The opinion
MaddeN, Judge,
delivered the opinion of the court:
This is a suit by the Lac du Flambeau, Lac Courte Oreilles and Bad River Bands of Lake Superior Chippewa Indians of Wisconsin. It relates to swamp lands lying within the separate reservations of these three bands of Indians. The complaint of the Indians is that the United States, when it created their reservations, granted to them areas of land which included land which it had, some years before, granted to the State of Wisconsin, and that as a result of the conflicting grants the plaintiffs have been deprived of some of the land within their reservations, and of the proceeds of the timber which had been cut from these lands.
In an earlier stage in the proceedings in this case the court concluded that, since the alleged conflicting rights of the State of Wisconsin were an important element in the plaintiffs’ case, the State should be notified of the proceeding, and advised of its right to intervene, pursuant to the Act of July 1, 1944, 58 Stat. 649 , 668, 41 U. S. C. 114. The State has filed a petition to intervene in which it asserts that it is the owner of the swamp lands in question and is entitled to the proceeds of timber cut from the lands. The case *481 went to a hearing before a commissioner of this court and the plaintiff, the intervenor and the defendant presented their evidence. We have made extensive findings, based upon that evidence and our commissioner’s report of it. In this opinion we will recite only such facts as seem necessary to make the opinion intelligible.
The Chippewa Nation as a whole, including the three plaintiff bands and many others, occupied a large area which extended both east and west of the Mississippi Liver in the northern parts of Wisconsin and Minnesota. By the Treaty of July 29, 1837, 7 Stat. 536 , the Chippewa Nation ceded to the United States a strip of land approximately 100 miles wide (from north to south) and nearly 200 miles long (from east to west). All of this land lay east of the Mississippi Liver. The consideration for the cession was certain payments to be made by the United States. The intent of the treaty was that the Chippewas would withdraw to their other lands which lay west of the Mississippi. Article 5 of the treaty said:
The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United States.
By the Treaty of October 4, 1842, 7 Stat. 591 , another large area of land east of the Mississippi Liver was ceded by the Chippewa Nation to the United States, upon terms similar to those of the treaty of 1837.
The Chippewas were slow to move to their lands west of the Mississippi. On February 6, 1850, President Zachary Taylor issued an Executive Order revoking the privilege of the Indians to occupy, and hunt and fish and gather wild rice on, the lands ceded by the Chippewas to the United States by the Treaties of 1837 and 1842. Intensive efforts were made to effectuate the removal of the Indians. Some 2,000 of them were removed within a period of three years. But by 1854 the Commissioner of Indian Affairs was recommending exceptions to the policy of removal. And by the Treaty of September 30,1854, 10 Stat. 1109 , it was provided, among other things, that the United States would grant. *482 reservations, on lands east of the Mississippi River which had been ceded to the United States by the Chippewas, to the three bands of Chippewas who are our present plaintiffs. The boundaries of the reservation for the La Pointe (Bad River) Band were defined in the treaty. The boundaries of the Lac du Flambeau and Courte Oreilles Reservations were to be later agreed upon or fixed by the President. Each of the latter two reservations was to contain an area of three townships.
We now go back to September 28, 1850, on which date the Swamp Land Act, 9 Stat. 519 , was approved. It provided that, in order to enable the state to construct the necessary levies and drains to reclaim the swamp and overflowed lands,
the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted to said State.
Section 2 of the Swamp Land Act provided that it should be the duty of the Secretary of the Interior, as soon as practicable, to make out an accurate list and plats of the swamp lands in the States, and transmit such lists to the governors of the States, and, at the request of the governors, cause patents to be issued to the States for the swamp lands.
We can now see the basis for the conflicting claims of the Indians and the State of Wisconsin for such of the lands of the Indians’ reservations as were swamp lands.
The Government urges that none of the lands of the reservations passed to the State of Wisconsin by the Swamp Land Act of 1850. The Swamp Land Act of course only granted to the States land.which was owned by the United States. The Government says that the land ceded by the Chippewa Nation to the United States by the Treaties of 1837 and 1842 did not become the property of the United States until it was vacated by the Indians; that the land included in the reservations never was vacated by the Indians; that they occupied it in 1850 when the Swamp Land Act was passed; that the Treaty of 1854 granting their reservations was, in effect, only a relinquishment of the power of the President, reserved in the earlier treaties, to require them to vacate the land and thus perfect the title of the United States.
*483 We do not agree with the Government’s analysis. As onr findings show, the intention of the parties to the Treaties of 1837 and 1842 was that the United States was to have the title to the land, and the Indians were to have only a revocable license to use the land until the President required them to vacate it. We think the land was, in 1850, public land of the United States to which the Swamp Land Act applied.
Since the Treaty of 1854, granting to the Indians their reservations, as, indeed, before that time, they have had complete and exclusive use of the reservation land, subject to the usual Government supervision of the cutting and marketing of timber. They have had the proceeds of the sale of the timber, except that the sum of $119,450.50 plus accumulated interest, proceeds of the sale of timber from the Lac du Flambeau reservation, is being held by the Government on interest, to await the determination of its ownership. What, then, are the Indians suing for, except for this sum of money ? The theory of their suit seems to be that the Government sold them land in 1854 that it did not own, and should pay them for what it sold them but did not deliver to them. But, as we have seen, they have, for more than 100 years, had the undisturbed possession of what the Government purported to sell them in 1854. Their damages, at least up to the present time, could be only such damages as resulted from a cloud upon their title, and no such damages have been proved.
The story of the actions of the United States and the State of Wisconsin with regard to the swamp lands both within and outside these reservations is told in detail in our findings. The State, during most of the 100 years since the grant of the swamp lands, has insisted that it had rights in the lands, but has not been willing to disturb its citizens to whom the United States has granted such lands, outside the reservation, nor the Indians, within the reservations, in their possession of the lands. At times, the State, or important officials of the State, have expressed the opinion that the State did not own the swamp lands.
The position of the United States has, likewise, not been consistent. During part of the time it has denied that the State had any rights in the swamp lands in the reservations. *484 Its officials have, at other times, sought to induce Congress to pay the State for the swamp lands within the reservations.
As we have said, the State of Wisconsin was notified by the court of the pendency of the suit of the Indians, and of its right to intervene in the suit, should it desire to do so. The reason for the notice was that it had become evident to the court that the conflicting grants were an important feature of the case. The State did file a petition, as an inter-venor. In its petition the State denied the jurisdiction of this court over either the subject matter of the litigation, i. e., the title to the lands, or the state itself, in its sovereign capacity. However, because of the peril that it would run, if it failed to intervene, i. e., that a judgment that it had no rights in the land might be entered against it, it felt bound to intervene, reserving its rights to challenge our jurisdiction. It then asked for a judgment against the United States decreeing the title to the swamp lands in the reservations to be in the State of Wisconsin, and giving it a judgment against the United States for the proceeds of the timber cut and sold from those lands.
Since the State denies our jurisdiction, and only intervenes and asks relief because of the peril that it might be mistaken as to the question of our jurisdiction, we will not, of course, consider its petition or its prayer for relief unless it is necessary to do so in order to decide the issues between the plaintiffs and the United States. We do not find it necessary to do so, for reasons hereinafter stated, and will therefore dismiss the State’s petition. Its participation in the trial has been helpful and instructive to the court.
When the United States granted the reservations to the Indians in 1854, it became obligated to them to secure to them the enjoyment of the lands and of the proceeds of the lands. This was so, whether or not the United States then had good title to the lands which it purported to grant. If the title had failed and the Indians had lost the possession of the lands, the United States would have been liable to compensate them for their loss. If one with a better title had taken the timber from the lands, the United States would have had to compensate them for the timber. Whether or not the State of Wisconsin ever has owned or does now own *485 the swamp lands in the reservations is immaterial to the question of the obligation of the United.States to the Indians, under the Treaty of 1854.
As we have said, the Indians have had the possession and ■enjoyment of the reservation lands, and have received the proceeds of the timber cut from the lands, except that the ■sum of $119,450.50, the proceeds of timber cut from the Lac •du Flambeau Beservation during a certain period, has been held by the United States at interest to await a determination of the right to that money.
The Lac du Flambeau Band is entitled to recover the proceeds of timber cut from their reservation, to the extent that such proceeds have not already been paid over to them, together with the interest which has accumulated upon such unpaid proceeds.
The case is remanded to a commissioner of this court for -a determination of the amount to which the Lac du Flambeau Band is entitled, in accordance with this opinion, and for a determination of the amount of offsets, if any, to which the United States may be entitled.
As to the Lac Courte Oreilles Band and the Bad Liver or La Pointe Band, the petition is dismissed.
The intervening petition of the State of Wisconsin is •dismissed without prejudice.
LaRamobe. Judge; Whitaker, Judge; Littleton, Judge; and Jones, OMef Judge, concur.
FINDINGS OF FACT *
The court, having considered the evidence, the report of ^Commissioner W. Ney Evans, and the briefs and arguments ■of counsel, makes findings of fact as follows: 1
1. Under the authority of the Act of August 30, 1935, 49 Stat. 1049 , a petition was filed, on April 1, 1940, by the six bands of Lake Superior Chippewa Indians of Wisconsin who are named as plaintiffs in the caption of this case. On August 30, 1940, an intervenors’ petition was filed in the *486 original case, which had been numbered 45162, in behalf of the three bands of Lake Superior Chippewa Indians of Mimiesota whose names are carried in the caption as inter-venors.
On November 22, 1944, a separate, amended petition was-filed in behalf of the Lac du Flambeau, Lac Court Oreilles, and Bad River Bands to recover “damages for the value of' the land claimed by Wisconsin as swamp land and the timber thereon * * The amended petition carried the names of all the parties listed in the title hereinabove, except the State of Wisconsin. This case, presenting the claims of the three bands above listed for the swamp lands lying within their respective reservations, is numbered 45162 (I).
On February 21, 1945, another separate, amended petition was filed in behalf of the Lac du Flambeau, Bad River, and Red Cliff Bands to recover for timber alleged to have been wrongfully taken by third parties from so-called school land sections. The amended petition carried the names of alii the parties listed in the title hereinabove, except the State' of Wisconsin. The case presenting the school land claims-of the three bands above listed was numbered 45162 (II).. It was adjudicated by the court’s decision of February 7, 1949, 113 C. Cls. 16 , wherein the petition was dismissed.
The petition in the original case (numbered 45162) was also dismissed by the court’s decision of November 3, 1953, 126 C. Cls. 596 .
In the meantime, the present case (absent the State of Wisconsin) was heard and reported by a commissioner of the court. The parties filed their exceptions and briefs, and the case was argued and submitted. The findings and argument brought to the court’s attention the possible rights of the State of Wisconsin, and the court, on October 12, 1948, caused to be sent to the Governor and the Attorney General of Wisconsin a notice of the pendency of the suit, and of the right of the State to intervene. On February 28, 1949, the State of Wisconsin filed its petition as intervenor.
Thereafter, defendant moved to dismiss the State’s petition on the ground that any claim Wisconsin might have to the swamp lands within the Indian reservations or to the proceeds of the timber cut from such lands was barred by the *487 statute of limitations. The motion to dismiss was denied on July 11, 1949, 114 C. Cls. 71 , and Wisconsin was accorded the status of a party in the case.
Therefore, the interested parties in this action, which presents the last of the claims pending here under the jurisdictional act of 1935, are: (1) three bands of Lake Superior Chippewa Indians of Wisconsin (the Lac du Flambeau, Lac Court Oreilles, and Bad Elver Bands, who are sometimes hereinafter referred to as the plaintiffs or as the plaintiff bands) ; (2) the State of Wisconsin (sometimes referred to as the intervenor) ; and (3) the United States (which, as defendant, is sometimes referred to as the Government). No other party listed in the caption has any interest in the case.
2. The Jurisdictional Act of August 30, 1935, 49 Stat. 1049 , provided:
* * * That all claims of whatsoever nature which the Chippewa * * * Indians of Wisconsin may have against the United States, which have not heretofore been determined by the Court of Claims or the Supreme Court of the United States, may be submitted to the Court of Claims with the right of appeal * * *, for determination of the amount, if any, due said Indians from the United States under any treaties, agreements, or laws of Congress, or for the misappropriation or waste of any of the funds or lands of said Indians * * *, or for the failure of the United States to pay said Indians any money or other property due; and jurisdiction is hereby conferred upon the Court of Claims * * * to hear and determine all legal and equitable claims, if any, of said Indians against the United States, and to enter judgment thereon. * * * 2
* * * If any claim or claims be submitted to said courts they shall settle the rights therein, both legal and equitable, of each and all of the parties thereto, not *488 withstanding lapse of time or statutes of limitations * * ❖ 3
3. The separate, amended petition of the plaintiff bands, filed on November 22, 1944, asserted that “* * * this proceeding is brought to determine the rights and claims of "these petitioners to the swamp lands lying within their respective reservations.” Separate allegations in behalf of each of the three bands repeated the following (in substance) : (a) that defendant, in violation of plaintiffs’ rights, caused to be transferred to the State of Wisconsin, under the Swamp Land Act of 1850, certain lands within the boundaries of plaintiffs’ reservations, and failed to pay the value thereof, or to account for the proceeds therefrom; (b) that, at the time the lands were acquired by Wisconsin, timber was standing thereon; (c) that such timber has since been cut; and (d) that defendant now holds the proceeds ■derived from the sale of such timber. In their prayer for relief, plaintiffs demand: (i) damages for the value of the land claimed by Wisconsin as swamp land and the timber thereon; (ii) such interest as the Court shall find due; and (iii) such other and further relief as may be just. 4
4. (a) The intervenor’s petition, filed on February 28, 1949, quoted the first and fourth sentences of subsection (b), ■section 14, Contract Settlement Act of 1944, 58 Stat. 649 , '663; 41U. S. C. 114, and then asserted:
* * * Intervenor denies that this court has jurisdiction over either the subject matter of its claim, or of inter-venor, in its sovereign capacity, as a party. * * *
* * * A justiciable controversy exists between plaintiffs and defendant, and between intervenor and defendant, with respect to the title to all [swamp] lands located within the three reservations * * *. A determination of the * * * issue in the claim of * * * Wisconsin to the title to * * * said lands * * * is a prerequisite * * * to the final judgment of this court sought by plaintiffs against defendant. * * *
*489 Subject to the foregoing, the intervenor’s petition set forth; two causes of action, one based upon Wisconsin’s claim to the-swamp lands lying within plaintiffs’ reservation, and the other upon the State’s claim to the proceeds of timber cut from such swamp lands.
In its prayer for relief, made “subject to its reservation of the right to challenge the jurisdiction of this court over the subject matter of the suit and the ‘person’ of inter-venor,” the State demanded judgment against defendant “(1) * * * decreeing the fee simple title in * * * Wisconsin to all swamp * * * lands located within the * * *' Reservations * * * [and] (2) adjudging * * * that the-intervenor * * * recover * * * the proceeds of sale of timber cut from said lands * *
(b) Following is a quotation from the opinion of the court denying the Government’s motion to dismiss Wisconsin’s petition, 114 C. Cls. 71 , 74:
Wisconsin, by its petition to intervene, as modified by statements made by counsel in argument and in a later written communication to the Court, takes the position that it is the owner of the swamp lands in question by virtue of the Swamp Lands Act of * * * 1850, and that a justiciable controversy exists between the plaintiff Indians and the Government, and between Wisconsin and the Government with respect to those lands, but that this Court does not have jurisdiction to quiet title to those lands in the State. It * * * asserts its right to * * * proceeds [of timber cut from such lands],. with interest, as a claim founded upon a contract with the United States. It asks for such other and further relief as may be justified. * * *
* * * If it acquired title to the swamp lands by the Act of * * * 1850, whether it has since that time lost that title by the running of the statute of limitations-will depend upon the facts which have occurred since,, and the applicable law. * * * Also, as to the proceeds of the timber, * * * Whether there was such an agreement as Wisconsin asserts, and what later events may have occurred to start the statute of limitations to run against Wisconsin must be shown by evidence. * * *
(c) The following are excerpts from the opening statement of the attorney for intervenor at the beginning of the-, trial:
*490 The primary purpose of tbe state in presenting its evidence is to support the proposition that the state is entitled to recover the proceeds received by the United States for the timber removed from the swamp lands claimed by the state on the * * * reservations. * * *
* * * The state will prove that it is entitled to all of the proceeds of timber cut from swamp lands which were received by the United States from the three reservations, pursuant to the Act of May 18,1916.
