ex.269, p.408.) Sir: I have the honor to report
to you that the condition of the Indians at this sub-agency has been
better than during the past year. There have been few instances of
intoxication, and a greater disposition to provide for their families
was evinced by many. (D. Ex.269, p.411.)
In The Oxford History of the American People,
Morison describes the common practice at treaty signings: "The assent
of the Indians was often merely nominal: federal commissioners bribed
important chiefs and, if necessary, got them drunk enough to sign
anything."(At 446.) This practice was not foreign to Michigan treaty
negotiations nor to the principals responsible for the 1836 treaty.
Lewis Cass, Secretary of War in 1836, negotiated the Treaty of Saginaw
in 1819 and supplied 5 barrels of whiskey to Indians on the day of the
signing. F. Dustin, The Saginaw Treaty of 1819, 17 (1919). One of the
traders representing the Indians in Washington in 1836 had engaged in
extensive liquor trade with the treaty area Indians,
claiming-approximately $16,000 debt for liquor at the time. (Tr.
1621-23.) This man, Drew, and Rix Robinson, another of the escorts, were
identified by Robert Stuart as the two men who were necessary for the
success of the treaty negotiations. (Tr. 142.) In turn, Robert Stuart
and Rix Robinson claimed debts for liquor on their own behalf or on
behalf of the American Fur Co. (D. Ex. 312, pp. 40, 48, 50, 55.) It is
unlikely the long-standing practice of supplying liquor to Indians
stopped abruptly when these traders arrived in Washington, motivated as
they were by the prospect of collecting thousands of dollars of
purported debts created over a period of years. Use of liquor was one
vehicle of the peonage they exercised over the Indians.
The convergence of such circumstances makes it
reasonable to conclude that fueling the Indians with alcohol provided by
traders was the final weapon Schoolcraft depended upon to effect the
government purpose of evicting the Indians from their lands and to
conquer the resistance of will he met when he sought cession of more
them scattered parcels. Schoolcraft was, in the words of Dr. Tanner,
prepared to use any means to achieve a treaty. (Tr. 494.) Besides using
distortion, extortion and duress, he held out the carrot of silver and
whiskey, relying on traders to supply whiskey during negotiations. The
Indians' assent to the treaty was, accordingly, merely nominal.
The negotiation of this treaty is rent through
with deception, manipulation and double dealing. The traders who
accompanied the Indians to Washington were creditors for the Indians and
would greatly profit from any provision which set aside money for the
payment of Indian debts. (Tr. 262, 1731-32.) Some of these traders were
dishonest. The fact that most of the traders who accompanied the Indians
received money in payment of Indian debts from the treaty indicates
that the Indians were improperly represented at the treaty negotiations,
that the treaty does not contain their wishes or represent their best
interests, and that much of the payment received by the Indians for
their land was dishonestly and improperly dissipated in the payment of
Indian debts. (Tr. 1616-33.) In addition, the traders, and Schoolcraft,
struck upon the device of granting their own Indian families
reservations in order to receive compensation of over $48,000. (Treaty
of 1836, Article Ninth.) The American Fur Co. was a major creditor to
the Indians of the area; it had a substantial interest in the form of
the final treaty; it was in a position to have intimate knowledge of the
treaty negotiations. The daughter of one of the interpreters at the
treaty negotiations, John Holliday, wrote frequently, and often daily,
to Ramsay Crooks, the President of the American Fur Co. Her father was
also one of the seven partners of that company. The court takes this as
evidence of improper influence over the Indians, and indication that the
terms of the Treaty of 1836 do not necessarily contain the intent or
represent the true desires and agreements of the Indians. (Tr. 1333,
134045, 1633-36.)
Henry Schoolcraft led the treaty negotiations
even though he had a conflict of interest. In its final form the treaty
provided $53,000 to relatives of Henry Schoolcraft in payments of Indian
debts. Some of his relatives were traders, a fact which surely
influenced him in his negotiation of the provisions of the treaty. (Tr.
163641.) Further, some of Schoocraft's relatives received payments under
Article Ninth of the Treaty. It provides for payment of monies to
half-breeds. Knowledge that the passage of a treaty would greatly
benefit his family was inconsistent with Schoolcraft's involvement in
the negotiations. (Tr. 1642-49.)
Later on in this opinion I will deal with the
Indians understanding of the treaty in greater depth. It is sufficient
to note here that they apparently were led to believe that they were to
receive land, not that they were to cede it away. (Tr. 321-23.) See,
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 553, 8 L. Ed. 483 (1832). It
is apparent from the testimony of the witnesses and the documentary
evidence that the Indians of and area were devoted to a way of life
which included, and was premised upon, hunting and fishing. It is
inconceivable that they would have given up that way of life and signed a
treaty which they understood to make that way of life impossible. (Tr.
267-75, 831-32.)*
*[The dedication to the Indian way of life
is illustrated by the Chippewa and Ottawa reaction upon seeing the land
west of the Osage River to which the government wished the Indian tribes
to remove. Once they saw that there were no "sugar bush, " or sap
bearing maple trees, an important part of their life, the Indians
refused to consider removal any further. (Tr. 1414, D. Ex. 62, 95. )]
D. PROVISIONS OF THE TREATY OF 1836.
The precise boundary of the cession was not
known in 1836 because most of the land area was uninhabited and had not
been thoroughly explored. At the time of the treaty no one knew the
shape of the northwestern side of Lake Michigan. (Tr. 191.) Some
interior areas near Grand and Little Traverse Bays were not surveyed
until 1855. (Tr. 191.) In Article First of the Treaty of 1836 the
Indians of the treaty area ceded to the United States the following
area:
Beginning at the mouth of the Grand River of
Lake Michigan on the north bank thereof, and following up the same to
the line called for, in the first article of the treaty of Chicag of the
29th of August 1821, thence, in a direct line, to the head of
Thunder-bay river, thence with the line established by the treaty of
Saginaw of the 24th of September 1819, to the mouth of said river,
thence northeast to the boundary line in Lake Huron between the United
States and the British province of Upper Canada, then northwestwardly,
following the said line, as established by the commissioners acting
under the treaty of Ghent, through the straits, and river St. Mary's to a
point in Lake Superior north of the mouth of Gitchy Seebing, or
Chocolate river, thence south to the mouth of said river and up its
channel to the source thereof, thence in a direct line to the head of
the Skonawba river of Green bay, thence down the south bank of said
river to its mouth, thence, in a direct line, through the ship channel
into Green bay, to the outer part thereof, thence south to a point in
Lake Michigan west of the north cape, or entrance of Grand river, and
thence east to the place of beginning, at the cape aforesaid,
comprehending all the lands and islands, within those limits, not
hereinafter reserved.
This area includes the waters of the Great Lakes
and the connecting waterway (St. Mary's River) out to the international
or state borders. The area is shown on a map attached as Appendix 1. (7
Stat. 491; Tr. 188-93; Ex. P-129, 129A.) In Articles Second and Third
of the Treaty of 1836 fourteen reservations in common were retained in
the following locations: Little Traverse Bay, Grand Traverse Bay, on or
north of the Pere Marquette River, on the Cheboygan River, on Thunder
Bay, on the north shore of Lake Michigan between Point-au-Barbe and the
Mille Coquin River, the Beaver Islands, Round Island in the Straits of
Mackinac, the Les Cheneaux Islands and land in the Upper Peninsula
adjacent thereto, Sugar Island, at the Little Rapids of the St. Mary's
River, a large tract on Whitefish Bay of Lake Superior and westward in
the Upper Peninsula, Grand Island and at the head of Bay Noc. These
reservations are shown on themap attached hereto as Appendix 1. In
addition, the reserve at the St. Mary's Rapids retained in the Treaty of
1820 was continued. In accordance with the treaty instructions, the
reservations in the original treaty were of unlimited duration (7 Stat.
491; Tr. 14849, 193-99, 24647, 250-51, 610-12; Ex. P-41, 53, 125, 129B;
D. Ex. 311.)
Two of the reservations retained by the Indians
in the Treaty of 1836 specifically include the fishing grounds in the
Great Lakes adjacent to the land reserve: The reserve on the north shore
of Lake Michigan and the reserve on Whitefish Bay of Lake Superior.
These two locations were the only fishing locations where friction had
developed between Indians and whites before the Treaty of 1836. (7 Stat.
491; Tr. 236-45; Ex. P-21, 23, 27, 37.)
The reserved area described in Article Third at
Whitefish Bay includes within it a portion of the Bay. There is a metes
and bounds description of the land area followed by the words: ". . .
including the small islands and fishing grounds in front of this
reservation." Schoolcraft's 1837 map (Ex. P-125) shows a longitudinal
line extending out into Whitefish Bay. Dr. Tanner testified:
It is a matter of some interest, I conclude,
that there is discernible on this map a line from the mouth of the
Tacquimenon [sic.] River out to the International Border that would
encompass the small islands and fishing grounds in front of the
reservation that are referred to in the language of the Treaty. (Tr. 197
)
Q: [By Mr. Greene] So, in summary, then, that
line on the Schoolcraft map adjacent to the land reserve at Whitefish
Bay goes out into the water and includes some portion of Whitefish Bay,
is that correct? A: [By Dr. Tanner] Yes, it does. (Tr. 198.) As
originally negotiated there was no limitation on the period of time the
land reserves might remain Indian lands. (Tr. 199.) Subsequent to the
treaty negotiations in March, 1836, the United States Senate
unilaterally added the following language to both Articles Second and
Third:
Article Two, line two, afte the word, "tracts"
insert the following words, to wit: "for the term of five years from the
date of the ratification of this treaty, and no longer;" unless the
United States grant them permission to remain on said lands for a longer
period.
Article Three, after the word "tracts," in the
second line, insert the following words, to-wit: "For the term of five
years from the date of the ratification of this treaty, and no longer,
unless the United States grant them permission to remain on said lands
for a longer period." (7 Stat. 497.)
In July, 1836, the Indians were summoned to
Mackinac in order to obtain their assent to the Senate's unilateral
amendment. (Tr. 202; Ex. P-57 and 57A.) On July 18, 1836, Henry
Schoolcraft wrote a cover letter to Lewis Cass, Secretary of War, over
the Indians' assent to the unilateral Senate amendments. In that letter
he said:
Sir I have the honor herein to enclose to you
articles of assent to the Senate's amendments of the Treaty of the 28th
of March last, concluded in a general council of the Chippewa and Ottawa
chiefs convened at this agency on the 12th, 14th, 15tn and 16tn
instant. The cession of the reservations at the expiration of five years
has been strenuously opposed by a part of the chiefs, but was finally
yielded, on a consideration of the practical operation of the provision
contained in the 13th article of the treaty, which seemed to them
indefinitely the right of hunting on the lands ceded, with the other
usual privileges of occupancy until the land is required for settlement.
(Ex. P- 18 and P18A, p. 2.)
There was considerable Indian opposition to the
insertion of the language adopted by the Senate. (Tr. 204.) However, the
Indians apparently assented to the Senate amendment, because even
though the language was in part motivated by those persons wanting to
remove the Indians from Michigan, it appears the Indians' fears were
assuaged by Schoolcraft's explanation of Article Thirteenth. Thus,
despite the fact chat tile land reservations might not last indefinitely
afte the Senate amendment, The right to hunt, fish and gather The
fruits from all The ceded territory (not just the reservations) would
last indefinitely. (See Ex. P- 1 8A, p. 2.) In Indian tradition it is
said chat the Indians retained the right to fish and hunt "as long as
the sun rose and the waters flowed." (Tr. 1071)
Dr. James A. Clifton, plaintiffs' rebuttal
expert on removal treaties, testified that he had read virtually every
removal treaty, he had not recalled seeing the particular language of
the Senate amendment ever before. Tr. 2267.) Relying on Schoolcraft's
memoirs (State Ex. 304, p. 538), Clifton testified:
Now his [Schoolcraft's] explanation, as nearly
as I can make out what is going on here, is that Senator Hugh White
[Chairman of the Indian Committee in the Senate] for personal political
reasons, asserted these alterations in these alterations in these
Treaties, and not for any other reason.... These alterations were
inserted in the Treaty, not because of any practical consideration or
because of any need for land in Michigan, but for internal political
reasons involving the Senator and President Jackson. (Tr. 2271.)
Two of the nine tracts of land reserved by the
Indians in Article Third explicitly include fishing grounds and small
islands adjacent thereto-the reserve on Whitefish Bay and two tracts of
land between Point-au-Barbe and the Mille Coquin River on the north
shore of Lake Michigan near the Straits of Mackinac. Dr. Tanner
testified that this explicit reference to fishing grounds underscored
the importance of these fishing areas to the Indians. (Tr. 237.)
Regarding the Lake Michigan fishing grounds,
there had been a controversy in 1832 resulting from an attempt by the
white traders, Edward Biddle and John Drew, to gain exclusive rights to
fish there. (See Ex. P-21 and P-21A; Tr. 238.) The Indians were angry
because Messrs. Biddle and Drew were dealing with a spurious chief and
represented to the United States that the Indians would not object to
the grant to them of an exclusive rightto fish in this highly prized
area. Some fourteen canoes filled with Indians came to Mackinac to
protest. They were angry that Biddle and Drew claimed they had an
exclusive right to fish in this area because Nabanoi, the spurious
chief, did not have the authority to confer such a right on anyone:
[T]he Indians were fully aware that the traders
were to blame, making the application and trusted that their Great
Father would not allow this to take place. (Ex. P-23, 23A; Tr. 241; see
also Ex. P-25, 25A, 27, 27A.)
A similar conflict arose in Whitefish Bay when
Messrs. Ashmon and Abbott requested a permit to fish there in 1835. They
too were refused such a permit. (Ex. P-37, 37A.) This incident explains
why the fishing grounds at Whitefish Bay were mentioned explicitly and
included within the land reserved there. (Tr. 245.)
Specific fishing grounds were not explicitly
mentioned adjacent to the other Articles Second and Third reserves
because there were no similar controversies with traders in these other
locations. But the location of all these reserves reflected the Indians'
choice or preference and their dependence on fishing. (Tr. 246.) Dr.
Tanner stated:
I think I remarked earlier that all of these
reserved areas are adjacent to or have access to very well-recognized
fishing grounds, areas that I have referred to this morning as being
reported as good fishing grounds by Strang and Baraga and other people
later on in the 19th century. (Tr. 246.)
The record discloses, therefore, that the United
States was willing to give the Indians exclusive fishing rights in both
locations where the Indians were aware that the white men were likely
to fish competitively. The United States made no provision to secure the
Indians' fishing rights in any other areas, even though it was aware
that white men wanted the right to fish and it was represented by
traders who were parties to the original conflicts over fishing rights.
It is likely that this negotiation gave the Indians the impression, and
was intended by the United tates to give them the impression, that the
United States did not seek the fishing rights of the Indians. The United
States was apparently unconcerned about whether it acquired these
rights from the Indians.*
[*In addition, it should be noted that the
granting language of the treaty is quite limited: "The Ottawa and
Chippewa nations of Indians cede to the United States all the tract of
country within the following boundaries: ...." (Emphasis supplied.)
Notably absent are the words such as "all their right, tide, and
interest." Cf. Treaty of August 3, 1795, with the Wyandots, Delawares,
Shawanoes, Ottawas, Chippewas, Potawatimes (sic), Miamis, Eel River,
Weea's, Kickapoos, Piankashaws, and Kaskaskias, 7 Stat. 49 (cede and
relinquish forever, all their claims to the lands); Treaty of May 31,
1796 with the Seven Nations of Canada, 7 Stat. 55 (cede, release and
quit claim . . . forever, all the claim, right or tide . . .): Treaty of
November 17, 1807, with the Ottaway, Chippeway, Wyandotte, and
Pottawatamie (sic) Nations, 7 Stat. 105 (agree to cede, and forever quit
claim . . . all right, title, and interest which said nations now have,
or claim, or ever had, Treaty of September 8, 1823, with the Florida
Tribes, 7 Stat. 224 (do cede and relinquish all claim or title which
they may have . . .); Treaty of June 2, 1825, with the Great and little
Osage Tribes, 7 Stat. 240 (do cede and relinquish to the United States,
all their right, tittle, interest, and claim, to lands . . . ); Treaty
of October 23, 1826, with the Miami Tribe, 7 Stat. 300 (cede to the
United States all their claim to the land).
The United States knew how to put specific
language limiting rights of hunting and fishing into an Indian treaty
when it wished to secure such rights from the Indians. An example is
found in the language of the Treaty with the Winnebago, signed September
15, 1832 (7 Stat. 370; Ex. P-187, Article XI):
In order to prevent misapprehensions that might
disturb peace and friendship between the parties to this treaty, it is
expressly understood that no band or party of Winnebagoes shall reside,
plant, fish, or hunt after the first of June next, on any portion of the
country herein ceded to the United States. (Tr. 2238.)
[16] The willingness of the United States to
give exclusive fishing rights in the areas prized by the Indians and the
apparent lack of any concern about Indian fishing rights in other areas
destroys any inference which might otherwise be derived from the fact
that the area of concession included water area. It is most likely that,
recognizing the Indians' dependence upon fishing, as noted above, the
United States intended that the Indians rely upon their right to fish to
provide for themselves while in Michigan.
Turning to Article Fourth, it provides for the
payment of annuities to the Indians for a twenty-year period. It also
provides for education, books, teachers and schoolhouses for the Indians
for a like period. Money was provided to purchase tools, equipment,
medicine, the services of a physician and tobacco. Of particular
importance is the language in Article Fourth providing for ". . . one
hundred barrels of salt, and five hundred fish barrels, annually, for
twenty years." Dr. Tanner testified that the government provided barrels
and salt so the Indians could participate in the commercial marketing
of fish:
The Indians are packing fish into barrels and salting them down, because they're transported in barrels. (Tr. 253.)
Article Fourth also provided $150,000 to the
Indians, but only after they assented to the Senate's unilateral
amendment limiting the land reserves to five years ". . . and no longer,
unless the United States grant them permission to remain on said lands
for a longer period." (Tr. 255.)
Article Fifth provided for the payment of the
Indians' debts to traders. This, of course, ". . . is probably one of
the principal interests the trading people have in the Treaty process."
(Tr. 256.)
Article Sixth provided for payments to the
half-breed relatives of the Ottawa and Chippewa (Tr. 257-58.) The ndians
had much concern for their half-breed relations and thought of them as
part of their family. (Tr. 258.)
Article Seventh provided, inter alia, for
blacksmith shops to be maintained for the Indians. This was of
particular importance to them because the blacksmiths could make and
repair metal goods used by the Indians to catch fish. These goods
included metal hooks, ice cutters and other fishing implements. (Tr.
260.)
Article Eighth deals with the subject of removal and will be treated in a separate section of this opinion.
Article Ninth provided for land and monies to be
given to certain individuals such as Leonard Slater, John Drew, Edward
Biddle, John Holiday (sic) and Henry Levake, to mention a few. Many of
these persons who were singled out for special gifts under the treaty
were traders who escorted the Indians to Washington, D.C. and
represented the Indians at the closed door sessions when the treaty
articles were actually written. (Tr. 262.)
Article Tenth provided for the payment of monies
to the Chiefs. This was a common practice in treaty negotiations.
Further, the Indians, as a part of their culture and traditions,
expected to exchange gifts after an important agreement like a treaty
was negotiated. (Tr. 263.)
Article Eleventh provided for small annuities to two aged and infirm, but highly respected, old chiefs. (Tr. 263.)
In Article Twelfth the United States agreed to
pay the expenses the Indians incurred traveling from their homes to
Washington (and back) in order to participate in the treaty making
process.
Article Thirteenth, an extremely important section of the treaty, provides:
The Indians stipulate for the right of hunting
on the lands ceded, with the other usual privileges of occupancy, until
the land is required for settlement.
Dr. Tanner testified that "the usual privileges
of occupancy can be interpreted to mean living in the way that Indian
people have always been in the habit of living." (Tr. 264)
I think that this particular type of a provision
was of considerable importance to Indian people. It usually winds up a
treaty and is given as kind of assurance to them that they can continue
to live in the manner that they have been accustomed to, and have no
fear that their life will be disrupted.
(Tr. 265.) Further, Dr. Tanner testified that
the term "usual privileges of occupancy" includes the use of all natural
resources for economic and ceremonial purposes and for travel. (Tr.
265.) It includes hunting, fishing, gathering berries, collecting
grains, gathering rush for mats and the like. (Tr. 266.) Dr. Clifton's
testimony corroborates Dr. Tanner's on the meaning of the term "usual
privileges of occupancy." The Indians could ". . . make use of natural
resources as they were accustomed to doing or had been doing." (Tr.
2278.)
Article Thirteenth was extremely important to
the Indians for several reasons. (Tr. 274; see also Ex. P-44, 44A.)
First, as previously stated, it was explained to the Indians to mean
that their usual way of life would not change after the treaty was
consummated:
[Article Thirteenth] was to indicate and
reassure Indian people that they could continue living the way they had
been living.(Tr. 278.)
Second, the Indians were very reluctant to cede
all of their land and water. Some wanted to convey only small parcels to
the United States. However, the United States wanted an extensive
cession, and got what it wanted by use of "any means." In a letter dated
February 27, 1837, from Schoolcraft to his superior in Washington, the
Indians' reluctance to enter into a large cession is discussed. (D. Ex.
32 and 32A.) The United States wanted to extinguish as much Indian title
as possible. Treaty negotiations were time consuming and costly. The
United States knew that the price they would pay for cessions in the
future would be increasing over time. Article Thirteenth, therefore, was
used to persuade the Indians to cede much of their Michigan land and
waters on the theory that so long as the Indians were allowed to use all
of the natural resources of the land and water, a lage cession would
not adversely affect them. (Tr. 270.)
