Petition — Red Lake Band of Chippewa Indians v. Minnesota

Queers oe

“99-1718 |

29 1980 |

BAK, JR., CLERA

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

RED LAKE BAND OF CHIPPEWA INDIANS,

Petitioner,

VS.

STATE OF MINNESOTA AND COUNTIES OF ROSEAU,

PENNINGTON, MARSHALL, RED LAKE, POLK, CLEARWATER,

BELTRAMI, LAKE OF THE Woops AND KOOCHICHING,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS,

FOR THE EIGHTH CIRCUIT

ROpDNEY J. EDwarps of

Epwarps, Epwarps & BODIN

312 Alworth Building

Duluth, Minnesota 55802

218/727-7431

Attorneys for Petitioner

Red Lake Band of Chippewa Indians

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

FR ee. Peer ore ne ey

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Treaties and Statutes Involved ............cccccececss

Sabena OF ib CARE ooo 5 on 6 vs occ cee cdnvcens es

Reasons for Granting the Writ ...........ccccccccecs

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Appendix A - Opinion of the Court of Appeals, Eighth

Circuit, Red Lake Band of Chippewa Indians v.

State of Minnesota, et al., No. 79, 1420, filed

Fo Perr re erry rns

Appendix B - Opinion of District Court for Minnesota,

United States v. State of Minnesota et al., 466 Fed.

COED. 9:0. 0 Sunn hae aaee a eee 8

Appendix C - Act of Congress of January 14, 1889, 25

ee, ee Ce PREIS in. 5 kn Vk ow taw ine cewenen

Appendix D - Act of Congress of February 20, 1904, 33

Fe eee re eer ee Tee

Appendix E - Treaty of October 2, 1863, 13 Stat. 667,

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11

15

ii

List of Authorities

Chippewa Indians v. United States, 80 C.Cls. 410 (1935) 5

Chippewa Indians of Minnesota v. United States, 301

U.S. 358, 57 S.Ct. 826, 81 L.Ed. 1156 (1937) ... 4,5,10,11

DeCoteau v. District County Court, 420 U.S. 425, 95

S.Ct. 1082, 43 L.Ed. 300 (1975) . 12,14,A-6,A-7,A-8,A-12

Leech Lake Band of Chippewa Indians v. Herbst, 344

F. Supp. 1001 (D. Minn. 1971) ................. 9,11

Minnesota v. Hitchcock, 185 U.S. 373 (1902) ......... 14

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct.

1361, 51 L.Ed. 2d 660(1977) ......... 12,13,14,A-7,A-8

State of Minnesota v. Bernard Clark, et al., 282 N.W.2d

902 (Minn. 1979), appeal dismissed U.S. 1980..... 9,12

State of Minnesota v. Forge, 262 N.W.2d 341 (Minn.

1977) appeal dismissed, 435 U.S. 919, 98 S.Ct.

rr 9,11

United States v. White, 508 F2d 453, (C.A. 8, 1974).... 4

Statutes and Treaties

Treaty of October 2, 1863, 13 Stat. 667, II Kappler 853 . 2,A-4,

A-10,A-34,A-39

Act of January 14, 1889, 25 Stat. 642 (Nelson Act) .. 2,4,5,6,9,

11,12,13,14,A-2,A-4,A-6,A-7,A-8,A-11,A-12,A-23

Act of March 3, 1891, 26 Stat. 1035.................. 13

Act of February 20, 1904, 33 Stat. 46 . 2,9,10,13,A-2,A-5,A-33

Pee UE a SE, BS UME. ZOOM oo ccc ec ccccces 13,A-8

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

Rep LAKE BAND OF CHIPPEWA INDIANS,

Petitioner,

VS.

STATE OF MINNESOTA AND COUNTIES OF ROSEAU,

PENNINGTON, MARSHALL, RED LAKE, POLK, CLEARWATER,

BELTRAMI, LAKE OF THE Woops AND KOOCHICHING,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS,

FOR THE EIGHTH CIRCUIT

The Red Lake Band of Chippewa Indians, the Petitioner

herein, prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Eighth Cir-

cuit, entered in the above-entitled case on January 31, 1980.

OPINION BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit, on appeal from the United States District Court

of Minnesota, is reprinted as Appendix A hereto, infra, page

ae ae

A-l. The decision is as yet unreported. The opinion of the

United States District Court for Minnesota is reported in 446

F.Supp. 1382 and is reprinted as Appendix B hereto, infra, page

A-3.

JURISDICTION

The judgment of the United States Court of Appeals for the

Eighth Circuit (Appendix A), was entered on January 31, 1980,

no rehearing was sought and no extension of time to petition for

certiorari were sought. The jurisdiction of the Court is envoked

under Title 28, USC 1254.

QUESTIONS PRESENTED

Did the Nelson Act of January 14, 1889, 25 Stat. 642, and the

Act of February 20, 1904, 33 Stat. 46, terminate the reservation

rights of the members of the Red Lake Band of Chippewa In-

dians to hunt, fish, trap and gather wild rice, so that the State of

Minnesota now has jurisdiction to enforce its hunting, fishing,

trapping and wild rice gathering laws against enrolled members

of the Red Lake Band of Chippewa Indians on non-Indian

owned lands within the Red Lake Indian Reservation boun-

daries as those boundaries were established as a result of the

treaty of October 2, 1863, 13 Stat. 667, and which thereafter

and on January 14, 1889, was known and recognized as the Red

Lake Indian Reservation.

STATUTE INVOLVED

1. Act of Congress dated January 14, 1889, 25 Stat. 642, en-

titled ‘‘An Act for the Relief and Civilization of the Chippewa

Indians in the State of Minnesota,’’ the pertinent text of which

appears in Appendix C, infra page A-14.

2. Act of Congress dated February 20, 1904, 33 Stat. 46, the

pertinent text of which appears in Appendix D, infra page A-24.

ay Ee

3. The Treaty of October 2, 1863, 13 Stat. 667, II Kappler

853 the pertinent text of which appears in Appendix E, infra

page A-34.

STATEMENT OF CASE

The basis for federal jurisdiction in the court of first instance

is pursuant to 28 USC 1345, inasmuch as the proceedings were

commenced by the United States of America on its own behalf

and in behalf of the Red Lake Band of Chippewa Indians. The

judgment of the United States District Court for Minnesota

reprinted as Appendix B held that the Red Lake Band does not

retain hunting, fishing, trapping, or wild ricing rights in the

areas ceded in 1889 and 1904. The United States of America

perfected an appeal of that judgment to the United States Court

of Appeals for the Eighth Circuit. By Order of the United States

Court of Appeals, Eighth Circuit, filed August 21, 1979, the

United States was permitted to withdraw as Appellant and the

Red Lake Band of Chippewa Indians was substituted as Ap-

pellant. The Court of Appeals, Eighth Circuit, affirmed the

judgment of the District Court, reprinted as Appendix A.

The action was commenced against the State of Minnesota

for declaratory and injunctive relief that the members of the

Red Lake Band of Chippewa Indians have the right to hunt,

fish, trap and gather wild rice on presently non-Indian owned

lands but which lands were Indian owned and were a part of the

Red Lake Indian Reservation in 1863, free of the State of Min-

nesota reguiation.

The Chippewa Indians which constituted one of the larger In-

dian tribes in the northerly part of the United States occupying

at the time of the origination of the United States a large area

reaching from Lake Huron on the east to beyond Lake Superior

on the west, through the present states of Michigan, Wisconsin,

Minnesota and eastern Dakota. The United States dealt with the

Chippewas in early treaties as a single tribe. In later treaties they

ae

were regarded as divided into distinct bands; and particular

bands - some instances a single band and in others a limited

plurality of bands - were recognized as occupying separate areas

in Michigan, Wisconsin, Minnesota and eastern Dakota, and as

entitled to hold or cede the same independently of other bands

and the Chippewa as a whole.