Further, the state will show that some timber had been cut and removed from swamp lands * * * within sections 16 on * * * [two of the] reservations, and that the United States * * * has not accounted to the state for the proceeds * * *. 5
5. Among the Indians who inhabited North America when European colonization of this continent was begun in the 16th century was a large group which has since come to be known, because of linguistic features as Northern Algonquians. This linguistic group included such smaller and better known groups as the Chippewas, Delawares, Illinois, Miamis, Ottawas, Pottawatamies, and Shawanoes.
The Chippewas were in the area of the Great Lakes and the Mississippi in the 17th and 18th centuries, and were known as a distinct cultural group to the explorers, traders, and settlers who pressed into that region during the latter part of the 18th and early part of the 19th centuries.
White men in the Northwest Territory found the Chippewas to be a nomadic people who lived by hunting and fishing. While they shared a common cultural heritage, they lived in small groups, usually composed of a chieftain or headman and his brothers or other close relatives and their women and children. When any group became too large for its support to be readily drawn from the immediate hunting or fishing grounds, part of the group would split off into a separate village and occupy other lands, usually nearby. In this manner clusters of villages developed, and have come to be known *491 as bands, frequently named from the geographic area ■occupied.
The areas occupied by the Chippewas south of Lake ■Superior, in what are now the States of Wisconsin and Minnesota, were characterized by large stands of pine timber in which there was little or no underbrush. The portions of rivers and streams traversing these stands of timber were devoid of fish. The pine forests were therefore sterile, from the standpoint of the Indians, since conifer supported neither game nor fish. Interspersed among the pine forests were ■stands of deciduous trees and open spaces where game was plentiful and fish were abundant in the lakes and rivers. There the Indians lived in small groups or villages, moving from time to time from one hunting or fishing ground to another.
Within the area above described the three bands of Chippewa Indians who are plaintiffs in this case occupied lands in the lake region, in which there were sizable patches of wild rice, which Indians had learned to harvest and on which they relied as a staple of their food supply.
The lands here in controversy lie within the lake region where the plaintiff bands have lived for centuries past.
6. When the first voyages of discovery of the New World were made at the close of the 15th century, the principle of ■extending sovereignty by discovery was known to and observed by European monarchs. 6 Its use was continued throughout the 16th and into the 17th centuries.
The colonization which followed discovery was also made under royal dispensations. The English and French grants were uniformly predicated on sovereign right over the territory granted, albeit the territory was occupied by Indians.
During the initial period of colonization the European monarchs were primarily concerned with the competition among themselves to establish living evidence of the discoveries upon which their asserted extensions of sovereignty were based. The Indians’ rights, if any, were of no concern to them. The lands could be taken from the Indians by con *492 quest, if necessary, and the royal suzerainty would thus become de jure on a de facto foundation.
The colonists found conquest an uncertain and dangerous adventure. They soon abandoned it in favor of amicable adjustments as far as possible. Moreover, fairness demanded recognition by them of moral, if not legal, rights inherent in the initial occupancy by the Indians. Agreements between colonists and Indians, covering sizable areas of land and affecting many persons, had to be made on a group basis* The English colonists, following the patterns of law and government known to them, treated with the Indians for agreements in the nature of treaties between their colonies on the 1 one hand and the Indian tribes or nations on the other. The development of this technique was well under way when the American colonies declared their independence of the British Crown.
7. At the time of the American Revolution the Chippewa Indians had spread over a wide area and were found, with other tribes of Indians, in territory now included in the States of Ohio, Michigan, Indiana, Illinois, Wisconsin, Minnesota, and the Dakotas.
8. Upon the commencement of hostilities with the British,, the Continental Congress assumed the full powers of sovereignty needed by the central government to wage war; On November 15, 1777, the Articles of Confederation were adopted by the Continental Congress for submission to the States. Three and a half years passed before the Articles went into operation on March 1, 1781. The delay was primarily due to the inability of the States to agree upon the disposition to be made of the lands included in what later became the Northwest Territory, a region ceded to the United States by the British in the treaty of 1783, which included the present State of Wisconsin.
The lands within the Northwest Territory were the subject of conflicting claims of ownership, based on grants from the Crown and claims of conquest of Indian tribes, by the States of New York, Virginia, Connecticut, and Massachusetts. The other States maintained that the entire region should belong to the whole Union and should be administered for the common good. The dispute was finally resolved on *493 that basis. The ordinance for the government of the territory northwest of the Ohio Biver was adopted by the Continental Congress on July 13, 1787, and confirmed by the succeeding first Congress of the United States under the Constitution (Act of August 7,1789, 1 Stat. 50 ).
At that time large parts of the lands included in the Northwest Territory, including the lands here in controversy, were occupied exclusively by Indians. 7
9. Within 50 years after the adoption in 1787 of the Northwest Ordinance the United States made more than 200 agreements with the Indians. A substantial portion of the total was concerned with Indians living in the region which comprised or had comprised the Northwest Territory, and Chippewa Indians were parties to 23 of them.
From the outset the parties to these treaties and conventions undertook to draw lines of demarcation which would •delineate lands “ceded” to the United States by the Indians from lands of which the Indians had made no relinquishment. The technique of extinguishing Indian title by ■treaty was recognized by Congress as early as 1793. 8
Within another decade the technique of treating with the Indians for the extinguishment of their title subject to continued temporary and permissive occupancy by them of ceded lands, had been developed, 9 and was soon thereafter (1804) augmented by a long range policy for the eventual removal of all Indians living east of the Mississippi to lands lying west of that river.
*494 10. (a) The Act of March 26,1804, 2 Stat. 277 , provided:
* * * the powers vested by law in the surveyor-general, shall extend over all the public lands of the United States to which the Indian title has been or shall hereafter be extinguished, north of the river Ohio, and east of the river Mississippi; and it shall be the duty of the said surveyor-general to cause the said lands to be surveyed into townships, six miles square, * * *. * * *' also * * * to ascertain by astronomical observations the positions of such places north of the river Ohio and east of the river Mississippi, as may be deemed necessary for the correctness of the surveys, and to be the most important points of the geography of the country. * * *
(b) For the purposes of this narrative the first and most important line located by the surveyors was the fourth principal meridian of longitude, which runs approximately through the middle of Wisconsin, and appears o,n modern maps as 90 degrees west of Greenwich.
(c) The Act of February 11, 1805, 2 Stat. 313 , provided:
* * * the surveyor-general shall cause * * * those lands * * * which * * * were subdivided, 10 by running through the townships, parallel lines each way, at the end of every two miles, and by marking a corner on each of the said lines, at the end of every mile; to be subdivided into sections, by running straight lines from the mile corners thus marked, to the opposite corresponding corners, and by marking on each of the said lines, intermediate corners as nearly as possible equidistant from the corners of the sections on the same. * * * 11
(d) The Act of April 25, 1812, 2 Stat. 716 , created the General Land Office in the Department of the Treasury, and made it the duty of the commissioner “* * * to superintend, execute and perform, all such acts and things, touching or respecting the public lands * * * as have heretofore been * * * done * * *” by the Departments of State, Treasury, and War.
11. (a) The Northwest Territory became the Indiana Territory in 1800, embracing all its original area except Ohio. 12 Michigan Territory was severed from the Indiana *495 Territory in 1805. 13 Indiana became a separate territory, in preparation for statehood, in 1809, and the remainder of the old Northwest Territory became Illinois Territory. 14 Illinois was severed, in preparation for statehood, in 1818, and the remainder of the old Northwest Territory was attached to and made a part of Michigan Territory. 15
(b) Lewis Cass was appointed territorial governor of Michigan in 1816, and began negotiations with the Indians of that area in 1817. By the time Cass went to Michigan, responsible officials of the United States (including Cass) realized that success in treating with the Indians required councils with headmen who could command the following of all the Indians occupying the area concerned. 16
(c) In 1818, by the territorial laws of Michigan, the area now embraced in the State of Wisconsin was divided into two counties, using the Wisconsin Liver as the dividing line. The area east of the river was placed in Brown County, while the name Crawford was given to the county west of the river.
(d) In 1820, Henry L. Schoolcraft joined the staff of Lewis Cass as a geologist. In 1822, he began his work as Indian agent at Sault Ste. Marie, Michigan (Territory). School-craft spent 30 years among the Indians and came to know them, particularly the Chippewas, as well as any man of Ms time.
Early in Ms work Schoolcraft realized the importance of being able to identify roving bands of Indians by tribes and by the geographical areas in- which they usually resided. Shortly after the opening of the Indian Agency at Sault Ste. Marie, he began the task, in which he persevered over the years with unremitting care, of identifying and listing Indians of the Michigan-Wisconsin-Minnesota area according to tribes, bands, and customary habitat. This task was *496 ¡rendered more important by the necessity for him, as administrative officer in charge of arrangements, to determine the identity of individuals as well as bands who were proper and legal recipients of the various annuities required by treaty •and provided by Congress. 17
12. (a) The Act of May 28, 1830, 4 Stat. 411 , authorized •the President “* * * to cause so much of any territory belonging to the United States, west of the * * * Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into * * * districts, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there * * 18
(b) On June 30,1834, a new act to regulate trade and intercourse with the Indians became effective, 4 Stat. 729 . 19 Following are excerpts from the act:
* * * all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country.
* * * if any person shall sell, exchange, or give, barter, or dispose of, any spirituous liquor or wine to an Indian (in the Indian country), such person shall forfeit and pay the sum of five hundred dollars * * *. 20
*497 (c) Simultaneously with, the adoption of the foregoing . trade and intercourse act, the management of Indian affairs was reorganized (by the Act of June 30,1834, 4 Stat. 735 ). This act provided, in part, as follows:
* * * the duties of the governor of the territory of Michigan, as superintendent of Indian affairs, shall cease from and after the establishment of a new territory, embracing the country west of Lake Michigan, should such a territory be established. And while the governor of the said territory of Michigan continues to act as superintendent of Indian affairs, he shall receive * * * compensation for services in said capacity.
(d) The Act of April 20, 1836, 5 Stat. 10 , organized the Territory of Wisconsin “from and after the third day of July next” to include lands within the boundaries of the present States of Wisconsin, Minnesota, and Iowa, and parts of Michigan 1 and the Dakotas. The act provided that the territorial governor “shall perform the duties and receive the emoluments of superintendent of Indian affairs * *
Henry Dodge became the territorial governor, and, ex officio, Superintendent of Indian Affairs.
(e) One of the first acts of the newly formed territorial government of Wisconsin was the creation in 1836 of 15 new counties in the southeastern part of Brown County. 2 The tier of new counties extended from the mouth of the Wisconsin Liver (where it joins the Mississippi) northeastwardly, almost to the present site of Green Bay. White settlements in the region so organized were then populous enough to require the greater extent of local government. Crawford County, which included the lands subsequently set aside as reservations for the plaintiff bands, was unaffected by these measures.
13. (a) The Act of March 3, 1837, 5 Stat. 158 , making appropriations for the Indian Department, carried an item of $10,000 “for holding treaties with the various tribes of *498 Indians east of the Mississippi river, for the cession of lands held by them * * * and for their removal west of the Mississippi * * *.”
(b) On May 13, 1837, the Office of Indian Affairs addressed to the two commissioners (of whom Governor Dodge was one) who had been appointed by the President “* * * to hold a treaty with the Chippewa Indians of the Mississippi, * * *” a memorandum “* * * to communicate to [them] the particular objects of the Government, and its views as to the mode in which they may be accomplished.” The memorandum continued:
The tract which it is considered desirable to procure from these Indians, is that part of their country which lies east of the Mississippi river, and south of the 46th meridian of longitude. 3 It is understood, that this tract is valuable for the pine woods which cover it, but is unfit for cultivation. Its acquisition by the TJ. S. will be beneficial to both parties. To the United States, by .opening to its citizens an extensive wood land, important especially from the rapidity with which settlements are multiplying: to the Indians by giving them an ample consideration in money * * * and other means of improvement. If the Indians retain this land, experience has shewn that they will part with the most valuable of the timber to individuals, for at best very inadequate remuneration. * * *
(c) It.was the purpose of the Government, in arranging for the treaty with the Chippewas, to negotiate for the purchase of the Indian lands, in the sense of extinguishment of their title, to the end that such lands could be opened to white settlement at such time as the Government might deem it desirable to do so.
14. (a) On June 5, 1837, Governor Dodge forwarded written instructions to the subagent for the Chippewa Indians to send messimgers to the Chippewas in specified localities “to notify them of the time [July 20] and place [Fort Snelling] of the treaty * * The instructions said:
* * * It is a subject of great importance that the different bands of the Chippewas should be represented to prevent discontent among those who may not attend. *499 It will satisfy these Indians that the Government is disposed to do justice to all. * * *
(b) The council was held as scheduled, “near Fort Snelling, at the confluence of the St. Peters and Mississippi rivers,” commencing on July 20 and extending through July 29,1837. The treaty was signed by Governor Dodge and the Indians on the last day of the council.
Indians attending the council, as evidenced by the signatures to the treaty, included chiefs from 13 localities; and among them were chiefs from Lac du.' Flambeau, “Lake Courteoville,” and La Pointe.
According to the Journal of the Proceedings of the Council, Governor Dodge told the Indians in his opening statement that he had been sent by the President to propose to them the purchase of some of their lands east of the Mississippi ; and the Indians understood that the proposition before them related to the sale of certain areas of their land. In the course of negotiations the Governor specifically requested the chiefs from Lac du Flambeau and Lac “Coutereille” to come forward and examine the map with him. Before the treaty was signed Governor Dodge had it read to the Indians.
15. The Treaty of July 29, 1837, 7 Stat. 536 , between the United States and “the Chippewa nation of Indians * * contained the following provisions: 4
Article 1. The said Chippewa nation cede to the United States all that tract of country included within the following boundaries: * * *
Article 2. In consideration of the cession aforesaid, the United States agree to make the Chippewa nation' * * * the following payments. * * *
Article 5. The privilege, of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed [sic] to the Indians, during the pleasure of the President of the United States. * * *
16. In negotiating and signing the Treaty of July 29, 1837, the United States commissioner intended to buy and the *500 Indians intended to sell the Indians’ original right of oecupancy of the lands.
17. (a) The northern boundary of the Wisconsin land so ceded was south of the Canadian border (by distances varying from 20 to 40 miles). The ceded strip was approximately 100 miles wide (north and south) and nearly 200 miles long (east and west). It included the area which was subsequently set aside as the Lac Court Oreilles Reservation, which, in turn, included some of the lands here in controversy.
(b) If .any surveys had been made in the ceded area at the time of the treaty of cession, they were general in nature. Four or five years after the 1837 treaty, the surveys of townships in Crawford County had been extended only three tiers north of the Wisconsin River on the. fourth principal meridian. The numbering of townships, north, had been started at the southern boundary of the territory (the line between Wisconsin and Illinois), which is approximately halfway between the parallels of latitude marking 42 and 43 degrees north of the equator. Ranges were numbered east in sequence from the fourth principal meridian, and also west from that line. The basic pattern of survey thus established was continued, so that ultimately there were 51 townships north (306 miles), 28 ranges east, and 32 ranges west (making 360 miles across, the State)-.
18. (a) The Chippewa Indians who remained on the lands ceded by the Treaty of July 29, 1837, insisted upon the exclusion of other Indians (including related bands of Chippewas) living north and east of the ceded area from the benefits (payments and services) provided by the treaty.
(b) As white men pressed into and through the ceded lands, the supplying of intoxicants to the Indians in and around the area became a source of irritation and concern to white settlers and officials. 5
*501 (c) By 1840, the Indian subagent at La Pointe was concerned over the necessity for and the nature of provisions for the removal and resettlement of the bands living in the ceded area. In that year (1840) a new county (St. Croix) was carved out of the western part of Crawford County, and a year later still another county (Chippewa) was.taken from the center of Crawford, while a third new county (Portage) took the eastern edge of Crawford and the western edge of Brown County to encompass the Wisconsin River along the first 140 miles of its course. Within another two years La Pointe County had taken over the northern section of St. Croix .and Chippewa Counties, making a total of seven counties 6 within the area originally assigned to Crawford County, five of which reflected the influx of white settlers into what had recently been Indian country.
19. (a) The Act of March 3, 1841, 5 Stat. 417 , appropriated $5,000 “* * * to defray the expenses of holding treaties with the Indian tribes for the. extinguishment of their titles to their lands within the limits of the State of Michigan.”
(b) On August 1,1842, the Office of Indian Affairs wrote to the Acting Superintendent of Indian Affairs for Michigan:
The Congress * * ■* having * * * appropriated $5,000 to defray the expenses of holding treaties with the Indian tribes for the extinguishment of the titles to their lands within the limits of the • State of - Michigan it is deemed the duty of the Department to enter upon the negotiation.