Furthermore, Schoolcraft stated (State Ex. 32A)
that not only did he explain that Article Thirteenth would allow the
Indians to continue to use all of the land and water resources of the
ceded area, but that since much of the ceded land was uninviting to
agriculturalists, it would not be settled and the Indians could use the
resources of this land indefinitely. Several months earlier, in July
1836, Schoolcraft wrote a cover letter to Lewis Cass over the Indians'
assent to the unilateral Senate amendment limiting their land reserves
to five years unless the United States allowed them to remain longer and
said that the reasons the Indians agreed to this change was because of:
. . . the practical operation of the provision
contained in the 13th article of the treaty, which seemed to them
indefinitely the right of hunting on the lands ceded, with the other
usual privileges of occupancy until the land is required for settlement.
(Ex. P-18A, p. 2; emphasis supplied.) See also Tr. 275.
Dr. Clifton testified concerning the Indians'
understanding of the term "until the land is required for settlement"
and how that concept might have been explained to them.*
[*Dr. Clifton has a background in the field
of descriptive linguistics and is familiar with languages spoken by the
Ottawa, Chippewa and Potawatomi.]
He said:
I would emphasize that that specifies not a
date, not a season of the year, but a condition which is coming. And it
is coming-it came gradually, obviously, over the course of a long, a
large number of years. And it is very ambiguous as to any idea by
terminal point when that condition might end.
There will also be probably some land that is not occupied and not used and unsettled. (Tr. 2278-79.)
With regard to the use of the term
"indefinitely," which Schoolcraft used to explain to the Indians how
long their usual privileges of occupancy might last, Dr. Clifton
testified:
Now I don't know that there is any such phrasing
as "indefinitely" in either o these dialects of the language that the
people spoke. I doubt that there is anything like it, just as we would
not anticipate to find much other correspondence between the vocabulary
of English and the vocabulary of this language. The languages were
constructed on very different principles, so I wouldn't think that the
Chippewa-the interpreter would be able to reach for in his head and get
an equivalent.... He might wind up saying something like "a very, very,
very long time, many winters, or many, many seasons," or something to
this effect, conveying the idea that it was a long period of time. (Tr.
2283.)
Even though Article Thirteenth reserved the
right in the Indians to hunt, fish, gather fruits of the land and use
all land and water resources, it also contains words of limitation-". . .
until the land is required for settlement." Dr. Tanner testified this
meant to the Indians that they could use all ceded land unless
particular parcels were occupied by non-Indiam settlers:
Q: [By Mr. Greene] Well, now when might-assuming
for the moment that the language of Article Thirteenth would have some
impact on the Indians in terms of their right to continue to use certain
lands, when do you suppose that impact would occur? How does this
Article Thirteenth- how is it going to limit, if at all, the activities
of the Indians?
A: [By Dr. Tanner] Well, I think from taking the
statements that we have, that are translations from the Indian people
themselves, it would be until the lands were occupied, until there
appeared to be some population pressure that would indicate a need for
that land. And all in all, I would say that some significant population
density would have to be achieved throughout the ceded area before it
would become apparent to Indian people that their lands were needed or
they were required for use by any other people.
Indian people, as you know, are accommodating
people, and if their life was not interfered with, they would probably
not undertake to make an objection. I think that the only general
sttement that I could make, Mr. Greene, is the one that I have made,
that there would have to be some apparent density population for the
need to use the land before there was any requirement to take up the
land. (Tr. 275-76.)
Dr. Clifton's testimony on this subject was similar to Dr. Tanner's. He stated:
They would see-the Chippewa-I will say this on
general term-all of the Indians in the Great Lakes area saw land, and
what was ever on the land, or streams, what was ever in the streams,
that were not occupied and used by someone else, as open to their use.
And this is a very ancient way of thinking, not easily and quickly changed by any such document as this. (Tr. 2285.)
Article Thirteenth was paraphrased in a variety
of ways before the treaty was negotiated, always in the context of
hunting or occupying the land:
"the right to hunt and live on the tract, until it is required," Henry Schoolcraft, September 23, 1835 (Ex. P-41).
"a defined right of hunting on the lands sold," Henry Schoolcraft, November 3, 1835 (D. Ex. 12).
"a full right to hunt on the ceded lands, as
long as they are unoccupied," William Johnston (Ex. P43), and John Clitz
(Ex. P44), both on November 17, 1835.
"the privilege of hunting upon the land, and of
residing upon it, until it is surveyed and sold by the government,"
Agreement of the Ottawa and Chippewa chiefs to cede lands, December 29,
1835 (D. Ex. 290).
"the usual privileges of residing and hunting on
the lands sold till they are wanted," Henry Schoolcraft, treaty
minutes, March 15, 1836 (Ex. P-17).
After the treaty was signed, Henry Schoolcraft
paraphrased and explained the provision in similar fashion: "the right
to live on and occupy any portion of the lands until it is actually
required for settlement," Memoirs. . . March 28, 1836 (D. Ex. 304, p.
534); "I employed the term 'settlement' in its ordinary meaning to
denote the act or state of being settled," letter of February 27, 1837
(D. Ex. 32; Tr. 266). "While [the lands] remain the property of the
United States," letter of February 27, 1837 (D. Ex. 33); "the
conditional usufructuary right," Report for 1837 (Ex. P-62, p. 3).
The phrase "until the land is needed for
settlement" is ambiguous as to the term of Indian occupation. It was
explained to the Indians as indicating a very, very, very long time in
the future. (Tr. 2278-84; D. Ex. 32.) Many of the Indians of the treaty
region lacked any experience base with which to understand even the
"ordinary meaning" of settlement invoked by Schoolcraft. (Tr. 2417.) In
using this phrase and explaining it as they did, the treaty negotiators
placed any understanding of the term of Indian occupancy beyond the
comprehension of the Indians, whose sense of time was significantly
different from that of white Europeans. The Indians lived in a
"continuous present." The assurances given the Indians that settlement
would not take place for a "very long time," an "indefinite time," and
other phrases equally beyond the comprehension of the Indians, were
successful in conveying an extended period of time to the extent that
they placed the time of the ultimate devolution (if any) of the land, a
condition sought by the United States, beyond the time frame within
which the Indians could understand human affairs. Since they lived in a
continuous present, any such time period related to events beyond their
continuous present, which, to them, would never occur. I find this to be
a fact. Accordingly, the Indians understood that they would go on
hunting and fishing for as long as any Indians lived in Michigan. (Tr.
51-68, 535-7, 542-58, 2281-94, 2482-89.) According to the Indian
understanding, Michigan Indians could hunt and fish "as long as the sun
rose and the waters flowed."
The United States only intended to impose a time
limitation upon Indian usufructuary rights with regard to Indian use of
unreserved ceded land. The United States intended to provide for
settlement, an occurrence which it always expressed as happening upon
the land. Article Thirteenth was designed to regulate peaceably the
potential conflit between the Indians and settlers in land use. (Tr.
269-70, 274.) In the minds and comprehension of the Indians, so long as
any Indians resided in Michigan, their aboriginal fishing rights would
be continuing and undiminished in vitality, whatever might happen to
their use of unreserved land. (Tr. 276-78.)
The Indians were incapable of understanding sale
or cession of lands as understood by white Americans. They understood
the treaty as a gift exchange. They would secure benefits from the
United States in return for some interests in land. From the Indians'
only understanding of land use, stewardship, they conceived of their
gift as some particular use of the products of land, for they could not
conceive of giving everything on the land. Here it is not possible to
determine what particular use or uses they thought were granted to the
United States because of the limited treaty minutes and the very general
treaty language. In other treaties such general language hid the fact
that the United States had asked the Indians for only their tops of pine
trees, giving the Indians in that negotiation the impression that the
oaks remained theirs. Here we do not know what the United States told
the Indians they wanted. Upon giving of their gift Indians would
understand that the United States received the Indian's land to care for
it. Such a view was expressed by the Chief Pabanmitabi of L'Arbe Croche
when discussing the right of the United States to cut wood on Indian
land under the terms of the Treaty of Greenville: "If any wood is cut
upon our land hereafter, we should be paid for it, and we authorize you
to take care of our land." (Ex. P-30)
In the 1836 treaty, the Ottawa and Chippewa
understood that they could continue to use the land to the extent
necessary to continue to live their former lives. The Indians were
accustomed to accommodating settlers on their land, and the treaty
obligation to accommodate them was seen as consistent with the Indians'
continuing to live their lives of hunting and fishing as before. The
Indians did not understand that they would have to accommodate in the
exercise of their fishing right because of the concessions given them
during the negotiation. (Tr. 51-58, 535-37, 54244, 556-58, 2281-94,
2482-89.)
[17] The 1836 Treaty did not describe the
Indians' reserved fishing right as a reservation of use upon a condition
subsequent, nor did the Lndians have any comprehension of such a legal
estate. United States v. Shoshone Tribe, 304 U.S. I I I, 116, 58 S.Ct.
794, 82 L.Ed. 1213 (1938); Whitefoot v. United States, 293 F.2d 658,
667, n. 15, 155 Ct.CI. 127 (1961), cert. denied, 369 U.S. 818, 82 S.Ct.
629, 7 L.Ed.2d 784 (1962).
E. THE "REMOVAL POLICY"AND THE 1836 TREATY
The concept of removal, causing the migration of
Indians from eastern sections of the country to the territory west of
the Mississippi, has been traced by historians to Thomas Jefferson, in
approximately 1803. Based on previous commitments by the federal
government to assist the original colonies to extinguish Indian title
within their boundaries, Jefferson as President felt obligated to some
affirmative action. His effort resulted in a draft proposal to amend the
Constitution creating an Indian territory in the Wst and Uncially
establishing removal as a national policy. The amendment never went
beyond the draft stage and although removal did not become officially
authorized until the passage of the Removal Act of 1830 (4 Stat. 411),
it was an item for treaty negotiation where circumstances demanded. CTr.
212024.) In addition to pressure from expanding white setliement, other
stated rationalizations for removal were the need to separate Indians
from the evil influences of white society and also for purposes of
national security in case of war. (Tr. 2133-38.) Such policy reasons for
removal varied according to the region of the country involved.
Population pressures were an important reason, i.e., settlers coming
into an uninhabited or sparsely inhabited area and beginning to farm the
land. (Tr. 212X-29.) In the southern states, the Indian societies were
powerful, adept at picking up white men's civilized ways and therefore
constituted a threat to the whites living in the area who wished to
exploit the Indians and their land. Removal was seized upon as the means
to rid white settlements of these advanced Indian societies. (Tr.
2128-30.)
In the Northwest Territories, the fact that some
of the Indians had previously allied themselves with the British meant
that removal of these Indians from the borders would make the border
with Canada more secure militarily for the United States. (Tr. 2132-34.)
Land speculation was also a factor in fueling
both the removal of Indians and the subsequent population growth of a
ceded area. One form of this speculation involved the United States
buying land cheaply from the Indians, and then selling it at a
substantially greater price to white settlers and speculators in order
to finance treaty provisions, and to raise general funds. (Tr. 2134-36.)
The true motive for the majority of whites was economic gain through
exploitation of the Indian. (Tr. 2137-41.)
Although removal was to be a voluntary act on
the part of the Indians, both before and after the Removal Act, there
were instances of forced removal. Andrew Jackson, President from 1829
through 1837, made requests which were actually orders and was
responsible for a forced removal involving the Cherokee and Creek. (Tr.
2138-43.) Jackson went so far as to defy a decision of the United States
Supreme Court, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483
(1832). (Tr. 2151-52.) The Removal Act of 1830 specifically provided
that removal was to be allowed for "such tribes or nations of Indians as
may choose to exchange the lands where they now reside and remove
there" ("there" being territory belonging to the United States west of
the Mississippi River). (Emphasis supplied.) There was opposition to the
passage of the Removal Act and by 1838 the removal pressure eased
substantially. However,, some removals did take place during the early
1840's. (Tr. 2153, 2372-73, 2449; D. Ex. 310). Not every treaty
negotiated with eastern tribes in the 1830's obligated the tribe to
remove; in fact, most of the treaties of that decade did not do so.
Pressure for removal varied considerably depending upon a tribe's
location. Generally, removal pressure was strongest in the south east
and weakest in northern Michigan and Wisconsin. (Tr. 227-28, 504-06,
2128-32, 2143, 2159-62, 2273-74.)
For analytic purposes the treaties of the 1830's
may be classified in three broad categories, depending upon the degree
to which they do or do not call for removal of the Indians involved:
(a) Land base reduction treaties. These treaties
involve a cession of part of a tribe's land base, generally with
retention of reservations in common of unlimited duration. The
consideration for the cession is usually payable on or near the
reservations. No mention is made of lands in the west or of removal.
These treaties are not removal treaties. (Tr. 2162-81; Ex. P178, 179,
180, 181.)
(b) Permissive removal treaties. These treaties
generally follow the provisions of the Removal Act. (State Ex. 310.)
They incorporate land base reduction features, but in addition provide
for th possibility of the Indians removing west if they desire to do so.
They are generally vague on the details of and the time for removal and
on the location and extent of lands to be provided in the west. (Tr.
2182-99; Ex. P- 182, 183, 184.)
(c) Obligatory removal treaties. These treaties
use language obligating the tribes to remove, 1 and generally involve a
cession of all tribal lands east of the Mississippi. Often specifics are
set forth regarding the details of the move, a deadline for removal,
and the specific land in the west to which the tribe is to remove. Often
payment of annuities and goods is to be made only in the west, as an
inducement to removal. (Tr. 227-28, 504-06, 601 -05, 2200-22, 222645;
Ex. P-184, 185, 186, 187, 188, 189.)
With the aforestated removal concepts in mind, I
turn to the situation in Michigan in 1836 and the treaty area in
question. Pressure from settlers for acquisition of Indian tendon
important factor which often resulted in obligatory removal treatiesCwas
absent from all but the extreme southernmost portion of the treaty
area, on the north bank of the Grand River. Even the rough geography of
the treaty area was unknown at treaty time. Henry Schoolcraft did not
believe in 1836 that settlers would enter the northern part of the
treaty area for decades, Fever. (Tr. 209-10, 227-28, 274-75, 2273-74,
2382-94; Ex. P-125, 133; State Ex. 32, 63, 251, 311.) The 1836 treaty
did coincide with pressures to make Michigan a state. Because of this,
there was probably reason to acquire the ceded portions in order to make
the prospects of statehood more attractive in terms of territory
available for settlement, industry, etc. (Tr. 2265-66.)
There is no mention of removal in the letters to
the treaty delegates, treaty minutes, the treaty instructions, or in
any of the other correspondence before the treaty. The first mention of
the possibility of removal is found in the treaty itself, in which the
original version of Article Eighth provided:
It is agreed, that as soon as the said Indians
desire is a deputation mall be sent to the west of the Mississippi, and
to the country between Lake Superior and the Mississippi, and a suitable
location shall be provided for them, among the Chippewas, if they
desire it and it can be purchased on reasonable terms, and if not, then
in some portion of the country west of the Mississippi, which is at the
disposal of the United States. * * * When the Indians wish is the United
States will retrieve them, at their expense....(Tr. 205-6, 219-22,
504-06; Ex. P-15.)
The Senate amended Article Eighth in the
following material respects (amended language underlined): [note in web
version amended language set in italics]
It is agreed, that as soon as the said Indians desire it, a deputation shall be sent to
the southwest of the Missouri River, there to select a suitable place
for the final settlement of said Indians, which country, so selected and
of reasonable extent, the United States will forever guaranty and
secure to said Indians. * * When the Indians wish is the United States will remove them, at their expense...
The apparent purpose of the amendment was to
eliminate the option of removal to the area among the Chippewa of
northern Minnesota. (Tr. 205~6, 219-21; Ex. P-15; State Ex. 17, 304, pp.
538-39.) The Senate amendment was not introduced into the treaty for
any substantive or policy reason, but, as Schoolcraft believed, to
embarrass President Jackson. (Tr. 199-202, 538-39, 2267-72; D. Ex. 304.)
The Treaty of 1836 is a hybrid type of treaty,
with characteristics of both a land base reduction treaty and a
permissive removal treaty. At most it is a permissive removal treaty,
because the provision for payment of annuities is to be in Michigan
(indicating an intention to stay); the language of removal in Article
Eighth-"as soon as the said Indians desire it," "[w]hen the Indians wish
it"-is permissive, not obligatory; there is no preamble stating that
because of population pressures the Indians must move out west (as is
common in obligatory removal treaties); there is a cession of land with
specific provsions for reservations of land for the Indians; the land
reservations are held in common by the Indian tribes; there is no
specific parcel of land set aside for the Indians out west; and there is
no removal deadline contained in the Treaty. There is also a provision
for the usage of the ceded land until some vague future time. (Tr.
203-06, 226-28, 370-71, 504-06, 509- 11, 174(~4, 2245-67.)
After the Treaty of 1836 was signed, the Indians
of the treaty area never had any serious intention of removing west of
the Mississippi. It is inconceivable that, knowing that removal meant
cruel travel hardships and leaving behind the most important single
aspect of their life-fishing-the Indians would ever have agreed to
remove. (Tr. 212, 831-32; Ex. P-94.)
In 1838 an exploring party under the direction
of James Schoolcraft, Henry's brother, went west to examine lands on the
Osage River in what is now Kansas. The Indians of the Upper Peninsula
refused to participate in this exploring party. In refusing to send
anyone on the exploring party, they stated we "are not aware of any
obligation to go west of the Mississippi." (State Ex. 92.) The purported
acceptance of lands in the west signed by the exploring party accepts
the land "upon which we agree to remove in the event of our emigrating."
(State Ex. 99; Tr. 218.) The exploring party was not representative of
the leadership of the treaty area of the Lower Peninsula. (Tr. 2316; Ex.
P-190.) Just before the return of the exploring party to their homes,
the members signed a document purporting to accept the land in the west
that they had selected as a place for the removal of those Indians of
the treaty area who wished to do so. (Tr. 205-06, 212-18, 227-28,
2300-30; Ex. P-190; State Ex. 52, 60, 62, 63, 92, 93, 94, 97, 99, 100,
252, p. 341.) The court doubts the validity of the exploring party's
acceptance: The delegation expressed displeasure with the land because
it contained no sugar maple trees. (Tr. 1709; D. Ex. 92, 93.) The
selection of a party to determine whether the lans to which they would
remove would seem to be an important decision for the tribes, and they
would have undoubtedly sent their chiefs if they were serious about
removing. (Tr. 2322, 2495.) There was some discrepancy even between the
list of the members of the party who went out to see the land, and the
list of the persons who signed the document of assent accepting the
lands out west. (Tr. 2318-19; Ex. P-190.) It appears that James
Schoolcraft, who was in charge of the exploring party, forced the party
to sign the acceptance of the lands before the Indian representatives
had an opportunity to go back to their bands and report to them. (Tr.
2324.) It is probable that the Indians who went on the expedition went
for ulterior motives; they wished to stall the United States on the
subject of removal; the younger Indians loved to travel, and the members
of the traveling party were given rewards for going, such as blankets
and guns. (Tr. 2323, 2496.)
At a general council of Indians at
Michilimackinac after the return of the exploring party, the Indians
opposed removal but accepted the lands in the west for whomever "may
personally agree to remove." (D. Ex. 62.)
Neither the federal government nor the Indians
took any further steps toward removal. The removal of the Indians of the
treaty area was tacitly abandoned soon after the return of the
exploring party, and was officially abandoned in the Treaty of 1855. No
Indian from the treaty area ever removed west of the Mississippi River.
(Tr. 205-06, 227-28, 282-84, 289-91, 301-03, 509- 11, 2158; Ex. P-65,
80, 89; D. Ex. 63, 251, p. 345, 352, p. 341.) Nor did the Indians change
their lifestyle as a result of the Treaty. (Tr. 218, 620 21, 1450-52,
1697-99, 17l0-l3.)
In summary, although the 1836 treaty was
negotiated during the Removal Period and was not in conflict with the
provisions of the Removal Act of 1830, by its terms it was permissive as
to removal from the area ceded. Since it was permissive and since
removal from the treaty area never took place, the classification of the
treaty as a removal treaty has no bearing or relevance to the issues
here in question.
F. 1836 TO 1855.
From the Indians' perspective, the period
between the two treaties was marked by dissatisfaction with the
government's implementation of the earlier treaty and confusion
regarding the status of the Articles Second and Third land reserves.
(Tr. 282.) The Indians of the treaty area were given tacit permission by
the federal government to remain on the reservations beyond the
five-year period-the reservations were withheld from sale and continued
in existence until another provision was made in the Treaty of 1855.
(Tr. 230-35, 282-84,301-03; Ex. P-65, 89.) Nonetheless, the insertion of
the Senate amendment regarding the longevity of the Articles Second and
Third reserves created apprehension and uncertainty in the minds of
Indians and non-Indians alike. (Tr. 284.) One way the Indians attempted
to cope with this uncertainty was to buy land in fee. The missionaries
encouraged these purchases and some Indians used annuity money from the
1836 treaty to buy land. (Tr. 285.)
In the Sault Ste. Marie area, there was a local
problem related to the destruction of the important fishing site and
encampment at the St. Mary's rapids caused by the construction of the
canal and locks there. (Tr. 285.) Construction began in 1853 and
displaced those Indians permanently encamped there. (Tr. 285; see also
Ex. P-81, 81A.) The canal and locks were completed and opened to traffic
in 1855, about one month before the Treaty of August 2, 1855 was
negotiated. (Tr. 287.)
In 1853, Henry C. Gilbert, the Michigan Indian
agent, wrote to his superior, George Manypenny, Commissioner of Indian
Affairs (Ex. P-80, 80A), and stated that the Ottawa and Chippewa would
never consent to removal and it would be difficult to forcibly remove
them because they ". . . are divided into so many independent bands, and
are scattered from one extremity of the state to the other." Gilbert's
recommendation was to allow the Indians to remain in Michigan, set side
land reserves for their benefit and convey parcels to individuals in fee
" . . . as they become sufficiently enlightened to be capable of taking
charge of themselves." Gilbert also said that the residents of the
state would not object to the Indians remaining there. (Tr. 291.)