One of these bands was the Red Lake Band which was

recognized as the owners of the Red Lake Reservation as it ex-

isted following the treaty of October 2, 1863, 13 Stat. 667, Chip-

pewa Indians of Minnesota v. United States, 301 U.S. 358,

360-361, 373, 57 S.Ct. 826, 81 L.Ed. 1156 (1937); United States

v. White, 508 F.2d 453, 456 (C.A. 8, 1974). After the 1863 trea-

ty the Red Lake Reservation encompassed an area of approx-

imately 3.2 million acres, all in northwestern Minnesota

(District Court decision Summary of Facts, 466 Fed. Supp. 1383

(App. B).) In United States v. White, supra, the Court held the

members of the Red Lake Band had the right to hunt and fish

on the Red Lake Reservation and to affect these rights it was in-

cumbent upon Congress to expressly abrogate or modify them,

508 F.2d 453, 457.

By the Act of January 14, 1889, 25 Stat. 642 (App. C) entitled

**An Act for the Relief and Civilization of the Chippewa In-

dians in the State of Minnesota,’’ Congress proposed to all

bands of Chippewa Indians in Minnesota a plan for their relief

and civilization through allotments of their land in severalty,

and sale of their lands not required for allotments, placing the

proceeds of sales, less various expenses, in a permanent interest

bearing fund, using the interest and principal of the fund for the

benefit, support and education of the Indians, and ultimately

distributing per capita the principal of the fund. The act created

a commission to negotiate with the different bands of Chippewa

Indians in Minnesota for a complete cession to the United States

of their title and right to all of each reservation, ‘‘except the

White Earth and Red Lake Reservations, and to all and so much

of these two reservations as in the judgment of said commission

= ea

is not required to make and fill the allotments required by this

and existing acts, and shall not have been reserved by the com-

missioners for said purposes.’’ Chippewa Indians of Minnesota

v. United States, supra, 301 U.S. 362.

As soon as the agreements were approved the lands to be sold

were to be surveyed, and pine lands identified and appraised

with particular regard to quantity and quality of pine. All other

lands not classified as pine lands were classified as ‘‘agricultural

lands’’ (1889 Act - Section 4). The pine lands were to be sold by

the United States at public auction for cash at not less than their

appraised value in forty acre parcels (1889 Act - Sections 4 and

5). The ‘‘agricultural lands’? were to be disposed of by the

United States to actual settlers under the homestead law at $1.25

an acre, to be paid in five equal installments (Act. of 1889 -

Section 6).

All money accruing from the disposed of said lands, after

deducting enumerated expenses incurred pursuant to the act,

was to be placed in the Treasury of the United States to the

credit of the Chippewa Indians as a permanent interest bearing

fund for a period of fifty years. The interest was to be used for

the support and education of such Indians, and at the end of

fifty years the permanent fund was to be divided and paid per

capita. Limited appropriations could be made from the prin-

cipal sum by Congress, for the purpose of promoting civiliza-

tion and self-support among the Indians (Act of 1889 - Section

7).

The Commission created under the 1889 Act conducted

separate negotiations with each of the bands of the Chippewas

of Minnesota, which resulted in separate, but identical,

agreements in respect to the lands to be sold, Chippewa Indians

v. United States, 80 C.Cls. 410, 439-441 (1935). The pertinent

parts of the agreement with the Red Lake Band stated as

follows: (H.R. Exec. Doc. No. 247, 51st Cong., Stipulated Ex-

hibit D, pp. 27-28)

— oe

‘*We, the undersigned, being male adult Indians over

eighteen years of age, of the tribes or bands of Chippewa

Indians occupying and belonging to the Red Lake Reserva-

tion, in the State of Minnesota, do hereby certify and

declare that we have heard read, interpreted, and

thoroughly explained to our understanding, the act of

Congress approved January 14, 1889, entitled ‘‘An act for

the relief and civilization of the Chippewa Indians in the

State of Minnesota’’ (Public No. 13), which said act is em-

bodied in the foregoing instrument, and after such ex-

planation and understanding, have consented and agreed

to said act, and have accepted and ratified the same, and

do hereby accept and consent to and ratify the said act,

and each and all of the provisions thereof, and do hereby

grant, cede, relinquish, and convey to the United States all

our right, title, and interest in and to all and so much of

said Red Lake Reservation as is not embraced in the fol-

lowing described boundaries, to-wit:’’ (land description)

**. . . for the purposes and upon the terms stated in said

Act, which said lands embraced within the foregoing boun-

daries have been reserved by the Commissioners appointed

under said Act and as therein authorized for the purpose of

making and filling allotments therein provided for.”’

The pertinent parts of the agreement with the White Earth

Reservation Indians provided as follows: (H.R. Exec. Doc. No.

247, Sist Cong., Stipulated Exhibit D, pp. 34-37)

‘We the undersigned, being male adult Indians over

eighteen years of age of the tribes and bands of Chippewa

Indians occupying and belonging to the White Earth

Reservation, in the State of Minnesota, do hereby certify

and declare that we have heard read, interpreted, and

thoroughly explained to our understanding the act of Con-

gress approved January 14, 1889, of which the following is

a copy, to-wit:”’

(copy of 1889 Act)

— pa

**And after such explanation and understanding have

consented and agreed to said act, and have accepted and

ratified the same, and do hereby accept and consent to and

ratify the said act, and each and all of the provisions

thereof, and do hereby grant, cede, relinquish, and convey

to the United States all our right, title, and interest in and

to all and so much of said White Earth Reservation as is

not embraced in the following described boundaries, to-

wit:

Townships 14] 42, of range 37; townships 141, 142,

143, 144, 145 an , of range 38; townships 141, 142,

143, 144, 145, and 146, of range 39; townships 141, 142,

143, 144, 145, and 146, of range 40; townships 14i, 142,

143, 144, 145, and 146, of range 41; and townships 141,

142, 143, 144, 145, and 146, of range 42, for the purposes

and upon the terms stated in said act, which said lands,

embraced within said boundaries have been reserved by the

Commissioners appointed under said Act and as therein

authorized, for the purpose of making and filling the

allotments therein provided for; and we do also hereby

grant, cede, and relinquish to the United States, for the

purposes and upon the terms stated in said Act, all our

right, title, and interest in and to the lands reserved by us

and described in the first Article (ending with the words

**to place of beginning’’) of the treaty with the Chippewas

of the Mississippi, proclaimed April 18, 1867, (16 Stat. p.

719), and also to the Executive addition thereto made and

described in an executive order dated October 29, 1873;

and we do also hereby cede and relinquish to the United

States all our right, title, and interest in and to all and so

much of the Red Lake Reservation as is not required and

reserved under the provisions of said Act, to make and fill

the allotments to the Red Lake Indians in quantity and

manner as therein provided.”’

a a

The pertinent parts of the agreement with the Leech Lake

Reservation Indians provided as follows: (H.R. Exec. Doc. No.

247, 5lst Cong., Stipulated Exhibit D, p. 49)

‘*We, the undersigned, being male adult Indians over

eighteen years of age of the Pillager and Lake Winibigo-

shish bands of Chippewa Indians, residing upon the Leech

Lake, Lake Winibigoshish, and Cass Lake Reservations, in

the State of Minnesota, do hereby certify and declare that

we have heard read, interpreted, and thoroughly explained

to our understanding, the act of Congress, approved

January 14, 1889, entitled ‘An act for the relief and

civilization of the Chippewa Indians in the State of Min-

nesota’ (Public No. 13), which said act is embodied in the .

foregoing instrument, and after such explanation and

understanding have consented and agreed to said act, and

have accepted and ratified the same, and do hereby accept

and consent to and ratify the said act, and each and all of

the provisions thereof, and do hereby grant, cede, relin-

quish and convey to the United States, for the purposes

and upon the terms stated in said act, all our right, title,

and interest in and to the lands reserved and set apart for

the Pillager and Lake Winibigoshish bands by the treaty of

February 22, 1855, (10 Stat., p. 1165), and particularly

described in an Executive order dated November 4, 1873,

as follows, to wit:’’ (land description)

**. , . . and also to the two separate tracts reserved and

set apart for the said Pillager and Lake Winibigoshish

bands by the second Article of said treaty, and as therein

described, and also to the Executive addition thereto made

and described in an Executive order dated May 26, 1874;

and we do also hereby cede and relinquish to the United

tates all our right, title, and interest in and to so much of

the Red Lake Reservation as is not required and reserved

under the provisions of said Act, to make and fill the

= pe

allotments to the Red Lake Indians in quantity and manner

as therein provided.”’