There are valuable minerals on the land that the Chippewas are possessed of (and they are the only Indians that hold any land in Michigan) which extend westward, however, of that State and cover, out of its limits, mines of copper etc. The law making the appropriation refers only to Michigan but taking- care to obey the direction of the Act there can be no objection that I perceive to extending the purchase beyond the State. It is important, it strikes me, that we should have the uninterrupted control of the whole Southern Shore of Lake Superior for commercial and other purposes, as well as for mining.
*502 * * * it is contemplated to extend the purchase West of the State of Michigan, and I think as far as the station of the American Fur Company * * * South West of Fond-du-Lac, and thence * * * to the cession made by the Chippewas of the Mississippi on the 29 July 1837. * * *
(c) The treaty was made in October, following. The purpose of the Government in making the treaty was to extinguish Indian title to the lands described in the treaty.
20. The Treaty of October 4, 1842, 7 Stat. 591 , was made at La Pointe, “between Robert Stuart, 7 commissioner on the part of the United States, and the Chippewa Indians of the Mississippi, and Lake Superior * * It provided, in part, as follows-: 8
The Chippewa Indians of the Mississippi and Lake Superior, cede to .the United States all the country within the following bounderies [sic]: * * * it being the intention of the parties to this treaty, to include in this cession, all the Chippewa lands eastwardly of. the * * * line * * * from the * * * trading post on the Fond du Lac river to the intersection of the line of the treaty made with the Chippewas of the Mississippi July 29th 1837. * * *
The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States, and that the laws of the United States shall be continued in force, in respect to their trade and intercourse with the whites, until otherwise ordered by Congress.
* *.* whenever the Indians shall be required to remove from the ceded district, all the unceded lands belonging to the Indians of Fond du Lac, Sandy Lake, and Mississippi bands, shall be the common property and home of all the Indians, party to this treaty.
In consideration of the foregoing cession, the United States, engage to pay to the' Chippewa Indians of the Mississippi, and Lake Superior, annually, for twenty-five years * * *.
Whereas the whole country between Lake Superior and-. the Mississippi, has always been understood as belonging in common to the Chippewas, party to this treaty;, and whereas the bands bordering on Lake *503 Superior, have not been allowed to participate in the annuity payments of the treaty made with the Chippewas of the Mississippi * * * July 29th 1837, and whereas all the unceded lands belonging to the aforesaid Indians, are hereafter to be held in common, therefore, to remove all occasion for jealousy and discontent, it is agreed that all the annuity due by the said treaty, as also the annuity due by,the present treaty, shall henceforth be equally divided among the Chippewas of the Mississippi and Lake Superior, party to this treaty, so that every person shall receive an equal share.
The Indians residing on the Mineral district, shall be subject to removal therefrom at the pleasure of the President of the United States. * * *
21. (a) The Indian bands who were parties to the foregoing treaty, as indicated by the signatures thereto, came from 18 localities, including ten (identifiable) locations represented by signatories of the Treaty of July 29, 1837. Among the ten localities represented at both councils were Lac du Flambeau, Lac Court Oreilles, and La Pointe.
(b) In negotiating and signing the Treaty of October 4, 1842, the United States commissioner intended to buy and the Indians intended to sell the Indians’ original right of occupancy of the lands.
(c) The provision in the treaty for the retention of the trade and intercourse laws of the United States in the ceded area was a matter of expediency resulting from the disruptive influence of the sale of liquor to the Indians 9 and the ineffectiveness of territorial laws in coping with the situation. 10
(d) The Wisconsin lands so ceded were north and (in part) east of the cession of 1837, and comprised all the remaining lands occupied by the Chippewas in Wisconsin, except for *504 a small strip omitted by reason of the inability of the parties to give a precise location to the American Fur Company’s trading post on the Wisconsin-Minnesota boundary.
This cession included the lands subsequently set aside as the Lac du Flambeau and Bad Liver Leservations, which, in turn, included some of the lands here in controversy.
22. (a) The Act of August 6, 1846, 9 Stat. 56 , authorized the people of the Territory of Wisconsin to form a constitution and State government, for the purpose of being admitted into the Union. 11 The act further provided that:
* * * section numbered sixteen, in every township of the public lands in said State, and, where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools. * * *
(b) The Act of March 3, 1847, 9 Stat. 179 , provided, in part, as follows:
* * * all that portion of the public lands lying within the Territory of Wisconsin, north and west of the following boundary, to wit: commencing at the Mississippi Liver on the line between townships twenty-two and twenty-three north, running thence east along said line to the fourth principal meridian, thence north along said meridian line to the line dividing townships twenty-nine and thirty, thence east along said township line to the Wisconsin Liver, thence up the main channel of said river to the boundary line between the State of Michigan and the Territory of Wisconsin, shall form a land district, to be called the Chippewa Land District; and, for the sale of the lands in said district, a land office shall be established * * *.
* * * a geological examination and survey of the lands * * * in said district [shall] be made * * *. * * * such of said lands as may contain copper, lead, or other valuable ores, [shall] be exposed to sale * * *. And all the lands * * * in said district, not reported as aforesaid, shall be sold in the same manner as other lands under the laws now in force for the sale of the public lands, excepting and reserving from such sales section sixteen in each township for the use of schools, and such reservations as the President shall deem necessary for public uses. * * *
*505 (c) The lands subsequently set aside as reservations for the three plaintiff bands were within the Chippewa Land District as above defined.* 12
(d) The Act of May 29, 1848, 9 Stat. 233 , formally admitted the State of Wisconsin into the Union. 13
23. (a) The Act of March 3, 1849, 9 Stat. 403 , established the Territory of Minnesota.
(b) Meanwhile, the Office of Indian Affairs had obtained from the Chippewas of the Mississippi and Lake Superior extensive cessions of land in Minnesota east of the Mississippi River. 14
(c) Among the early (1849) actions of the legislative assembly of the new territory of Minnesota was a resolution urging the removal of the Chippewas living on ceded lands east of the Mississippi to unceded lands west of the river. .This resolution received the favorable consideration and ultimate endorsement of the Territorial Governor (who was ex officio Superintendent of Indian Affairs for Minnesota), the Commissioner of Indian Affairs, and the Secretary of the Interior.
24. On February 6,1850, the President (Zachary Taylor) issued the following Executive order
The privileges granted temporarily to the Chippewa Indians of the Mississippi, by the fifth article of the treaty made with them on the 29th of July 1837, “of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded” by that treaty to the United States; and the right granted to the Chippewa Indians of the Mississippi and Lake Superior, by the second article of the treaty with them of October 4, 1842, of hunting on the territory which they ceded by that treaty, “with the other usual privileges of occupancy until required to remove by the President of the United States,” are hereby revoked; and all of the said Indians remaining on the lands ceded as aforesaid, are required to remove to their unceded lands.
*506 25. The issuance of the foregoing Executive order precipitated a public discussion in which expression was given to many differences of opinion concerning the removal.
Opposition to removal was widespread among the Chippewa Indians living on the ceded land. Their reasons were •many and varied, with a common denominator based on reluctance to leave the vicinity of the white settlements.
Separation from the whites was, on the other hand, the central theme of the advocacy of removal by Indian agents and subagents. These officials had observed that the intrusions of the white men had resulted in depletion of the supply of game and fish, had made it possible for the Indians to obtain intoxicants readily, had introduced communicable diseases among the Indians, and seemed generally to precipitate a retrogression of Indian economy, health, and character. Therefore, the agents reasoned, send the Indians west, away from the white settlements, to new and better hunting grounds, and let them regain their former way of life. Frequent recommendations had been made by the agents for the payment of annuities in the western, unceded lands, as a means of inducing the Indians to remove to those lands.
Removal was opposed by many of the missionaries and teachers and other well-meaning people. 15 Their argument was that the white man had never given the Indian a real chance to adopt the white man’s way of life, and that, instead of banishing the red man to the western lands, he should be given a chance to own and cultivate the soil where he had always lived. Some of these persons apparently realized that the western lands were not unlimited, and that provision for the Indians to continue a nomadic life over vast areas would ultimately prove impossible.
As so often happens in such matters of divided opinion on public affairs, the Government temporized and then compromised. Within the next decade, both policies were adopted and given expression in substantial form. Neither succeeded as its advocates had hoped.
*507 26. The Swamp Land Act (of September 28,1850, 9 Stat. 519 ) provided as follows: 16
* * * to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold, at the passage of this. act, shall be, and the same are hereby, granted to said State.
Sec. 2. * * * it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit, the same to the governor of the State of Arkansas, and, at the request of said governor, cause a patent .to be' issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the legislature thereof: Provided, however, That the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied, exclusively, as far as necessary, to the ..purpose of reclaiming said lands by means of the levees and drains aforesaid.
Sec. 3. * * * in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is “wet and unfit for cultivation,” shall, be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.
Sec. 4. * * * the provisions of this act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated. * * *
27. (a) The Act of September 30, 1850, 9 Stat. 544 (making appropriations for the Indian Department), appropriated $25,000 “for expenses of removal and subsistence of the Chippewas of Lake Superior and Mississippi from the lands ceded under the treaty of” October 4,1842.
(b) The Act of February 27, 1851, 9 Stat. 570 (supplying deficiencies in appropriations), appropriated $25,00.0 “for expenses of removal and subsistence of the Chippewas of Lake Superior and the Mississippi from the lands ceded *508 under the treaties of” July 29,1837, and October 4,1842, “in addition to the appropriation of” September 30, 1850. The same act. appropriated $3,000 “for expenses of the removal of the subagency for the Chippewas of Lake Superior and the Mississippi from the old site at Lapointe, to the new one * * *.”
(c) The Territorial Governor of Minnesota {ex officio Superintendent of Indian Affairs for the territory) was placed in .charge of the removal. He made an intensive effort-to effect the removal of all the Chippewas from ceded lands in Wisconsin, and succeeded in removing some 2,000 of them over a period of three years. Some of the' obstacles he .encountered proved insurmountable, however, as to some of the. bands, and by 1854 the Commissioner of Indian Affairs was recommending exceptions to the policy of removal.
28. On November 21, 1850, rules for the administration of the Swamp Land Act were initiated by the Commissioner of the General Land Office in a letter to the surveyor general of each of the States affected. 17 Among the instructions were the following:
(1) That all lands which, though dry part of the year, are subject to inundation at the planting, growing, or harvesting season, so as to be unfit for cultivation taking the average of the seasons over a reasonable number of years, should be considered swamplands.
(2) That a list should be made, from the -field notes of surveys then on file, of the lands so granted to the State, designating those which had been sold or otherwise disposed of since the passage of the law and the price paid for them when purchased.- If the State should be willing to adopt such lists, the General Land Office would regard them as controlling. Otherwise the office would accept satisfactory evidence furnished by the State of lands embraced by the grant.
(3). That in making up the lists on the basis of the surveyors’ field notes, intersections of survey lines with swamp or overflow should be connected by straight lines, and all legal subdivisions the greater part of which were thus shown to be swamp or overflow should be so certified to the State.;
*509 (4) That if the State preferred to have surveys.made, only the boundaries of the swamp or overflowed lands should he surveyed, and connections taken with the nearest section or township corner; or
(5) That lakes and streams should be meandered and ordinates surveyed at suitable intervals from the borders of the lake or. stream to the margin of bordering swamp land. Connection of the ends of the ordinates would, give the boundaries of the swamp land with sufficient accuracy.'
(6) That determinations of swamp lands should be made in terms of quarter-quarter (40-acre) sections.
. The surveyor general was further instructed to make out lists of the swamp-lands as early as practicable and,' after the selections were approved by the Secretary of the Interior, to have the register enter all the lands so' selected as granted ■to the State.
■29. (a) ‘ The surveyor general did not transmit to the'Governor of Wisconsin lists of the swamp lands shown by the field notes, as he had been instructed to do in keeping, with the mandate of the Act to the Secretary of the Interior. 18 *? No such lists'have yet b¿en transmitted to the Governor of Wisconsin by the Secretary of ;the Interior.??' 19 \. ‘
■ (b) When the regulations for the administration, of the Swamp'Land Act were issued by the General Land/ Office, extensive portions of Wisconsin had not been Surveyed, 20 and many of the plats and field notes of surveys that had'been completed (and some of those made thereafter) were rough *510 and inexact in their designations of swamp and overflowed lands. 1
30* (a) On March 15, 1851, the Wisconsin legislature authorized the Governor “* * * to appoint * * * persons * * * to act under his direction, in selecting ‘swamp lands’ * * * [and] * * * to obtain from the * * * surveyor general, copies of all the township plats of this State on file at that office. * * *”
(b) On June 3,1851, the Governor of Wisconsin (Nelson Dewey) wrote to the surveyor general:
* * * As the decision of your Office, under these instructions, is, that the State * * * must adopt one or the other of * * * two bases * * * and cannot rely upon both combined, I have to advise you that this State is willing to adopt the field notes of the Surveys on file in your office as the basis * * *.
. (c) On April 19,1852, the Wisconsin legislature authorized and “required” the Governor (Leonard J. Farwell) “* * * to employ * * * surveyors * * * to make an actual * * * Survey and report of all overflowed lands granted to this State by act of Congress * * *; [and] * * * to ascertain the amount of swamp * * * lands granted * * * which may *■ * * have been or hereafter may be disposed of by the United States since the passage of said act, and to draw * *. * such * * * money as may be * * * due * * * on account of the disposal * * *; [and] * * * to ascertain and select all * * * swamp * * * lands granted * * * surveyed * * * or [to be] surveyed * * * and cause entries to be made * * * and to cause to be recorded therein descriptive lists * * *.” 2
(d) Governor Alex. W. Randall, of Wisconsin, in 1860, protested the insistence by the Secretary of the Interior that the State was bound by Governor Dewey’s election, saying that “Gov. Dewey never had any authority to make any *511 such arrangement * * * [and] the Secretary of the Interior had no authority * * * to * * * conclude any of the rights of the state * * Other Governors of Wisconsin made similar protests over the years. The Secretary of the Interior nevertheless recorded Wisconsin as late as 1896 as being one of four states that had elected to be bound by the field notes of survey. 3
(e) The Wisconsin legislature has never authorized, recognized, or ratified the action of Governor Dewey in making the election to be bound by the field notes of survey. On the contrary, it has consistently authorized and directed the determination of swamp lands by examination of the ground. The Secretary of the Interior has never recognized officially the will of the Wisconsin legislature in this matter, although he has, by regulations issued in 1931, and by . administrative procedures obtaining as early as 1897, permitted a showing by third parties that lands indicated as swamp by the field notes were not swampy in physical fact.
31. The Treaty of September 30, 1854, 10 Stat. 1109 , was made at La Pointe with “the Chippewa Indians of Lake Superior and the Mississippi.” By its terms (1) the Indians ceded land in Minnesota which had been owned in common by the Chippewas of Lake Superior and the Chippewas of the Mississippi, and (2) adjustments were made in the annuities to cover the severance of the common property. In addition the treaty provided: .
* * * The United States agree to set apart and with- • hold from sale * * * the following described tracts of land * * *:
* * * For the La Pointe band, and such other Indians as may see fit to settle with them, a tract of land bounded as follows: Beginning on the south shore of Lake Superior, a few miles west of Montreal River, at the mouth of a creek called by the Indians Ke-che-se-be-we-she, running thence south to a line drawn east and west through *512 the center of township forty-seven north, thence west to the west line of said township, thence south to the southeast corner of township forty-six north, range thirty-two west, thence west the width of two townships, thence north the width of two townships, thence west one mile, thence north to the lake shore, and thence along the lake shore, crossing Shag-waw-me-quon Point, to the place of beginning. Also two hundred acres on the northern extremity of Madeline Island, for a fishing ground.
* * * For the other Wisconsin bands, a tract of land lying about Lac De Flambeau, and another tract on Lac Court Orielles, each equal in extent to three townships, the boundaries of which shall be hereafter agreed upon or fixed under the direction of the President. * * *
* * * The United States will define the boundaries of the reserved tracts, whenever it may be necessary, by actual survey, and the President may, from time to time, at his discretion, cause the whole to be surveyed, and may assign to each head of a family or single person over twenty-one years of age, eighty acres of land for his or - their separate use; and he may, at his discretion, as fast as the occupants become capable of transacting their own affairs, issue patents therefor to such occupants, with such restrictions of the power of alienation as he may see fit to impose. * * * And he may also make such changes in the boundaries of such reserved tracts or otherwise, as shall be necessary to prevent interference with any vested rights. * * *
* * * the Indians shall not be required to remove from the homes hereby set apart for them. * * *
32. (a) The La Pointe (Bad Fiver) Reservation, as finally surveyed, 4 comprised 124,333 acres in nine townships, as follows:
All of township 46 north, range 2 west.