Shortly thereafter, in March 1854, Gilbert again wrote to his superior
expressing his views on the policy the government should adopt to
permanently benefit the Ottawa and Chippewa of Michigan. (Ex. P-82,
82A.) In that communication, Gilbert listed several claims the Indians
had under the 1836 treaty. He advocated that certain tracts of land, far
removed from the whites be set aside for the Indians and be subject to
restraints on alienation which subsequently could be removed whenever it
was deemed expedient.
The Indians' dissatisfaction with the
implementation of the 1836 treaty is reflected in part by a message
prepared by a delegation of Ottawa and Chippewa who visited Washington,
D.C., in February 1856. (Ex. P-87, 87A.) At that same time, this
delegation sent another letter to the Commissioner of Indian Affairs
inquiring about certain promises of goods and services under the 1836
treaty and asking whether those promises had been carried out. (Ex.
P-86, 86A.)
In May 1855, the Commissioner of Indian Affairs wrote to his superior, the Secretary of the Interior, and said:
Firstly, as regards the Ottawas and Chippewas in
the State of Michigan, that I am of the opinion that an officer or
officers of this Department should be designated by the President to
negotiate with the Indians with a view of adjusting all matters now in
an unsettled condition, and making proper arrangements for their
permanent residence in that state.
******
It was anticipated that after a few years, these
Indians would remove southwest of the Mississippi. Hence the provision
of a home for them there, as per article 8 of the treaty and the
Senate's amendment thereto; but they were not limited by the treaty to any time within which they should remove to, avail [sic]of the homes thus promised.
They have never emigrated west, but have
continued to hold the reservations described in the 2d and 3d articles
of the treaty-which have accordingly been withheld from sale to
accommodate the Indians.
Measures should now be taken, in my judgment, to
secure permanent homes to the Ottawas and Chippewas, either on the
reservations or on other lands in Michigan belonging to the Government,
and at the same time, to substitute as far as practicable, for their
claim to lands in common, titles in fee to individuals for separate
tracts.
******
It may also be considered of some value to the
United States to have the Indians relinquish their right to a home west
of the Mississippi, although in my judgment, it would not be unjust to
deny them the benefit of that right, as they have not heretofore, nor is
it to be supposed they will hereafter, avail themselves of it. The
amount that should be allowed them for its relinquishment, ought not, in
my opinion, to exceed the value of lands they might receive for homes
in Michigan. (Emphasis supplied.) (Ex. P-89A, pp.1-2; see also
Tr.301-03.)
In summary, then, the 1855 treaty was negotiated
to address two principal issues: first, the provision of permanent
homes for the Ottawa and Chippewa in Michigan; and second, the
settlement and consolidation of monies and services owed to the Indians
under previous treaties and in particular the Treaty of March 28, 1836.
(Tr. 295-97.)
G. MEANING OF THE TREATY OF JULY 31, 1855.
Article 1 of the Treaty of July 31,1855 (11
Stat. 621) designated certain land to be withdrawn from sale from which
the Indians were to select homesites. (Tr.304.) Tracts were withdrawn
for particular bands and are depicted on [Ex. P- 129C] a map and overlay
prepared to illustrate Dr. Tanner's testimony. From these withdrawals,
band members were to select 80 acres if they were the head of a
household and 40 acres if single. (Tr.306.) After the land was selected,
it was not to be alienable for a period of at least ten years after
which the restrction on alienation, in certain circumstances, could be
removed. (Tr. 307.) The procedure set forth in Article 1, however, was
rarely followed, and many Indians never received an allotment.
notwithstanding the treaty provisions requiring the same. (Tr. 307.)
These promises proved to be as ethereal to the
Indians as the promises which they replaced. The Indians relied upon
them to their detriment as they had on the promises before.
The land reserves under the 1855 treaty
correspond, for the most part, with the land reserves provided for under
the 1836 treaty. (Tr.312.) Dr. Tanner testified that the land reserved
under the 1855 treaty redefined the 1836 land reserves. (Tr. 312.)
Article 2 provided for the delivery of certain
goods and services to the Indians, including monies for education,
agricultural and carpentry tools, cattle, household furniture and the
like. The Indians were also to receive annuities (paid over a
fourteen-year period), and the services of blacksmiths.
Article 3 of the treaty provided:
ARTICLE 3. The Ottawa and Chippewa Indians
hereby release and discharge the United States from all liability on
account of former treaty stipulations, it being distinctly understood
and agreed that the grants and payments hereinbefore provided for are in
lieu and satisfaction of all claims, legal and equitable on the part of
said Indians jointly and severally against the United States, for land,
money or other thing guaranteed to said tribes or either of them by the
stipulations of any former treaty or treaties; excepting, however, the
right of fishing and encampment secured to the Chippewas of Sault Ste.
Marie by the treaty of June 16,1820.
(11 Stat. 624.) This release clause categorizes
the Indians' claims into legal and equitable. The legal claims of the
Indians pertained to certain goods, services and annuities promised to
them under the 1836 treaty, but which were never delivered. (Tr. 319.)
Equitable claims, by contrast, related to removal (Article Eighth of the
Treaty of 1836) which was never implemented. (Tr. 320.)
Plaintiffs' Ex. P- 19 and P- 19a are the treaty
minutes, which is a long and comprehensive document. In that document
are examples of those claims the treaty commissioners considered to be
legal, as opposed to equitable. Before considering those claims, the
purpose of the treaty was made clear by Commissioner Manypenny early in
the proceedings:
Com. Meanypeny [sic]. There were two
delegations of Ottawas and Chippewas at Washington last winter, each
making nearly the same inquiries concerning the affairs of their people.
They each had the impression that there was unsettled business under
the older treaties running back as far as 1795.... The examination I
made led me to the conclusion that there was little foundation for many
of the claims the delegates made, while they were at Washington. l
directed the acting Commissioner, when I left Washington from which
place I have been absent four or five weeks, to examine & if he
found any default in the fulfillment of the old treaties by Government,
to advise me of it. The fact in relation to your business, accords with
the fair presumption, because it is a fair presumption, that when the
Treaty of 1836 was made all questions, growing out of previous treaties,
of an unsettled character, were adjusted. With this general remark I
now say, that notwithstanding this fair presumption, if it shall appear
that there is still any thing actually due to you under the old
treaties, you may rely upon my efforts to obtain it for you.
(Ex. p-19A, pp. 10-11.) Examples of legal claims
the Indians had for promises made by the United States included the
following: The Indians inquired about whether annuities promised under
the 1836 treaty were paid. They wanted to know if the money for
agricultural implements, school houses amd books, medicines and
vaccines, and annuities for half-breeds, has been paid. (Tr. 294-97,
318-21, 323-24; Ex. P-l9, pp. 14, 17-22, 27-28, 52.)
Contrasting with these "legal" claims are those the treaty commissioners referred to as "equitable:"
As-sa-gn. At the treaty of 36-in ceding
lands there was a provision made for lands to Indians, who wished to
remove West of the Mississippi. A year of two after a delegation of the
tribes went West of that river & were told the land on which they
stored was theirs. What is to be done with that land?
Heamlin Intpt. [undoubtedly Hamelin
throughout] Com. Meanypeny [sic]. The Indians never having removed they
hold not land West of the Mississippi. The question however, is of an
equitable character & will be considered.
Heamlin Intpt. Agt. Gilbert -explains that the treaty simply provides for a suitable home west of the Mississippi, if they desire to go there.
Heamlin Intpt.
As-sa-gon We next wish to call your
attention to where the government, in the Treaty of 1836, provides that
it will remove the Indians. We wish to claim the amount of the expense
of removal, out-fit & one year subsistence.
Heamlin Intpt.
Com. Meanypeny [sic]. Those provisions
relate to events that have not taken place & are consequently
dependent upon contingencies that have never transpired. We may regard
them equitable; but legally & strictly the Indians have no rights
under them. (Ex. P-19A, pp 22-23.)
Com. Meanypeny [sic]. As I remarked to
you yesterday you have no legal right to the lands West of Mississippi
unless you remove. You rights, while you remain here are entirely
equitable in their nature. Having determined that you will not remove it
is now a question how you will settle your affairs here. It is vain to
request money for those lands. We will not give it. I cannot listen to
it. (Ex. P-19A, p. 32.)
Com. Meanypeny [sic] . . . I do not
understand that the Indians have any right under the treaty to
commutation for the expense of removal, subsistence & outfit. That
was in consideration of you removal. It was no part of the price of you
land. I feel inclined, however, to be liberal with you in the adjustment
of these equitable matters. (Ex. P-19A, p. 47.)
Waw-be-geeg. . . You promised if you
took me West of the Mississippi to give m lands, outfit and subsistence
for a year. The land West of the Mississippi is better than the land
here. You have kept a large amount of money in your pocket by not
removing us. We wish you to give us what is equitable.
John Johnston, Intpt.
Com Meanypeny [sic]. I admire the
ingenuity of Waw-be-gaag & I doubt not that this speech will impress
our minds. I wish it understood though that the government is not
indebted to the Ottawas and Chippewas for that removal and subsistence
matter. It is time we saved some money by not removing you, but it was
not yours but the government's money that we waved. We have been
ready to remove you. You thought it best to stay & you were right.
We think we may say in view of the equities of the subject that we will
allow some sum in commutation . . . (Emphasis supplied.)
(Ex. P-19, p. 43.)
In summary, "equitable" claims that Indians had
against the United States arose from Article Eighth (removal) of the
1836 treaty. (Tr. 323-34.) "Legal" claims of the Indians related to
specific sums of money the United States had explicitly promised to pay
under the 1836 treaty, but had not in fact been delivered to the
Indians. The Indians were asking for an accounting from the United
States. (Tr. 323.) They wanted to be certain the lengthy list of monies
earmarked for particular purposes has in fact been expended as promised.
Dr. Tanner testified that a review of the 1855
treaty minutes (Ex. P-19, 19A), reveals no mention whatever of fishing
or fishing rights. (Tr. 326.) She also testified Article 3 had no impact
whatsoever on the fishing rights the Indians reserved under the earlier
treaty of 1836. (Tr. 326.) Further, Dr. Tanner could discern nothing
from the body of correspondence she reviewed or from any other source
which would lead her to believe that Commissioners Gilbert and Manypenny
thought that Article 3 of the 1855 treaty had any impact on Indian
fishing. (Tr. 327.) The only mention of fishing in the treaty relates to
the St. Mary's rapids; however, at the time of te 1855 treaty, this
important fishery had bean destroyed due to the construction of the
canal and docks [sic].
A. [By Dr. Tanner] This [the 1855 treaty] is an
accounting Treaty. They are trying to consolidate the debts of the
Government to the Indian people, what Indian people are owed. They are
interested in money and in getting permanent homes, and the Sault bands,
of course, are interested in getting money for their fishery that has
been damaged, but there isn't any other discussion about fishing at all.
Q. [By Mr. Greene] Is that a reference to the last portion of Article 3 of the 1855 Treaty?
A. Yes, that is the only claim. The damage claim
of the Sault bands . . . but that is the only item that is not handled
by the terms of the July 31, 1855 Treaty. That is the only outstanding
claim.
Q. And is that the subject matter of another treaty?
A. Yes, that is the subject of a separate Treaty on August-
Q. When was that treaty negotiated?
A. On August 2nd.
Q. So it was two days after the July 31st Treaty?
A. Yes, two days later. It was a separate discussion.
Q. And as to the claim there, that is for the fishery that had been destroyed at the Sault Rapids, is that it?
A. Yes, that's it.
Q. And how was it destroyed?
A. By digging the canal. . . .
(Tr. 325-27.) Neither the legal nor the
equitable claims released by the third article of the treaty included
the Indians' right to fish in the waters of the Great Lakes. (Tr.
294-97, 318-24; Ex P-l9, pp. 2-5, 14, 20, 22-23, 27-28, 32, 47, 52; Ex.
P-82, 87.) Only financial obligations were released. Apart from the
issue of compensation for the diminishment of the fishery at the Sault
rapids-itself a financial matter-the Treaty of 1855 had nothing whatever
to do with fishing or the fishing rights of the Indians of the treaty
area. There is nothing in the written records of the treaty councils or
other accounts of discussions with the Indians to indicate that fishing
rights were discussed at all, or that the Indians were told that their
existing fishing activities would b in any way curtailed or restricted
by the treaty. (Tr. 326-28; Ex. P-19)*
[* The financial claims released by Article 3
are well documented in the record They are specifically enumerated a
number of times. One key document is a letter from Henry Gilbert, the
Indian Agent for Michigan, to the Commissioner of Indian Affairs, of
March 6, 1954 in which he lists the claims of the Indians which should
be settled in a new treaty (Ex. P-82 and 82A):
The Indians of Michigan are principally of
the Chippewas tribe. There ar also remaining small remnants of the
Ottawas & Pottawatomies. Their business with the Government is
mainly based upon the stipulation of the Treaty of Washington of March
28th, 1836. The Annuities due by this Treaty will expire with two more
payments in 1855. The only remaining claims of the Indians under it upon
the General Government will then be-
1. For amount withheld & invested in
stocks $1000 per annum for 20 years. See Art. 4. - $20,000 to which sum
the accrued interest should be added.
2. For amount due the Indians for limiting their reservations by Senate Amendment to Art. 4-$200.000.
3. A reasonable commutation for lands west
of the Mississippi to which they would have been entitled had they
removed thither & in estimating this item the expenses of removal
& subsistence, all which has been saved to the United States should
be taken into account.
All other Treaty stipulations for the
benefit of the Michigan Indians are permanent in their nature &
under them small annuities have been paid for many years. They are as
follows-
1. To the Ottawas under the provisions of the Treaties of l 795, 1807, 1818 & 1821: $1700.00
2. To the Chippewas of Saginaw & of Swan Creek & Black River, under the Treaties of 1795, 1807 & 1819: $2500.00
3. To the Pottawatomies under the Treaty of July 29, 1828: $1587.50
4. To the Pottawatomies of Huron [under the] Treaty of Nov. 17, 1807: $400.00
The Chippewas of Saginaw have also a claim
upon the government under the Treaty of Detroit of Jan. 14, 1837 &
which wa modified & explained by the Treaty of Flint of Dec. 20,
1837 & the Treaty of Saginaw of Jan. 23, 1838 for the proceeds of
the lands ceded by that Treaty whenever the same shall be sold.
There is also an annual appropriation under Art. 8 Treaty of 24th, Sept. 1819 of: $2000.00
I am of the opinion that all these claims of
every description may be settled and compromised with the Indians, with
great benefit to them & advantageously to the United States. In
valuing the various claims against the United States for purposes of
arriving at a settlement figure, agent Gilbert, who was also a treaty
commissioner, made the following calculation during the negotiations
(Ex. P-l 9 and 19A, pp. 51-52):
Agent Gilbert: My Brothers I want to say a
work to you. The Commissioner thinks that we can put this money matter
into a shape that will enable you between now & Monday to arrive at a
conclusion. I give you then the following amounts.
Reservations $200,000
Annuity Retained 26,000
Inprt. Fund 50,000
In conceding the last amount as a basis for
your deliberations, if the commissioner on his return to Washington
finds the amount more or less, you win be paid accordingly. Our
impression is that, that is what is due. You may further estimate the
sum of $30,000 for equitable claims on the removal, outfit, &
subsistence matter. You may further estimate the annuity of $l700 at
$30.00 which seems to us its value. This makes in all $336,000. That is
the amount the Commissioner is willing you should take as the basis of
your calculations.
As a final example, the treaty commissioners
explained the claims in their letter of transmittal of the treaty in
the following terms (Ex. P-l 9 and 19A, pp. 4-5):
"In consideration therefore of the
difference in the value of the western lands, and the home now secured
to the Indians in Michigan and in the release and discharge of the
United States from all claims or demands on account thereof, or on
account of the clairns for "articles and equipments to each person" and
also in discharge an full satisfaction of the $200,000 stipulated to be
paid them in lieu of the reservations by the Senate's amendment to the
4th Article of the treaty of 1836, and in like discharge of the sum
which has acculturated from the investment of the $1,000 per annum,
provided for by the 4th Article of the treaty aforesaid, and in
discharge of the $1,700 permanent annuity due to the Ottawas and
heretofore specifically alluded to; in fact, in lieu and satisfaction of
all claims, legal or equitable, on the part of said Indians jointly and
severally against the United States for land, money, or other things
guaranteed to them by stipulations of any former treaty or treaties
(excepting the rights of fishing and encampment secured to the Chippewas
of Sault Ste. Marie by the treaty of June 16, 1820) the United States
are to pay to them or expend for their benefit, the sum of $538,400 in
manner following, viz: . . .
Thus, even though on several occasions the
legal and equitable claims released by Article 3 were carefully
enumerated, there is not the slightest hint that the fishing right was
included. Aside from the issue of compensation for the impairment of the
reservation and fishery at the Sault rapids, dealt with separately in
the Treaty of August 2, 1855 (11 Stat. 631) - which was itself a
financial matter- the Treaty of 1855 had nothing whatever to do with the
fishing rights of the Indians of the treaty area. There is nothing in
the treaty minutes or other documents to indicate that fishing rights
were discussed at all, or that the Indians were told that their existing
fishing activities would be in any way curtailed or restricted by the
treaty. (Tr. 326-28)
The treaty had no impact on any fishing rights the Indians might have had prior to the 1855 treaty.
It is probable that the Indians at these treaty
negotiations did not understand such legal terms as "legal and
equitable," "satisfaction of claims," and "release and discharge." (Tr.
1482-84, 1490-91.)
Article 5 of the 1855 treaty provides:
ARTICLE 5. The tribal organization of said
Ottawa and Chippewa Indians, except so far as may be necessary for the
purpose of carrying into effect the provisions of this agreement, is
hereby dissolved; and if at any time hereafter, further negotiations
with the United States, in references to any matters contained herein,
should become necessary, no general convention of the Indians shall be
called; but such as reside in the vicinity of any usual place of
payment, or those only who are immediately interested in the questions
involved, may arrange all matters between themselves and United States,
without the concurrence of other portions of their people, and as fully
and conclusively, and with the same effect in every respect, as if all
were represented. (11 Stat. 624.)
Article 5 must be understood in the context of
the Treaty of 1836 and the culture or the Indians of the treaty area.
The Treaty of 1836 was formally entered into by an entity called "the
Ottawas and Chippewa nation of Indians." However, neither the Ottawa not
the Chippewa was politically organized at the tribal level. The primary
unit of political and economic organization was the band, a mote
localized entity frequently associated with a village. From both a
cultural and a political perspective there never was such an entity as
the Ottawa and Chippewa nation-it was put together by the federal
government for the purpose of obtaining a cession in 1836. (Tr. 100-02,
772-76, 770-81.)
After the Treaty of 1836, however, this
artificial entity had existence at least to the extent that there were
problems regarding the implementation of the Treaty of 1836. The federal
government in 1855 wished to put an end to the myriad financial
problems which had arisen. A new treaty also was a good opportunity to
put an end to the "Ottawa and Chippewa nation." The Indian problems of
the era were of a localized and specific, rather than a broad and
general nature, and dealing with these problems with the large
artificial group was costly, time-consuming and unwieldy. By means of
Article 5, the fedeal government was able in the future to deal with the
tribes, bands or communities of the treaty area more cheaply,
efficiently and effectively on matters of local concern. There was no
change in the way in which they were dealt with by the federal Indian
agents after the treaty, save one: they were never again convened or
dealt with as one entity-not even to assent the the Senate amendments to
the treaty. (Tr. 331 -35, 779-81; Ex. P-l9.)
The Indians of the treaty area also had strong
reasons for wanting Article 5. Though they were closely related, the
Ottawa and the Chippewa were never happy at being lumped together as one
entity. Megis Ininne, an Ottawa chief from the Grand River, complained
of the inclusion of the Chippewa in the Treaty of 1836 during the
negotiation of that treaty. (Ex. P- 17 and 17A, p. 9.) The same
objection was raised in the negotiations in 1855, this time by
Waw-be-geeg, a Chippewa chief from the Upper Peninsula:
At the Treaty of 36, our fathers were in
partnership with the Ottawas, but now the partnership is finished and we
who come from the foot of Lake Superior wish to do our business for
ourselves. (Ex. P-l9and 19A, p. 33.) This concern was reported by
Waw-be-geeg near the end of the negotiations and was met by Commissioner
Manypenny, who explained the effect of Article 5 during this exchange.
Waw-be-geeg.*** I told you when I first
came that I wanted to be separated from the Ottawss and you have not
answered me. We have sat here and heard you talk to the Ottawas-while
you paid no attention to us.
Com. Meanypenny [sic].***The very case
you suggested is met in the treaty-you are separated as you desire. This
treaty you and the Ottawas must sign together is because the old treaty
of 36 was made in that way, but here we have followed your suggestion
and provide . . . that no general council shall be called.
(Ex. P-l9 and 19A, p. 69.) Thus, the Indians,
like the federal government sought and obtained in Article 5 an end to
the artificially constructed "Ottawa and Chippewa nation." (Tr. 31 35.)
H. TRIBAL FISHING REGULATION.
The Sault Ste. Marie Tribe of Chippewa Indians
regulates the fishing of its members in the waters of the Great Lakes
within the treaty area and requires its members who fish commercially to
have a tribal fishing license and a treaty fishing identification card
issued by the United States Department of the Interior pursuant to 25
C.F.R. part 256. The tribe enacts its own fishing rules and regulations
subject to the review of the Secretary of the Interior, imposes and
collects a license fee, imposes restrictions on time, manner and place
of taking, and requires its fishermen to submit catch reports. (Tr.