The same issue that is presented in this appeal was before the

Minnesota Supreme Court in respect to the White Earth Reser-

vation Indians in the recent case, decided since the District

Court decision in this case, of State of Minnesota v. Bernard

Clark, et al., 282 N.W.2d 902 (Minn. 1979), appeal dismissed

U.S., (1980). The Minnesota Supreme Court held in the Clark

case, supra, that the Nelson Act of 1889 ‘‘did not disestablish

the White Earth Reservation, and that consequently, all lands

within its exterior boundaries are ‘Indian country’ as defined by

18 U.S.C.A. 1151’’ (p. 907) and, therefore, the state did not ac-

quire jurisdiction by the Nelson Act of 1889 to enforce its game

and fish laws against enrolled members of the White Earth Band

on non-Indian owned lands within the White Earth Reservation

as established by the treaty of 1867, 16 Stat. 719.

The same issue that is presented in this appeal was before the

United States District Court in Leech Lake Band of Chippewa

Indians v. Herbst, 334 F.Supp. 1001 (D. Minn. 1971) and State

of Minnesota v. Forge, 262 N.W.2d 341 (Minn. 1977), appeal

dismissed, 435, U.S. 919, 98 S.Ct. 1479, 55 L.Ed.2d $12 (1978),

in respect to the Leech Lake Reservation Indians, and both

courts held that the Nelson Act of 1889 did not disestablish the

Leech Lake Reservation as it existed prior to the 1889 act or ter-

minate the right of the Indians to hunt, fish, trap and gather

wild rice free of State of Minnesota regulations on non-Indian-

owned lands within the Leech Lake Reservation boundaries as it

existed following the treaty of 1855, 10 Stat. 1165.

By the Act of February 20, 1904, c. 161, 33 Stat. 46, 48, III

Kappler pp. 28-33, Congress modified and adopted an agree-

ment negotiated by a United States Indian inspector with the

Red Lake Indians, whereby an additional 256, 152 acres of the

Red Lake Reservation was conveyed in trust to the United

States to be sold. The act specifically states that it is not a sale of

—

the land to the United States, but that the intention of the act

was that the United States shall act as trustee for the Indians to

dispose of the lands and that nothing in the agreement shall be

construed to deprive the Indians belonging on the Red Lake In-

dian Reservation, of any benefits to which they were entitled

under existing treaties or agreements. The specific provisions

are quoted as follows:

Article V of the 1904 Act

**ART. V. It is understood that nothing in this agree-

ment shall be construed to deprive the said Indians belong-

ing on the Red Lake Indian Reservation, Minnesota, of

any benefits to which they are entitled under existing

treaties or agreements not inconsistent with the provisions

of this agreement. It is the intention of this agreement that

the United States shall act as trustee for said Indians to

dispose of said land and to expend and pay over the pro-

ceeds as received from the sale thereof only as received, as

herein provided.”’

Article VII, Section 4 of the 1904 Act

**SEC. 4. That nothing in this act contained shall in any

manner bind the United States to purchase any portion of

the land he vin described, or to guarantee to find pur-

chasers for said lands or any portion thereof, it being the

intention of this act that the United States shall act as

trustee for said Indians to dispose of said lands and to ex-

pend and pay over the proceeds received from the sale

thereof only as received as herein provided.”’

Extensive findings in respect to the treaty rights of the Red

Lake Band, congressional history of the act of January 14,

1889, negotiations and agreements made under the 1889 Act,

agreement approved by the 1904 Act, subsequent Federal

recognition of the Red Lake Indians rights and conclusions are

detailed in Chippewa Indians of Minnesota v. United States, et

—

al., 80 Ct. Cls. 410-488 (1935), which findings were summarized

by the United States, Supreme Court and affirmed on appeal

Chippewa Indians of Minnesota v. United States, et al., 301

U.S. 358 (1936).

By Order of Restoration dated February 22, 1945, as appear-

ing in the Federal Register, March 2, 1945, title to lands not sold

by the United States under the 1889 Act were ordered restored

by departmental action to tribal ownership pursuant to the 1934

Indian Reorganization Act, 48 Stat. 984 (Pl. Ex. 61 and 62,

District Court Decision, 466 Fed. Supp. 1384, App. B).

REASONS FOR ALLOWING THE WRIT

As pointed out in the statement of the case, the Act of 1889

created a commission and that commission was charged with the

responsibility of negotiating with all the different bands of

Chippewa Indians of Minnesota for the allotment and sale of

part of their reservation lands. As a result of the negotiation ses-

sions, written agreements were made with the different bands of

Chippewa Indians in Minnesota with regard to the Indian lands

that were to be sold. Identical written agreements were reached

with the various bands of Chippewa Indians in Minnesota.

A review on a writ of certiorari should be granted because of

the conflicting Federal and State court decisions on the same

issue of Indian hunting and fishing rights in Minnesota. The

Supreme Court of the State of Minnesota, State of Miriesota v.

Forge, 262 N.W.2d 341 (Minn. 1977), appeal dismissed 435

U.S. 919, 98 S.Ct. 1479, 55 L.ed.2d 512 (1978) and the United

States District Court for Minnesota, Leech Lake Band of Chip-

pewa Indians v. Herbst, 334 F.Supp. 1001 (D. Minn. 1971),

have each held that with respect to the Leech Lake Reservation

Indians that the Nelson Act of 1889 and written agreement

entered into pursuant thereto did not disestablish the Leech Lake

Reservation or terminate the Indians rights to hunt and fish

within the original boundaries of the Leech Lake Reservation.

The Minnesota Supreme Court, State of Minnesota v. Clark, et

al., 282 N.W.2d 902 (Minn. 1979), made the same decision, with

respect to the hunting and fishing rights of the White Earth

Reservation Indians, that the Nelson Act of 1889 and written

agreement entered into pursuant to the Act did not disestablish

the White Earth Reservation. Yet, the United States Court of

Appeals for the Eighth Circuit holds that with respect to the

Red Lake Reservation Indians, those hunting and fishing rights

do not exist even though the same act of Congress and identical

written agreements are applicable to the three Chippewa Bands

involved in the cases. The Supreme Court should grant this

review in order that the Nelson Act of 1889 be applied in the

same manner to the Red Lake Band of Chippewa Indians Reser-

vation as it has been applied to the Leech Lake Reservation and

White Earth Reservation.

The petition for writ of certiorari should further be granted

since the Court of Appeals, for the Eighth Circuit, in adapting

the District Court of Minnesota’s decision in this matter has

decided a federal question in a way which is in conflict with ap-

plicable decisions of the United States Supreme Court. The

decisions of the Supreme Court on the issue of diminishment

and termination of an Indian reservation by agreement and Act

of Congress have in determining the intent of the Indians and

Congress, been based on the factual findings that the Indians

had entered into an agreement to diminish their Reservation

boundaries by the sale of their lands to the United States for a

sum certain and the combination of such agreement and the

process leading up to the Congressional Acts ratifying or acting

on the Agreement reflected a tribal and congressional intent to

diminish the reservation boundaries. DeCoteau v. District

County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300

(1975); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct.

1361, 51 L.Ed.2d 660 (1977). In DeCoteau v. District Court, an

1889 Agreement was made with the Indians, providing for a

sum certain payment, which agreement was ratified by the Act

of March 3, 1981, 26 Stat. 1035, and resulted in diminution of

the Reservation boundaries.