All of township 46 north, range 3 west.
That part of township 41 north, range 1 west, contained in fractional sections 4,5, and 6, and in all of sections 7,8, 9,16, 17, and 18.
All of township 47 north, range 2 west.
All of township 47 north, range 3 west.
*513 All of fractional township 48 north, range 1 west.
All of fractional township 48 north, range 2 west.
All of fractional township 48 north, range 3 west.
That part of township 48 north, range 4 west, contained in fractional section 24, and in all of sections 25 and 36.
(b) On September 28,1850, when the Swamp Land Act was. approved, there were, within the lands described in the preceding subparagraph, some “swamp and overflowed lands,, made unfit thereby for cultivation, which * * * remain [ed], unsold * *
(c) The field notes of survey of the lands described in sub-paragraph (a), above, in existence when the governing regulations were issued by the General Land Office on November-21,1850, and some.field notes thereafter made, indicated that in some legal subdivisions (as small as quarter-quarter sections) the greater part was wet and unfit for cultivation within the terms of the statute and the regulations.
(d) Some legal subdivisions, within the lands described in subparagraph (a), above, which were indicated on the field notes as swamp, as described in subparagraph (c), above,., were not, in physical fact, on September 28, 1850, wet and unfit for cultivation over the greater part, within the meaning of the statute and the regulations.
(e) Some legal subdivisions, within the lands described in subparagraph (a), above, which were not indicated on the field notes as wet and unfit for cultivation over the greater part within the meaning of the statute and the regulations, were, in physical fact, on September 28, 1850, so wet and unfit.
(f) The Bad River Reservation contained six sections 16. One or more of these sections 16 contained lands falling within each of the categories described in subparagraphs (b), (c), (d),and (e), above.
33. (a) The Lac du Flambeau Reservation, as finally surveyed 5 and set apart, 6 contained 69,824 acres in seven townships, as follows:
*514 In township 39 north, range 6 east, sections 5 and 6.
In township 40 north, range 4 east, sections 1-3, 10-15, 22-27, and 34-36.
All of township 40 north, range 5 east.
In township 40 north, range 6 east, sections 5-8,17-20, and 29-32.
In township 41 north, range 4 east, sections 1-4, 10-16, 21-28, and 33-36.
All of township 41 north, range 5 east.
In township 41 north, range 6 east, sections 5-8,17-20, and 29-32.
(b) Subject only to modification in respect to dates of survey, the statements contained in subparagraphs (b), (c), (d), and (e) of finding 32, relating to the Bad River Reservation are applicable to the lands contained in the Lac du Flambeau Reservation, including the three sections 16 which were incorporated therein.
34. (a) The Lac Court Oreilles Reservation, as finally surveyed 7 and set apart, 8 contained 69,136 acres in eight townships, as follows:
In township 38 north, range 8 west. All of sections 4-8; in section 9, Sy>, NEy, E%NWí4, and SW^NWy 5 and all' of sections 17 and 18.
In township 38 north, range 9 west. All of sections 1,12, and 13.
In township 39 north, range 7 west. All of sections 1 and 2; in section 3, NyNEy, SySEy, and NEySEy; all of sections 4 and 5; in section 6, Ey, EiySWy, and NWy (Lots 2 and . 3); all of section 7; in section 8, Wy, SWySEy, and Lots 1, 2, and 3; in section 9, NEyNEy, SE14SE14, and Lots 1-6; in section 10, Sy, NEy, SyNWy, and NEyNWy; all of sections 11-15; in section 17, Wy2, SE14, W%NE%, and SEyNEy; all of sections 18-21, 28 and 29; in section 30, Ny, NEy SWy, NySEy, and SE1/4SE14; in section 31, Ey2, SW%, W%NWy, and SE14NW14; and all of sections 32 and 33.
In township 39 north, range 8 west. All of sections 1-15, and 17; in section 18, NWy, NySWy, NySEy, and *515 SEy^SEy; in section 19, S%, NE14, SE%NW^4, and WyNWy; all of sections 20-30; in section 31, S14, NW%, Sl/2NEy4, and NWy4NEi/4; and all of sections 32-36.
In township 39 north, range 9 west. In section 1, Lot 2; and all of sections 24, 25, and 36.
In township 40 north, range 6 west. In section 3, SE}4 and NEy; in section 8, EySEy; in section 9, NWySWy, SyNEy, SyNWy; in section 10, NW^jind NWyNEy; in section 17, E^NE^, EiySEy, SEySW^ (or Lot 1); in section 18, SEy; in section 19, NE%; all of section 20; in section 21, NW%NW% j in section 27, Lot 1; in section 28, Lots 2 and 3, SWySEy (Lot 5), and SWy (Lots 1,6, and 7) ; all of section 29; in section 30, Sy>; all of section 31; in section 32, NW}4 (Lots 1,2, and 3) and N^NEy; all of sections 33 and 34; in section 35, SWySW^ (Lots 1 and 2).
In township 40 north, range 7 west. In section 26, (Lots 1-5); in section 27, SE14 (Lots 1 and 2); in section 34, Ey; all of section 35; in section 36, part of SE14 (Lots 2 and 3), and SE%SW% (Lot 4).
In township 40 north, range 8 west. All of sections 1-15 and 17-23; in section 24, S%, NWy, S^NEy, and NW14NE14; and all of sections 25-36.
(b) On September 28, 1850 (when the Swamp Land Act was approved), there were, within the lands described in the preceding subparagraph, some “swamp and overflowed lands, made unfit thereby for cultivation, which * * * remain[ed] unsold *•*
(c) By the time the Lac Court Oreilles Reservation was set apart (1873), the Office of Indian Affairs and the General Land Office had been made aware of the complications arising from the claims of Wisconsin to the school and swamp lands within the Indian reservations. All school lands were eliminated from the Lac Court Oreilles Reservation. 9 There is'evidence to indicate that efforts were also made to eliminate the swamp lands. The plat of the Lac Court Oreilles Reservation reveals unmistakable checkerboarding of swamp and reservation lands.
• ;(d) The effort to eliminate swamp lands from the Lac Court Oreilles Reservation was not wholly successful. There *516 remained within it some legal subdivisions, as small as quar-. ter-quarter sections, the greater part of which were, on September 28, 1850, wet and unfit for cultivation, in physical fact, within the meaning of the statute and the regulations.
Some such legal subdivisions were not indicated as swamp lands on the field notes of survey.
At least one 40-acre tract which the field notes indicated as swamp land was included in the reservation. Whether or not this tract was, in physical fact, on September 28, 1850, wet and unfit for cultivation within the meaning of the-statute and the regulations, has been questioned by defendant. 10 Ultimately, other legal subdivisions within the Lac Court Oreilles Reservation containing 1,200 acres, more or less, were indicated as swamp by the field notes of survey.
(e) The contradictions in the evidence concerning the existence or non-existence within the Lac Court Oreilles Reservation of lands having the physical attributes defined by the Swamp Land Act of 1850 11 demonstrate this fact: that before this century-old controversy between the State of Wisconsin and the Department of the Interior had reached the halfway mark in time, the' term “swamp lands” had ceased to have definitive meaning 12 and was useful only as a generic term. 13 • ...
35. (a) During the years intervening between the Executive Order of February 6,1850 (finding 24), and the Treaty *517 of September 30,1854, the policy of removal of the Indians to unceded lands had been implemented and carried out in .a substantial degree (finding 27). The payment of annuities was transferred to new locations in the western land as one ■of the inducements. The Chippewas who remained in Wisconsin at the time of the 1854 treaty represented a minority ■of the Chippewa population of Wisconsin in 1850.
(b) The Act of December 19,1854, 10 Stat. 598 , authorized rthe President—
* * * to cause negotiations to be entered into with the Chippewa Indians, for the extinguishment of their title to all the lands owned and claimed by them in the Territory of Minnesota and State of Wisconsin * * *. 14
The act directed that the treaties should contain provisions •(1) “Granting to each head, of a family, in fee simple, a reservation of eighty acres of land, to be selected in the territory ceded, so soon as surveys shall be completed * * * which * * * shall be patented * * (2) for the equal distribution of annuities, to be paid at their villages “* * * within the limits of the ceded territory * * *(3) for the extension of all benefits to the mixed bloods .«* * * * * * reside on the ceded lands * * *” and (4) for the lifting of the trade and intercourse laws from the •ceded territory, “except the twentieth section, which prohibits the introduction and sale of spirituous liquors to Indians.”
(c) The Treaty of February 22, 1855, 10 Stat. 1165 , with ■“the Mississippi bands of Chippewa Indians,” provided:
* * * The Mississippi, Pillager, and Lake Winnibi-goshish bands of Chippewa Indians hereby cede, sell, and convey to the United States all their right, title, and interest in, and to, the lands now owned and claimed by them, in the Territory of Minnesota, and included within the following boundaries, viz: * * *. And the said Indians do further fully and entirely relinquish and convey to the United States, any and all right, title, and interest, of whatsoever nature the same may be, which they may now have in, and to any other lands in the Territory of Minnesota or elsewhere. * * *
*518 .(d) The statute cited in subparagraph (b), above, and the treaty cited in the preceding subparagraph, together with the Treaty of September 80, 1854 (finding 31), summarize the evolution during this period of the policy relating to the resettlement of the Chippewa Indians in Wisconsin and Minnesota. ¡
(e) Indians belonging to the three bands who are plaintiffs in this case did not leave Wisconsin in substantial numbers. Although the Executive order of February .6, 1850 (finding 24), was never revoked, and although no formal extensions were issued with respect to them (as was done for the Menominees), these three bands were among the Indians who were permitted to remain in Wisconsin and for whom permanent homes in that State were ultimately provided. . >.
36. (a) At the time of the Treaty of September 30, 1854, the La Pointe Band was well concentrated in the area set aside for it by the treaty. It has continued to live there since that time. Inasmuch as the treaty described the boundaries of the Bad Biver (La Pointe) Beservation, the only formalities remaining with respect to it after the ratification of the treaty on January 10, 1855, were (1) the withdrawal of the lands from entry or sale, which was ordered by the President on March 7, 1855, and (2) the completion of the detailed survey, which was accomplished in 1873.
(b) At the time of the Treaty of September 30,1854, the Lac du Flambeau and the Lac Court Oreilles Bands were roaming over more extensive areas than were promised them as reservations. They continued their nomadic life for 15 years or more after the treaty, becoming at times almost forgotten. 15
(c) In the meantime, Congress made appropriations for surveying the reservations, 16 orders were issued for the with *519 drawal from entry or sale of the reserved tracts, 17 surveys were made, 18 conferences were held with the Indians, and selections finally made and confirmed, on Lac du Flambeau in 1866, and on Lac Court Oreilles in 1873. When boundaries were finally fixed, lands not included therein which had been theretofore withdrawn pending selection of the reserves were returned to the market as public lands.
37. The century-old controversy between Wisconsin and the Department of the Interior over the administration of the Swamp Land Act of 1850, as related to swamp lands in general and swamp lands lying within Indian reservations in particular, divides naturally into four periods: (1) 31 years, being from 1850 through 1881; (2) 41 years, 1882 through 1922; (3) 13 years, 1923 through 1935; and (4) 15 years, 1936 through 1950.
Misunderstanding arose shortly after the Swamp Land Act was passed on September 28, 1850. In 1881, Wisconsin and the Department of the Interior accepted the report of a joint commission which both parties believed at the time would end their differences. The narrative of these years is set forth in findings 38 through 56.
After it became evident that the controversy had not been ended, each party again saved its rights until the decision of the Supreme Court in Wisconsin v. Lane, 245 U. S. 437 , in 1918 settled the issue of the school lands within the Indian reservations adversely to the State’s contentions. For a time it appeared that Wisconsin would accept the school lands decision as determinative of its rights to the swamp lands in the reservations. After many gestures and some commitments in this direction, Wisconsin reconsidered its position and withdrew from the concessions previously made. By 1923, the show was back on the road. The narrative of this period is contained in findings 57 through 92.
In 1926, the Supreme Court decided the issue of the swamp lands within the Indian reservations in the States’ favor, in United States v. Minnesota, 273 U. S. 769 . The Department of the Interior admitted it had lost a battle, but refused to concede the war. In 1935, the Secretary of the Interior and *520 the Governor of Wisconsin agreed upon terms of settlement ■of the long standing dispute. The settlement failed to gain the approval of the President and was not implemented by Congress. The narrative of this period is contained in findings 93 through 113.
Wisconsin bided her time after it became apparent that Congress would not implement the settlement agreement by -an appropriation of funds. The opportunity afforded the State to intervene in this case was the beginning of the current denouement of the controversy. The narrative of these final years is set forth in findings 114 through 117.
38. (a) The Act of March 2, 1855, 10 Stat. 634 , directed the President to cause patents to be issued, as soon as practicable, to purchasers who had made entries of public lands •claimed as swamp lands prior to the issue of patents to the State; and provided that where the State had sold such a tract of land prior to the entry, no patent should be issued by the President until the State had released its claim. Each State was to return to the General Land Office, within 90 days from the passage of the Act, a list of the lands so sold: otherwise, patents were to issue from the United States, and the purchase money was to be paid to the State upon due proof by it that the lands purchased were swamp lands. 19
(b) On March 9, 1855, the Commissioner of the General Land Office wrote to the Governor of Wisconsin directing his attention to the Act of March 2,1855, above, and requesting the Governor to “* * * cause to be prepared * * * a statement of all the lands selected or enuring to the State under the Swamp land law, which have been sold by the State * *
(c) On May 14, 1855, the Governor of Wisconsin forwarded to the Commissioner of the General Land Office a request for “* * * permission * * * to select from the unsold lands of the Government * * * [a] quantity equal * * *” to 40,000 acres of swamp lands believed to have been sold by the United States.
*521 (d) On August 26,1856, the Acting Commissioner of tlie General Land Office wrote to tlie Governor of Wisconsin:
* * * Tbe quantity, to which the State will be entitled under the provisions of the act of 2nd March, 1855, for the relief of purchasers and locators of swamp * * * lands in lieu of the quantity of swamp land estimated to have been located * * * after the passage of the [Swamp Land Act] * * * is 35,683.46 acres, as corrected to this date. * * * 20
(e) Thereafter, and from time to time, the Governor of Wisconsin executed releases to the United States of tracts which had been (1) reported as swamp lands by the surveyor general; (2) sold to individuals by the United States Land Office after the passage of the Swamp Land Act; (3) certified, after such sale, to the State of Wisconsin as swamp land inuring to the State; and (4) patented to the State after the certification. 1
39. (a) On November 21, 1857, Wisconsin selected as swamp lands the following tracts, all-of which lie within the boundaries of the Lac Court Oreilles [Reservation as set forth in finding 34 (a):
In township 38 north, range 8 west. In section 8, NE34NE14.
In township 39 north, range 8 west. In section 12, NE14 NE14; in section 17, NW%NW%; and in section 30, SEi/4SEi/4.
These four tracts contained 160 acres. None was approved as a swamp land selection at the time of the submission.
(b) It is not established by the evidence that any tract described in the preceding subparagraph was patented to Wisconsin by the United States prior to 1895, when a patent issued for the SE14SE14, section 30, township 39 north, range 8 west.
40. On November 10, 1858, the Attorney General of the United States forwarded to the Secretary of the Interior an *522 •opinion relating to the effect of the Swamp Land Act in relation to lands in Arkansas. An excerpt from the opinion -follows:
* * * a grant by Congress does of itself propiro vigore pass to the grantee all the estate which the United States had in the subject matter of the grant, except what is expressly excepted * * * It is not necessary that the patent should issue before the title vests in the State under the Act of 1850. This Act of Congress was of itself a present grant, wanting nothing but a definition of boundaries to make it perfect, and to attain that object, the Secretary of the Interior was directed to make out an accurate list and plat of the lands, and cause a patent to be issued therefor. But when a party is authorized to demand a patent for land, his title is vested as much as if he had the patent itself, which is but evidence of his title. * * * 2
41. (a) On April 30, 1860, the Commissioner of the General Land Office wrote to the Governor of Wisconsin (Alex. W. Band all) acknowledging receipt of certain lists of lands claimed to be swamp:
* * * It appears from * * * these papers that the State * * *. has made selection of these lands from an examination and survey in the field, and that * * * the * * * Surveyor General * * * has declined [to certify them to the General Land Office] * * *.