1139-40; Ex. P-120, 165.)
The Bay Mills Indian Community regulates the
fishing of its members in the waters of the Great Lakes within the
treaty area and requires its members who fish commercially to have a
tribal fishing license and a treaty fishing identification card issued
by the United States Department of Interior pursuant to 25 C.F.R. part
256. The tribe has a conversation code and a conservation committee
which includes ex-offficio members from the Michigan Department of
Natural Resources and the United States Fish and Wildlife Service. The
committee promulgates rules and regulations governing fishing. The tribe
imposes and collects a license fee, imposes restriction on the time,
manner and place of taking, and requires its fishermen to submit catch
reports. (Tr. 1080-81; Ex. P-162,163.)
Members of the tribes which are parties to this
action can trace their lineage to the Ottawa and Chippewa tribes which
were beneficiaries of the Treaty of Ghent and whose leaders signed the
Treaties of 1836 and 1855. (Tr. 1060-61, 1064, 1128,1179.)
V. Conclusions of Law
A. PARTIES.
[18] Ancestors and members of the plaintiff
tribes have continuously exercised Indian fishing rights since the 1836
Treaty without abandonment. Williams v. Chicago, 242 U.S. 434 37 S.Ct.
142, 61 L.Ed. 414 (1917). By organizing the tribes under the provisions
of the Indian Reorganization Act, 25 U.S.C.§471, et seq., approving
their constitutions, and issuing tribal treaty fishing identification
cards to their members pursuant to 25 C.F.R. part 256, the Secretary or
the Interior has recognized the plaintiff-intervenor tribes as the
modern tribal successors to the Indians who were signatory to the Treaty
of 1836. The Bay Mills Indian Community and the Sault Ste. Marie Tribe
of Chippewa Indians are Indian tribes which are political successors in
interest to the Indians who were signatory to the Treaty of March
28,1836 (7 Stat. 491). United States v. John, 437 U.S. 634, 98 S.Ct.
2541, 57 L.Ed.2d 489 (1978); United States u Jackson, 280 U.S. 183, 50
S.Ct. 143, 74 L.Ed. 361 (1930); United States v. Sandoval, 231 U.S. 28,
34 S.Ct. 1, 58 L.Ed. 107 (1913); United States v. Holliday, 70 U.S. (3
Wall.) 407, 18 L.Ed. 182 (1866); United States v. Washington, 520 F.2d
676 (9th Cir. 1975); United States v. Wright, 53 F.2d 300 (4th Cir.
1931).
B. CANONS OF TREATY CONSTRUCTION.
[19] Certain axioms of treaty construction must
be applied when interpreting Indian treaties to determine the extent of
the rights reserved thereunder. First, the courts have held that
treaties with Indians must be interpreted as the Indians would have
understood them. This rule is first set forth in Worcester v. Georgia,
31 U.S. (6 Pet.) 515, 581, 8 L.Ed. 483 (1832) (concurring opinion of
Justice McLean).*
*["The most celebrated opinion written by
Justice John McLean of Ohio during his thirty-one years on the Supreme
Court was his dissent in Dred Scott v. Sanford. {60 U.S. (19 How.) 393,
15 L.Ed. 691} His biographer states that McLean's dissent was perhaps
the most important of all of the opinions in the case because it
'expressed the northern consensus on the slavery question and was
eventually written into the Constitution by the Civil war and the
fourteenth amendment. "' History of the Sixth Circuit, a Bicentennial
Project, at 51. (Cites omitted )
The language used in treaties with the Indians
should never be construed to their prejudice. If words b made use of,
which are susceptible of more extended meaning than their plain import,
as connected with the tenor of the treaty, they should be considered as
used only in the latter sense .... How the words of the treaty were
understood by this unlettered people, rather than their critical
meaning, should form the rule of construction.
Some of the reasons for this rule of
construction are expressed in Jones v. Meehan, 175 U.S. 1, 10-11, 20
S.Ct. 1, 5, 44 L.Ed. 49 (1899):
In construing any treaty between the United
States and an Indian tribe, it must always. . . be borne in mind that
the negotiations for the treaty are conducted, on the part of the United
States, an enlightened and powerful nation, by representatives skilled
in diplomacy, masters of a written language, understanding the modes and
forms of creating the various technical estates known to their law, and
assisted by an interpreter employed by themselves; that the treaty is
drawn up by them and in their own language; that the Indians, on the
other hand, are a weak and dependent people, who have no written
language and are wholly unfamiliar with all the forms of legal
expression, and whose only knowledge of the terms in which the treaty is
framed is that imparted to them by the interpreter employed by the
United States; and that the treaty must therefore be construed, not
according to the technical meaning of its words to learned lawyers, but
in the sense in which they would naturally be understood by the Indians.
Accord, Choctaw Nation v. Oklahoma, 397
U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970); Choctaw Nation v.
United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed. 877 (1943); Tulee v.
Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 ( 1942); Starr v.
Long Jim, 227 U.S. 613, 33 S.Ct. 358, 57 L.Ed. 670 (1913).
And in another treaty case the Court stated:
In treaties made with them the United States
seeks no advantage for itself; friendly and dependent Indians are likely
to accept without discriminating scrutiny the terms proposed. They are
not o be interpreted narrowly, as sometimes may be writings expressed in
words of art employed by conveyances, but are to be construed in the
sense in which naturally the Indians would understand them.
United States v. Shoshone Tribe, 304 U.S. 111, 116, 58 S.Ct. 794, 797, 8 L.Ed. 1213 (1938).
The Court of Claims has also addressed this issue:
The treaty was dictated by white conquerors of a
subjugated race. It is inconceivable that there was the kind of
arms-length bargaining as to terms which would have made relevant as
ascertainment of the Indian intention [sic]. Naturally the Indians
wanted the unattainable-to be left alone. It is doubtful that the
untrained Indian mind understood the ambiguities of Article III even
though the white representatives went to some pains to explain the
provision. A great and unbridgeable void existed between the language
and culture of the two races. When one considers that the meaning of
Article III was sufficiently in doubt as to require the interpretative
services of the Supreme Court and several lesser courts in subsequent
years, one can readily forgive the Indians for any lack of perspicacity
or, indeed clairvoyance.
Whitefoot v. United States, 293 F.2d 658, 667, fn. 15, 155 Ct.Cl. 127 ( 1961), cert. denied, 369 U.S. 818, 82 S.Ct. 629, 7 L.Ed.2d 784 (1962).
In the context of Indian fishing rights, the
Supreme Court long ago rejected contentions that Indians obtained no
greater rights by virtue of a treaty than non-Indian citizens:
This [that the Indians acquired no rights but
those they would have without a treaty] is certainly an impotent outcome
to negotiations and a convention which seemed to promise more, and give
the word of the nation for more. And we have said we will construe a
treaty with the Indians as "that unlettered people" understood it, and
"as justice and reason demand, in all cases where power is exerted by
the strong over those to whom they owe care and protection:" and
counterpoise the inequality "by the superior justice which looks only to
the substance of th right, without regard to technical rules." . . .
How the treaty in question was understood may be gathered from the
circumstances.
United States v. Winans, supra 198 U.S.
at 380-81, 25 S.Ct. at 644 (citations omitted). See also the United
States Court of Appeals' decision in United States v. Washington, 384
F.Supp. 312 (1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied,
423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), wherein the court
stated: "In treating treaty Indian fishermen no differently from other
citizens of the state, the state has rendered the treaty guarantees
nugatory."
In holding that the State of Washington could
not exact a fishing license fee from Indians fishing outside their
reservation because of the special off-reservation fishing rights
secured to them by treaty, the Supreme Court followed a similar
approach. It stated:
From the report set out in the record before us
of the proceedings in the long council at which the treaty agreement was
reached, we are impressed by the strong desire the Indians had to
retain the right to hunt and fish in accordance with the immemorial
customs of their tribes. It is our responsibility to see that the terms
of the treaty are carried out, so far as possible, in accordance with
the meaning they were understood to have by the tribal representatives
at the council and in a spirit which generously recognizes the full
obligation of this nation to protect the interests of a dependent
people.
Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct. 862, 864, 86 L.Ed. 1115 (1942) (citations omitted). (Emphasis supplied.)
[20] A second principle of Indian treaty
construction is that doubtful expressions are to be resolved in favor of
the Indian parties. See, e.g., McClanahan v. Arizona Tax Com'n, 411
U.S. 164, 174, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Carpenter v. Shaw,
280 U.S. 363, 367, 50 S.Ct. 121, 74 L.Ed. 478 (1930).
The rule of treaty interpretation that requires
unclear phrases in treaties with Indians to be resolved in their favor
was well stated in a important Indian water rights case:
By a rule of interpretation of agreements and
treaties with the Indians, ambiguities occurring will be resolved from
the standpoint of the Indians. And the rule should certainly be applied
to determine between two inferences, one of which would support the
purpose of the agreement and the other impair or defeat it. On account
of their relations to the government, it cannot be supposed that the
Indians were alert to exclude by formal words every inference which
might militate against or defeat the declared purpose of themselves and
the government, even of [sic] it could be supposed that they had the
intelligence to foresee the "double sense" which might some time be
urged against them.
Winters v. United States, 207 U.S. 564,
576-77, 28 S.Ct. 207, 211-212, 52 L.Ed. 340 (1908). Followed in Arizona
v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963).
Accord, Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39
S.Ct. 40, 63 L.Ed. 138 (1918); Moore v. United States, 157 F.2nd 760,
762 (9th Cir. 1946), cert. denied, 330 U.S. 827, 67 S.Ct. 867,91 L.Ed.
1277 (1947); Standing Rock Sioux Tribe v. United States, 182 Ct.Cl. 813 (1968).
[21] In this case, if there is any question
about She meaning of any of the treaty phrases, the interpretation must
be that which is most favorable to the Indians. Thus, the meaning does
not depend upon today's conditions, Indian policies of the past, or what
is best to effect an accommodation between non-Indians and Indians.
Rather, courts are charged with the responsibility of interpreting those
phrases most favorably to Indians.
[22] Finally, the courts have prescribed that
treaties should be construed liberally in favor of the Indians. The
United States Supreme Court said in Choctaw Nation of Indians v. United States, supra, 318 U.S. at 431 -32, 63 S.Ct. at 678:
Of course treaties are construed more liberally
than private agreements, and to ascertain their meaning we may look
beyond the written words to the history of the treaty, the negotiations,
and the practical construction adopted by the parties.... Especially is
this true in interpreting treaties and agreements with the Indians;
they are to be construed, so far as possible, in the sense in which the
Indians understood them, and "in a spirit which generously recognizes
the full obligation of this nation to protect the interests of a
dependent people." (Citations omitted.)
In Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 954, 43 L.Ed.2d 129 ( 1975), Justice Douglas concurring, recalled the still-operative language of Choate v. Trapp,
224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941 (1912) as expressing the
general rule of construction governing contracts or agreements with
Indians:
The construction, instead of being strict, is
liberal; doubtful expressions, instead of being resolved in favor of the
United States, are to be resolved in favor of a weak and defenseless
people, who are wards of the nation, and dependent wholly upon its
protection and good faith. This rule of construction has been
recognized, without exception, for more than a hundred years....
Accord, Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942); United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938).
[23] To adjust for the circumstances under which
treaties were negotiated with Indians and to compensate for the
advantage of the non-Indian parties in those negotiations, the canons of
treaty construction set forth above were developed by the United States
Supreme Court and other courts called upon to interpret Indian
treaties. Only the clearest language depriving Indians of the rights
which they had prior to the treaties will limit their rights today. Menominee Tribe v. United States,
391 U.S. 404, 413, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). Therefore, a
full understanding of Indian fishing as it existed at the time of the
treaties is required to discover the meaning of the treaty in this case
and the full extent of the fishing rights which were reserved by the
treaty language in question.
If construction of the Treaties in this light
results in a meaning which seems to deprive today's non-Indians of
privileges which they thought were theirs, it only points up the great
injustice which has been done to treaty Indians during the many years
they have been deprived of their full rights for the sake of others
without rights.*
[*See Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974); United States v. Ahtanum Irrigation District, 236 F.2d 321, 327 (9th Cir. 1956), cert. denied, 352 U.S. 988, 77 S.Ct. 386, 1 L.Ed.2d 367 (1957), reh. denied, 338 F.2d 307 (9th Cir. 1964), cert. denied , 381 U.S. 924, 85 S.Ct. 1558,14 L.Ed.2d 683 (1965).]
[24] The rules of treaty construction which
dictate such a result are the product of the circumstances in which the
treaties were negotiated:
The Indian Nations did not seek out the United
States and agree upon an exchange of lands in an arm's-length
transaction. Rather, treaties were imposed upon them and they had no
choice hut to consent.
Choctaw Nation v. Oklahoma, supra 397 U.S. at 630-31, 90 S.Ct. at 1334.
[25] Several of the factors relied upon by
courts in applying the canons of construction to treaties exist in the
present case. Virtually none of the Indian participants to the treaty
spoke English. All affixed an "X" mark in place of their signature. The
Indians had to rely on interpreters for an explanation of concepts, most
of which were foreign to their culture. Dr. Clifton testified about the
lack of correspondence between English and the Ottawa and Chippewa
languages. Only general concepts were discussed, not the precise meaning
of particular words. Under these circumstances, to interpret particular
words in the treaty so as to defeat or diminish a reserved right would
be flatly contrary to these canons of construction.
[26] It is also noteworthy that the Indians did
not draft the treaty provisions. Rather, that was done out of their
presence and behind closed doors by the treaty commissioners and the
traders who escorted the Indians to Washington. t would be
unconscionable, as the sate has urged from time to time, to construe
words in the treaty against the Indians when the facts establish that
the Indians were not responsible for their selection.
The record is also clear regarding Schoolcraft's
and the traders' conflicts of interest vis-a-vis the Indians. The
traders were anxious that a treaty be negotiated in order that the
Indians' debts to them be paid. Altogether the traders received over
$220,000 as a result of the treaty. Five of the traders who escorted the
Indians to Washington and wrote the treaty out of their presence-John
Holiday, John Hulbert, Robert Stuart, Rix Robinson and Henry Levake-
received in the aggregate of $57,000. (Tr. 1633; D.Ex. 312.) Members of
Schoolcraft's family-James Schoolcraft, William Johnston, Susan
Johnston, George Johnston and the estate of John Johnston-received
approximately $53,000 in payment for debts owed them by the Indians.
Further, there is evidence that Schoolcraft knew about the existence of
these debts before the treaty was negotiated. (Tr. 1652.)
In addition to the payments to traders, Article
Ninth provided for payments to certain individuals in lieu of individual
reservations. Those persons included Rix Robinson, John Holiday, Mary
Holiday, William Lasley, Henry Levake and others. (Tr. 1643.) These
persons received almost $50,000 under this article of the treaty.
Before their arrival in Washington and
afterward, the trader-escorts engaged in liquor trade with the Indians,
and other of the principals had provided liquor to the Indians. It is
probable that Schoolcraft relied upon them to provide liquor at the time
of the treaty signing.
Combining these factors and considering the
conflicts that Schoolcraft and many traders had, there can be little
doubt but that the canons of treaty construction should be adhered to
rigorously in this case.
This court adopts the meaning of the 1836 treaty
consistent with the canons of construction. Under the 1836 treaty of
cession, the Indians granted a large tract of landand water area to the
United States. At the same time they reserved the right to fish in the
ceded waters of the Great Lakes.
Because of the documented evidence demonstrating
that the Indians were absolutely dependent upon fishing for subsistence
and their livelihood, and reading the treaty as the Indians must have
understood it, they would not have relinquished their right to fish in
the ceded waters of the Great Lakes. Since the treaty does not contain
language granting away the prior right to fish, that right remains with
the Indians and was confirmed by the 1836 treaty.
[27] The language contained in Article
Thirteenth of the Treaty of 1836, by its own terms could not have
limited the Indians' right to fish in the waters of the Great Lakes
because these large bodies of water could not possibly be settled by
homes, barns and tilled fields. While the Indians might have been
willing to give up their right to hunt on various parcels of land as
that land became occupied with settlers, the vital right to fish in the
Great Lakes was something that the Indians understood would not be taken
from them and, indeed, there was no need to do so. The western movement
of non-Indian settlers could be accommodated without requiring the
Indians to relinquish their aboriginal and treaty rights to fish. While
the United States has the power to abrogate treaties by subsequent
treaty or statute, it must do so expressly and emphatically. No such
abrogation of the reserved treaty right to fish can be found.
C. RESERVED FISHING RIGHTS.
[28] Guiding this court is a key concept
essential to a proper interpretation of the treaty. This concept is
deeply rooted in federal Indian law and was very recently reaffirmed by
the Supreme Court in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2nd 303 (1978). In United States v. Winans,
198 U.S. 371 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the United States
sought to enjoin non-Indians from obstructing certain Indians from
exercising their treaty rights to fish in the Columbia River. The
Indians under their treaty reserved the right to fish at their usual and
accustomed sites.
However, in order to reach those sites it was
necessary to cross land which, subsequent to the treaty, was acquired by
private individuals. The Court stated:
. . . the treaty was not a grant of rights to
the Indians, but a grant of rights from them-a reservation of those not
granted. And the form of the instrument and its language was adapted to
that purpose. Reservations were not of particular parcels of land, and
could not be expressed in deeds, as dealings between private
individuals. The reservations were in large areas of territory, and
negotiations were with the tribe. They reserved rights, however, to
every individual Indian, as though named therein. They imposed a
servitude upon every piece of land as though described therein.
198 U.S. at 381, 25 S.Ct. at 664. (emphasis supplied.) See also Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203,63 L.Ed. 555 (1919), which affirmed Winans, supra.
The conceptual framework, then, for interpreting the treaty is that the
grant or cession in the treaty is not made from the United States to
the Indians. Rather, the Indians were the grantors of a vast area they
owned aboriginally and the United States was the grantee. The grant from
the Indians must be narrowly construed, especially in light of the
wardship relationship existing between the Indian grantors and the
grantee United States.
[29] In addition to providing a conceptual framework for interpreting the treaty,
WinansWinans, supra, and Seufert, supra. In Winters v.
United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the
Indians reserved or retained water sufficient to irrigate their land
reserve. The agreement creating the Fort Belknap Reservation out of a
much larger tract occupied by the Indians was silent regarding rights to
water from the Milk River. Both the area of cession and the smaller
land reserve within it were arid and of little use without water:
And this, it is further contended, the
Indians knew [that the lands were arid], and yet made no reservation of
the waters. We realize that there is a conflict of implications, but
that which makes for the retention of the waters is of greater force
than that which makes for their cession. The Indians had command of the
lands and the waters-command of all their beneficial use, whether kept
for hunting, "and grazing roving herds of stock," or turned to
agriculture and the arts of civilization. Did they give up all this? Did
they reduce the area of their occupation and give up the waters which
made it valuable or adequate?
Winters v. United States, supra at 576, 28
S.Ct. at 211. See also Cappaert v. United States, 426 U.S. 128, 96 S.Ct.
2062, 48 L.Ed.2d 523 (1976); and Arizona v. California, 373 U.S. 546,
83 S.Ct. 1468, 10 L.Ed.2d 542, reh. denied, 375 U.S. 892, 84 S.Ct. 144,
11 L.Ed.2d 122 (1963).
During the last term of the Supreme Court,
United States v. Wheeler, supra, was decided. There the Court was faced
with the issue of whether a tribe had authority to criminally prosecute
an Indian despite the lack of a congressional act authorizing such
prosecution. The Supreme Court, reaffirming the Winans concept,*
[*This Court has referred to treaties made
with the Indians as "not a grant of rights to the Indians, but a grant
of rights from them-a reservation of those not granted. " United States
v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662. 49 L.Ed. 1089.]
stated:
That the Navajo Tribe's power to punish
offenses against tribal law committed by its members is an aspect of its
retained sovereignty is further supported by the absence of any federal
grant of such power. If Navajo self-government were merely the exerise
of delegated federal sovereignty, such a delegation should logically
appear somewhere. But no provision in the relevant treaties or statutes
confers the right of self-government in general, or the power to punish
crimes in particular, upon the Tribe.
United States v. Wheeler, supra 435 U.S. at
315,98 S.Ct. at 1088. Thus, modernly the Winans doctrine is "alive and
well" and applies not only to reserved rights to land, but to reserved
rights to fish, reserved rights to water and reserved or retained rights
of sovereignty, i. e., the right to tribal self-government. Equally
important is that reserved rights, as in Winters, arise by implication.
And those notions are buttressed by the canons of treaty interpretation
requiring a narrow construction of the grant made by the Indians.
[30, 31] The Indians' claim to reserved
fishing rights here depends upon their having possessed such rights at
the time of the cession. The legal predicate to this holding is a
holding that they possessed aboriginal rights in the area of cession.
European nations coming to the New World claimed title to lands which
they discovered and conquered. See, Tee-Hit-Ton Indians v. United
States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955), Johnson v.
M'Intosh, 21 U.S. (8 Wheat) 543, 5 L.Ed. 681 (1823). Yet, the European
nations generally, and Great Britain in particular, recognized an Indian
right to occupy and use the lands claimed by these nations because of
the Indians' aboriginal possession of the land. This right, a right of
Indians to occupy land until the right is expressly extinguished by the
claiming nation, was recognized by the United States in the Nineteenth
century and is still recognized today. Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); United States
v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260
(1941); Worcester v.Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832); Johnson v.
M'Intosh, 8 Wheat 543, 5 L.Ed. 681 (1823). Termination of this right is a
political question. Northwestern Bands of Shoshone Indians v. United
States, 324 U.S. 335,339, 65 S.Ct. 690, 89 L.Ed 985 (1945). The Indians'
right of occupancy, his "Indian title" is "as sacred as the fee simple
of the whites." Mitchel v. United States. 9 Pet. 711. 746. 9 L.Ed. 283
(1835).