In Rosebud Sioux Case, a i901 Agreement was made with the

Indians providing for a sum certain payment, which agreement

if ratified would have resulted in a diminution of the Reserva-

tion boundaries. Although Congress did nut ratify the 1901

agreement because of concern over the responsibility for pay-

ment, it acted upon the 1901 agreement by adoption of the Act

of April 23, 1904, 33 Stat. 254, which incorporated the language

of the 1901 agreement except for a modification changing the

lump sum payment to provide for a sum certain payment for

Sections 16 and 36 (school sections) and the sale of the remain-

ing lands to settlers by the Government as trustee with payment

of the proceeds to the Indians as the lands were actually settled

(430 U.S. 595-597). This Court determined ‘‘that the 1904 Act

carried forth the intent to disestablish which was unques-

tionably manifested in the 1901 Agreement,’’ (430 U.S. p. 605)

and stated ‘‘there is nothing in the change of method of pay-

ment . . . which indicates that the clear intent of the 1901 agree-

ment to diminish the Reservation boundaries had changed be-

tween 1901 and 1904. (430 U.S. p. 598)

The Court of Appeals failed to distinguish the aforemen-

tioned cases from the Red Lake situation. The 1889 Act of Con-

gress and Agreement between the Red Lake Indians and the

United States Government did not provide for payment from

the government to the Indians of a sum certain amount of

money for the lands that were ceded in trust for the purpose of

sale. The cession of the Red Lake Reservation lands was not to

the United States absolutely, but in trust. The 1889 agreement

pursuant thereto was merely an opening up of designated lands

for settlement by non-Indians. If the lands were not sold by the

Government, the Indians would have received nothing, and the

Government would have continued to hold the lands in trust for

the Indians.

—_—" oo

The Indians and Congressional intent of an absolute sale to

the United States which this Court found in the DeCoteau and

Rosebud cases, supra, is lacking in respect to the Red Lake

Reservation cession in trust to the United States. In 1902 in Min-

nesota v. Hitchcock, 185 U.S. 373 (1902) this Court in respect to

the cession of the Red Lake Reservation lands under the 1889

Act and Agreement held (pp. 394-395) ‘‘The cession was not to

the United States absolutely, but in trust. It was a cession of all

of the unallotted lands. The trust was to be executed by the sale

of the ceded lands and a deposit of the proceeds in the Treasury

of the United States to the credit of the Indians, such sum to

draw interest at five per cent, and one fourth of the interest to

be devoted exclusively to the maintenance of free schools

among the Indians and for their benefit.’’

Tne failure of the District Court and Court of Appeals to ap-

ply the determinations of the Supreme Court in respect to the

purpose and intent of the 1889 Act and Red Lake Reservation

Agreement as stated in Minnesota v. Hitchcock, supra, and the

distinction of the factual findings in DeCoteau and Rosebud

cases, supra, has resulted in a decision which is in conflict with

the decisions of this Court, which this Court should correct on a

review by certiorari.

a. on

CONCLUSION

For the foregoing reasons, this Petition for Writ of Certiorari

should be granted.

Dated April 21, 1980.

Respectfully submitted,

RODNEY J. EDWARDS of

Edwards, Edwards & Bodin

312 Alworth Building

Duluth, Minnesota 55802

218/727-7431

Attorneys for Petitioner,

Red Lake Band of Chippewa Indians

APPENDIX

a ee

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 79-1420

Red Lake Band of Chippewa Indians,

Appellant,

v.

State of Minnesota, et al., Appellees.

Appeal from the United States District Court for the

District of Minnesota

Submitted: January 15, 1980

Filed: January 31, 1980

Before ROSS and HENLEY, Circuit Judges, and PORTER,

District Judge.*

PER CURIAM.

The Red Lake Band of Chippewa Indians appeals from the

decision of the district court' in which its claims of hunting,

fishing, trapping, and wild rice gathering rights in approximate-

ly 2.6 million acres of land in the state of Minnesota were

denied.

This dispute arises out of the circumstances surrounding the

Band’s cession of two parcels of land to the federal government

* The Honorable Donald J. Porter, United States District Judge

for the District of South Dakota, sitting by designation.

' The United States District Court for the District of Minnesota,

the Honorable Edward J. Devitt, Chief Judge.

=<

in 1889 and 1904,’ and specifically whether any of the above-

mentioned rights in the land were retained. Since the time the

land was ceded to the government, the state of Minnesota has

exercised full jurisdiction over Indians in the territory, including

the regular enforcement of state gaming laws against members

of the Red Lake Band. The Band seeks now to free its members

of the state’s control, by contending that its grant of rights, title

and interest in the land to the United States did not include

hunting, fishing, trapping and wild rice gathering rights. We

disagree.

Wc Have reviewed the applicable case law, the briefs of the

parties and the record before us on appeal. We agree with the

district court’s conclusion that the Red Lake Band gave up its

rights to hunt, fish, trap and gather wild rice free of the state’s

regulation of such activities. We would like also to point out

that our disposition of this case in no way conflicts with our re-

cent decision in United States v. Dupris, No. 78-1575 (8th Cir.,

filed Nov. 27, 1979), wherein we found no clear congressional

intent to diminish the boundaries of the reservation there in

question. In the present appeal, the boundaries of the reserva-

tion were clearly diminished. The Band claims, however, that

even so, its rights to fish and hunt pursuant to prior treaties

were not abrogated. Again, we disagree and we affirm on the

basis of the trial court’s well reasoned decision of March 28,

1979.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.

? Pursuant to the Nelson Act of January 14, 1889, 25 Stat. 642, and

the Act of February 20, 1904, 33 Stat. 46, the Band ceded to the

United States ‘‘all our right, title, and interest in and to all’’ of the

land here in question.

dew wis

APPENDIX B

UNITED STATES of America, Plaintiff,

v.

STATE OF MINNESOTA, Defendant,

and

Counties of Roseau, Pennington, Marshall, Red Lake, Polk,

Clearwater, Beltrami, Lake of the Woods and Koochiching, In-

tervening Defendants.

Civ. No. 6-76-465.

United States District Court,

D. Minnesota,

Sixth Division.

March 28, 1979.

Memorandum and Order

DEVITT, Chief Judge.

Introduction

The Red Lake Band of Minnesota Chippewa Indians,

represented by the United States government, seeks a

declaratory judgment that its members retain hunting, fishing,

trapping, and wild ricing rights in an area the Band ceded to the

federal government in 1889 and 1904. That area encompasses

about 2.6 million acres in northwestern Minnesota adjacent to

the present diminished Red Lake Reservation. The position of

the Indians basically is that those rights were guaranteed them in

an 1863 treaty and were not abrogated by the subsequent 1889

and 1904 land cessions. Defendant State of Minnesota and in-

tervening defendant counties disagree. They assert that in 1889

and 1904 the Red Lake Indians expressly relinquished all their

right, title, and interest in the ceded area, which of necessity

— = oo

must include hunting, fishing, trapping, and wild ricing rights.

The parties have submitted the issue on exhibits, briefs, and oral

arguments. The court concludes that the Red Lake Band did not

retain hunting, fishing, trapping, or wild ricing rights in the area

ceded in 1889 and 1904.

Summary of Facts

Prior to the influx of white settlers, the Red Lake Band in-

habited a large area of northwestern Minnesota encompassing

about 13 million acres. In 1863, the Band, in its first significant

treaty with the federal government, ceded about 10 million acres

of their land to the United States. This cession, known as the

1863 Treaty at the Old Crossing of the Red Lake River, was

negotiated by Alexander Ramsey. The treaty contains no men-

tion of hunting and fishing rights, but the transcript of

Ramsey’s negotiations with the Band makes clear that the In-

dians were promised they could continue to hunt and fish on the

ceded land until it was settled. See Journal of Proceedings Con-

nected with the 1863 Treaty at the Old Crossing of the Red Lake

River, at pp. 8, 15, 27, 37-38, 47, 54 (Plaintiff’s Exhibit 53).

After the 1863 Treaty at the Old Crossing, the Red Lake Reser-

vation consisted of about 3.2 million acres. It is in this area, not

the entire original 13 million acres, that the Band now claims it

has retained hunting, fishing, trapping, and wild ricing rights.