* * * The point * * * js # * * whether the State * * * will be permitted to introduce proof that any lands other than those shown by the field notes of the * * * surveys are swamp within the meaning of the Act. * * * A careful consideration * * * [has] resulted in the transmission * * * to the * * * Secretary of the Interior * * * [of] an opinion adverse to a change in the mode of selection adopted and agreed upon *523 between the Governor [Dewey] and the Department. The Secretary * * * concurred in the views of this office. * * *
* * * the lists presented by you cannot be regarded as selections made in accordance with the arrangement entered into in 1851, and which has been the basis of all our official action so far as your State is concerned.
(b) In the meantime, the Act of March 12,1860, 12 Stat. 3 , had extended the grant of the Swamp Land Act to Minnesota and Oregon, and provided:
* * * the selection to be made from lands already surveyed in each of the States including Minnesota and Oregon * * * shall be made within two years from the adjournment of the legislature of each State at its next session after the date of this act; and, as to all lands hereafter to be surveyed, within two years from such adjournment, at the next session, after notice by the Secretary of the Interior to the governor of the State, that the surveys have been completed and confirmed.
(c) On May 21, 1860, the Commissioner of the General Land Office forwarded to the Governor of Wisconsin a copy of the foregoing Act, called his attention to the time limitation contained therein, and said:
* * * As the selections in your State are made by the * * * Surveyor General from the field notes of the surveys according to the terms agreed upon by Governor Dewey * * *, that officer has * * * been advised of the limitation and directed to proceed with the completion of the selections in accordance with the requirements of the Act.
* * * inform me when the next session of the Legislature * * * will commence; and * * * advise me of the day of adjournment.
(d) On June 14, 1860, the Governor of Wisconsin (Mr. Randall) replied to the foregoing letter:
* * * Your instructions to the Surveyor Geni. * * * places the State in a very awkward predicament. * * * Gov. Dewey never had any authority to make any such arrangement as that suggested in your letter. * * * The Secretary of the Interior had no authority * * * to make any such arrangement as would conclude any of the rights of the State, and the Secretary * * * even up to the present time, has neglected to “make out an accurate list and plats of the lands * * * and trans *524 mit the same” to the Gov. of this State, as required by law. * * * this State * * * has just cause of complaint * * *.
(e) In the subsequent course of dealings between Wisconsin and the Department of the Interior, the latter’s application of the limitation provisions of the Act of March 12, 1860 (subparagraph (b), abové), was never more than sporadic. Within a few years it became desultory, and after the report of the joint commission in 1881, no further reference was made to the statute.
42. (a) On November 13, 1865, the United States issued to Wisconsin a swamp land patent (No. 8, Menasha Series) covering 16,249 acres 3 in the Menominee Indian Reservation in Wisconsin. 4
(b) On April 15, 1866, the Commissioner of the General Land Office informed the Secretary of the Interior that the patent had been inadvertently issued, as far as concerned lands in the reservation. A call was thereafter made by the Department of the Interior upon the Governor of Wisconsin to surrender the patent for cancellation. The Governor refused to do so, on advice from the State’s Attorney General that the lands properly inured to the State under the swamp land grant. 5
*525 43. On August 2, 1866, the surveyor general’s office at Dubuque delivered to an agent of the State of Wisconsin the original field notes and plats of the public surveys of that State. 6
44. On August 21,1866, the General Land Office authorized the further selection of swamp lands, by Wisconsin in two land districts. The method of selection was specified by the General Land Office as follows:
* * * The Governor can appoint two agents to examine the plats and field notes * * * whoshall * * * list * * * all tracts shown thereby to be swamp lands.
* * * the Agents must append their certificate under oath, that * * * the tracts * * *_ are * * * shown to be swamp in the smallest legal subdivision.
* * * The selections must be confined to townships wherein swamp selections have not been heretofore made, as * * * the returns [by the surveyor general] of swamp selections in a given township * * * [are] regarded as concluding the selection in any such township.
* * * the selections must embrace no lands to which adverse rights may have attached * * *. 7
45. (a) On October 22, 1866, two commissioners appointed by the Governor of Wisconsin made affidavit that they had examined the field notes and plats and had found therefrom that the tracts listed by them, containing 524,545 acres, were swamp and overflowed lands. The lists were duly submitted to the General Land Office as swamp land selections in List No. 3, Stevens Point Series.
(b) Included in the selections described in the preceding subparagraph were the tracts listed below containing more than 20,000 acres which were within the boundaries of the Lac du Flambeau Reservation as set forth in finding 33 (a) :
*526 In township 40 north, range 4 east. In section 3, SWySWy; in section 10, W^NW1^; in section 11, SEyNEy, and SEy; and in section 12, SWyNWy, NE1/4SW14, WySWy, and Lots 1, 2, 3, 5, and 6.
In township 40 north, range 5 east. In section 24, Sy SEy; in section 25,- NEy, EyNWy, NySEy, SW14SE14, SE14SWI/4, and Lot 2; and in section 31, Lot 1.
In township 40 north, range 6 east. In section 17, EyNEy and Ey2SE%; in section 29, SyNEy, SyNWy, SWy4, and Wi/2SEy4; in section 30, NEy SEy and Sy2SEy4; in section 31, NEy, NWyNWy, SyNWy, NySEy, SEySEy, and EySWy; and in section 32, NWy and NWySWy*
In township 41 north, range 4 east. In section 1, NEy, E%NW%, and S%; in section 2, Ny, NySEy, and SWySWy; all of section 3; in section 4, NEy, EyNWy, SEy, and EySWy; in section 10, NyNEy; in section 11, Ny; in section 12, Ny, EySWy, and SEy; in section 13, Ny2NWy4; in section 15, WyNEy, FW%, NWySEy, SySE% and SWy; all of section 21; in section 22, NWyNWy and SWySWy; in section 23, NEy SEy and Sy-SEy.; in section 24, SWyNWy, NySEy, SWy, and Lots 3 and 4; in section 25, Ny and SEy; in section 26, NyNEy; in section 27, Ny, NWySEy, SWy, and SEySEy; in section 28, NEy, NyNWy, SEyNWy, WySWy, and NEy SEy; in section 33, Sy, NyNEy, SEyNEy, NyNWy, and SWyNWy; in section 34, syNEy, NEyNwy, SyNWy, NEysEy, wySEy,, SWy, and Lot 1; in section 35, Ey, SEyNWy, NyNWy, NySWy, and Lot 1; and in section 36, NEy, NEyNWy, syNwy, SEy, Nyswy, and SEyswy.
In township 41 north, range 5 east. In section 1, NWy, Sy, and Lot 2; all of section 2; in section 3, Lots 1-4; all of section 4; all of section 5; all of section 6; in section 7, Ny, WySWy, NEySWy, and NySEy; in section 8, Ny, • NySWy, SEy, and Lot 2; in section 9, NyNEy, SWyNEy, Wy, and NWySEy; in section 10, WyNEy,-SEyNEy, NyNWy, SEyNWy, NEySWy, and Lots 1-3; all of section 11; all of section 12; in section 13, Lot 1; in section 14, NyNEy and Lot 1; in section 17, EyNEy; *527 in section 29, NWyNE1^ and Lot 1; in section 30,. SW^SW1/^ and Lot 4; and in section 31, NWyNWyt,. SW1/4SW1/4, SE1/4NE1/4, and Ei/2SEi/4.
In township 41 north, range 6 east. All of section 7; in. section 8, W^SWy,; in section 17, NWyNWyj, SV2NW14, Ny2SW%, SE14SW14, and SW^SE^; in section 18,.. E14NEI4, NE14SE34, and Lots 1-4; in section 20, NE14,. NEy4NWy4, Sy2NWi/4, SE14, NE1/4SW14, and Sy2SWy4;. and in section 29, Lot 8.
46. (a) On May 6,1867, the Commissioner of the General. Land Office wrote to the Governor (Mr. Fairchild) of.' Wisconsin: 8
* * * the preliminary work of comparing * * * selections [in the Stevens Point and Menasha districts] with, the field notes, to test the swampy character of the tracts-selected * * * has been completed, and * * * all tracts. shown to be swamp and not otherwise interfered with, will be * * * certified to the State. * * *
(b) None of the tracts listed in finding 45 (b) was certified to the State.
47. On May 11, 1867, patents were issued by the United' States to Indian allottees on the Bad River Reservation for-several tracts containing more than 2,800 acres, some of which, were later (1870: see finding 49) selected by Wisconsin as swamp lands. The issuance of patents was given as the-reason for the rejection (in 1876) of these selections.
48. (a) On April 22, 1869, the Commissioner of the General Land Office wrote to the Governor of Wisconsin review- ■ ing lists which the Governor had filed for approval as swamp, lands. The letter contained the following:
* * * List No. 6. Embraces lands selected as swamp-but reserved for Indian purposes in accordance with the-stipulations of a treaty approved Sept. 30,1854. These tracts were withdrawn from market June 27,1866, prior, to the selection as swamp, and are now under control of" the Indian Bureau. * * *
*528 (b) Except for the State’s refusal in 1866 to surrender the Menasha patent (finding 42 (b)), selections by Wisconsin of swamp lands lying within areas set aside for Indian reservations (Menominee, Stockbridge, Munsee, and Chippewa) first entered the discussion as such in 1869, as indicated in the preceding subparagraph. The initial claim of Wisconsin to such lands was on a modified basis. A part of one of the reservations had been withdrawn from use as a reservation. 9 Wisconsin made claim to the swamp lands within the part so withdrawn, on the ground that the end of Indian occupancy meant the end of the only impediment to final transfer under the grant. 10
49. (a) On July 30, 1870, Wisconsin selected as swamp the following tracts containing approximately 1,300 acres, which were within the boundaries of the Bad River Reservation as described in finding 32 (a) :
In township 48 north, range 3 west. All of section 9; in section 17, Lots 1 and 2; in section 22, N%, N^SEi^, SE14SE14, NE14SW14, and S14SW14; in section 23, Lots 2-9; and in section 30, N%NE*4.
The foregoing selections were not approved.
(b) On April 24, 1871, the General Land Office approved selections by Wisconsin of the tracts listed below, containing 10,000 acres more or less, which had been submitted as being swamp' and which are within the boundaries of the Bad River Reservation as set forth in finding 32 (a):
In township 47 north, range 3 west. In section 7, SWfr.%SW; in section 22, SW^SW^; in section 30, SWfr.i4SW%; and in section 31, WI/2NE14 and Wfr.14.
*529 In township 48 north, range 2 west. In section 7, Lots 1-3; all of sections 17-21; in section 27, Lots 3-5; in section 28, NW%NEi4, Ni/2NWy4, and Lot 1; in section 29, N%NE%, SW1/4NW1/4, and N 1 /2N¥ 1 /4; and in section 30, N^NE^ and NW%NW14.
In township 48 north, range 3 west. In section 1, Lots 1 and 2; in section 2, SW^SW^ and Lots 1 and 7; in section 3, S^SW 1 ^, S14SE34, and Lot 1; all of fractional sections 4 and 5; in section 8, Lot 1; all of fractional sections 10-12; all of section 13; all of fractional sections 14 and 15; in section 18, Lot 1; in section 20, NE% and NW^SE^; in section 21, Ni/2; in section 23, NE%, SW%NW%, W%SW%, and SE14SW14; in section 24, N%NW%, E%SE%, and Lots 4,' 5, 6, 8, and 9; in section 25, NE^NE^; in section 26, Ny^NWyC in section 27, NW%NW%; and in section 29, NIV1/4NW1/4.
(c) No patents were issued to Wisconsin by the United States covering any of the tracts described in the preceding subparagraph on the basis of the approval of the selections as swamp lands.
50. (a) On July 14, 1871, the Attorney General of Wisconsin wrote to the Governor:
* * * There are * * * certain reservations to Indian tribes in the State, some of which have lately been extinguished, and the lands * * * are being * * * brought into market. * * *
* * * I claim that the State is entitled under the * * * [Swamp Land Act] to the * * * Swamp * * * lands therein as soon as the Indian title or claim is extinguished * * *.
* * * The necessity for immediate action is* * * confined to * * * the Menominee and Stockbridge reserve. * * *
(b) On July 21,1871, the Governor of Wisconsin (Lucius Fairchild) wrote to the Commissioner of the General Land Office demanding for the State the swamp lands in such parts of former Indian reservations as were'returned to the market as public lands.
(c) On January 3, 1872, it was reported to the Attorney General of Wisconsin that the Commissioner of the General Land Office took the position that the treaties providing for *530 the reservation, (from which the lands had been withdrawn) did not extinguish Indian title, wherefore the lands had never become public lands. 11
(d) On January 16, 1873, the Office of the Governor of Wisconsin forwarded to the General Land Office the claim of the State to lands shown to be swamp by the field notes, though presently within the limits of Indian reservations* and asked for the issuance of patents to the State upon the-extinguishment of the Indian title. The letter continued:
*' * * We- ask -for authority * * * to select * * * all swamp * * * lands * * * shown to be such- by the maps and field notes * * * not heretofore selected * * *.
We ask * * * for indemnity, either in money or other-lands, for all lands sold by the United States, which enured to the State under the * * * [Swamp Land Act and the School Land Act], * * *
(e) On May 20,1874, the Acting Commissioner of the General Land Office advised a member of the House of Representatives that he felt obliged, because of (1) previous actions, by the Commissioner of Indian Affairs (who, he said, regarded the treaty stipulations for Indian reservations as withdrawals of the lands from the swamp grant) and .(2) the tacit approval thereof by the Secretary of the Interior* to “decline to issue patents for any swamp lands which maybe selected in any of the townships withdrawn under the treaty” of'September 30,1854.
(f) On April 28,1875, the Acting Secretary of the Interior wrote the Commissioner of the General Land Office:
I have examined the appeal of the State of Wisconsin from your decision * * * refusing * ■* * the claim of the State, to the swamp lands included in the Indian reservations created, by the * *' * Treaty of September 30* 1854. * * •
* * * the lands included in said reservations were the property in fee simple of the United States, on * * * the date of the swamp land grant. * * *
*531 The grant * * * was a present grant, and the State * * * acquired title to all the swamp lands in said tracts at that date. * * * that title could hot be and was not divested by subsequent treaty of 1854.
I reverse your decision * * *. ,
(g) On August 11,1875, the Governor of Wisconsin (W. R. Taylor) wrote to the State’s School Land Commissioners citing the decision of the Secretary of the Interior recognizing the claim of the State to swamp lands within the Indian reservations created by the Treaty of September 30, 1854. He quoted the reply he had received from the Secretary of the Interior to his inquiry as to the application of the Act of March 12,1860, to such selections, wherein the Secretary had said (1) that no new selections could be made of lands which were surveyed before March 12, 1860, and (2) that lands surveyed since that date in townships wherein selections had not already been made, could be selected by persons appointed by the Governor for that purpose. The Governor’s letter to the Commissioners added:
* * * I am not aware that the State has ever made any selections from townships within the Indian reservations. * * *
* * * the Interior Department, prior to the decision * * * has constantly held that the State was not entitled to make selections within the Indian reservations: * * *
(h) On October 13,1875, the Acting Commissioner of Indian Affairs wrote to the Secretary of the Interior acknowledging receipt of the decision by the Acting Secretary recognizing the validity of Wisconsin’s claim to swamp lands within the Indian reservations. The letter continued:
* * * The treaty * * * makes provision for. * * * allotment * * * in severalty to * * * Indians' * * *.
An allotment has already been made to members'of the LaPointe band * * *. • •
* * * in. some * * * cases * * * such allotments are composed of * * * lands designated as .Swamp lands * * *.
These lands comprise the very choicest tracts upon the reservation * * *. The Indians gather the major part of their wild rice and cranberries from a portion of same and have their gardens.upon the remainder.. .* * * houses and * * * other improvements are located upon them. * * * ‘
*532 X * * * recommend that the Commissioner of the General Land Office be directed * * * not to certify to * * * Wisconsin as Swamp lands any of the tracts * * * within * * * any of the reservations * * * and that legislation be asked * * * giving * * * the State * * * lands in lieu * * *.
The foregoing recommendation was approved by the Secretary of the Interior. Legislation to support it was proposed in 1879 or 1880, but failed of adoption.
. (i) On May 4, 1876, the Governor of Wisconsin (Harrison.Ludington) transmitted to the Commissioner of the General Land Office for approval as swamp lands two lists, one containing tracts which the General Land Office had previously “omitted” from approval in a previous submission because the tracts were in the Lac du Flambeau Reservation.