The Confederated Congress recognized Indian
aboriginal rights when it passed the Northwest Ordinance . These were
then reaffirmed in the Treaty of Ghent. During the War of 1812 with the
British, certain members of the Chippewa tribes fought in the War on the
side of the British. The British suffered a series of defeats during
the war, but Britain was determined not to permit this to affect her
Indian allies.*
[*The British record with regard to
treatment of the American Indians is remarkably better than that of the
United States. For an Indian expression of this viewpoint, see the
speech of O-Ge-Maw-Ke-to, n. 3, supra.] Britain recognized Indian
aboriginal rights during her occupation of the New World. She was
resolved not to submit the Indians under her care to American
sovereignty without treaty assurances that their rights would be
absolutely respected. As noted by Senator Henry Clay and discussed
above, Britain insisted that the Indians' rights not be interrupted,
that this matter be included in the treaty ending the War of 1812, and
made this demand a sine qua non to the conclusion of a peace
treaty with the Americans. The Treaty of Ghent guarantees the Indians
all the possessions, rights, and privileges which were recognized before
the war.
[32] As is clear from the history of these
Indians in Michigan, the Chippewas and Ottawas actually, exclusively and
continuously used and occupied the ceded areas for the "long time"
required to establish aboriginal possession. Although Chippewas
predominated in the Upper Peninsula and the Ottawas predominated in the
southern areas of the ceded lands, these peoples inhabited the region in
joint and amicable possession. Strong v. United States, 518 F.2d 556,
207 Ct.Cl. 254 (1975); United States v. Puebo of San Ildefonso, 513 F.2d
1383, 206 Ct.Cl. 649 (1976); Turtle Mountain Band of Chippewa, Inc. v.
United States, 490 F.2d 935, 203 Ct.CI. 426 (1974); Sac and Fox Tribe v.
United States, 315 F.2d 896, 903, n. 11, 161 Ct.CI. 189,202 n. 11
(1963). These facts were implicitly and explicitly recognized by the
United States when it negotiated the 1836 treaty.
As Dr. Tanner testified, the Indians'
aboriginal occupation included not only a large land area but a
significant portion of the Great Lakes. Accordingly, the cession is
described as "all that tract of country . . . to the boundary line in
Lake Huron between the United States and the British province of Upper
Canada . . ." Further into Article First, the ceded area is described
as:
". . . to a point in Lake Superior . . .
thence south to the mouth of said [Chocolate] river . . . thence, in a
direct line, through the ship channel into Green bay . . . thence south
to a point in Lake Michigan ... [and] comprehending all the lands and
islands within these limits .... [Emphasis supplied.]*
[*In Choctaw Nation v. Oklahoma, 397 U.S.
620, 623, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615, reh. denied, 398 U.S.
945, 90 S.Ct. 1834, 26 L.Ed.2d 285 (1970), the Supreme Court was
required to interpret certain treaties to determine whether a
reservation included the streambed of the Arkansas River. The Court
concluded that the language ". . . thence down the main channel of the
Arkansas River" was purposefully included and ruled that the tribe did
have title to the bed of the river. If the United States had wanted to
exclude the streambed it could have described the cession by reference
to the north side or bank of the Arkansas River.]
The important decision of the Michigan
Supreme Court in People v. LeBlanc, 399 Mich. 31, 248 N.W.2d 199 (1976)
reached precisely the same conclusion regarding Article First:
Moreover, the area described in Article
First, that being the territory ceded by the Ottawas and the Chippewas
to the United States, extends well into the Great Lakes. For example,
the ceded area is bounded in part by a line traveling from the mouth of
the Thunder-bay river, "thence northeast to the boundary line in Lake
Huron . . . thence northwestwardly, . . . through the straits, and river
St.Mary's, to a point in Lake Superior north of the mouth of Gitchy
Seebing, or Chocolate River...
People v. LeBlanc, 248 N.W.2d at 206 (emphasis in original, footnote omitted).
In exchange for this large cession of land
and water the Indians received certain monetary payments and other goods
and services from the United States. Within the area of cession the
Indians reserved certain land parcels and rights under the treaty. In
particular, they reserved nine land areas on the Upper Peninsula and
five areas on the Lower Peninsula. The issue in question here is whether
the Indians also possessed a right to fish in the waters ceded which
they did not grant to the United States but reserved for themselves.
[33] The right to fish is one of the
aboriginal usufructuary rights included within the totality of use and
occupancy rights which Indian tribes might possess. Menominee Tribe v.
United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968);
Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974); People v. LeBlanc,
supra; State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972).
[34] The factual predicate giving rise to
the reservation or retention of the right to fish in the Great Lakes is a
showing of the Indians' dependence upon that resource. The evidence
relating to Indians' use of the fishery resource, as related above, is
overwhelming.
Dr. Tanner testified about the life cycle of
the Indians during treaty times which included two major fishing
seasons, spring and fall, as well as ice fishing in the winter. Dr.
Cleland placed the treaty Indians' use of the resource into a historic
and prehistoric context. All Indians of the Upper Great Lakes, including
the Ottawa and Chippewa, were fishing peoples. The settlement patterns
of native peoples of the Upper Great Lakes, including the treaty Indians
in the cas at bar, were strongly influenced by available resources,
especially fish. It is no mere coincidence that the Articles Second and
Third land reserves are all located on the Great Lakes and all adjacent
to important fishing grounds. It is also noteworthy that most major
archaeological sites in the Upper Great Lakes are near or within
Articles Second and Third land reserves. In order to reach a conclusion
that the Indians were not dependent upon this valuable fishery resource,
the court would have to ignore hundreds of years of recorded testimony
and thousands of years of prehistoric information.
That the treaty Indians were commercial, as
well as subsistence, fishermen is also well documented and beyond
dispute. The Indians caught fish and traded them for goods available to
them from the European market. They were employed by the American Fur
Co. to catch fish. Indians operated their own commercial outfits and
sold their catch to the American Fur Co. as well. Years after the
treaty, Smith and Snell (Ex. P-4) reported that most of the fishermen
they surveyed were of Indian heritage. Right down to today a significant
proportion of commercial fishermen on the Great Lakes included within
the area of cession are of Indian heritage.
The Michigan Supreme Court decision in
People v. LeBlanc, supra, also supports plaintiffs' contentions
regarding the commercial dimension of the Indian fishery:
The record below [which was much less
detailed than the record here] clearly indicates that fishing was
central to the Chippewa way of life at the time the Treaty of 1836 was
negotiated.
******
Clearly, too, Chippewa fishing had a
commercial dimension. In fact, Article Fourth of the Treaty of 1836
provided for the delivery of 10,000 fish barrels and 2,000 barrels of
salt to the Indians over a twenty year period to be used in the fishing
business.
People v. LeBlanc, 248 N.W.2d at 204 (footnote omitted).
The State would have this court find that
the Indian fishery had no commercial aspect because, in effect, they did
not own and operae the American Fur Co. But even the State's own
witness testified that the Indians did not have the capital or the
business experience to start such a venture. (Tr. 1770.) Besides, the
American Fur Co. was "one of the most successful economic companies in
the early American history, one of the prime examples of big business at
this early period." (Tr. 1770.) This type of business activity simply
has no analogue in the society of the Ottawa and Chippewa. If the
standard the tribes are required to meet is that they too controlled a
business like the American Fur Co.-the General Motors of the Great
Lakes-then plaintiffs have failed. (See Tr. 1884.) However, there is no
such burden on the Indians. Plaintiffs have shown that treaty Indians
relied upon the resource for subsistence purposes and that their fishery
had a substantial commercial dimension as well. From the beginning of
the commercial market, as we understand and use that term today, the
Indians were participants. Obviously they could not participate in a
European-type market economy until there was one.
[35] On the basis of the findings of fact
above, which concluded that the Ottawa and Chippewa Indians of northern
Michigan have relied upon the catching of fish in the Great Lakes for
subsistence and for commerce for centuries, and that such a reliance has
been the one most important single aspect of their lives from a time at
least one hundred years before any contact with Europeans right up
until the time of the signing of the Treaty of 1836, this court rules as
a matter of law that the Indians who are plaintiffs in this action held
an aboriginal and treaty right under the Treaty of Ghent to catch fish
in the Great Lakes at the time of the 1836 Treaty. United States v.
Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260
(1941).
[36] Under Winans, supra, Indians retain
whatever rights they possess which are not relinquished by treaty or
taken by Congress. Rights are reserved by implication if they are not
expressly relinquished and a contrary conclusion is inconsistent with
the use of the resource by the Indians at the time of the treaty. United
States v. Wheeler, 435 U.S. 313, 98 S.Ct.1079, 55 L.Ed.2d 303 (1978);
Cappaert v. United States, 426 U.S.128, 96 S.Ct.2062, 48 L.Ed.2d 523
(1976); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d
542 (1963); Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52
L.Ed. 340 (1908); United States v. Winans, supra.
[37] On the basis of the following facts:
(1) the Treaty of 1836 contains no language expressly relinquishing the
aboriginal right of the treaty Indians to fish in the ceded waters; (2)
at the time of the 1836 treaty subsistence and commercial fishing was
essential to the livelihood of these Indians and for them to have
relinquished fishing rights would have been tantamount to agreeing to a
systematic annihilation of their culture, and perhaps of their very
existence; (3) both parties to the negotiation were aware that the
Indians had no way of sustaining themselves in Michigan except by
fishing, and (4) the Indians did not understand the treaty to limit
their right to fish, it is clear that by the Treaty of 1836 the Indians
impliedly reserved a right to fish commercially and for subsistence in
the ceded waters of the Great Lakes. Winters v. United States, 207 U.S.
564, 28 S.Ct. 207, 52 L.Ed. 340 (1908); United States v. Winans, 198
U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). This holding is
required by the above findings of fact and conclusions of law and by the
rules of construction set forth in the beginning of this opinion.
Further, however, in view of the dismal history which generally
surrounds the dealings of the United States with these first inhabitants
of this land, and the history of this specific treaty negotiation,
punctuated by numerous instances of underhanded and perfidious dealings
with these trusting and gentle people, simple justice requires that this
court begin to put an end to the unfairness which has plagued the
Indians in their dealings with the white man rom their first contact
with him, and restore to the Indian that which was by nature his, and
now by right also. The holding does not go so far as to void the treaty
because of lack of consent. See, e.g, Lone Wolf v. Hitchcock 187 U.S.
553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), where the Court held that it
could not consider the validity of an agreement allegedly obtained by
fraudulent misrepresentation because the question of the validity of the
agreement belonged to Congress. The language of the treaty does grant
territory to the United States. DeCoteau v. District County Court, 420
U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975); United States v. Choctaw
Nation, 175 U.S. 494, 531, 21 S.Ct. 149,45 L.Ed. 291 (1903). Were it
not for Lone Wolf, supra, and DeCoteau, supra, which proscribe invoking
the canon that legal ambiguities are to be resolved to the benefit of
the Indians to the extent of disregarding clear expressions of tribal
and Congressional intent, this Court would, on the record before it,
identify this as an invalid treaty because it was the product of fraud,
duress, conflicts of interest, coercion, and was very likely produced by
the alcohol of liquor peddlers who sought to keep the Indians from
knowing what they were doing.
D. ARTICLE THIRTEENTH AS PROTECTION OF THE RIGHT.
As the court ruled in People v. LeBlanc,
supra, the language of Article Thirteenth embraced the right to fish
even though fishing is nowhere specifically mentioned in the language of
the treaty article:
Given the central position of fishing, both
subsistence and commercial, in the Chippewa culture during the time
period of the Treaty of 1836, there can be little doubt that the Indian
stipulation in Article Thirteenth "for the right of hunting on the lands
ceded, with the other usual privileges of occupancy" was understood by
the Chippewas to include the right to fish.
People v. LeBlanc, supra, 248 N.W.2d at 205.
The construction of the treaty language is consistent with numerous
state and federal decisions. In Menominee Tribe of Indians v. United
States, 391 U.S. 404, 405-6, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968),
the Supreme Court held that the Treaty of Wolf River which created a
home for the Indians "... to be held as Indian lands are held ..."
included the right to hunt and fish:
Nothing was said in the 1854 treaty about
hunting and fishing rights. Yet we agree with the Court of Claims that
the language to be held as Indian lands are held" includes the right to
fish and to hunt. The record shows that the lands covered by the Wolf
River Treaty of 1854 were selected precisely because they had an
abundance of game. See Menominee Tribe v. United States, 95 Ct.Cl. 232,
24-241 (1941). The essence of the Treaty of Wolf River was that the
Indians were authorized to maintain on the new lands ceded to them as a
reservation their way of life which included hunting and fishing.391 U.S. at 406, 88 S.Ct. at 1707 (footnotes omitted). See also Kimball
v. Callahan, 493 F.2d 564 (9th Cir. 1974), cert. denied, 419 U.S. 1019,
95 S.Ct. 491, 42 L.Ed.2d 292 (1974), and State v. Tinno, 94 Idaho 759,
497 P.2d 1386 (1972).
Both Drs. Tanner and Clifton testified
regarding the Indians' understanding of Article Thirteenth and said that
the term "usual privileges of occupancy" included the use of all of the
ceded area including the Great Lakes fishery. The phrase of Article
Thirteenth which purports to limit the right-"until the land is required
for settlement"-was discussed above in the findings of fact. It is
ambiguous as to any definite period of Indian occupancy. Since it was
understood by the Indians not to effect their aboriginal and treaty
rights to fish, but to leave them with the right to fish, "as long as
the sum rose and the waters flow," it cannot operate to terminate these
fishing rights. It was only intended by the United States to limit
Indian use of particular plots of land.
The Supreme Court of Michigan came to an analogous conclusion in People v LeBlanc, supra, when it stated:
Undoubtedly this clause ["until the land is
required for settlement"]was intended to protect the right of
non-Indians to settle in the ceded area without interference from
Chippewas claiming "the usual privileges of occupancy," and has limited
the rights of the Chippewas to hunt. However, the ceded water areas of
the Great lakes have obviously not been required for settlement, and
therefore the fishing rights reserved by the Chippewas in these areas
have not been terminated.People v. LeBlanc, supra, 248
N.W.2d at 207. The Michigan Supreme Court relied upon the fact that any
other conclusion would contort the English language.
[38] I expressly adopt this holding as an
additional ground for the conclusion that the limiting clause of Article
Thirteenth does not impose a temporal limitation upon Indian aboriginal
and treaty fishing rights in the Great Lakes.
In summary, the wellspring of the reserved
right to fish in the ceded waters of the Great Lakes rests on its
implied reservation from the grant of land from the Indians to the
United States and also on Article Thirteenth. The right is implied
because it was never explicitly ceded away by the Indians; thus, they
retained it. The reason it was not granted was because the Indians were
too heavily dependent upon fish as a food source and for their
livelihood to ever relinquish this right.
[39] It must be remembered that one of the
principal purposes behind the 1836 treaty was to pave the way for
anticipated population growth caused by the westward and northward
movement of settlers. Clearly this could be accomplished without the
Indians surrendering their pre-existing rights to fish in the Great
Lakes.
In addition to the Indians' implied
reservation of this aboriginal right protected by the 1836 Treaty and
their right under the Treaty of Ghent, the express language of Article
Thirteenth protects the Indians' right to fish in the ceded waters of
the Great Lakes.
E. SCOPE OF THE PRESENT FISHING RIGHTS.
[40] The scope of the Indian right to fish
at the present time is defined by the character of Indian fishing at the
time of the treat. Accordingly, the retained aboriginal right is not
limited to any geographical area within the ceded area. Evidence has
revealed that the Indians of 1836 fished extensively over the entire
ceded area. They had the means to cover the entire ceded area and went
where the fish were to be found. Therefore, the right cannot be limited
in any artificial manner to imaginary and unrealistic boundaries within
the area of cession. Choctow Nation of Indians v. United States, 318
U.S. 423, 431-32. 63 S.Ct. 672, 87l. L.Ed. 877 (1943).
[41] Similarly, the means used to fish were
not restricted by the Treaty of 1836 nor by the Indians in any other
agreement with the United States. The Indians' right to fish., like the
aboriginal use of the fishery on which it is based, is not a static
right. The reserved fishing right is not affected by the passage of time
or changing conditions. The right is not limited as to species of fish,
origin of fish, the purpose of use or the time or manner of taking. The
right may be exercised utilizing improvements in fishing techniques,
methods and gear. It may expand with the commercial market which it
serves, and supply the species of fish which that market demands,
whatever the origin of the fish. Peterson v. Christensen, 455 F.Supp.
1095 (E.D.Wis.1978); United States v. Washington, 384 F.Supp. 312
(W.D.Wash.1974); State v. Gurnoe, 53 Wis.2d 390, 192 N.W.2d 892 (1972).
F. THE REMOVAL ACT.
The State endeavored to show that the Treaty
of 1836; obligated the Indians to remove from Michigan to lands west of
the Mississippi and that consequently the Indians were not concerned to
preserve their aboriginal rights. Testimony was adduced through the
State's witness, Dr. Mason, to the effect that removal was tantamount to
an accomplished fact and that all persons associated with the treaty,
including the Indians. knew that removal would take place at the time
the treaty was negotiated.
The State's position in this matter ignores
the history of the Michigan Indians the Removal Act, and the language of
the treaty here in Question.
[42] First and foremost it must be
remembered that removal of the Ottawa and Chippewa never occurred.
Indeed, descendant Indians and successor tribal groups to those signing
the 1836 treaty have remained in Michigan to this date and are party
plaintiffs in this litigation. So long as the Indians remain in the area
of the cession, they may continue to exercise their reserved aboriginal
and treaty rights to fish in the Great Lakes.
[43,44] The Removal Act of 1830 does not
mandate that the President negotiate treaties requiring removal. It is
permissive in nature. Congress did nothing to lessen the obligation of
the Executive toward the Indians.*
[*4 Stat. 411. American Heritage Pictorial History of the Presidents, Vol. 1, p. 224 (1968).]
The principal authorization of the Act is to
make it lawful for the President to offer Indians who chose to exchange
their homelands, lands west of the Mississippi belonging to the United
States. The Act did nothing to relieve the United States of prior treaty
obligations toward any Indian tribes. Section 7 of the Act declares:
"Provided, That nothing in this act contained shall be construed as
authorizing or directing the violation of any existing treaty between
the United States and any of the Indian tribes."
When the removals took place under this Act,
it was at the "request" of President Jackson. It was at Jackson's
behest that Cass and Schoolcraft sought to have the Indians of Northern
Michigan removed. They were not successful, however. The language of the
1836 treaty does not mandate removal of the Indians. It stated that ". .
. as soon as the said Indians desire it . . ." and later in the Article
". . . When the Indians wish it, the United States will remove them
...." To argue that this language mandates removal is patently absurd.
Similarly, many of the treaties negotiated during the 1830's did not
mandate removal.
Government officials and the United States Senate knew how to select language mandating removal when they desired.*
[*The languageof two removal treaties
introduced into evidence clearly establishes this point. The 1833 Treaty
with the Chippewa (Ex. P-188) includes the following language:
And it is further agreed that as fast as the
said Indians shall be prepared to emigrate, they shall be removed at
the expense of the United States, and shall receive subsistence while
upon the journey, and for one year after their arrival at their new
home. It being understood, that the said Indians are to remove from all
that part of the land now ceded, which is within the State of Illinois
immediately on the ratification of this treaty, but to be permitted to
retain possession of the country north of the boundary line of the said
state, for the term of three years, without molestation or interruption
and under the protection of the laws of the United States.
The 1832 Treaty with the Winnebago (Ex. P-87) provided in pertinent part:
The exchange of the two tracts of country to
take place on or before the first day of June next: that is to say, on
or before that day, all the Winnebagoes now residing within the country
ceded to them, as above, shall leave the said country, when, and not
before, they shall be allowed to enter upon the country granted by the
United States, in exchange.
Later in that same treaty, Article XI provided:
Article XI: In order to prevent
misapprehensions that might disturb peace and friendship between the
parties to this treaty, it is expressly understood that no band or party
of Winnebagoes shall reside, plant, fish, or hunt after the first day
of June next, on any portion of the country herein ceded to the United
States.]
Comparing the language of the 1832 Treaty
with the Winnebago and the 1833 Treaty with the Chippewa to the language
employed in Article Eighth in the Treaty of 1836, the conclusion is
inescapable-the Treaty of 1836 did not require, obligate, or mandate
removal of the Indians to lands west of the Mississippi.
None of the critical correspondence between
government officials leading to the 1836 treaty mentions the word
"removal." The treaty instructions to Schoolcraft from Lewis Cass dated
March 11, 1836 (Ex. P-53, 53A) did not mention the word "removal." The
treaty minutes (Ex. P-17, 17A) are devoid of that word as well. The
first time the term "removal" appears is in the treaty itself, and then
only in the context of permissiveness.
Dr. Tanner testified regarding the Indians'
objections to removal. The Indians in the Upper Peninsula did not even
regard removal to be a threat. They refused to send delegates to travel
with James Schoolcraft to view the land west of the Mississippi. Those
Indians who went were largely from the Lower Peninsula and did not
represent the Indians throughout the area of cession. With the exception
of one person, none of the Indians were designated as first, second or
third class chiefs in the list attached to the Treaty of 1836. (See Ex.
P-190). Those Indians who went on the James Schoolcraft exploring party
did not agree to remove, assuming arguendo they were clothed with
authority to represent all Indians throughout the ceded territory. They
agreed to accept the land they visited, but only if any Indians
personally chose to remove. (State Ex. P-62, 99.)
Straining these facts to their limit and
beyond would not demonstrate that the parties to the treaty knew that
removal was an accomplished fact at the time the treaty was negotiated.