The second land cession by the Red Lake Band occurred in

1889. In that year Congress passed the Nelson Act, which

authorized negotiations for the purchase of land from the Red

Lake Band. A three member commission, which became known

as the Rice Commission, was appointed to conduct negotia-

tions. The commission was instructed by Congress to obtain an

agreement with the Band ‘‘for the cession and relinquishment in

writing of all their title and interest in and to’’ the lands the

Band agreed to sell. Any such agreement, upon approval of the

President, was to ‘‘operate as a complete extinguishment of the

Indian title’’ to the ceded land. See Nelson Act of January 14,

on

1889, c. 24, 25 Stat. 642 (Amicus’ Exhibit M). Pursuant to the

Nelson Act the Rice Commission negotiated an agreement with

the Red Lake Band for the cession of about 2.4 million acres of

the Band’s land. In that agreement the Band agreed to ‘‘grant,

cede, relinquish, and convey to the United States all our right,

title, and irserest in and to all’’ of the 2.4 million ceded acres.

Neither the Nelson Act, the agreement, nor the transcript of the

negotiations contain any reference to reserved hunting, fishing,

trapping, or wild ricing rights in the ceded area.

The final land cession by the Red Lake Band occurred in

1904. Congress authorized negotiations by the Act of March 3,

1901, 31 Stat. 1077, and Inspector James McLaughlin

negotiated an agreement with the Band in 1902. The agreement

contained language of conveyance similar to the Nelson Act,

and, like in the Nelson Act, no mention was made of reserved

hunting, fishing, trapping, or wild ricing rights. The agreement

was not ratified by Congress because of disagreement over

method of payment, but Congress in 1904 did consummate the

cession on terms substantially identical to the 1902 agreement,

except for method of payment. See Act of Feb. 20, 1904, 33

Stat. 46. As a result, the size of the Red Lake Reservation was

reduced to about 543,000 acres. The reservation was increased

to its present size when approximately 160,000 acres were

restored to tribal ownership pursuant to the 1934 Indian Re-

organization Act, 48 Stat. 984.

Subsequent to the 1904 cession, the State of Minnesota has

consistently enforced its gaming laws against Band members

who hunt and fish in the area ceded in 1889 and 1904, except for

the area later restored to tribal ownership. Both the state and

the federal government have taken the position, up until 1976,

that Band members have no unique hunting, fishing, trapping,

or wild ricing rights in the ceded area. Moreover, while Band

members have often violated State gaming laws over the years in

the area at issue, there is virtually no evidence that, up until

commencemert of this litigation, the Band seriously contended

— > oo

that the state had no jurisdiction over its hunting, fishing, trap-

ping, and wild ricing activities in the ceded area.

DISCUSSION

Principles of Treaty Construction

{1, 2] In numerous opinions over the years the United States

Supreme Court has established certain basic principles of treaty

and statutory construction when Indian land cessions are at

issue. The Court has recognized on many occasions that treaties

and agreements with the Indians cannot be considered as exer-

cises in ordinary conveyancing, because of the dependent status

of the Indians and the nonconsensual nature of the cessions.

Rather, cession treaties and agreements must be interpreted as

the Indians understood them, and doubtful expressions must be

resolved in their favor. See e.g., Choctaw Nation v. Oklahoma,

397 U.S. 620, 630-631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970);

Winters v. United States, 207, U.S. 564, 576, 28 S.Ct. 207, 52

L.Ed. 340 (1908). Similar principles apply when construing con-

gressional enactments, such as the Nelson Act, which pur-

portedly alter property rights of Indians. The Supreme Court

has ruled that Congressional intent to abrogate Indian property

rights must be clear from the face of the Act or surrounding cir-

cumstances, and that doubtful expressions in the Act must be

resolved in favor of the Indians. See e.g., DeCoteau v. District

County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 43 L.Ed.2d

300 (1975); McClanahan v. Arizona State Tax Comm’n, 411

U.S. 164, 174, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Pigeon

River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd,

291 U.S. 138, 160, 54 S.Ct. 361, 78 L.Ed. 695 (1934).

[3] The above principles require the court to take a sym-

pathetic view toward the position of the Red Lake Band, but

those principles do not permit us to ignore the clear wording of

a treaty, agreement, or enactment, or to disregard the intent of

Congress. The Supreme Court has cautioned that the courts

cannot remake history or expand treaties and legislation beyond

a *. e

their clear terms to remedy a perceived injustice suffered by the

Indians. E. g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97

S.Ct. 1361, 51 L.Ed.2d 660 (1977); Choctaw Nation v. United

States, 318 U.S. 423, 431, 63 S.Ct. 672, 87 L.Ed. 877 (1943).

[4] To determine the intent of Congress and understanding of

the Indians, the court must analyze the wording of the treaties,

agreement, and enactments, the prior history, the surrounding

circumstances, and the subsequent construction given those

documents by the parties. See, e. g., Choctaw Nation v. United

States, 318 U.S. 423, 431, 63 S.Ct. 672, 87 L.Ed. 877 (1943).

Wording of the Agreements and Enactments

[5, 6] At issue here is whether the 1889 and 1904 land cessions

resulted in extinguishment of all the Indians’ property rights in

the ceded areas, in particular the right to hunt, fish, trap, and

gather wild rice. Therefore, the language used in the enactments

and agreements that resulted in those cessions must be analyzed.

Each of these documents contain variations of essentially the

same language, that the Band relinquishes ‘‘all its right, title,

and interest in and to’’ the ceded area. None of the documents

mention the retention of hunting, fishing, trapping, or wild ric-

ing rights.

Two recent United States Supreme Court decisions have con-

strued Indian cession agreements and enactments with language

nearly identical to that quoted above. See Rosebud Sioux Tribe

v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977);

DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct.

1082, 43 L.Ed.2d 300 (1975). These cases make clear that the

‘all right, title, and interest’’ language is ‘‘precisely suited’”’ for

the purpose of eliminating Indian title and conveying to the

government all the Band’s interest in the ceded lands.

DeCoteau, supra, at 445, 95 S.Ct. 1082; Rosebud, supra, at

1366. In the present case, this intent is fortified by the further

express language of the 1889 Nelson Act, that the cession was to

—_ oo

‘*operate as complete extinguishment of the Indian title’’ to the

land sold by the Red Lake Band.

If the cessions extinguished Indian title to the ceded areas,

they also would have the effect of abrogating any aboriginal

hunting, fishing, trapping, or wild ricing rights. These rights are

mere incidents of Indian title, not rights separate from Indian ti-

tle, and consequently if Indian title is extinguished so also would

these aboriginal rights be extinguished. Compare United States

v. Klamath Indians, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219

(1938); see generally, Cohen, Original Indian Title, 32 Minn.L.

Rev. 28 (1947). Thus, the language used was ‘‘precisely suited’’

for relinquishment of the very rights the Band now claims it re-

tained. '

' The Band asserts that DeCoteau and Rosebud are not controlling,

but rather that Menominee Tribe v. United States, 391 U.S. 404, 88

S.Ct. 1705, 20 L.Eda.2d 697 (1968) mandates a different result.