. (j) On July 11, 1876, the Commissioner of the General Land Office wrote the Governor of Wisconsin relative to the general list submitted with the Governor’s letter of May 4 for approval and patent as swamp lands:
* * * all [were] selected as swamp July 30th, 1870. * * *
A number of tracts have been sold or located * * * and patented to the purchasers and locators * * *.
* * * tracts in T 48. N. E. 3. W. * * * have been selected by Indians under the * * * treaty * * * of September 30, 1854. And with the exception of * * * two * * * were patented May 11,1867 * * *.
* * * An examination of the field notes * * * shows that the following tracts * * * are not Swamp * * *, and the claim of the State thereto is rejected. * * *
The tracts in township 48 north, range 3 west, were in the Bad River Reservation.
■ The tracts rejected because shown by the field notes not to be swamp contained approximately 5,500 acres. They were not within the reservations of plaintiff bands. Concerning the rejection, the Commissioner’s letter noted that the State might appeal the ruling within 60 days.
... (k) On August 24,1876, the Commissioner of the General Land Office wrote to the Commissioner of Indian Affairs:
' * * * The Governor of Wisconsin has * * * made * * * application ■ for the _ approval and patenting of the ■ swamp * * * lands within'the Reservations made under *533 * * * [the treaty of September 30,1854] * * * and * * * this Office will * * * submit to the Secretary of the Interior * * * a list embracing 19,778.33 acres of such lands within the * * * Lac de Flambeau Reservation,. with a recommendation that the same be approved to the State.
Should said list be * * * approved, similar lists of lands in other reservations under the treaty * * * will be submitted, and such as have * * * been approved will be carried into patent.
(l) On May 15,1878, the Commissioner of Indian Affairs, wrote the Secretary of the Interior:
* * * By [the Swamp Land Act] Wisconsin was granted all * * * Swamp * * * lands * * * unsold at date of the Act. The * * * Indian reservations were made subsequent to the Swamp grant * * *, and hence it is apparent that all the swamp lands within * * * these reservations belong to the State; * * * the State should in some way he reimbursed for the lands * * *. (Italics supplied.)
(m) On November 23,1878, the Commissioner of Indian Affairs wrote the Secretary of the Interior:
* * * I * * * submit * * * a list of lands, allotted in severalty, to 44 * * * Chippewas, on Bad River reservation * * * aggregating 2,995.29 acres. * * * patents issued for [these] lands * * * May 11, 1867 * * *
* * * No allottments * * * have been. made * * * on the Lac de Flambeau reservation. * * * allott-ments * * * have * * * been made * * * on the Lac Court Orielle reservation, none of which have been approved * * *.
* * * Special Agent * * * Brooks * * * has made allottments on the * * * Lac Court Orielle and Bad River reservations, which have not * * * been prepared for submission to the Department.
The lands allotted by Mr. Brooks * * * do not conflict with lands * * * claimed by the State of Wisconsin as “Swamp * * * lands” * * *.
The larger proportion of the lands claimed by the State, within these reservations, are wild rice fields, which are of great value to the Indians * * *.
51. (a) During the years 1850 through 1880, no patents covering swamp lands within any of the reservations of plaintiff bands were issued to Wisconsin by the United States. *534 Following the discovery in 1866 of tlie situation resulting from the issuance of the Menasha patent covering swamp lands in the Menominee Reservation, the Department of Interior deliberately withheld the issuance of similar patents. The withholding was done for the protection of the Indians.
(b) By the end of 1880 Wisconsin had expanded its claim for swamp lands within the reservations to include all such lands because of their swampy character and without regard to the earlier qualification that selections be approved only in- areas where Indian claims had been extinguished. The Governor of Wisconsin was nevertheless aware of “* * * the difficulties which- might arise from permitting the sale and occupancy of these lands * * *” and had therefore not pressed the State’s claims. To this extent, Wisconsin acquiesced in the withholding policy of Interior.
(c) During the period of 1850 through 1880, the Department of the Interior consistently maintained its position 12 that the swampy nature of any lands for selection by Wisconsin under the grant should be detérmined from the field notes of survey. 13
(d) Wisconsin’s acquiescence in this method of selection was more apparent than real. 14 After the rebuff administered to it in 1860 (finding 41), the State did hot again, *535 prior to 1880, make an issue with Interior of the method of selection. It did have on hand, however, the results of the ■examination made by its own agents at its own expense in 1859; and the nature of some of the selection lists thereafter submitted by Wisconsin compels the inference that some of such lists included not only lands indicated as swamp by the field notes of survey, but other lands as well, presumably ■tracts found to be swampy by physical examination. 15
52. (a) Logging operations in Wisconsin had reached the ureas of the plaintiffs’ reservations by 1810, but the cutting of timber on the reservations soon ran into complications which were not overcome for several years. 16
(b) In 1872, the Indian Agent in charge entered into a contract with a local lumberman whereby the contractor was licensed to. cut some of the pine on the unallotted lands of the Lac Court Oreilles Reservation in return for stipulated annual payments. The contractor made two of the annual payments, and cut some timber. The license was revoked in 1874, after the decision by the Supreme Court in the case of United States v. Cook. The headnotes of the report 17 of that decision follow:
1. Timber standing on lands occupied by the Indians cannot be cut by them for the purposes of sale alone; though when it is in their possession having been cut for the purpose of improving the land — that is to say, better adapting it to convenient occupation — in other words, when the timber has been cut incidentally to the improvement, and not cut for the purpose of getting and selling it — there is no restriction on the sale of it.
2. The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title it is incumbent on him to show that the timber was rightfully severed from the land.
3. The United States may maintain an action for unlawfully cutting and carrying away timber from the public lands.
*536 The Cook decision put an end to the efforts of the Office of Indian Affairs to obtain general revenue for the benefit of the plaintiff bands (and all other Indians living on tribal lands in Wisconsin) through the sale of green timber growing on tribal lands. 18
After the Cook decision, the cutting of live timber on the unallotted lands of the reservations of the plaintiff bands was regarded as a trespass, and the trespasser was required to respond accordingly. 19
(c) Allotments were made to individual Indians living on the Bad River Reservation at-an early date, and patents were issued to some of the allottees as early as 1867. Ten years later some allotments had been made (but no patents had been issued therefor) on the Lac Court Oreilles Reservation. No allotments were made on the Lac du Flambeau Reservation until some time later.
(d) The question as to whether or not the Indian owner of an allotment (which had been patented to him) could sell the timber thereon was first raised in 1876, with respect to lands in the Bad River Reservation. The Secretary of the Interior ruled that the Indian owner could sell the timber, but proceeded immediately to hedge the ruling with so many qualifications (all of which were intended to protect and benefit the Indians) that no appreciable volume of allottees’ timber was cut for several years. During this evolutionary process, the doctrine of trespass was applied to the cutting of timber on lands in the course of being patented to an allottee. Details of the story belong to and are reported in the next time period of the swamp lands controversy. At the close of the first period (1881), the complications thereafter to arise over the proceeds of timber cut from the disputed lands were barely discernible.
53. (a) In May 1880, the Governor of Wisconsin and the Secretary of the Interior composed their differences over the *537 method of selection of swamp lands in general. Commissioners were appointed to examine the plats and field notes ■of survey to determine what lands were swamp for which patents had not been but should be issued to the State.
(b) On October 10,1880, the Commissioners of the Public Lands of Wisconsin reported (in their third Annual Report) to the Governor:
* * * About 57,000 acres of tíie selections under the swamp land grant * * * lie within Indian reservations. While it is conceded that the title to the lands was vested in the State by the acts of Congress granting them, it is yet held that such title is subject to the occupancy of the lands by the Indians in such reservations as were established prior to the admission of the State into the Union. * * * 20
* * * in our last report, we * * * referred to the preparation * * * of a statement * * * of all the lands received by the State under * * * [the Swamp Land Act] * * * together with * * * the claim of the State for such lands under the system of selections which had previously obtained. * * * in April last, it appeared that the State would be entitled to more than half a million acres in addition to the lands already received under this grant * * *.
* * * the Governor * * * was able to obtain from the Department of the Interior conditions which were made the basis for a final adjudication and settlement of this long deferred and vexed difference between the state and the United States. * * *
54. (a) The joint commissioners reported on August-13, 1881. Their report was accepted by the Secretary of the Interior and the Governor of Wisconsin without formal approval or endorsement thereof by either official. 1
(b)' The report of the joint commissioners listed as swamp (as being so indicated on the field notes of survey) the tracts ■described below, containing approximately 1,720 acres, which are within the boundaries of the Bad River Reservation as set forth in finding 32 (a) :
*538 In township 46 north, range 2 west. In section 25, NEy NEy, SyNEy, SEyNWy, NEySWy, and SWy swy4 ;• and in section 36, SEy..
In township 46 north, range 3 west. In section 14, Wy SWy and SEySWy; in section 15, NEySWy and SEy; in. section 19, NEy SEy; in section 20, NWySWy; in section 23, NyNWy; in section 28, NyNWy, SWyNWy, and NWySWy; in section 29, SyNEy, NySEy, and SEy SEy; in section 32, SEy NEy; in section 33, SWy NWy and NWySWy; and in section 34, EyNEy.
In township 47 north, range 3 west. In section 18, NEy NWy; in section 19, NWyNWy.
In township 48 north, range 2 west. In section 31, NWy swy.
In township 48 north, range 3 west. In section 2, SEy SWy; in section 8, Lot 2; in section 23, Lot 10; and in section 28, swyswy.
(c) None of the tracts described in the preceding sub-paragraph was included in the lists of Bad River selections (i) submitted on July 30, 1870, but not approved or (ii) approved April 24,1871. 2
• (d) As of August 1881, Wisconsin had submitted swamp land selections in the Bad River Reservation (including the acreage listed in the report of the joint commissioners) totaling approximately 13,020 acres. 3
(e) The report of the joint commissioners listed as swamp (as being so indicated on the field notes of survey) the tracts described below, containing approximately 960 acres, which, are within the boundaries of the Lac du Flambeau Reservation as set forth in finding 33 (a) :
In township 40 north, range 4 east. In section 1, Lot 6; in section 3, EyNWy and SEySWy; in section 11, Lot 5; in section 12, SEySWy; and in section 27, NWyNWy.
In township 40 north, range 5 east. In section 24, NEy SEy.
In township 41 north, range 4 east. In section 10, Ey NWy; in section 13, NWyNEy, SEyNWy, and SWy NWy; in section 14, SEyNEy; in section 22, NEyNWy *539 and SEi/^SW^ j and in section 23, SE^NEi^, NW^SE^, and SE%SW%.
In township 41 north, range 5 east. In section 35, NE%. SE14; and in section 36, NW^SW^.
In township 41 north, range 6 east. In section 8, SW^NWi/i; in section 31, NW^NW^; and in section 32, NW%NE%.
(f) None of the tracts described in the preceding sub-paragraph was included in the list of Lac du Flambeau selections submitted on October 22, 1866 (finding 45).
(g) As of August 1881, Wisconsin had submitted swamp land selections in the Lac du Flambeau Eeservation (including the acreage listed in the report of the joint commissioners) totaling approximately 20,960 acres. 4
(h) The report of the joint commissioners listed as swamp (as being so indicated on the field notes of survey) the'tracts described below, containing approximately 1,160 acres, which (except for the SW^SE^ 30-39-7) are within the boundaries of the Lac Court Oreilles Eeservation as set forth in finding 34 (a) :
In township 38 north, range 8 west. In section 8, NE*4 NE14.
In township 39 north, range 7 west. In section 6, Ei^SW^; in section 17, W^NW^, NW^NE1^, and SE14NE14; in section 30, S%SE%; and in section 31, W%NW%.
In township 39 north, range 8 west. In section 8, SW14SW14; in section 12, NE14NE14; in section' 13, NE14NE14; in section 17, W^NW^; and section 36, NW^NW1^.
In township 40 north, range 6 west. In section 29, Lot 11; and in section 33, Lot 2.
In township 40 north, range 7 west. In section 26, Lot 1.
In township 40 north, range 8 west. In section 11, W^SW1^; in section 13, SW^SE^; in section 15, SE14SW14; in section 22, NW^NW1^; in section 23, SE14SW14; in section 24, NW^4NE% and SW%SE% ; and in section 36, NW^NW1^.
*540 (i) None of tbe tracts described in the preceding subpara-graph was included in the list of Lac Court Oreilles selections submitted on November 21, 1857 (finding 89), except the NE14NE14 of section 8, township 38 north, range 8 west.
(]') As of August 1881, Wisconsin had submitted swamp land selections in the Lac Court Oreilles Reservation (including the acreage listed in the report of the joint commissioners) totaling approximately 1,240 acres. 5
■ (k) The combined total of acreage approximated in sub-paragraphs (d), (g), and (j), above, is 35,140, representing the swamp land submissions by Wisconsin, as of August 1881, for selections within the reservations of the three plaintiff bands.
55. (a) On October 13, 1881, the Governor of Wisconsin requested that patent be issued to the State by the United States covering certain selections of lands indicated as swamp by the field notes of survey.
(b) ■ On November 14, 1881, in .response to the foregoing request, the United States issued to Wisconsin a patent covering 31,059.56 acres of such lands, located in 12 townships spread over five ranges.
(c) The patent included the SE^NE^, section 36, township 48 north, range 4 west, containing 40 acres, and lying within the boundaries of the Bad River Reservation. This township was the only one of the 12 which contained lands in any of the reservations of plaintiff bands. Only three sections (24, 25, and 36) of this township were in the Bad River Reservation. The 40-acre tract herein described was the only one patented in 36-48-4. It had not been included in any of the lists hereinabove described. 6
(d) On November 21, 1881, the United States paid Wisconsin cash indemnity as required by the Act of March 2, 1855, 7 for the prior sale (1856) of Lot 10, section 23, township 48 north, range 3 west. This lot was in the Bad River Reservation. It had been listed in the report of the joint commission.
*541 56. On December 31, 1881, the Governor of Wisconsin (William E. Smith) reported (in his Annual Message) "to the Assembly:
* * * Progress has been made in the adjustment of the claims of the state for additional swamp lands * * *. * * * A careful revision of former selections of swamp lands showed the state entitled to 536,000 acres more than had been received. * * *
* * * In making the revision, it was found that the United States had sold since March 3, 1857, 8 435,081.33 acres * * * now determined to be swamp, and also that of the lands previously patented to the state as swamp 319,900 were not of that character * * * [making] * * * a difference in favor of the state of 115,181.33 acres. * * * 9
There is no existing law under which the state can be indemnified for this * * * item, but its' claim being established * * *, there can be no doubt of obtaining the congressional legislation necessary to provide * * * indemnification. * * *
* * * Authority having been received to select government lands in lieu of those sold prior to March 3d, 1857, such selections may be made by an examination ox the field notes and plats, or by an agent who shall personally examine the lands. * * * 10
* * * If the present policy of selling’ school and swamp lands at $1.25 per acre 11 be continued, the expenditure incident to a selection by personal examination would not be expedient, but if it should.be deemed advisable to have the lands appraised and sold at their value, it probably would be. * * * 12
* * * The right of the state to school and swamp lands in Indian reservations, for many years denied at *542 the department of the interior, is now admitted; but the difficulties which might arise from permitting the sale and occupancy of these lands are considered to be so great that a formal approval of them is withheld.
When Wisconsin’s claim to these lands was presented * * * in 1879, the Secretary of the Interior and the Commissioner of Indian affairs proposed to seek ..legislation * * * authorizing the selection of lands * * * in lieu * * * and addressed a communication to congress on the subject.
. A bill * * * was introduced * * * but failed to become a law, although favorably reported * * *.
* * * .Within the Indian reservations there are 5,153.94 acres of school land's and about 55,000 acres of swamp lands; * * *. 13 .
* * * this work * * * has proved to be an undertaking of far greater magnitude than was anticipated, involving as it did a revision of all swamp selections in the state. This required the careful reading of the field notes of survey and. an examination of the plats in regard to each forty-acre tract.
-It * * * [was] understood that the revision should be a final adjustment of the claim of the state * * *.
' 57. (a) On October 10, 1882, the Commissioners of the Public Lands of Wisconsin, in their fifth annual report to the Governor (J. M. Rusk) , again reviewed the State’s problem in obtaining patents covering swamp lands under the 1850 grant. With respect to swamp lands in general (i. e., swamp lands not within Indian reservations), the report said:
* * * The delay, in selecting and patenting to the state gave time and invitation to individuals to locate and enter large tracts of swamp and overflowed lands which otherwise would incoñtestibly [sic] have become the property of the state under the grant. 14 As this delay was through no fault of the state, * * * the state should not suffer for the delay or neglect of the general government.