At best the facts demonstrated that the treaty commissioners were
planning for future contingencies. If settlement of the state occurred
at the pace anticipated, which it did not, and if Indians requested
removal, which they did not, it was possible that removal might occur at
some time in the future. There was not even a time certain at which
removal was to occur.
The fact that the Indians stayed in Michigan
expresses their intentions more eloquently than any other fact which
has been presented to the court. The Indians did not remove. Because the
Indians stayed in Michigan and it has been previously determined that
they retained their aboriginal rights and Treaty f Ghent rights to fish
in the Great Lakes, they retain the right to fish in the waters of the
Great Lakes today.
G. THE FISHING RIGHTS RESERVED BY THE TREATY OF 1836 WERE NOT RELINQUISHED BY THE TREATY OF 1855.
1. A Treaty Right May Be Abrogated or Extinguished Only by the Most Explicit andUnequivocal Act of Congress.
[45, 46] Through the interweaving of
thousands of statutes, treaties and court decisions, a complex
relationship has developed interrelating the respective powers of Indian
tribes, the federal government and the states. From the founding of
this nation to the present, however, certain principles governing those
relationships have held firm. One such principle is that Indian tribes
retain all powers of self-government, sovereignty and aboriginal rights
not explicitly taken from them by Congress. McClanahan v. Arizona Tax
Com'n, supra; Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251
(1959); United States v. U.S. Fidelity & Guaranty Co., 309 U.S.
506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Ex parte Crow Dog, 109 U.S. 556,
3 S.Ct. 396, 27 L.Ed. 1030 (1883). Another principle is that the
federal government, acting primarily through Congress, has plenary
authority over Indians and Indian tribes. Warren Trading Post v. Arizona
Tax Com'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); Williams
v. Lee, supra; United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60
L.Ed. 1192 (1916); United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478,
47 L.Ed. 532 (1903); United States v. Kagama, 118 U.S. 375, 6 S.Ct.
1109, 30 L.Ed. 228 (1886).
[47-49] These two principles-plenary federal
authority over Indians and retention of tribal powers-interface in the
doctrine surrounding abrogation of existing treaty rights. While
Congress has the plenary authority to abrogate the fishing rights
reserved by the Treaty of 1836, it must do so expressly and
unequivocally. The intention to abrogate or modify a treaty provision
will not be lightly imputed to Congress. Menominee Tribe v. United
States, supra; Pigeon River Impovement Slide & Boom Co. v. Cox,
Ltd., 291 U.S. 138, 54 S.Ct. 361, 78 L.Ed. 695 (1934); United States v.
White, 508 F.2d 453 (8th Cir. 1974); Kimball v. Callahan, supra.
Congressional acts purporting to abrogate or modify treaty rights are
subject to the same canons of construction as are Indian treaties.
An important case applying the express
abrogation doctrine to hunting and fishing rights is Menominee Tribe v.
United States, supra. In that case the Supreme Court was faced with the
issue of whether the tribe's hunting and fishing rights, which were
reserved by the Treaty of Wolf River, had been abrogated by a later
congressional act terminating the reservation. Under the (Menominee
Indian Termination Act of 1954, 68 Stat. 250, 28 U.S.C. §§ 891-902), the
reservation was taken out of federal ownership, and federal supervision
over the tribe and its members ended. Because the language of the
termination act did not explicitly mention the extinguishment of hunting
and fishing rights, the Supreme Court held that those treaty rights
survived termination. Thus, tribal members were free to hunt and fish,
pursuant to their treaty, even though the United States no longer
considered them to be its wards. See also, Kimball v. Callahan, supra.
Defendants have argued that the Treaty of
1855 abrogated the Indians' reserved fishing rights. This contention has
centered in Articles 3 and 5 of the Treaty. Neither of those articles
had any effect whatever on the reserved fishing rights.
2. Article 3 of the Treaty of 1855.
[50] As the record amply demonstrates, the
"liabilities" and "legal and equitable claims" released by Article 3
were financial-and only financial-matters, and did not include the
reserved fishing right. Given those facts, it is clear that the Michigan
Supreme Court was correct when it held that the fishing rights secured
by the Treaty of 1836 were not released or abrogated in Article 3 of the
Treaty of 1855. People v. LeBlanc, supra. As that Court said:
While it is conceivable that the United
States inended "claims . . . for other things" in the Treaty of 1855 to
refer to fishing rights reserved by the Chippewas in the Treaty of 1836,
such seems highly unlikely given the complete absence of any discussion
of the termination of such rights in the treaty negotiations. In any
case, it is clear that the Chippewas and the Ottawas would not have
understood Article Three of the Treaty of 1855 to terminate hunting and
fishing rights reserved in the Treaty of 1836 given the absence of any
mention of such prospect.
******
Given, then, the rules of construction
mandating that a treaty should be interpreted as the Indians understood
it, and that the language of the treaty should not be read to the
prejudice of the Indians, we will not strain the language of Article
Three of the Treaty of 1855 to mean that reserved fishing rights
pursuant to the Treaty of 1836 were terminated.
Our conclusion is buttressed by the
directive of the United States Supreme Court that "the intention to
abrogate or modify a treaty is not to be lightly imputed."
Menominee Tribe v. United States, supra, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697. 248 N.W2d at 211- 12.
This interpretation of Article 3 is also
supported by the decision of the Court of Claims in Ottawa and Chippewa
Indians v. United States, 42 Ct.Cl. 240 (1907). There, the Indians sued
the United States to recover $19,000 plus accrued interest which
represented the $1,000 per year mandated by the 1836 treaty to be
invested in stock of the Treasury Department. The United States set the
money aside each year beginning in 1836 and ending in 1855 when it
"covered" the money into the Treasury.
The government in that litigation contended
that Article III of the 1855 treaty operated to release the United
States from the Indians' claim to the $19,000 plus accrued interest. The
Court of Claims disagreed because the treaty released the United States
from delivering various goods, services or annuities in the future.
Thus, as to the consideration flowing from the United States to
theIndians which had been promised under old treaties but not yet
delivered, Article m operated as a release. However, the $1,000 annuity
appropriated by Congress and in fact set aside was not released by
Article III because it was not an executory promise of the United
States. Rather, it was an executed promise, a promise already performed
by the United States and, therefore, not released by Article III of the
1855 treaty.
[51] The Court of Claims' analysis is
consistent with plaintiffs' contention herein and with the Michigan
Supreme Court's decision in LeBlanc. A reserved "right" is not a "legal
or equitable claim or liability." Article 3 operated to release the
United States from those promises previously made to the Indians, but
not fulfilled, for goods, services and monies; it did not release the
United States from promises made and in fact performed. Ottawa and
Chippewa v. United States, supra. The fishing "right" originated in and
remains to this day with the Indians; the right did not originate with
and was not given to the Indians by the United States. The United States
could not release a right it did not own. It was the Indians alone who
had the power to release their fishing rights and this they have never
done.
As we have seen, the Treaty of 1855
constituted a formal abandonment by the federal government of any effort
to remove the Indians of the treaty area from Michigan. (See, e.g., Ex.
P-89 and 89A.) One of its avowed purposes was to provide the Indians
with permanent homes in Michigan. It would have been wholly illogical to
allow the Indians to stay in Michigan but prohibit them from engaging
in their fishing practices in the Great Lakes. Such a prohibition would
have left the Indians destitute and deprived them of a traditional
activity vital to their subsistence and commercial pursuits.
Since the reserved right to fish in the
ceded waters is not a "liability on account of former treaty
stipulations" or a "legal or equitable claim" within the meaning of
Article 3 of the Treaty of 1855, as set forth above, the Indians did not
cede, surrender or relinquish their fishing right by Article 3. People
v. LeBlanc, supra, 248 N.W.2d at 211-12. See also, Ottawa and Chippewa
Indians v. United States, 42 Ct.Cl. 240 (1907). The right to fish was
not even discussed in the treaty negotiations. The restriction of Indian
rights proposed by the State will not be implied from such general
treaty language. Menominee Tribe v. United States, 391 U.S. 404, 88
S.Ct. 1705 (1968). Article 3 had nothing whatever to do with fishing
rights and no impact whatever upon them.
3. Article 5 of the Treaty of 1855.
[52] It is clear that Article 5 has no
effect either upon fishing rights secured by the Treaty of 1836 or the
modern political successors to the treaty Indians-Bay Mills and the
Sault Tribe.
Article 5 of the Treaty of 1855 was inserted
in that treaty for the convenience of the United States in its future
dealings with the Indian bands.
This clause was intended to accomplish two
goals: to relieve the United States of the burden of convening general
councils in the event local matters required attention in the future,
and to satisfy the Ottawa and Chippewa's desire to be treated
separately. Article 5 had no impact on the governmental structure of the
bands. There was no change in the way in which the Indian agents dealt
with them after the treaty, except that they were never convened again
as one group. (Tr. 331-35.)
Like Article 3, Article 5 has nothing
whatever to do with reserved fishing rights. Although this issue was not
raised in the LeBlanc litigation, the Michigan Supreme Court's
reasoning concerning Article 3 is dispositive. The Court refused to
construe the release clause as an abrogation of reserved rights because
there was no discussion of fishing rights during the treaty
negotiations, because the Indians would not have understood Article 3 to
terminate hunting and fishing rights and because construing the
language as an abrogation would be wholly contrary to the canons of
treaty construction.
This same reasoning apples to Article 5. But
the meaning of Article5 can be easily discerned from the four corners
of the treaty. There are no ambiguities to be resolved in favor of the
Indians. The United States wanted to handle disputes arising as a result
of the 1855 treaty on a localized basis and sought to avoid the need
for caning a general convention of the Indians to resolve future
problems, and the Indians of the treaty area wished to be treated with
locally, and not as an artificial "Ottawa and Chippewa nation." This-and
only this- is what Article 5 accomplishes.
Article 5 also has no effect upon the
plaintiff-intervenor tribes, Bay Mills and the Sault Tribe. Both tribes
are modern political successors in interest to the Indians who were
party to the Treaty of 1836. Both are recognized by the United States as
currently functioning Indian tribes maintaining tribal governments.
Both tribes have reservations held in trust for them by the federal
government-reservations which are within the boundaries of the
reservations retained in the Treaty of 1836. Each tribe is organized
pursuant to Section 16 of the Indian Reorganization Act, 25 U.S.C. .
476, and operates under a constitution and by-laws adopted pursuant to
that section. The membership criteria embodied in the constitutions of
both tribes require that tribal members be Indians of the treaty area.
(Tr. 1059-62, 1127-29; Ex. P-119, 120.)
[53-55] The federal government, through the
Department of the Interior, has recognized and confirmed that Bay Mills
and the Sault Tribe are political successors in interest to the Indians
of the treaty area. The Department is holding reservations in trust for
the tribes, approving tribal constitutions and issuing treaty fishing
identification cards to tribal members pursuant to 25 C.F.R. Part 256.
The proclamation of a reservation and the approval of a tribal
constitution are acts of recognition and acknowledgment of a federal
relationship. United States v. John, 437 U.S. 634, 98 S.Ct. 2541, 57
L.Ed.2d 489, 500 (1978). Courts will not disturb what Congress or the
executive have done in terms of organizing or recognizing the political
authority of Indian tribes.
United States v. Sandoval (1913); 107 l.ed."L.Ed." 1,58 s.ct."S.Ct."34 28, u.s."U.S." 231>United
States v. Holliday, 70 U.S. (3 Wall.) 407, 18 L.Ed. 182 (1867); United
States v. Washington, supra. As the agency charged with the
administration of laws affecting Indians, actions and interpretations of
the Department of the Interior are entitled to "great weight." United
States v. Jackson, 280 U.S. 183, 50 S.Ct. 143,74 L.Ed. 361 (1930).
[56, 57] Even if the federal relationship
with Indian tribes or bands is not continuous, this does not destroy
federal rights or bar the recognition of present tribal groups as
political successors in interest. United States v. John, supra. Even if
the Treaty of 1855 were the only source of the tribe's federal
relationship, the treaty provision would not end aboriginal federal
rights or prevent recognition of a modem tribal group as a political
successor in interest. United States v. John, supra. See also, United
States v. Wright,, 53 F.2d 300 (4th Cir. 1931), cert. Denied, 285 U.S.
539, 52 S.Ct. 312, 76 L.Ed. 932 (1931).
H. WHETHER A RESERVATION EXISTS IN WHITEFISH BAY IS NOT BEFORE THE COURT IN THIS PHASE OF THE TRIAL.
Phase One of the trial in this case was
limited to questions about fishing rights. The question of whether a
reservation continues to exist in Whitefish Bay has implications for
whether the Bay Mills tribe has exclusive fishing rights in that area of
Lake Superior, but this question goes beyond whether the Indians
retained aboriginal and Treaty of Ghent fishing rights in the Treaty of
1836 which were not abrogated by the 1855 treaty. Accordingly, at the
present time I decline to consider the evidence presented on this issue
and do not rule on the questions of law involved.
I. THE STATE OF MICHIGAN CANNOT REGULATE INDIAN TREATY FISHING IN ACCORDANCE WITH EXISTING PRINCIPLES OF INDIAN LAW.
1. The State's Power to Affect Treaty Rights Fishermen is Preempted by the Supremacy Clause.
[58-60] A fundamental principle of federal
constitutional law is that a state may not enact or enforce any statute
or regulation in conflict with treaties between the United States and
Indian tribes. The Supremacy Clause of the United States Constitution
(Article VI, clause 2) states just that:
This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
The Supremacy Clause is applicable to international treaties and Indian treaties alike. See
< of Gallons 43 v. States>, 108 U.S. 491, 2 Ct. 906, 27 L.Ed. 803 (1883);
United States v. 43 Gallons of Whiskey [U.S. v. Lariviere]Worcester
v. Georgia, supra. It is equally well established that a matter
generally within the exclusive power of a state, such as fish and game
management, is preempted by the federal government when a federal
purpose, as evidenced by a treaty or statute, is dominant and would
otherwise be frustrated. See Douglas v. Seacoast Products, Inc.
By virtue of its police power, the state has
initial authority to regulate the taking of fish and game. Geer v.
Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896). The
federal government, however, may totally displace state regulation in
this area. . . The Federal government may also preempt state control
over fish and game by executing a valid treaty and legislating pursuant
to it. Missouri v. Holland, 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed.
641 (1920). Furthermore, such a treaty may preempt state law even
without implementing legislation; atreaty guaranteeing certain rights to
the subjects of a signatory nation is self-executing and supersedes
state law. Asakura v. City of Seattle, 265 U.S. 332, 341, 44 S.Ct. 515,
68 L.Ed. 1041 (1924). Consequently, the state may enact and enforce no
statue or regulation in conflict with treaties in force between the
United States and Indian nations.
To paraphrase the Ninth Circuit's analysis,
the issue in this case is not whether the federal government has the
power to preempt Michigan fishing laws and regulations (since it clearly
does), but whether the federal government has done so by entering into
the treaties of 1836 and 1855 and by their subsequent implementation.
See, e.g. Menominee Tribe v. United States, supra; Puyallup Tribe v.
Dept. of Game (Puyallup I), 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689
(1968); Tulee v. Washington, supra; United States v. Winans, supra;
Worcester v. Georgia, supra; Kimball v, Callahan, supra; Skokomish
Indian Tribe v. France, 320 F.2d 205 (9th Cir. 1963), cert. denied, 376
U.S. 943, 84 S.Ct. 797, 11 L.Ed.2d 767 (1964); Maison v. Confederated
Tribe of the Umatilla Indian Reservation, 314 F.2d 169 (9th Cir. 1963).
[61] Although generally state law is often
applicable to Indians outside a reservation, there can be no application
where it would "impair a right granted or reserved by federal law."
Mescalero Apache Tribe v. Jones 411 U.S. 145, 148 (1973). A treaty
guaranteeing a right to fish distinct from that enjoyed by other
citizens is such an express federal law. United States v. Washington,
supra, 520 F.2d at 684. As is clear in this case, the Michigan Indians
had both aboriginal rights and rights guaranteed by the Treaty of Ghent
when they signed the 1836 Treaty. They retain these rights. Other
citizens of Michigan possess only a privilege to fish. That they possess
a mere privilege is recognized by Michigan law. M.C.L.A. 308.1 (Supp.
1978). The Treaty of March 28, 1836 (7 Stat. 491) guarantees a right to
fish which is distinct from the privilege to fish enjoyed by other
citizens of the State of Michigan United States v. Winans, 198 U.S. 371,
380-81, 25 S.Ct. 662, 49 L.Ed. 1089 (1905); United States v.
Washington, 384 F.Supp. 312 (1974).
[62] The point of the preemption doctrine,
simply stated, is that state regulation in an area where the federal
purpose is dominant and state regulation would be at cross purposes with
federal objectives is violative of the Supremacy Clause and must fail
even where Congress has not explicitly proscribed the reach of state
law. The principle is especially important where federal purposes are
expressed not by mere legislation but by a solemn exercise of the treaty
power and where the exercise concerns Indians, a subject manifestly
within the ambit of federal powers.*
[*See McClanahan v. Arizona Tax Com'n, supra
at 172. See also Byran v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102,
48 L.Ed.2d 710 (1976), where the Supreme Court construed a federal
statute authorizing states, under certain circumstances, to assume civil
and criminal jurisdiction over reservation Indians so as not to include
state or local taxing authority to affect Indian lands or Indian income
derived from activities within reservations.]
[63] It is well established that the usual right of a state to manage game within its boundaries*
[*Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896)].is
not infringed by a federal treaty and regulations under it concerning
taking game within the state, because the sovereign power of the state
must yield to paramount federal power.*
[*Cf. New Mexico State Game Com'n v. Udall,
410 F.2d 1197 (10th Cir. 1969), cert. denied sub nom., New Mexico State
Game Com'n v. Hickel, 396 U.S. 961, 90 S.Ct. 429, 24 L.Ed.2d 426 (1969);
Lacoste v. Department of Conservation, 263 U.S. 545, 549, 44 S.Ct. 186,
68 L.Ed. 437 (1923); Hunt v. United States, 278 U.S. 96, 100, 49 S.Ct.
38, 73 LEd. 200 (1928).]Missouri v. Holland, 252 U.S. 416,
40 S.Ct. 382, 64 L.Ed. 641 (1920). In Holland, the court rejected a
challenge by the state to federal enforcement of certain game
regulations promulgated in furtherance of the Migratory Bird Treaty on
the ground that it would be an unconstitutional interference with the
state's sovereign power. While recognizing that the subject matter-game
regulation-is generally a state prerogative, the court found that "a
treaty may override its power," 252 U.S. at 434, 40 S.Ct. at 384,
because "[H]ere a national interest of very nearly the first magnitude
is involved. It can be protected only by national action in concert with
that of another power." 252 U.S. at 435, 40 S.Ct. at 384.
The circumstances in this case bear out the
tremendous national importance placed upon the treaties at the time the
United States sought to negotiate them. Legal authorities support the
proposition that it continues to be in the national interest to observe
and enforce treaty obligations owed to Indians. Fulfilling these
obligations to Indians is no less lofty a national priority than the
protection of migratory birds.
The line of cases dealing with treaty
fishing rights secured by the "Stevens treaties" of the Northwest, such
as Puyallup Tribe v. Washington (Puyallup I), 391 U.S. 392, 88 S.Ct.
1725, 20 L.Ed.2d 689 (1968) and its progeny, which have allowed a
sharply limited power in the state to regulate the exercise of off
reservation treaty fishing rights, must be distinguished from the
present case.
In Puyallup Tribe of Indians v. Washington,
391 U.S. 892, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) (Puyallup I), and
Washington v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct 830, 38 L.Ed.2d 254
(1973) (Puyallup II), the United States Supreme court ruled that because
of the language contained in the Indian treaty with the Puyallup
Indians, the state had a right to regulate Indian fishing for purposes
of conservation of the fishing resources, provided that those
regulations did not discriminate against the Indians.
However, there appears to be some
inconsistency within the Court's two opinions on the right to regulate
treaty rights. In Puyallup I, the Court seemed to be making a
distinction between the treaty right to fish in certain places, and the
right to fish in a particular manner. It appears that the Court saw the
first right-the right to fish in accustomed places-as being a Treaty
right, and the second as a right which was held in common with the rest
of the citizens of the State, and therefore subject to the ordinary
state police power, i.e., regulation for conservation purposes. The
second right was not seen as being a treaty right.
For example, in Puyallup I, the Court
states: "the right to fish 'at all usual and accustomed' places may, of
course, not be qualified by the State ..." 391 U.S. at 398, 88 S.Ct. at
1728. Thus even though the Indians may hold this right in common with
the non-Indian citizens of the state (e.g., Indians and non-Indians may
fish side-by-side at the same spot), since this is an express Treaty
right, it may not be regulated by the State.
However, it appears that the Court in Puyallup I saw the manner of fishing as being outside the rights conferred by the treaty:
[T]he manner in which the fishing may be
done and its purpose, whether or not commercial, are not mentioned in
the Treaty. We would have quite a different case if the Treaty had
preserved the right to fish at the "usual and accustomed" manner. But
the Treaty is silent as to the mode or modes of fishing that are
guaranteed.391 U.S. at 898, 88 S.Ct. at 1728. Again, later in the
Opinion. where it was speaking of a similar case which it had advanced
in support of this distinction, the court states:
In other words, the "right" to fish outside
the reservation was a treaty "right" that could not be qualified or
conditioned by the State. But the "time and manner of fishing necessary
for the conservation of fish," not being defined or established by the
treaty, were within the reach of state power. The overriding police
power of the State, expressed in nondiscriminatory measures for
conserving fish resources, is preserved.391 U.S. at 399, 88 S.Ct. at 1729.
The Court in Puyallup I< appears to be
saying that the treaty right is the right to fish at accustomed places,
and being a treaty right, it is not subject to regulation by the State.
The right to fish in a certain manner is not a treaty right, however,
and thus is subject to the usual police powers of the State.