Menominee, argues the Red Lake Band, establishes a rule of construc-

tion that, for hunting and fishing rights to be relinquished, they must

be specifically mentioned in the relevant Act of Congress or agree-

ment, or at least there must be clear evidence that Congress intended

to abrogate those specific rights. Properly read, however, Menominee

is not inconsistent with DeCoteau, Rosebud, or the present case. In

Menominee, Congress terminated the reservation status of the tribe’s

land and conveyed the land to a corporation owned by the tribe. The

Supreme Court analyzed the legislative history and surrounding cir-

cumstances of the Termination Act and concluded that Congress did

not intend to abrogate the tribe’s preexisting treaty hunting and

fishing rights over the tribe’s land. In the present case, the Congres-

sional enactments at issue, the Nelson Act and the Act of 1904, unlike

the Termination Act in Menominee, resulted in the sale of the Band’s

land to the government. The purpose of the Acts in this case were en-

tirely different from the Termination Act — to eliminate Indian title,

restore the land to the public domain, and allow for settlement by

whites. Thus, following the same analysis, determining Congressional

intent with doubts construed in favor of the Indians, the Court in

Menominee could reasonably determine that the Termination Act did

not abrogate hunting and fishing rights, while the court in the present

case, involving an entirely different type of statute, could reasonably

reach the opposite conclusion.

ok

Under defendant’s and defendant intervenor’s view of the

case, the court’s analysis should stop at this point; if Indian title

to the ceded area was relinquished in 1889 and 1904, then the

Band retains no hunting, fishing, trapping, or wild ricing rights

in the ceded area. Analysis should noi stop here, however. Ex-

tinguishment of Indian title eliminates aboriginal hunting,

fishing, trapping, and wild ricing rights, but it does not

necessarily preclude the possibility that similar rights were

granted back to the Band in exchange for the land cessions. See,

e. g., United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49

L.Ed. 1089 (1905). The wording of the agreements and enact-

ments makes this possibility quite remote. We must,

nonetheless, examine the prior history, surrounding cir-

cumstances, and sebsequent construction by the parties to deter-

mine whether there was an understanding, not reduced to

writing, that the Band members could continue permanently to

hunt, fish, trap and gather wild rice in the ceded areas.

Prior History

The first land cession treaty with the Red Lake Band occurred

in 1863. Prior to that time, however, the Chippewa Indians did

enter into a number of cession treaties, although non involved

the Red Lake Band specifically or the land at issue in this case.

Four of these early treaties contained express provisions that

reserved Indian hunting and fishing rights in areas ceded by the

treaties. However, those rights normally were reserved only un-

til when ‘‘the land is required for settlement’’ or ‘‘until required

to remove by the President.’’ See Treaty of 1854 with the Chip-

pewa Indians of Lake Superior and the Mississippi, Act II, 10

Stat. 1109 (1854) (Amicus’ Exhibit G); Treaty of 1842 with the

Chippewa Indians of the Mississippi and Lake Superior, Act

III, 7 Stat. 591 (1842) (Amicus’ Exhibit D); Treaty of 1834 with

the Chippewa Nation of Indians, Art. 5, 7 Stat. 536 (1837)

(Amicus’ Exhibit C); Treaty of 1836 with the Ottawa and Chip-

pewa Nations of Indians, Art. Thirteenth, 7 Stat. 491 (1836)

(Amicus’ Exhibit B). Consequently, these early treaties indicate

— A-10 —

two things: first, that the normal practice was to state in the

agreement if the Band was reserving hunting and fishing rights

in the ceded area, and second, that when those rights were

reserved it was only for a limited duration, typically until the in-

flux of white settlers occurred.

The first land cession treaty by the Red Lake Band was the

1863 Treaty at the Old Crossing of the Red Lake River. In that

treaty the Band ceded about 10 million of the approximately 13

million acres to which it held aboriginal Indian title, including

most of the fertile Red River Valley. That treaty on its face did

not mention hunting, fishing, trapping, or wild ricing rights.

The transcript of the negotiations with the Indians makes clear,

however, that the Band was told it could continue to hunt and

fish as before over the ceded area. For example, Alexander

Ramsey, the government negotiator, told the Band that: ‘‘If

[you] sold the lands [you] could still occupy and hunt over it as

heretofore, probably for a long time. It would not probably be

wanted for settlement before the youngest man among [you]

was a grey-headed old man.”’ Journal of Proceedings Con-

nected with the 1863 Treaty at the Old Crossing of the Red Lake

River, at 15 (Plaintiff’s Exhibit 53).

The Band bases much of its arguments on Ramsey’s promises

in 1863. While it is true that Ramsey promised the Band it could

hunt and fish as before, that promise, like the express ones con-

tained in earlier treaties, was for only a limited duration — until

the land became inhabited by white settlers. More significantly,

what Ramsey told the Band in 1863 is only peripherally relevant

to the issues in this case. The Band is not claiming that it has

rights in the 10 million acre area ceded in 1863, but only in the

3.2 million acres it retained after the 1863 treaty. Therefore,

Ramsey’s promises about hunting and fishing in the area ceded

in 1863, while shedding some light on the Band’s understanding

of the effect of a land cession, do not create rights in the area

subsequently ceded in 1889 and 1904. Treaties prior to 1889

therefore contain some suggestion of a practice of letting the In-

— A-ll —

dians hunt and fish on ceded lands until they were settled by the

whites, but the prior history provides little meaningful support

for the claims now made by the Red Lake Band.

Surrounding Circumstances and Legislative History

The circumstances surrounding the 1889 and 1904 cessions

also provide little support for the Band’s position. The only

significant historical evidence in favor of the Indians is a state-

ment by a Band spokesman in 1902 concerning his recollection

of what the Indians were told by the Rice Commission in 1889:

We were given to understand that we had the use of any

ceded land that was not occupied by settlers, to be used as

our own. And we furthermore reserved the privilege of us-

ing that as our hunting grounds as in former years.

Transcript of Council with the Red Lake Band on March 4,

1902, reprinted at Hearings Before the Committee on Indian

Affairs, House of Representatives, 66th Cong., 2d Sess. 201,

208 (1920). This recollection by the Band spokesman, made

thirteen years after the event, is the primary hard evidence upon

which the Band rests its case.

The Band’s position is refuted by numerous Pieces of

historical evidence. The legislative history of the 1889 Nelson

Act makes no mention of reserved hunting and fishing right,

but rather makes clear that the purpose of the Act is to restore

the land to the public domain and open it to settlement by

whites. See generally H.R.Rep.No.789, 50th Cong., Ist Sess.

(1888) (Defendant’s Exhibit F). Also, Congress has just recently

enacted the Dawes Act in 1887, which established a policy of en-

couraging Indians to abandon their nomadic ways and adopt

the agrarian lifestyle of whites. See Act of Feb. 8, 1887, c. 119,

24 Stat. 388. This suggests that Congress in 1889 probably

would not have intended to allow the Red Lake Band to con-

tinue permanently its nomadic hunting and fishing habits over

the lands ceded to the federal government.

— A-12 —

The evidence against the Band is further reinforced by the

transcripts of the negotiations in 1889 and 1902. Contrary to the

assertions of the Band spokesman in 1902, the negotiations with

the Red Lake Band in 1889 contain no mention of reserved

rights, stating instead that the purpose of the negotiations was

to effect the sale of land not being used by the Indians. See, e.

g., Transcript of Council at Red Lake from June 29 through

July 6, 1889, H.R.Exec.Doc.No.247, Slst Cong., Ist Sess., at

67, 80. Moreover, the Rice Commission, pursuant to the Nelson

Act, negotiated with other Minnesota Chippewa Bands in 1889,

and at least two of those Bands were told that under the Nelson

Act they would not retain special hunting and fishing rights in

ceded areas, but instead would be subject to state gaming laws

the same as non-Indians. Jd. at 169 (Mille Lac Band); 178

(Grand Portage Band). Finally, in 1902 Inspector McLaughlin

specifically instructed the Red Lake Band that after the 1904

cession it would be subject to state gaming laws to the same ex-

tent as non-Indians. See Transcript of March 4, 1902 Council

with the Red Lake Band, reprinted at Hearings Before the Com-

mittee on Indian Affairs, House of Representatives, 66th Cong.

2d Sess. 201, 226 (1920).

The surrounding circumstances, and legislative history,

therefore do not provide support for the position urged by the

Red Lake Band. The historical evidence with respect to the

legislative history and the negotiations with the Band, if

anything, tends to confirm that the enactments and agreements

meant exactly what they said — the Band relinquished ‘‘a// its

right, title, and interest’’ to the areas ceded in 1889 and 1904.

Subsequent Construction

The final factor to be considered is the subsequent construc-

tion that the parties have given the relevant enactments and

agreements. See DeCoteau v. District County Court, 420 U.S.