' * * * this * * * is admitted by the. general land office, * * * but there exists no law authorizing indemnity for the lands * * * lost * * *, and additional *543 legislation is necessary that justice may be done the state. * * *
■ No indemnity was made to Wisconsin for the swamp lands “* * * lost through no fault of her own * * *.” The controversy between the State and the Department of the Interior slowly revived.
(b) Upward of 40 years passed before the limited phase of the controversy which is at issue in this case (relating to swamp lands lying within the reservations of plaintiff bands) again appeared to be near resolution.
Three facets of the course of dealings during this 40-year period warrant consideration: (1) transactions, rulings, and policies concerned with land; (2) transactions, rulings,' and policies concerned with timber and the proceeds of timber; and (3) the impact of court decisions on the controversy, and the actions of Wisconsin and Interior flowing therefrom. Matters relating to land are set forth in findings 58 through €6; the timber matter is covered in findings 67 through 84; and the litigation phase is described in findings 85 through 92.
58. A Wisconsin statute, approved on March 29, 1882, authorized five named individuals to construct a canal and booms in Ashland County and “* * * to use or acquire certain [swamp] lands of the State' * * * necessary therefor.” On July 20, 1882, the Commissioners of the Public Lands of Wisconsin sold to the individuals named in the statute all of the State’s right, title, and interest in and to certain swamp lands in townships 48 north, ranges 2 and 3 west. Included were parcels aggregating 3,080 acres in the Bad River Reservation. These parcels have never been included in any patent issued to Wisconsin by the United States. It does not appear that the Commissioners, in making this sale, were specifically apprised that some of the lands sold were within an Indian reservation.
59. (a) On March 9, 1894, the General Land Office approved a schedule of swamp land selections submitted by Wisconsin. The schedule is not in evidence.
(b) On April 17,1894, the General Land Office “held for rejection” (meaning the rejection was subject to appeal) the claim of Wisconsin under the swamp land grant to eight *544 tracts (comprising approximately 860 acres) in the Lac du Flambeau Reservation. On September 1,1894, the Assistant Commissioner of the General Land Office advised the Wausau Register that, after due notice to the State and no appeal having been filed, the rejection of the claim was final. 15 On September 12,1894, the Commissioner of Indian Affairs was advised by the General Land Office that “ * * * Said selections were for lands, allotted to * * * Indians * * * on the Lac du Flambeau reservation * * * and embraced in schedule approved on March 9,1894.” On October 31,1894, the Commissioner of Indian Affairs advised the Indian Agent of the rejection.
(c) On December 19, 1894, the Secretary of the Interior wrote to the Commissioner of the General Land Office “relative to certain selections made by the State of Wisconsin under the swamp land grant * * * of lands within the Lac du Flambeau * * * Reservation.” Reference was made “ * * * to a schedule of 101 selections made by members of the * * * band * * * which was approved by the President, except where they were in conflict with selections * * * claimed by * * * Wisconsin under the swamp land grant * * The letter continued:
* * * The grant of swamp lands to the State having been made * * * four years prior to the treaty, and being a grant in presentí, the question arises: Did the State get title to the swamp lands falling within the Indian reservation ?
* * * the Indians prior to the treaty of 1854 had the right of occupancy to the land in the reservation, together with the country surrounding it. By the treaty * * * the Indians stipulated for the right of occupancy of the lands ceded, until required by the President to remove.
* * * the title to the lands * * * was in the United States * * * in 1850. It therefore passed by said grant, but subject to the right of Indian occupation * * *. The * * * State could take only the naked fee, and could not disturb the occupancy of the Indians. That occupancy could only.be * * * determined by the United States. Beecher v. Wetherby, 95 U. S. 517 (525).
*545 In United States v. Thomas, 151 U. S. 577 (583), the-Supreme Court * * * said that the right of Indian occupancy [of school lands] “gave them the enjoyment of the-land until they were required to surrender it by the President * * *, which requirement was never made. So * * * the title never vested in the State, except as. subordinate to that right of occupation of the Indians.”
* * * the reasoning of those cases applies to * * * [swamp lands]. * * * by the grant of 1850 the State * * * acquired the title to the swamp lands in the Lac de Flambeau reservation, subject to the right of Indian occupation — the mere naked fee, without the right to. occupy until the Indian right shall have been extinguished. * * *
* * * so long as the Indian reservation remains intact,, patent should not issue to the State for the swamp lands, within said reservation. * * *
60. On October 8, 1895, the United States issued to Wisconsin a patent covering swamp lands to the extent of 397.57' acres, described in two half-quarter and six quarter-quarter-tracts. One of the 40-acre tracts was the SE^4SE% of section 30, township 39 north, range 8 west, which was within the boundaries of the Lac Court Oreilles Reservation as set forth in finding 34(a). A plat of the patent shows that, with, the exception of this one 40-acre tract, all of the lands covered by it were in legal subdivisions which had been checker-boarded out of the reservation. 16
61. (a) In December 1895, and in December 1896, Wisconsin released to the United States tracts containing 400 acres (not in any of the reservations of plaintiff bands) which had theretofore been claimed as swamp. The releases were made because of the existence of prior patents or because the selections had been rejected “as not being swamp by the-report of * * * 1881.”
(b) On March 17, 1896, the General Land Office issued a circular containing the swamp land laws and regulations. The circular is not in evidence. Deference to it is contained in a note following “Part 271 — Swamp Land Grants” in the Code of Federal Regulations, 1949 edition, title 43, page 605. *546 This note summarizes the office circular of November 21, 1850, and contains the following:
* * * A State having elected to take swamp land by field notes and plats of survey is bound by them, as is also the Government. See Secretary’s decisions, October 4, 1855 (1 Lester’s L. L. 558), August 1, 1859 (id. 571), December 4, 1877 (4 Copp’s L. O. 149), and September 19, 1879. * * *
(c) In 1897, Wisconsin again provided by statute for physical examination of lands to determine their swampy character. The examination was completed in due course, and reports showing the results thereof were filed with the State land office. Six years after the adoption of the statute, the results 1 of the examination had not been tabulated.
(d) On April 19, 1898, the Chief Clerk of the Commissioners of the Public Lands requested the Governor of Wisconsin (Edward Scofield) to relinquish the claim of the State to a tract of 80 acres, theretofore claimed as swamp, on the ground that physical examination of the land revealed it as non-swamp.
(e) On August 30, 1898, the Secretary of the Interior, at the instance of the Commissioner of Indian Affairs, directed the Commissioner of the General Land Office to send a special agent into the field to make a physical examination of certain lands in the Lac du Flambeau Reservation which were indicated as swamp on the field notes, and to determine by such examination whether the lands were or were not swamp. The examination was begun in September. Wisconsin obj ected to the making of the examination, and it was suspended on orders from the General Land Office.
(f) On June 8,1899, the Governor of Wisconsin (Edward Scofield), in a letter to the Commissioners of the Public Lands, expressed the opinion that “* * * the State should not waive its right to any alleged swamp lands heretofore selected, until it has been determined by an examination in the field whether the claim * :1: * is valid * * The Governor’s letter also said:
* * * It has been the policy * * * for nearly all of the two years last past, to examine in the field and ascertain from such examinations whether or no any tract of land included in any list or selection heretofore filed in the *547 General Land Office, are in fact swamp lands within the meaning of the Act * * *, and this without reference to what is shown by the plats and field notes of government survey. * * *
' (g) References to “so-called” swamp lands and to “swamp lands” entered the correspondence between Wisconsin and Interior and their respective interoffice communications before 1900.
62. (a) The Act of February 11,1901, 31 Stat. 766 , provided that—
* * * with the consent of the * * * Indians * * * on the Bad River Reservation * * * the President may allot to each Indian now living * * * on said reservation * * * and who has not heretofore received an allotment, not exceeding eighty acres of land * * *. 17
(b) The Act of February 3, 1903, 32 Stat. 795 , provided that-7-
* * * with the consent of the * * * Indians * * * on the Lac Courte Oreille Reservation * * * the President may allot to each Indian now living * * * on said reservation * * * and who has not heretofore received an allotment not exceeding eighty acres of land * * *. 18
* * * the provisions of * * * this Act shall also * * * apply to the * * * Indians * * * on the Lac du Flam-beau Reservation * * *.
63. (a) On May 16, 1903, a member of the Wisconsin legislature forwarded to the Governor (Robert M. La Follette) a statement pertaining to a bill then before the Governor for Executive approval. The bill related to the sale of certain of the public lands of Wisconsin (primarily swamp lands) and provided for the establishment of certain State forestry services. Following are excerpts from the statement pertaining to swamp lands:
* * * The report of the Commissioners of Public Lands shows that on June 30, 1902, the state owned * * * a *548 total of 812,152 acres so-called swamp lands * * *.
* * * the so-called swamp lands * * * are held by the state subject only to the provision * * * in the act of 1850 * * * “that the proceeds of said lands * * * shall be applied * * * to the * * * reclaiming [of] said lands * * *.”
Our statutes provide that the proceeds of all sales of swamp lands shall be divided into two equal parts, one of which shall be paid back to the * * * counties and by them distributed to the towns * * *. The other half goes into the Normal School Fund. * * *
The various reports and other documents relating to the public lands show that a large part of the so-called swamp lands were not such in fact and as near as could be ascertained such is the case as to the lands at present held by the state. The examination of the lands provided for by the act of 1897 has been made and the original reports of such examination are on file in the state land office, but * * * information can [not] now be derived therefrom as to what proportion of so-called swamp lands are such in fact. * * *
* * * a * * * considerable part of the public lands is situated within Indian reservations where the state can give no possessory title. * * *
* * * The substitute bill [which was the one before the Governor] provides * * * [for] * * * the following lands * * * to be sold: “all lands that are in fact swamp lands * * * .” * * * it is obvious [that] the state ought not to sell [lands within Indian reservations] as they would only be bought for speculative purposes. * * *
* * * While the substitute bill provides for the sale of * * * lands it is believed that the several restrictive provisions will * * * limit the sale * * *. The restrictive provisions [include] * * * The absolute withdrawal from sale of all lands within Indian reservations. * * *
(b) On January 2,1905, an “Agent of the Governor” transmitted to the Governor of Wisconsin (Mr. La Follette) a report of his work “for the past two years.” The report contained the following:
* * * In addition to the works on [Civil] War Claims I have done what could be done towards securing an adjustment of the Swamp Land Indemnity Claim.
Because of the * * * opposition of [the] Congressman * * * of the 11th Wisconsin District, it has been *549 impossible to secure legislation granting to the state other public lands in lieu of lands due the state under the Swamp Land Act which have been otherwise disposed of by the Federal Government. All that could be done was to cooperate with the other public land states in an attempt to secure the passage of legislation providing for the payment of a cash indemnity. Such a measure has been introduced * * *.
' (c) On January 12, 1905, the Message of Governor La Follette to the Wisconsin Legislature contained the following :
* * * * Wisconsin is entitled to reimbursement from the federal government for 312,000 acres 19 of swamp lands .* * * granted * * * under the Swamp Land Act ,* * * but * * * since * * * disposed of otherwise by the United States * * *. .The state should receive indemnity * * * at the rate of $1.25 an acre * * *. * * * it is the duty of the legislature to memorialize •the representatives of Wisconsin in the national congress to do all in their power to secure the payment of this just claim of the state. * * *
. (d) On August 15, 1905, the Acting Commissioner of Indian Affairs forwarded to the Superintendent of Forests of Wisconsin a reply to the latter’s proposal that Wisconsin and the United States agree upon an exchange of lands whereby lands within the Lac du Flambeau Beservation which the State claimed would be taken out of the reservation and turned over to the State. The Acting Commissioner’s letter said:
* * * the plan * * * does not seem to be feasible * * * because the State * * * only owns the fee to the lands * * * subject to the possessory right of the Indians * * *. Although the lands cannot be allotted * * * _ in severalty * * *, all the unallotted members of the tribe have a right to the use of these State lands in common * * *, and * * * there is no law that will permit this Department to make an exchange * * *.
64. On March 3, 1909, the Secretary of the Interior forwarded to Senator Bobert M. La Follette, of Wisconsin, a detailed recitation of the “* * * facts respecting the rights *550 of the State * * * under her school and swamp grants, to lands in the several Indian Reservations * * * in said State, together with the conclusions suggested by a review of the laws, and decisions appertaining thereto.” The Secretary concluded with a suggestion that Congress consent to a suit by Wisconsin against the United States before the Supreme Court to quiet the title to lands under both grants. 20
■ 65. (a) On May 23, 1917, the Assistant Commissioner of the General Land Office advised the Wausau Register and Receiver of the rejection of Wisconsin’s swamp land claim to two lots in the Lac du Flambeau Reservation, because both lots had been allotted and patented. The letter continued:
* * * notice * * * was served on the State and no action taken within the time allowed. * * * the * * * claim * * * is * * * rejected. * * * This closes the case.
(b) On May 28, 1917, the Wausau Register advised the Governor of Wisconsin:
* * * thirty days were allowed to show cause why .the claim should not be rejected and the State * * * failed to take * * * action * * * within the time allowed * * *
* * * May 23, 1917, the * * * General Land Office rejected the * * * claim, which action closes the case. H* í* í*
(c) On July 6,1917, the Chief Clerk of the Commissioners of the Public Lands of Wisconsin advised the Governor, in relation to the rejection of the State’s claims by the General Land Office that—
* * * it seems superfluous to ask the State to show cause * * * . In advance we are told that such showing can have no effect * * *. * * * the state should receive indemnity in cash * * *.
66. (a) By the time (January 1918) the Supreme Court ruled adversely on Wisconsin’s claim to the school lands in the Menominee and Bad River Reservations, 1 the only patents which had been issued by the United States to Wisconsin covering swamp lands within plaintiffs’ reservations were *551 (1) the 1881 patent which included a 40-acre tract in the Bad River Reservation 2 and (2) the 1895 patent which included a 40-acre tract in the Lac Court Oreilles Reservation.3 In each instance the circumstances were such as to indicate that the inclusion of reservation lands was an oversight. 3
(b) By the end of 1917, the unallotted lands remaining within the Bad River and Lac Court Oreilles Reservations comprised less total acreage than the selections theretofore made by Wisconsin of swamp lands within such reservations.
(c) In each of the three reservations substantial portions of the total acreage which were swamp (either by indication on the field notes of survey, or in physical fact, or both) had been allotted. Portions of the acreage so allotted had been patented to the allottees. Certificates of competence had been issued to some of such owners. Some of these owners had sold their lands, thereby sending the lands and the titles thereto into the stream of commerce. The various towns 4 had taken cognizance of such land ownership and transfers in their tax structures.
67. (a) Logging operations on lands within the reservations of plaintiff bands progressed uncertainly from 1876 to 1892. 5 After the latter year, substantial volumes of timber were taken from such lands regularly for a period of 20 years or more.
(b) The proceeds of timber cut from lands within the reservations of plaintiff bands, irrespective of when cut, are in controversy in this case if the land from which the timber was cut was swamp land.
(c) Within each of the three reservations some timber has been cut from lands which were, in physical fact, wet and unfit for cultivation within the meaning of the Swamp Land Act, 6 although not so indicated on the field notes of survey.
*552 (d) Within each of the three reservations some timber has been cut from lands which were indicated on the field notes mf survey as swamp.
(e) Within one or more of the sections 16 in the Bad Biver and Lac du Flambeau Beservations some timber has been cut from lands falling within the categories defined in the two preceding subparagraphs.
(f) It is seldom possible to determine from the evidence, in relation to any specific portion of the proceeds of timber, or in relation to any specific tract or tracts from which timber was cut to contribute to such proceeds, which standard was used to determine the swampy character of the land, i. e., reference to the field notes of survey or physical examination. The relation of the distinction to the State’s claim to such proceeds does not appear to have entered the discussion prior to 1929. 7
68. The proceeds that are at issue 8 in this case were derived from timber cut (1) from tribal lands under circumstances whereby (a) the operator was required to make restitution as for a trespass 9 or (b) the intervenor contends that defendant should make restitution 10 and (2) from allotted lands under circumstances whereby (a) the operator was required to make restitution as for a trespass 11 or (b) the allottee-owner retained the money, thereby depriving the intervenor of the value. 12
69. During 1886, 1887, and 1888, logging operators paid to defendant, as for trespass, the value of timber they had cut within the boundaries of the Lac Court Oreilles Beservation as described in finding 34(a) from 11 separate 80-acre *553 tracts. 13 Parts or all of nine of the 11 tracts had been described in the selections of swamp lands 14 made by Wisconsin 15 in 1857 and 1881.