In Puyallup II, however, the Court appears
to shift ground. First, it states that the manner of fishing is now also
a treaty right: "Our prior decision recognized that net fishing by
these Indians for commercial purposes was covered by the Treaty." 414
U.S. at 48, 94 S.Ct. at 333. However, there is no language in Puyallup I
which indicates that Indian commercial fishing was protected by the
Treaty. In fact, the language in Puyallup I indicates that the Court
recognized that Indian commercial fishing existed at the time of the
signing of the Treaty, but the Court nevertheless went on to draw its
place-manner distinction: "But the manner in which the fishing may be
done and its purpose, whether or not commercial, are not mentioned in
the Treaty." 391 U.S. at 398, 88 S.Ct. at 1728.
It appears that instead of acknowledging
that its definition of the Indian treaty fishing rights was too narrow
in Puyallup I though, the Court let that decision stand while implicitly
modifying it in Puyallup II.
A second major shift in Puyallup II from the
opinion in Puyallup I is that the Court indicates that the Treaty
rights may now be restricted by the State police power:
Rights can be controlled by the need to
conserve a species; . . . the police power of the State is adequate to
prevent the steelhead from following the fate of the passenger pigeon;
and the Treaty does not give the Indians a federal right to pursue the
last living steelhead until it enters their nets. 414 U.S. at 49,
94 S.Ct. at 334. Thus the Court changed the legal framework of the
situation. It went from a treaty right to fish a certain location,
totally free from state regulation, plus an ordinary right to fish in a
certain manner, subject of course to the state police power, to a
scenario here all aspects of Indian fishing are now treaty-granted
rights, but that the state has an undefined right to regulate this
treaty right to "conserve a species."
In United States v. Washington, 384 F.Supp.
312 (W.D.Wash.1974), Judge Boldt noted that dicta followed by the United
States Supreme Court in cases approving state police power regulation
of Washington Indians' treaty right fishing is not sound in legal logic
or principle. Before Puyallup I was decided, 391 U.S. 392, 88 S.Ct.
1725, 20 L.Ed.2d 689 (1968), there were no cases which provided judicial
analysis or citation of a non-dictum decision supporting police power
state regulation of the exercise of Indian off-reservation treaty
fishing. 384 F.Supp. at 336. See, Tulee v. Washington, 315 U.S. 681, 62
S.Ct. 862, 86 L.Ed. 1115 (1942); ,i>Lacoste v. Department of
Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1924); Patsone
v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1913); United
States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905);
Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896);
Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed.793 (1896).
Kennedy v. Becker, 241 U.S. 556, 36 S.Ct.705, 60 L.Ed.1166 (1919),
involved a treaty which contained a fishing clause "fully satisfied by
considering it a reservation of a privilege of fishing...." At 563, 36
S.Ct. at 707-708. (Emphasis supplied.) The conveyance there was not to
the United States; the lands passed directly into private ownership, the
Indians retaining a right against the grantees and all who might become
owners of the lands. Here the Indians assert, and this court has held
that they retained an aboriginal right to fish, confirmed and reaffirmed
by treaty, when they conveyed their lands to the United States. There
can be no contention that this right was a mere privilege. The Indians
did not submit to the sovereignty of the State when they made their
conveyance, nor did they retain rights only relative to a private owner.
The district court in United States v.
Washington, 384 F.Supp. 312 (1974), also commented on the lack of
supporting authority in the Supreme Court's decisions:
[T]hat the exercise of such [an Indian
fishing] right may be limited in any way by the police power of a state,
without having previously received authority to do so from Congress,
seems to be diametrically opposed to relevant treaty law and personal
civil rights decisions, particularly those of recent years.
In the Puyallup II decision, . . . it was
stated (414 U.S. p. 2, 94 S.Ct. p. 332): "The sole question tendered in
the present cases concerns the regulations of the Department of Game
concerning steel head trout."
Other than by recital or quotations from
Puyallup-I and State Supreme Court decisions, in Puyallup-II there was
no discussion of or ruling upon the basis of state police power to
regulate off reservation treaty right fishing unless it be derived from
the next to the last paragraph in the opinion of Justice Douglas (pp.
5-6, 94 S.Ct. p. 333): "We do not imply that these fishing rights
persist down to the very last steel head in the river. Rights can be
controlled by the need to conserve a species; and the time may come when
the life of a steel head is so precarious in a particular stream that
all fishing should be banned until the species regains assurance of
survival. The police power of the State is adequate to prevent the steel
head from following the fate of the passenger pigeon; and the Treaty
does not give the Indians a federal right to pursue the last living
steel head until it enters their nets."
Whatever the above quoted statement may have
added to or taken from the right to exercise the off reservation treaty
fishing rights of the plaintiff tribes, to the present time there never
has been either legal analysis or citation of a non-dictum authority in
any decision of the Supreme Court of the Land in support of its
decisions holding that state police power may be employed to limit or
modify the exercise of rights guaranteed by national treaties which te
federal Constitution mandates must be considered and applied as "the
supreme Law of the Land."
384 F.Supp. at 337-38.
The district court also questioned whether
or not Congress was the only one permitted under the Constitution to
restrict treaty fishing rights:
It also appears that the United States
Supreme Court has exercised a prerogative specifically reserved by and
to Congress in the treaties. Congress has never exercised its
prerogative to either limit or abolish Indian treaty right fishing. In
recent years it declined to do the latter by three times failing to
enact proposed legislation for the termination of Indian treaty fishing
rights. It may be that the refusal or failure of Congress to exercise a
specific prerogative, by enactment of legislation, would legally justify
judicial exercise of that particular prerogative. If so, it has never
been stated or indicated in any United States Supreme Court decision as
the basis or source of authority for the federal judicial decisions
authorizing state regulation of off reservation treaty fishing rights.
[16] Since Congress has the power to qualify
or revoke any treaty or any provision thereof, unquestionable federal
authority is available to provide federal regulation, or to authorize
state regulation, for the protection of fishery resources against any
threatened or actual harm that might arise from off reservation treaty
right fishing by tribal members limited only by tribal regulation. In
these circumstances it is unfortunate, to say the least, that state
police power regulation of off reservation fishing should be authorized
invoked on a legal basis never specifically stated or explained.
Id. at 338-39 (footnotes omitted.)
However, because it was construing the same
Indian treaty language which the Supreme Court had before it in the
Puyallup cases, the district court in United States v. Washington,
supra, was constrained to follow the Supreme Court decisions. Id. at
339.
This court believes that the older Supreme
Court decisions holding that federal treat rights cannot be restricted
by the states are the better reasoned cases. Were it construing the
Puyallup treaty, however, it would also find itself bound to follow the
Supreme Court's interpretations of that treaty.
This court is not construing the Treaty found in Puyallup, though. In that treaty, the operative language read:
The right of taking fish, at all usual and
accustomed grounds and stations, is further secured to said Indians, in
common with all citizens of the territory, and of erecting temporary
houses for the purpose of curing,.... The United States secured the
right of non-Indians to fish alongside the Indians. The Indians' right
of taking fish in that Treaty is explicitly shared with the citizens of
the state, and it is this aspect which may have led the Supreme Court to
conclude that the state police power is applicable to both parties.
[64] This language is not contained in the
Treaty of 1836. The Indians' aboriginal rights and Treaty of Ghent
rights to fish in the Great Lakes is not shared with non-Indians through
treaty provision. Consequently, this court holds that the State of
Michigan does not have any right to regulate Ottawa and Chippewa Indian
fishing on the Great Lakes in exercise of their rights, because of the
Treaty of 1836 and the Treaty of Ghent do not permit state regulation of
these Indian fishing rights.
2. THE STATE'S POWER TO AFFECT TREATY RIGHT FISHERMEN IS PREEMPTED BY FEDERAL AND TRIBAL REGULATION
[65] In this case state regulation has been
preempted not only by virtue of the treaties, but by virtue of federal
regulation and Indian self regulation as well.
In 1967, the Secretary of the Interior took
steps to implement the exercise of treaty rights to fish when he enacted
25 C.F.R. Part 256. These regulations are detailed and explicit and
provide a means by which off-reservation fishing rights may be regulated
in order to meet conservation goals. This provision gives full
deference to tribal rights as opposed to state regulation, for it takes
into account state regulations only insofar as they govern "persons not
fishing under treaty rights." A state may itself initiate the regulatory
procedure via a request from its governor. The State of Michigan has
thus far ignored this federally-sanctioned approach to the very type of
regulation which it purports so ardently to desire. The Secretary is
presently operating under these regulations since he has issued tribal
identification cards to treaty right fishermen which are signed by both
tribal and federal officials. Here again, the federal government, acting
in cooperation with the tribes, occupies the field of regulating treaty
right fishermen, thereby preempting state regulation over these same
persons.
Part 256 of 25 C.F.R. is the very sort of
pervasive federal regulation which was found to preempt state
jurisdiction in Warren Trading Post v. Arizona Tax Com'n. 380 U.S. 685,
85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). In that case the United States
Supreme Court held that the federal government had promulgated such a
pervasive system of regulation of retail trading on Indian reservations
that no room was left for any state regulation. On its way to this
conclusion the court said: "[F]rom the very first days of our
Government, the Federal Government had been permitting the Indians
largely to govern themselves, free from state interference." 380 U.S. at
686-87, 85 S. Ct. at 1243. The federal regulation found in 25 C.F.R.
Part 256 is hardly less pervasive than that found in Warren Trading
Post. Moreover, unlike the regulation of retail trading on Indian
reservations, here the federal government has specifically provided a
means by which a state may participate, should it so desire. It is
clear, therefore, that the federal government has preempted state
regulation of off-reservation Indian fishing rights secured by treaty.
Unfortunately, the state consistently refuses to accept the principle
that treaty tribe fishermen enjoy unique rights derived from federal law
and, therefore, are not subject to the rules and regulations governing
citizens who do not enjoy such rights. The State maintains
simplistically that a disparity of treatment between Indian fishermen
and citizens fishing as a matter of privilege under state law would
constitute unlawful discrimination prohibited by the Fourteenth
Amendment. f the state were correct, however, Indian fishemmen would
derive nothing from their treaty. Indeed, it would be as if there were
no treaty at all.
[66] The Supreme Court rejected the State's
discrimination contention long ago, reiterated it recently in Morton v.
Mancari, 417 U. S. 535, 94 S.Ct. 2474,41 L.Ed.2d 290 (1974). The issue
there concerned the constitutionality of a federal law affording job
preference within the Bureau of Indian Affairs to Native American
applicants. The Court said:
Literally every piece of legislation dealing
with Indian tribes and reservations, and certainly all legislation
dealing with the BIA, single out for special treatment a constituency of
tribal Indians living on or near reservations. If these laws, derived
from historical relationships and explicitly designed to help only
Indians, were deemed invidious racial discrimination, an entire Title of
the United States Code (25 USC) would be effectively erased and the
solemn commitment of the Government toward the Indians would be
jeopardized.417 U.S. at 552, 94 S.Ct. 2483-2484. Clearly then there
are no constitutional impediments to treating Indian fishermen
differently than other state citizens. To the contrary, the Supremacy
Clause mandates different treatment because Indian fishermen derive
their rights (not privileges) under federal law.
Relying upon a similar claim of denial of
equal protection, fishermen licensed by the State of Michigan would on
the basis of their payment of an annual $5.25 fee, assert a right to
preempt the Indian fishing right proclaimed here, a right acquired over a
period of 12,000 years. From the evidence received by this court,
during the entire period for which the Indians alone exploited the Great
Lakes, there was no diminution of the fishery, no need to replenish it
by artificial means nor any anxiety to stock it with unnatural species.
These are the conditions which the fee is intended to address. The
licensed fishermen would obliterate the Indians' record, appropriate
their rights and conquer tem anew by paying yearly dues of five dollars,
so long as they are interested in participating in despoiling the
Indians. Under the proposed theory, so long as someone is interested in
paying the fee, the Indians' right to fish is accordingly limited.
A comparison might be made to bring this
theory into relief. By the treaty of cession, the state received
deposits of oil and natural gas. Under the system by which these
resources are administered, the average household in this state pays
many hundreds of dollars a year to acquire an allotment of these
resources. Yet, no one appears to be so bold as to assert that by virtue
of his payment he alone, or he in conjunction with others, acquires a
right to exploit the resource, a right which is superior to the rights
of utility companies and the state acquired by purchase or cession. The
state admittedly owns the resource. It is peculiar, then, to hear of a
supposed interest in the fish which arises by paying a minimal fee and
which forecloses the rights of the prior owner of the right to exploit
the resource, an owner who acquired his interest not by virtue of
purchase or cession, but by "the Laws of Nature and of Nature's God."
Sportsmen and non-Indian commercial
fishermen cannot raise the issue of equal protection without showing
entitlement founded upon use and occupancy similar to that of the
Indians. But the white man is a late comer to the Great Lakes fisheries
when it is considered in the light of centuries. Payment of an annual
fee is not a sufficient predicate to permit an abridgment of the
Indians' right to fish. This case is not an equal protection case under
the Fourteenth Amendment or the Declaration of Independence; it is an
Indian treaty case, supplemented with a full panoply of aboriginal
rights acquired and preserved over the centuries and existing in full to
the present
[67, 68] The fishing right reserved by the
Indians in 1836 and at issue in this case is the communal property of
the tribes which signed the treaty and their modern political succesors;
it does not belong to individual tribal members. United States v.
Washington, 520 F.2d 676 (9th Cir 1975); Settler v. Lameer, 507 F.2d 231
(9th Cir 1974); United States v. Three Winchester 30-30's, 504 F.2d
1288 (7th Cir. 1974); Whitefoot v. United States, 293 F.2d 658, 155 Ct
Cl. 127 (1961); Montana Power Co. v. Rochester, 127 F.2d 189 (9th Cir.
1942). The right is presently exercised by the plaintiff tribes under
extensive tribal regulation which preempts state regulation.
Both Bay Mills and the Sault Tribe have
adopted constitutions and by laws under the Indian Reorganization Act of
1934. (Tr. 1060, 1127; Ex. P-119, 120.) Both constitutions authorize
the tribes to regulate and protect resources under their control.
Further, both constitutions authorize the tribes to regulate the
internal relations of their members. Pursuant to file constitutions and
by-laws, the tribes have developed conservation codes and fishing
regulations. (Tr. 1080, 1139; Ex.P-162, 163, 165.) Pursuant to this
constitutional and ordinance authority, the treaty fishing activities of
the Indians in the area ceded by the Treaty of 1836 are comprehensively
regulated and enforced.
[69] Federal law provides that Indian tribes
retain the inherent sovereign right to regulate and enforce the
internal affairs of their members, including hunting and fishing rights.
United States v. Wheeler, supra; McClanahan v. Arizona Tax Com'n, supra
411 U.S. at 173, 93 S.Ct. 1257; United States v. Mazurie, 419 U.S. 544,
95 S.Ct.710, 42 L.Ed.2d 706 (1975); Byran v. Itasca County, supra, 426
U.S. at 388, 96 S.Ct. 2102; Williams v. Lee, supra 358 U.S. at 221-22,
79 S.Ct. 269; Menominee Tribe v. United States, supra 391 U.S. at 409-
10, 88 S.Ct. 1705; United States v. Washington, supra at 520 F.2d 686;
Settler v. Lameer, supra at 237; and Quechan Tribe of Indians v. Rowe,
531 F.2d 408, 411 (9th Cir. 1976).
In United States v. Wheeler, supra, the United States Supreme Court stated:
The powers of Indian tribes are, in general
"inherent powers of a limited sovereignty which has never been
extinguished." F. Cohen, Handbook of Federal Indian Law 122 (1941)
(emphasis in original). Before the coming of the Europeans, the tribes
were self-governing sovereign political communities. See McClanahan v.
Arizona Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 36 L.Ed.2d 129.
Like all sovereign bodies, they then had the inherent power to prescribe
laws for their members and to punish infractions of those laws.
Indian tribes are, of course, no longer
"possessed of the full attributes of sovereignty." United States v.
Kagama, supra, [118 U.S. 375] at 381, 6 S.Ct. 1109, 30 L.Ed. 228. Their
incorporation within the territory of the United States, and their
acceptance of its protection, necessarily divested them of some aspects
of the sovereignty which they had previously exercised. By specific
treaty provision they yielded up other sovereign powers; by statute, in
the exercise of its plenary control, Congress has removed still others.
But our cases recognize that the Indian
tribes have not given up their full sovereignty. We have recently said
that "Indian tribes are unique aggregations possessing attributes of
sovereignty over both their members and their territory ....[They] are a
good deal more than 'private, voluntary organizations."' United States
v. Mazurie, 419 U.S. 544, 577, 95 S.Ct. 710, 42 L.Ed.2d 706; see also
Turner v. United States, 248 U.S.354, 355, 39 S.Ct.109, 63 L.Ed.291;
Cherokee Nation v. Georgia, supra, [5 Pet. l ] at 16- 17, 8 L.Ed.25. The
sovereignty that the Indian tribes retain is of a unique and limited
character. It exists only at the sufferance of Congress and is subject
to complete defeasance. But until Congress acts, the tribes retain their
existing sovereign powers. In sum, Indian tribes still possess those
aspects of sovereignty not withdrawn by treaty or statute, or by
implication as a necessary result of their dependent status.
435 U.S. at 322, 323, 98 S.Ct. at 1086, 55
L.Ed.2d at 312-13 (emphasis supplied) (footnote omitted). Similarly, in
Williams v Lee, the Supreme Court observed:
Implicit in these treaty terms as it was in
the treaties with the Cherokees involved in Worcester v. Georgia, was
the understanding that internal affairs of the Indians remained
exclusively within the jurisdiction of whatever tribal government
existed.358 U.S. 221-22, 79 S.Ct. 271 (emphasis supplied).
The Ninth Circuit Court of Appeals in
Settler v. Lameer, supra, dealt expressly and in detail with the
question of tribal control over fishing rights which under the tribe's
treaty allowed members to travel great distances from their reservation
to fish in common with citizens of the State of Washington. The Ninth
Circuit agreed with the Indians that included within their treaty right
to fish was tribal authority to control and regulate its members fishing
off its land reservation.
This conclusion is supported by the nature
of the fishing rights. As set forth in Whitefoot, supra , 293 F.2d at
663, the fishing rights reserved in the Treaty of 1855 are communal
rights of the Tribe even though the individual members benefit from
those rights. The determination of when and how the rights may be
exercised is an "internal affair" of the Tribe. As the district court
correctly pointed out, "One of the last remnants of sovereignty retained
by the Yakima Indian Tribe is the power to regulate their internal and
social relations. "507 F.2d at 237 (emphasis supplied).
Subsequently, the Ninth Circuit in United
States v. Washington, supra, confirmed the authority of Indian tribes to
control the internal relations of their members, including the exercise
of treaty fishing rights:
Preservation of fishery resources is of
vital importance to Indians as well as to other citizens. At the same
time, regulatory interference by the state with treaty fishing is
obnoxious to the treaty tribes. These tribes have the power to regulate
their own members and to arrest violators of their regulations
apprehended on their reservations or at usual and accustomed fishing
sites. Settler v. Lameer, 507 F.2d 231(9th Cir., 1974).520 F.2d at 686 (emphasis supplied).
In so holding that Indian tribes have the
power to regulate the treaty fishing activities of their members and to
enforce those regulations through arrest and seizure of equipment, the
Ninth Circuit determined that the right to fish retained by the Indians
in the Treaty with the Yakima ( 12 Stat. 951 ) was understood by them to
include the power to control the exercise of that right through tribal
regulation of members:
We conclude that by the Treaty of 1855 the
Yakima Indian Nation retained regulatory and enforcement powers with
respect to tribal fishing at all "usual and accustomed places" off the
reservation. No act of Congress, including the Washington Enabling Act,
25 Stat. 676 (1889), has qualified these reserved powers. The powers
therefore continue to exist.Settler v. Lameer, supra, 507 F.2d at 239.
The court was also concerned with the effect upon the fishery resource if tribal self-regulation did not exist:
The Yakirna Nation may be in a better
position than the state of Washington to regulate off-reservation
fishing. The Tribe possesses the knowledge of its individual members and
their fishing sites, and only the Tribe has the authority to revoke a
Tribal member's fishing privileges. Id. at 240 , n. 21.
In view of the strict limitation on the
power of the state to regulate Indian off-reservation fishing, there
would be no effective regulation and enforcement of a broad range of
fishing activities if enforcement powers are denied to the Tribe. Id. at 239, n. 18.
The right of the Bay Mills Indian Community
and the Sault Ste. Marie Tribe of Chippewa Indians to regulate the
off-reservation treaty fishing activities of their members was not given
up when the Indians signed the Treaty of 1836. As cited supra, the law
of treaty construction is clear that rights not expressly relinquished
in the treaty are retained by the Indians. The tribes have asserted
their right to regulate by promulgating fishing regulations and
enforcing them.
The right of the treaty tribes herein to
regulate tribal members fishing in the area ceded by the Treaty of 1836
is no less than the rights of Indians elsewhere. The courts have been
careful to preserve treaty rights even when the lands ceded were later
privately owned, so long as the interests of private landowners are not
ignored. For example, in Kimball v. Callahan, supra, the court held that
the Klamaths may exercise:
. . . treaty hunting, trapping and fishing
rights free of state fish and game regulations on lands constituting
their ancestral Klamath Indian Reservation, including that land now
constituting United States National Forest land and that privately-owned
land on which hunting, trapping or fishing is permitted.493 F.2d at 569-70. And in Leech
Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001
(D.Minn.1971), the court found that the Indians have the "right to hunt
and fish and gather wild rice on public lands and public waters of the
Leech Lake Reservation free of Minnesota game and fish laws." Similarly,
in State v. Tinno, supra, Chief Justice McQuade, concurring, specially
said:
...the fishing right was reserved by treaty
to protect a source of tribal subsistence and to preserve an integral
part of the native American culture. These purposes may be given
meaningful effect in 1972, when many fishing streams have been dammed,
depleted or polluted, only if the treaty is interpreted liberally to
extend to any unoccupied federal land where fishing opportunities
remain. 497 P.2d at 1395.