425, 442, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). The parties con-

cede that both the state and federal governments have con-

— A-13 —

sistently taken the view over the years that the Band has no

greater rights in the ceded area than non-Indians. Moreover,

State gaming laws have been regularly enforced against activities

of Band members in the ceded areas since the cessions occurred.

Conclusion

The Band’s position in this case is based on scanty and in-

conclusive evidence. This evidence, claims the Band, is suffi-

cient, when combined with the rules of construction favoring

the Indians, to mandate a ruling in favor of the Band. The court

is of the view, however, that if the rules of construction were in-

voked as the Band requests, we would be using those rules to

remake history in derogation of the clear wording and intent of

the relevant enactments and agreements. As the Supreme Court

observed in Choctaw Nation v. United States, 318 U.S. 423,

431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943) (citations omitted):

Of course treaties are construed more liberally than private

agreements, and to ascertain their meaning we may look

beyond the written words to the history of the treaty, the

negotiations, and the practical construction adopted by the

parties. Especially is this true in interpreting treaties and

agreements with the Indians; they are to be construed, so

far as possible, in the sense in which the Indians

understood them, and ‘“‘in a spirit which generously

recognizes the full obligation of this nation to protect the

interests of a dependent people.’’ But even Indian treaties

cannot be re-written or expanded beyond their clear terms

to remedy a claimed injustice or to achieve the asserted

understanding of the parties.

We hold that the Red Lake Band does not retain hunting,

fishing, trapping, or wild ricing rights in the areas ceded in 1889

and 1904. The clerk is directed to enter judgment accordingly.

January 14, [8x9

Chippewa Indians ot

Minnesota

Commissioners to

Negotiate tor relin-

quishment of lands to

be appointed

Lands excepted.

Assent of tribes

ay eS eee

APPENDIX C

CHAP. 24 — An act for the relief and civiliza-

tion of the Chippewa Indians in the State of Min-

nesota.

Be it enacted by the Senate and House of Rep-

resentatives of the United States of America in

Congress assembled, That the President of the

United States is hereby authorized and directed,

within sixty days after the passage of this act, to

designate and appoint three Commissioners, one

of whom shall be a citizen of Minnesota, whose

duty it shall be, as soon as practicable after their

appointment, to negotiate with all the different

bands or tribes of Chippewa Indians in the State

of Minnesota for the complete cession and relin-

quishment in writing of all their title and interest

in and to all the reservations of said Indians in the

State of Minnesota, except the White Earth and

Red Lake Reservations, and to all and so much of

these two reservations as in the judgment of said

commission is not required to make and fill the

allotments required by this and existing acts, and

shall not have been reserved by the Commission-

ers for said purposes, for the purposes and upon

the terms hereinafter stated; and such cession and

relinquishment shall be deemed sufficient as to

each of said several reservations, except as to the

Red Lake Reservations, if made and assented to

in writing by two-thirds of the male adults over

eighteen years of age of the band or tribe of In-

dians occupying and belonging to such reserva-

tions; and as to the Red Lake Reservation the ces-

sion and relinquishment shall be deemed suffi-

cient if made and assented to in like manner by

two-thirds of the male adults of all the Chippewa

Proviso

Allottees not to be

disturbed

Census to be taken.

Assent to extinguish

Indian ttle

Bond and oath ot

commissioners.

— A-I5 —

Indians in Minnesota; and provided that all

agreements therefor shall be approved by the

President of the United States before taking ef-

fect: Provided further, That in any case where an

allotment in severalty has heretofore been made

to any Indian of land upon any of said reserva-

tions, he shall not be deprived thereof or dis-

turbed therein except by his own individual con-

sent separately and previously given, in such form

and manner as may be prescribed by the Secretary

of the Interior. And for the purpose of ascertain-

ing whether the proper number of Indians yield

and give their assent as aforesaid, and for the pur-

pose of making the allotments and payments -

hereinafter mentioned, the said commissioners

shall, while engaged in securing such cession and

relinquishment as aforesaid and before complet-

ing the same, make an accurate census of each

tribe or band, classifying them into male and

female adults, and male and female minors; and

the minors into those who are orphans and those

who are not orphans, giving the exact numbers of

each class, and making such census in duplicate

lists, one of which shall be filed with the Secretary

of the Interior, and the other with the official

head of the band or tribe; and the acceptance and

approval of such cession and relinquishment Dy

the President of the United States shall, be

deemed full and ample proof of the assent of the

Indians, and shall operate as a complete extin-

guishment of the Indian title without any other or

further act or ceremony whatsoever for the pur-

poses and upon the terms in this act provided.

SEC. 2. That the said commissioners shall,

before entering upon the discharge of their duties,

each give a bond to the United States in the sum

Compensation.

Interpreter.

Removal of Indians

to White Earth Reser-

sation.

Allotment ot lands

on Red Lake Reser-

sation.

Vol. 24, p. 388.

— A-16 —

of ten thousand dollars, with sufficient sureties,

to be approved by the Secretary of the Interior,

and conditioned for the faithful discharge of their

duties under this act, and they shall also each take

an oath to support the Constitution of the United

States, and to faithfully discharge the duties of

their office, which bonds and oaths shall be filed

with the Secretary of the Interior. Said commis-

sioners shall be entitled to a compensation of ten

dollars per day for each day actually employed in

the discharge of their duties, and for their actual

traveling expenses and board, not exceeding three

dollars per day. Said commissioners shall also be

authorized to employ a competent interpreter

while engaged in the performance of their duties,

at a compensation and allowance to be fixed by

them, not in excess of that allowed to each of

them under this act.

SEC. 3 That as soon as the census has been

taken, and the cession and relinquishment has

been obtained, approved, and ratified, as speci-

fied in section one of this act, all of said Chip-

pewa Indians in the State of Minnesota, except

those on the Red Lake Reservation, shall, under

the direction of said commissioners, be removed

to and take up their residence on the White Earth

Reservation, and thereupon there shall, as soon as

practicable, under the direction of said commis-

sioners, be allotted lands in severalty to the Red

Lake Indians on Red Lake Reservation, and to all

the other of said Indians on White Earth Reserva-

tion, in conformity with the act of February

eighth, eighteen hundred and eighty-seven, en-

titled ‘‘An act for the allotment of lands in

severalty to Indians on the various reservations,

and to extend the protection of the laws of the

Prior allotments

contirmed

Provisos

Deductions

Allouments on other

resers ations.

Survey of ceded

lands,

Subdivision into tor-

(y-acre lots,

| en

United States and the Territories over the Indians,

and for other purposes’’; and all allotments

heretofore made to any of said Indians on the

White Earth Reservation are hereby ratified and

confirmed with the like tenure and condition

prescribed for all allotments under this act: Pro-

vided, however, That the amount heretofore

allotted to any Indian on White Earth Reserva-

tion shall be deducted from the amount of allot-

ment to which he or she is entitled under this act:

Provided further, That any of the Indians

residing on any of said reservations may, in his

discretion, take his allotment in severalty under

this act on the reservation where he lives at the

time of the removal herein provided for is ef-

fected, instead of being removed to and taking

such allotment on White Earth Reservation.

SEC. 4. That as soon as the cession and relin-

quishment of said Indian title has been obtained

and approved as aforesaid, it shall be the duty of

the Commissioners of the General Land Office to

cause the lands so ceded to the United States to be

surveyed in the manner provided by law for the

survey of public lands, and as soon as practicable

after such survey has been made, and the report,

field-notes, and plats thereof filed in the General

Land Office, and duly approved by the Commis-

sioner thereof, the said Secretary of the Interior,

upon notice of the completion of such surveys,

shall appoint a sufficient number of competent

and experienced examiners, in order that the work

may be done within a reasonable time, who shall

go upon said lands thus surveyed and personally

make a careful, complete, and thorough examina-

tion of the same by forty-acre lots, for the pur-

pose of ascertaining on which lots or tracts there

**Pine lands."

Minimum valua-

tions.