■ 70. (a) The Act of February 16, 1889, 25 Stat. 673 , provided:
* * * the President * * * may * * * under such regulations as he may prescribe authorize the Indians residing on reservations or allotments, the fee to which remains in the United States, to fell, cut, remove, sell or otherwise dispose of the dead timber standing or fallen, on such reservation or allotment for the sole benefit of such Indian or Indians. * * *
(b) On October 1,1890, the Secretary of the Interior wrote the President:
* * * the rules * * * [herewith submitted] * * * apply only to the unallotted lands of the Bad River, Lac Court Oreilles, and Lac de Flambeau Reservations, and I * * * request * * * your approval * * *.
. The report which contained the proposed rules was approved by the President on October 4, 1890.
(c) On September 27,1892, the Secretary of the Interior submitted to the President, with his recommendation for approval, a proposal by J. H. Cushway and Company for the purchase of timber on the Lac du Flambeau Reservation. The letter said in part:
* * * The timber to be cut under this authority is all the merchantable standing and dead and down on the allotted lands, and the merchantable dead and down only, on the common lands. * * *
The President approved the proposal on September 28, 1892. The cutting of timber was begun before the year ended. Mills were built on the reservation by Cushway in 1893, and *554 the arrangement was continued on a basis mutually satisfactory to Cushway and the Indians for more than 20 years.
(d) On November 27, 1893, the Secretary of the Interior •submitted to the President, with his recommendation for approval, a proposal by J. S. Stearns to purchase the timber ■on the Bad River Reservation under an arrangement similar to the Cushway program on the Lac du Flambeau Reservation. The proposal was approved, the Stearns mills were ■built, and the arrangement resulted in mutually satisfactory relationships for upward of 20 years.
(e) Logging operations had been virtually at a standstill on all three of the reservations of plaintiff bands from 1889 to 1892. • After cutting was resumed, as described in the two preceding subparagraphs, on the Lac du Flambeau and Bad River Reservations, further cutting was also done on the Lac Court Oreilles Reservation, but the arrangements therefor are not described in the evidence. 16
71. (a) On October 1, 1896, the Commissioner of Indian Affairs, acting with departmental approval, instructed the Lac du Flambeau Indian Agent to proceed with a plan he had submitted to construct certain buildings on the reservation with timber and the proceeds of timber to be cut from unallotted lands. The Agent was directed to take the timber from unallotted swamp and school lands. 17
Within a year thereafter five or more specific authorizations were issued to the Agent to proceed with such cutting. Pursuant to his instructions and the authorizations, the Agent arranged with the Flambeau Lumber Company (formerly J. H. Cushway & Co.) to cut and manufacture the lumber and erect the buildings, payment to be made in timber taken from swamp lands. As these projects proceeded the Agent announced his intention to cut all of the timber from the school and swamp lands as rapidly as the work could be accomplished.
(b) On August 30,1897, the Attorney General of Wisconsin wrote to the Commissioner of Indian Affairs protesting the cutting on the school and swamp lands of the Lac du *555 Flambeau Reservation, inquiring why such cutting was considered proper, and requesting that further cutting be delayed.
(c) The Commissioner of Indian Affairs replied that .«* * * r}girá 0f the Indians * * * is not limited * * * to * * * improvement * * * for agricultural purposes * * * they also have the right to cut timber for the erection of necessary buildings * *
,(d) On October 27,1897, Wisconsin’s Secretary of State, acting in behalf of the State’s Commissioners of Public Lands, wrote to the Commissioner of Indian Affairs (1) reviewing the foregoing exchange of correspondence between the Commissioner and the State Attorney General; (2) citing the authorizations to the Indian Agent for the cutting; (3) listing 34 specific tracts within the Lac du Flambeau Reservation which were claimed by the State as swamp lands (all of which had been allotted; and 15 of which had been patented to the allottees) on which contracts for cutting had been approved; (4) challenging the Commissioner’s authority to permit the cutting, for improvement or otherwise; and (5) requesting that all cutting from school or swamp lands be suspended until the State should have a reasonable opportunity to investigate and protect its rights.
(e) On October 29, 1897, the Commissioner of Indian Affairs wrote to the Indian Agent, reviewing the foregoing letter and instructing the Agent:
* * * no authority now exists for the cutting of any timber on any of these swamp lands or school lands, * * * and you will suspend any cutting of timber on the school and swamp lands claimed by the State within the reservation * * * until further notice from this office. * * *
* * * Contracts have been made by the allottees of the tracts- * * * [listed above] * * * and they have been approved. No timber should be cut on these allotments * * * until further notice * * *.
The Commissioner’s instructions to the Indian Agent, to stop the cutting related to all swamp lands within the Lac du Flambeau Reservation, whether unallotted (and therefore h¿ld as tribal lands), allotted (but not patented), or allotted and patented. The Agent was further instructed to report *556 to the Office of Indian Affairs the amount, if any, of timber that had been cut from the allotted tracts. The Agent’s reply' is not in evidence.
(f) All such cutting was forthwith stopped. Meanwhile, some of the buildings had been erected at a cost of $23,934.39, which was paid initially by the Flambeau Lumber Company; The sum of $11,895.04 was paid to the Flambeau Lumber Company in swamp land timber. The balance of $12,039.35 was ultimately paid to the lumber company by Congressional appropriation. The act specifically recognized the debt due-the lumber company and confirmed the authority of the Secretary of the Interior to enter into the arrangement. 18
After the erection of certain school buildings which were a part of the improvement program on the reservation, the Flambeau Lumber Company installed an electric lighting system in the school buildings and furnished the current for its operation for five years, without settlement being made for either installation or current. Years later (1914), the sum of $1,913.08 was determined to represent the value of the installation and current, and this amount was allowed as an offset against a larger amount claimed to be due from the lumber company because of its failure to cut certain dead timber from swamp lands within the Lac du Flambeau Reservation. 19
(g) In June 1897, the sum of $14,766.82 was received by defendant from J. S. Stearns for timber cut from unallotted lands in the Bad River Reservation. How much of these lands were swamp is not established by the evidence. It must be inferred that most of the tracts were either swamp (in fact or by field note indication) or school lands.
*557 72. On October 29, 1898, the Department of the Interior authorized payment to Wisconsin of $9,548.10 in settlement for timber cut from State lands within the Menominee [Reservation. 20
73. On June 29, 1900, the Commissioner of the General Land Office wrote to the Commissioner of Indian Affairs:
* * * the * * * Indian Agent * * * requests authority to disburse certain funds collected on the Lac-Court Oreilles * * * [Reservation on account of timber depredations. 1
This matter involves the payment of * * * $950 by Mr. * * * Hoffman * * * in settlement for * * * timber cut * * * from SE14NE14 Sec. 11, T. 40 N., R. 8 W., * * * covered at the time of the trespass by an application filed in the name of Sarah Gordon (Indian) to select said tract as an * * * Allotment.
This proposition was accepted by the Secretary of the Interior November 15, 1897, and * * * the money was covered into the Treasury * * * as “Miscellaneous receipts * * * proceeds * * * not the result of Indian labor.” * * *
There was * * * a further liability * * * by Mr. Hoffman for the cutting of * * * timber from SW%NW% Sec. 3 and SE%NE% of Section 4, Tp. 39 N., R. 8 W., * * * covered by Charles La Bush’s application for allotment. * * * Mr. Hoffman’s offer to settle * * * was accepted * * *.
The tracts in question are in two * * * townships set aside by the * * * Treaty of September 30,1854 * * * for the * * * Lac Court Oreilles band * *
* * * the * * * townships set aside * * * were not vested in the Indians in fee simple, but were * * * set apart and withdrawn from sale from the mass of the public domain until the * * * allotment of * * * tracts in severalty * * *. * * * title to any tracts * * * un-allotted is still in the United States, and not burdened by any Indian title whatever.
*558 When the allotment * * * is completed, any tracts remaining * * * unallotted will * * * again become .a portion of the public domain * * *.
The application of Sarah Gordon for the * * * tract in Section 11, was never allowed * * * but * * * she was given another tract in another township * * *.
* * * the trespass was committed on all of the * *•* lands during * * * 1888 and 1889, and * * * La Bush’s allotment was approved October 1,1894.
* * * since the tracts * * * were at the time of the trespass lands of the United States, the moneys * * * [belong] to the United States * * * for the reason that the timber was taken from the land at the time it was withdrawn from the public domain for Indian purposes.
74. (a) On September 10, 1902, the Commissioner of Indian Affairs wrote the Secretary of the Interior acknowledging receipt from him of five reports submitted by the Acting Commissioner of the General Land Office relating to timber trespasses committed on unallotted lands of the Lac du Flambeau Beservation by Cushway & Company. The letter summarized the reports by listing the various amounts of timber cut from the several tracts (all specifically described) and the value of the timber which, in each instance, Cushway had. offered to pay. The letter continued:
* * * The Actg. Commissioner * * * states * * * that the lands * * * unallotted * * *. In some instances the lands are given as unapproved swamp selections. 2
a: * * Some of the tracts are marked on the tract books of this office in pencil “swamp.” * * *
* * * The Actg. Commissioner * * * states * * * that in his opinion Cushway & Company is not a wilful trespasser; that * * * said company * * * cut timber
* * * with the consent and knowledge of the * * * Indian Agent * * *.
Part of this apparent trespass was committed * * * in 1896. The * * * Indian Agent * * * was instructed to permit Cushway * * * to cut timber from unapproved swamp and school lands for * * * Agency purposes, said company to take its pay in timber cut from swamp and school lands. * * *
The total trespass * * * amounts to $18,923.94. This money * * * has been paid to * * * [the] Indian Agent * * *, who * * * has deposited it in a bank * * *.
*559 * * * this money * * * should * * * [be turned] over to the Receiver of Public Moneys at Wausau * * *..
(b) On September 17, 1902, the Acting Secretary of the-Interior, replying to the foregoing letter, approved the recommendation and said that the Commissioner of the General Land Office was being directed to instruct the Receiver of Public Moneys at Wausau to deposit the money “in the-Treasury of the United States for the benefit of the Chippewas of Lake Superior, under the provisions of the Act of-' March 3, 1883 * * 3
75. (a) In 1905, Wisconsin filed a bill in equity to enjoin the Secretary of the Interior from interfering with the-State’s use, possession, and enjoyment of lands within the-sections 16 in the Bad River Reservation. On April 2,1906*. the bill was dismissed by the Supreme Court, 4 with these-words: ...
Without repeating all that was said in previous decisions, we hold, on the authority of those decisions, that. the State is not entitled to the relief asked nor to any order that would interfere, at this time, with the administration by the Interior Department, of the lands in-question for the benefit of the Indians for whom the Bad River * * * and the Flambeau Reservations were-established. * * * 5
(b) It is not established by the evidence that, prior to-the foregoing decision, Wisconsin claimed the proceeds of' timber cut from the swamp lands within plaintiffs’ reservations, or that the Department of the Interior was aware that, such a claim might be made.
After the decision, both the intervenor and defendant were • aware of the question of the State’s ultimate right to the-proceeds of timber cut from either school lands or swamplands within the reservations.
(c) On July 19, 1906, the Indian Agent at La Pointe-wrote to the Commissioner of Indian Affairs:
I have * * * your [letter] * * * in reference to the-trespass made by * * * Cushway * * * on the SE% *560 of the NE34, Section BO, T. 40, E. 6, 6 in which you directed me to settle * * * by haying the company pay * * * [for] stumpage * * * a total of $2343.75. I have collected * * * and, after deducting * * * expenses, I have deposited * * * $2307.40, in the * * * bank * * *. * * * it can be drawn out at any time it is demanded by the State, should the State require the same * * *.
(d) On August 1, 1906, the Acting Secretary of the Interior, writing to the Commissioner of Indian Affairs, reviewed in detail the latter’s report of two timber trespasses by Cush way on the Lac du Flambeau Eeservation (one on the NE14NW14, section 25, T. 40, K. 5 7 “which is unallotted * * * swamp land * * and one reported by the State Forester of Wisconsin on “unallotted Indian land” not further described); and approved the Commissioner’s recommendation for settlement upon payment of double the market value (for willful trespasses) in both instances. It appears from the letter that the Indian Agent, in reporting the first instance of trespass, expressed the opinion that Cushway “knew at the time that it was on ‘state lands’.” The Acting Secretary further directed that—
* * * the receipts from the lands reported on by * * * [the State Forester] * * * be deposited to the credit of the Lac du Flambeau Indians as “Miscellaneous Ee-ceipts, Class 3,” and the proceeds from the other lands, “swamp lands,” to be retained by the agent to his official credit, until the controversy between the Government and * * * Wisconsin as to which has title to the swamp lands has been finally settled.
(e) On October 18, 1906, the Acting Commissioner of Indian Affairs wrote to the State Forester of Wisconsin, advising him that the Cushway trespass on the Lac du Flam-beau Eeservation which the Forester had reported had been settled in accordance with his recommendation, and that the Indian Agent had been instructed to retain the money on deposit “until the controversy concerning the ownership of the land has been finally settled.”
*561 76. (a) On November 3, 1908, the President authorized the Secretary of the Interior to sell the timber on the Bad Liver Reservation which had been killed by forest fires during the previous summer. The authority provided that the proceeds from the sale of the burnt timber on the unallotted lands should be deposited in the Treasury and expended for the benefit of the Indians on the reservation.
(b) On December 5, 1908, the Secretary of the Interior advised the President that forest fires had burned much timber on the Lac du Flambeau and Lac Court Oreilles Reservations, as well as on the Bad River Reservation, and recommended that authority be granted to the Secretary to sell the burnt timber on the unallotted lands of the Lac dii Flambeau and Lac Court Oreilles Reservations. The letter continued:
* * * As the title to the lands on which this timber is located is in controversy (the lands being claimed by the State as school or swamp lands) 8 it is recommended * * * that * * * the proceeds * * * [be] placed in escrow until it shall have been decided to whom the lands belong. ? * *
A similar recommendation was made with respect to the unallotted lands on the Bad River Reservation where the title thereto was in controversy.
The President approved the recommendations on December 5,1908.
(c) On February 23,1909, the Superintendent (of Lac du Flambeau, then located at La Pointe) was directed by the Office of Indian Affairs “to account for the proceeds of this burnt timber under ‘Miscellaneous Receipts, Class III,’ * * and to keep “a separate scale for each quarter section, that the proceeds may be properly credited when it shall have been determined whether the title to the lands is in * * * Wisconsin or the Indian tribe.”
(d) Some if not all of the timber on the Lac du Flambeau Reservation that had been killed or damaged by fire in 1908 and 1910 was cut under these arrangements and the proceeds placed in a separate account in the nature of escrow. 9 Simi *562 lar action was authorized with reference to burned timber on the Bad River and Lac Court Oreilles Reservations. The extent, if any, to which such action was taken is not established by the evidence.
77. (a) On January 7, 1914, the Supervisor of Forests (of the Office of Indian Affairs) wrote to the Commissioner of Indian Affairs concerning a settlement with Cushway & Company “* * * for the timber that has been left standing on allotments, and the dead timber left upon unallotted lands” of the Lac du Flambeau Reservation. In connection with'the proposed settlement a timber cruise had been made during the summer of 1913 of the lands affected. On the basis of estimates made from the results of the cruise, the Supervisor of Forests enclosed a series of schedules, among which were the following:
* * * 3. All dead timber on lands which are claimed by the State as “swamp” or “school” lands. * * *
* * * 5. All living timber on lands claimed by the State as “swamp” or “school” lands. * * *
(b) On January 14, 1914, the Supervisor of Forests reported to the Commissioner of Indian Affairs that the records of the Superintendent (of the school) of the Lac du Flambeau Reservation showed that, as of December 1913, receipts for timber cut from lands within the reservation which the State claimed as swamp lands totaled $134,960.07. He further stated that:
* * * My understanding was that all moneys which had been received for timber sold from lands claimed by the State had been deposited to the credit of the separate descriptions from which it was cut. It appeared from certain entries * * * that the total * * * included timber * * * cut from tribal lands * * * not claimed by the State. * * *
(c) On January 22, 1914, the Assistant Commissioner of Indian Affairs asked the Superintendent of the Lac du Flambeau School to ascertain and forward to the Office of Indian Affairs “* * * the exact amount of funds heretofore deposited in the Treasury * * * [under the title ‘Indian Moneys, Proceeds of Labor, Lac du Flambeau Indians’] derived from the sale of timber * * *” cut from lands *563 claimed by Wisconsin as swamp lands “* * * in order that such, funds may be set aside and retained pending a final disposition of the matter * *
(d) On February 10, 1914
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