[70] Both Bay Mills' and the Sault Tribe's
treaty rights include the power to regulate their members so long as
they are fishing under tribal regulation and in the area ceded by the
Treaty of 1836. Both tribes presently exercise that power and regulate
the fishing activities of their members. This regulation preempts any
state authority to regulate the fishing activity of the tribal members.
[71] Under the Supremacy Clause of the
United States Constitution, state regulation of Indian fishing rights
secured by the treaties here in question, and implemented by Federal and
tribal regulations, is preempted. Any regulation must be by Congress or
Congressional authorization. Any different understanding of the
Supremacy Clause, that part of the Constitution which governs the
relationship between the states and the federal government and makes our
system of interrelated state and federal governments possible, must
come from the Supreme Court. That Court presently has before it several
cases growing out of United States v. Washington, supra. These cases
could revise the present understanding of the Supremacy Clause as
related to Indian treaties. Under the law as it presently stands, only
Congress has the power to regulate Indian treaty right fishing in the
areas of the Great Lakes covered by the treaties before this court.
J. THE SUBMERGED LANDS ACT DID NOT, AS A MATTER OF LAW, REPEAL BY IMPLICATION THE INDIANS' TREATY FISHING RIGHTS.
[72] Amicus MUCC argued that Congress sub
silentio abrogated the Indians' treaty fishing right by the passage of
the Submerged Lands Act, 43 U.S.C. § 1301 et seq. This Act was not
intended to, nor did it have, such an effect.
The Submerged Lands Act does not expressly
deal with Indian fishing rights. Any abrogation of Indian fishing rights
would be by implication. The intention to abrogate or modify a treaty
is not to be lightly imputed to the Congress. Menominee Tribe v. United
States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968).
The impetus behind the Submerged Lands Act
seems to have been several Supreme Court cases holding that off-shore
oil belonged to the federal government rather than to the individual
states. United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed.
1221 (1950); United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94
L.Ed. 1216 (1950); United States v. California, 332 U.S. 19, 67 S.Ct.
1658, 91 L.Ed. 1889 (1947). The Act restored the rights to the submerged
land and its resources to the individual states.
The specific language of the Submerged Lands
Act gives title to and ownership of "the submerged lands," and the
"Natural resources within such lands and waters," and "the right and
power to manage, administer, lease, develop, and use the said land and
natural resources" to the states. At one time legal opinion had held
that the states held title over this off-shore land and resources, but
the Supreme Court held otherwise in United States v. California, supra.
Thus, this legislation "recognized, confirmed, established and vested in
and assigned to the respective states" the rights to the submerged
lands. In essence the Act said that the federal government recognized
the states' interests if they had such interests, and gave the states
those interests if they in fact had none under prior law.
The definition of natural resources
contained in the Submerged Land Act includes fish. 43 U.S.C. § 1301 (e).
However, natural resources such as oil and minerals were the main
target of the legislation. Biological resources were included in the
definition by Congressmen who were worried that traditional state
regulation of the ocean shrimp, lobster, and clam industries, etc.,
would be adversely affected unless these items were also included within
the definition. Legislative history reveals that the inclusion of fish
in the definition of "resource" is strictly a secondary consideration of
the Act. 2 U.S. Code Congressional and Administrative News, (1953) at
1385.
A recent Supreme Court case, Douglas v.
Seacoast Products, Inc. 431 U.S. 265, 97 S.Ct 1740, 52 L.Ed.2d 304
(1977), re-established important principles while considering this act.
Before the Court in that case were laws enacted by the State of Virginia
governing the commercial taking of fish within its waters. Those laws
required that persons seeking licenses be citizens; that corporations
seeking licenses be owned 75 percent by citizens; and placed certain
restrictions on non-residents. Seacoast claimed the state laws did not
limit its right to fish commercially in Virginia waters because it was a
licensed Unitd States flag ship pursuant to federal law and that under
the Supremacy Clause of the Constitution, Virginia's prohibition against
its fishing in state waters could not stand.
The Court first looked to federal law to
determine the rights granted to Seacoast. It ruled that Seacoast had a
federal license to carry on a fishing business in Virginia waters.
Because state law conflicted with federal statutes, the former could not
prevail under the Supremacy Clause.
The state argued that the Submerged Lands
Act required a different result. The court conceded that the state has
the right to manage lands beneath navigable waterways and has title to
those lands, but nonetheless ruled against the state:
But when Congress made this grant [ownership
of the lakebeds] pursuant to the Property Clause of the Constitution,
it expressly retained for the United States "all constitutional powers
of regulation and control" over these lands and waters for purposes of
commerce . . . Since the grant of the fisheries license is made pursuant
to the Commerce power, the Submerged Lands Act did not alter its
pre-emptive effect. Certainly Congress did not repeal by implication, in
the broad language of the Submerged Lands Act, the Licensing Act
requirement of equal treatment for federal licenses. Douglas
v. Seacoast Products, Inc., supra at 284, 97 S.Ct. at 1751 (citations
omitted). This case is significant for several reasons. First, it
reaffirms the obvious the Supremacy Clause as a matter of constitutional
obligation requires the state to refrain from interfering with a
federal right. Second, it reaffirms the well-established notion that
abrogations by implication aria not favored. In Seacoast, supra, the
court refused to rule that the 1953 Submerged Lands Act repealed by
implication the 1792 Licensing Act.
[73] The present case involves a federal
right established by treaty. Under the Supremacy Clause the state may
not interfere with such a federal right. Section 1313(b) of the
Submerged Lands Act sneaks of lands or interests held herein for the
benefit of Indians and excludes these lands from the operation of the
Act.
[There is excepted from this grant:] (b)
such lands beneath navigable waters held, or any interest in which is
held by the United States for the benefit of any tribe, band or group of
Indians or for individual Indians;
MUCC assumes that fishing rights are not
interests in land and argues that the exclusion of the rights mentioned
by 1313(b) is an inclusion of an other rights within the operation of
the Act. Granting this assumption, the argument is not persuasive. This
section merely reflects the principle concern of the Act title to
submerged land and the oil and other resources it contains. The Act was
intended to restore submerged, off-shore land and its resources to the
states, thereby effectively reversing United States v. California, 332
U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). Neither the language of
the Act nor its purposes are in conflict with the Indians' retention of
fishing rights. The state may own the resources of these lands, even the
fish, but this does not necessarily abrogate the Indians' right to
fish. Seacoast Products makes clear that a federal license to fish does
not interfere with the state's rights.
[74] However, it does not appear necessary
to grant the assumption. If not, the Indian rights asserted here are
within the terms of the exclusion. Indian title to lands has never been a
fee; it has always been a right to use and occupy lands claimed by the
United States. This interest in land gives the tribes holding it the
right to fish, hunt, gather fruits and cross the land. It is analogous
to a profit a prendre or an easement. Winans v. United States, [sic]
supra. The Indians reserved such an interest in land by the Treaty of
1836. If this is so, then this interest is excluded from the conveyance
of the Submerged Lands Act by the terms of that Act.
If this court had any hesitation in
determining whether the Submerged Lands Act abrogated the Indians'
fishing right, it would be overcome by the act that an even stricter
standard than was used in Seacoast must be applied to legislation
purporting to abrogate Indian treaty fishing rights. See Morton v.
Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); Menominee
Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697
(1968); Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611,100 L.Ed. 883
(1956); Pigeon River Improv. Slid & B Co. v. Cox, 291 U.S. 138, 54
S.Ct. 361, 78 L.Ed. 695 (1934); Kimball v. Callahan, 493 F.2d 564 (9th
Cir.1974), cert. denied, 419 U.S.1019, 95 S.Ct. 491, 42 L.Ed.2d 292
(1974). In Menominee Tribe, supra, the statute which assertedly
abrogated the treaty fishing right dealt specifically and drastically
with the tribe by abolishing the federal existence of the very entity
which held the fishing right. Nevertheless, the Court held that
individual Indians continued to possess the right to hunt and fish on
their ancestoral lands. The repeal by implication was not made out, even
where the legislation directly affected the particular tribe in
question. The Submerged Lands Act only remotely relates to the subject
of Indian fishing rights and does not approach the standard which must
be met to establish abrogation of an Indian treaty right. As in Morton
v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), where
the issue was whether the Civil Rights Act amendment of 1972 prohibiting
discrimination in the federal government implicitly abrogated an
earlier federal statute giving hiring preference to Indian applicants
for employment in the Bureau of Indian Affairs, the later statute was
"designed to deal with an entirely different...problem [from the Act
argued to be repealed]. Any perceived conflict is thus more apparent
than real." 417 U.S. at 550, 94 S.Ct. at 2482.
Epilogue
Justice is a virtue which cannot be
exercised apart from love of neighbor. Love is, indeed "superior" to
justice. At the same time love of neighbor proves itself in the form of
justice. If justice is weakened, love itself is jeopardized. No ma can
profess to adhere to the greatest of all commandments Love thy neighbor
if he should visit violence upon fellow men who would exercise
centuries-old fishing rights which have been recently confirmed, little
more than 150 years ago, and again 130 years ago, by most solemn promise
of our nation.
Declaratory Judgment and Decree
This judgment and decree are based upon the
Findings of Fact, Conclusions of Law and Opinion of the Court entered in
this case, all of which by this reference are hereby made a part hereof
as though set forth herein. No language herein shall be interpreted as
superseding the Opinion of the Court, which shall control if in any
respect it appears to be in conflict with any Finding herein.
It is hereby ORDERED, ADJUDGED AND DECREED
that the right of the Plaintiff tribes to fish in the waters of the
Great Lakes and connecting waters ceded by the Treaty of 1836, 7 Stat.
491, is as follows:
(1) Each of the Plaintiff tribes, the Bay
Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa
Indians, is a present-day tribal entity which, with respect to the
matters which are the subject of this litigation, is a political
successor in interest to the Indians who were party to the Treaty of
Ghent and the Treaty of 1836. Their members can trace their ancestry to
the Indians who were beneficiaries of the Treaty of Ghent of 1814, 8
Stat. 218, and the Treaty of 1836. Members of these tribes and their
predecessor bands and the individual ancestors of their members have
fished the ceded waters of the Great Lakes under claim of aboriginal
right, Treaty of Ghent and Treaty of 1836 right from ancient times until
the present.
(2) The Indians who comprised the Ottawa and
Chippewa bands which were signatories to the 1836 treaty occupied the
ceded territory of Michigan for centuries. They lived off the fruits of
the land, continuing the dependence of Upper Great Lakes Indians upon
the Great Lakes fishery dating back several thousand years. The culture,
subsistence and livelihood of these Indians centered around and
depended upon the Great Lakes fishery. In the spring the Indians would
gather in large fishing villages of around 200 persons, where they would
remain until the onset of winter. These villages were on the shores of
the Upper Great Lakes in locations with convenient access to productive
fishing grounds. Fish comprised up to sixty-five percent of the usable
meat in the Indians' diets at these times. In winter the villages would
break up into small family groups which would disperse inland to hunt.
Various species of fish were taken depending upon the season and the
method of fishing. Fishing took place throughout the ceded area,
wherever the fish were to be found.
(3) The Indians' participation in the
fishery of the ceded area evolved over time. The fishery was transformed
when nets and gill nets became available at about the time of the birth
of Christ. When the European market economy arrived, the Indians
quickly adapted their fishing skills to serve it. Especially after the
decline of the fur trade, fishing was the principal means of making a
living and participating in trade with the non-lndians. Long before the
Treaty of 1836 commercial fishing took place throughout the treaty area,
including the Whitefish Bay area, the Sault Rapids, the Michilimackinac
area, and various other places in the Northern lower peninsula and
lower Lake Superior. Indian participation in and dependence upon
commercial and subsistence fishing continued throughout the 19th
century, and remains important today.
(4) By virtue of their joint and amicable
occupation of the land and water area ceded by the Treaty of 1836, the
Ottawa and Chippewa Indians of Michigan possessed aboriginal rights to
occupy and use this area. By virtue of their use of the fishery of the
Great Lakes and their connecting waters, the Ottawa and Chippewa bands,
signatory to the Treaty of 1836, possessed an aboriginal right to fish
in those waters for subsistence and commercial purposes. The United
States and Britain recognized their sovereignty ovr these lands was
limited by the Indians' aboriginal right to use and occupy these lands.
The United States expressed this in the Northwest Ordinance and
acknowledged an obligation not to take Indian lands or properly without
the Indians' consent. The consent was to be accepted by the United
States with the utmost good faith, justice and humility. The right of
the Ottawa and Chippewa Indians to fish in the Great Lakes and
connecting waters, along with their right to occupy and use the area
generally, was expressly guaranteed to them by the United States in the
1814 Treaty of Ghent. At the time of the Treaty of 1836, they possessed
both aboriginal and treaty-guaranteed rights to fish for subsistence and
commercial purposes in the waters of the Great Lakes and connecting
waters.
(5) The United States was aware, when it
negotiated the Treaty of 1836, that the Indians of the treaty area
depended upon subsistence and commercial fishing for their existence and
livelihood. The United States intended that the Michigan Indians be
able to fish in order to maintain their livelihood and way of life then
and in the future. By the treaty the Indians ceded certain rights to the
United States, and reserved all rights not ceded. The Indians ceded to
the United States a tract of country including areas of the Great Lakes
belonging to them, described in the treaty. They excepted from this
cession and reserved for themselves certain land reservations. The
United States did not negotiate for, nor did it obtain, the Indians'
right to fish off reservation in the ceded area. The Indians implicitly
reserved and retained their right to fish. This right is confirmed by
the Treaty. The right is further protected by Article Thirteenth of the
Treaty, which stipulates for the "usual privileges of occupancy."
(6) The Indians understood that they would
have to accommodate the exercise of their right to hunt on the ceded
lands to the rights of settlers on the ceded land. They understood that
they could continue to use the land to the extent neessary to continue
to live their lives as before. By the terms of the treaty, specifically
the retention of exclusive rights to fish in each of the areas where
whitemen had previously sought fishing rights, they were led to believe
consistent with the intention of the United States that they would not
have to accommodate with settlers in the exercise of their fishing
rights.
(7) The Indians understood the limiting
language of Article Thirteenth "Until the land is requited for
settlement" to mean that Indians could continue to exercise their
fishing right for as long as Indians lived in Michigan. The phrase is
ambiguous as to the term of possible occupancy and can only be enforced
as it was understood by the Indians. The United States inserted the
clause into the Treaty only because it wanted to insure settlers access
to particular plots of land. The limitation was not intended to affect
Indian fishing. It is not possible to "settle" the Great Lakes and their
connecting waters.
(8) The Indians assented to the Senate
Amendment to Articles Second and Third because of the assurance that
they could use their ceded territory indefinitely or so long as Indians
lived in Michigan. The United States subsequently granted the Indians
permission to remain on their reservations beyond the five year
limitation. The land reservations remained in existence until new land
reservations were provided for in the Treaty of 1855.
(9) The Removal Act of 1830 did not mandate
that the Executive secure removal of Indians to lands west of the
Mississippi. Nor did it authorize violation of prior Indian treaties. It
merely made United States lands available for effecting Indian removal.
It left the choice of whether to remove to the Indian tribes.
(10) The 1836 Treaty was not a removal
treaty. It merely provides for possible removal. Treaty commissioners
were providing for a future contingency, in the event the Indians chose
to remove, a contingency which was actually inconceivable to the
Michigan Indians. The commissioners were not attempting to ensure that
removal would take place at some particular time. Neither the United
States nor the Indians understood the treaty to be a removal treaty. The
Indians clearly understood that they were under no obligation to
remove. They denied any obligation to investigate proposed lands west of
the Mississippi, and, when the time came for an exploring party to
visit these lands, they only sent representatives who lacked authority
to accept the lands for the tribes. The purported acceptance of the
lands by these representatives was only for those "who might personally
chose to remove."
(11) The Senate amendment to Article Eighth
of the Treaty merely eliminated the option of removal to an area in
Minnesota which might have been considered by the Michigan Indians. It
was another amendment introduced by Senator Hugh White to embarrass
[Jackson].
(12) Neither the federal government nor the
Indians took any steps toward removal after the return of the exploring
party from the Osage River area. Any attempt to effect the removal of
the Michigan Indians was tacitly abandoned soon after the party resumed
and was officially abandoned in the Treaty of 1855. No Indian of the
treaty area ever removed west of the Mississippi River.
(13) The Treaty of 1855 (11 Stat. 621) was
negotiated to provide permanent homes for the Ottawa and Chippewa in
Michigan and to settle and consolidate monies and services owed to the
Indians under previous treaties and in particular the Treaty of March
28, 1836. Article Three of the treaty released legal and equitable
claims of the Indians against the United States. These claims were
financial. The Indians' right to fish was not a legal or equitable
liability of the United States nor was it even discussed during the
negotiations. Article Three operated to release the United States from
promises previously made to the Indians, but not fulfilled. The United
States could not be released from a right originating in the Indians
which it never owned and could never give. The clause has no impact
onthe fishing right the Indians possessed before the treaty.
(14) Article Five of the Treaty of 1855
ended an artificial construction the Ottawa and Chippewa Nation which
the United States had created in order to obtain the cession of 1836. It
did not result in any change in the way in which the Indians of the
treaty area functioned politically or in the way in which they were
dealt with by the federal Indian agents, save one: they were never again
convened or dealt with as one entity, not even to assent to the Senate
amendments to the treaty. To the Indians the article meant only that
they would not be considered a single entity. The termination of this
entity, not the termination of the Ottawa and Chippewa tribes or bands,
was all that was accomplished by this Article.
(15) Nothing in the Treaties of July 31 and
August 2, 1855, 11 Stat. 621, et seq. abrogated, alienated, surrendered,
granted away, extinguished or otherwise diminished the fishing right
affirmed by the Treaty of Ghent and reserved by the Treaty of 1836.
(16) The fishing right reserved by the
Indians in 1836 and at issue in this case is the communal property of
the bands which signed the treaty. Their modem political successors,
plaintiffs in this action, presently hold the right. It does not belong
to individual tribal members who exercise it, although the rights were
reserved for every individual Indian, as though named in the treaty. It
is exercised by members of the plaintiff tribes under extensive tribal
regulation. Both Bay Mills and the Sault Tribe retain the power to
regulate their internal affairs and have adopted constitutions and by
laws under the Indian Reorganization Act of 1934. Both constitutions
authorize the tribes to regulate and protect resources under their
control. Further, both constitutions authorize the tribes to regulate
the internal relations of their members. Pursuant to the constitutions
and by-laws, the tribes have developed conservation codes and fishing
regulations. Pursuant to this constitutional and ordinance autority, the
treaty fishing activities of the Indians of the plaintiff tribes are
comprehensively regulated and enforced.
(17) The mere passage of time has not
eroded, and cannot erode the rights guaranteed by solemn treaties that
both sides pledged on their honor to uphold. The Indians have a right to
fish today wherever fish are to be found within the area of cession as
they had at the time of cession a right established by aboriginal right
and confirmed by the Treaty of Ghent, and the Treaty of 1836. The right
is not a static right today any more than it was during treaty times.
The right is not limited as to the species of fish, origin of fish, the
purpose of use or the time or manner of taking. It may be exercised
utilizing improvements in fishing techniques, methods and gear.
[75] (18) Because the right of the Plaintiff
tribes to fish in ceded waters of the Great Lakes is protected by
treaties of the Ottawa and Chippewa Indians with the United States, that
right is preserved and protected under the supreme law of the land,
does not depend on State law, is distinct from the rights and privileges
held by non-Indians and may not be qualified by any action of the state
or its agents nor regulated by the state or its agents except as
authorized by Congress. Congress has not authorized the state or its
agents to regulate the exercise of the treaty fishing rights of the
Indians of Michigan. To the extent that any laws or regulations of
Michigan are inconsistent with the treaty rights of the Michigan
Indians, such laws and regulations are void a binitio and of no force
and effect as to the plaintiff tribes and their members.
[76] (19) The State has always lacked
authority to arrest and prosecute Indians for violation of its statutes
governing fishing, and lacks authority to maintain records of such
arrests and prosecutions. It is the duty of the state to expunge such
records, cease such enforcement and to provide such relief, including
payment of damages and expenses, as may be necessary to make the
affected Indins whole.
(20) The Secretary of the Interior has taken
steps to implement the exercise of treaty rights to fish under 25
C.F.R. 256. This pervasive federal regulation provides a
federally-sanctioned approach for state involvement in treaty-right
fishing regulation and preempts independent state regulation.
(21) Regulation of treaty-right fishing by
the plaintiff tribes preempts any state authority to regulate the
fishing activity of the tribal members. The state lacks authority to
enforce its police power regulations against members of the plaintiff
tribes.
(22) The Submerged Lands Act does not repeal by implication the Indians' treaty fishing rights.
(23) It is the responsibility of all
citizens to see that the treaty protected rights of the plaintiff tribes
are carried out, so far as possible, in accordance with the meaning
they were understood to have by the tribal representatives at the
councils, and in a spirit which generously recognizes the full
obligation of this nation to protect the interests of a dependent
people.
(24) All findings of Fact and Conclusions of
Law pertinent to the nature, scope, and effect of the fishing rights of
the treaty Indians are specifically incorporated by reference herein.
(25) The court retains jurisdiction of this
case for the life of this decree to take evidence, to make rulings and
to issue such orders as may be just and proper upon the facts of law,
and in the implementation of this decree.
(26) Plaintiffs' application for an
injunction will be considered and determined upon hearing thereof at the
earliest practicable date following entry of this judgment and decree.