New appraisals.

Lists to be filed.

— A-18 —

is standing or growing pine timber, which tracts

on which pine timber is standing or growing for

the purposes of this act shall be termed ‘‘pine

lands,’’ the minutes of such examination to be at

the time entered in books provided for that pur-

pose, showing with particularity the amount and

quality of all pine timber standing or growing on

any lot or tract, the amount of such pine timber to

be estimated by feet in the manner usual in esti-

mating such timber, which estimates and reports

of all such examinations shall be filed with the

Commissioner of the General Land Office as a

part of the permanent records thereof, and there-

upon that officer shall cause to be made a list of

all such pine lands, describing each forty-acre lot

or tract thereof separately, and opposite each

such description he shall place the actual cash

value of the same, according to his best judgment

and information, but such valuation shall not be

at a rate of less than three dollars per thousand

feet, board measure of the pine timber thereon,

and thereupon such lists of lands so appraised

shall be transmitted to the Secretary of the In-

terior for approval, modification, or rejection, as

he may deem proper. If the appraisals are rejected

as a whole then the Secretary of the Interior shall

substitute a new appraisal and the same or

original list as approved or modified shall be filed

with the Commissioner of the General Land Of-

fice as the appraisal of said lands, and as con-

stituting the minimum price for which said lands

may be sold, as hereinafter provided, but in no

event shall said pine lands be appraised at a rate

of less than three dollars per thousand feet board

measure of the pine timber thereon. Duplicate

lists of said lands as appraised, together with

Pay of examiners.

**Agricultural

lands.**

Sale of pine lands.

Advertisement.

Auction sale.

— A-19 —

copies of the field-notes, surveys, and minutes of

examinations shall be filed and kept in the office

of the register of the land office of the district

within which said lands may be situated, and

copies of said lists with the appraisals shall be fur-

nished to any person desiring the same upon ap-

plication to the Commissioner of the General

Land Office or to the register of said local land

office.

The compensation of the examiners so pro-

vided for in this section shall be fixed by the Sec-

retary of the Interior, but in no event shall exceed

the sum of six dollars per day for each person so

employed, including a!l expenses.

All other lands acquired from the said Indians

on said reservations other than pine lands are for

the purposes of this act termed ‘‘agricultural

lands.”’

SEC. 5. That after the survey, examination,

and appraisals of said pine lands has been fully

completed they shall be proclaimed as in market

and offered for sale in the following manner: The

Commissioner of the General Land Office shall

cause notices to be inserted once in each week for

four successive weeks in one newspaper of general

circulation published in Minneapolis, Saint Paul,

Duluth, and Crookston, Minnesota; Chicago,

Illinois; Milwaukee, Wisconsin; Detroit,

Michigan, Philadelphia and Williamsport, Penn-

sylvania; and Boston, Massachusetts, of the sale

of said lands at public auction to the highest bid-

der for cash at the local land office of the district

within which said lands are located, said notice to

state the time and place and terms of such sale. At

Private sale.

Sale of agricultural

lands.

To be sold under

homestead law.

Provisos.

Price, etc,

— A-20 —

such sale said lands shall be offered in forty-acre

parcels, except in case of fractions containing

either more or less than forty acres, which shall be

sold entire. In no event shall any parcel be sold

for a less sum than its appraised value. The

residue of such lands remaining unsold after such

public offering shall thereafter be subject to

private sale for cash at the appraised value of the

same upon application at the local land office.

SEC. 6. That when any of the agricultural lands

on said reservation not allotted under this act nor

reserved for the future use of said Indians have

been surveyed, the Secretary of the Interior shall

give thirty days’ notice through at least one

newspaper published at Saint Paul and Crooks-

ton, in the State of Minnesota, and, at the expira-

tion of thirty days, the said agricultural lands so

surveyed, shall be disposed of by the United

States to actual settlers only under the provisions

of the homestead law: Provided, That each settler

under and in accordance with provisions of said

homestead laws shall pay to the United States for

the land so taken by him the sum of one dollar

and twenty-five cents for each and every acre, in

five equal annual payments, and shall be entitled

to a patent therefor only at the expiration of five

years from the date of entry, according to said

homestead laws, and after the full payment of

said one dollar and twenty-five cents per acre

therefor, and due proof of occupancy for said

period of five years; and any conveyance of said

lands so taken as a homestead, or any contract

touching the same, prior to the date of final entry,

Prior entries not dis- Shall be null and void: Provided, That nothing in

turbed.

this act shall be held to authorize the sale or other

— A-21 —

disposal under its provision of any tract upon

which there is a subsisting, valid, pre-emption or

homestead entry, but any such entry shall be pro-

ceeded with under the regulations and decisions in

force at the date of its allowance, and if found

regular and valid, patents shall issue thereon:

Provided, That any person who has not hereto-

Second entries, fore had the benefit of the homestead or pre-

emption law, and who has failed from any cause

to perfect the title to a tract of land heretofore

entered by him under either of said laws may

make a second homestead entry under the provi-

sions of this act.

ied te eredit of Che. ~~ SEC. 7. That all money accruing from the dis-

a posal of said lands in conformity with the provi-

sions of this act shall, after deducting all the ex-

penses of making the census, of obtaining the ces-

sion and relinquishment, of making the removal

and allotments, and of completing the surveys

and appraisals, in this act provided, be placed in

the Treasury of the United States to the credit of

all the Chippewa Indians in the State of Minne-

sota as a permanent fund, which shall draw in-

Interest. terest at the rate of five per centum per annum,

payable annually for the period of fifty years,

after the allotments provided for in this act have

been made, and which interest and permanent

fund shall be expended for the benefit of said In-

dians in manner following: One-half of said in-

Distribution of in- terest shall, during the said period of fifty years,

ar except in the cases hereinafter otherwise pro-

vided, be annually paid in cash in equal shares to

the heads of families and guardians of orphan

minors for their use; and one-fourth of said in-

terest shall, during the same period and with the

Schools.

Proviso.

Advances, from

Anticipating inter-

est.

Aids to farming.

— A-22 —

like exception, be annually paid in cash in equal

shares per capita to all other classes of said In-

dians; and the remaining one-fourth of said in-

terest shall, during the said period of fifty years,

under the direction of the Secretary of the In-

terior, be devoted exclusively to the establishment

and maintenance of a system of free schools

among said Indians, in their midst and for their

benefit; and at the expiration of the said fifty

years, the said permanent fund shall be divided

and paid to all of said Chippewa Indians and their

issue then living, in cash, in equal shares: Pro-

vided, That Congress may, in its discretion, from

time to time, during the said period of fifty years,

appropriate, for the purpose of promoting

civilization and self-support among the said In-

dians, a portion of said principal sum, not ex-

ceeding five per centum thereof. The United

States shall, for the benefit of said Indians, ad-

vance to them as such interest as aforesaid the

sum of ninety thousand dollars annually, count-

ing from the time when the removal and allot-

ments provided for in this act shall have been

made, until such time as said permanent fund, ex-

clusive of the deductions hereinbefore provided

for, shall equal or exceed the sum of three million

dollars, less any actual interest that may in the

meantime accrue from accumulations of said per-

manent fund; the payments of such interest to be

made yearly in advance, and, in the discretion of

the Secretary of the Interior, may, as to three-

fourths thereof, during the first five years be ex-

pended in procuring live-stock, teams, farming

implements, and seed for such of the Indians to

the extent of their shares as are fit and desire to

engage in farming, but as to the rest, in cash; and

Re-imbursement

Appropriation.

— A-23 —

whenever said permanent fund shall exceed the

sum of three million dollars the United States

shall be fully reimbursed out of such excess, for

all the advances of interest made as herein con-

templated and other expenses hereunder.

SEC. 8. That the sum of one hundred and fifty

thousand dollars is hereby appropriated, or so

much thereof as may be necessary, out of any

money in the Treasury not otherwise appropri-

ated, to pay for procuring the cession and relin-

quishment, making the census, surveys, apprai-

sals, removal and allotments, and the first annual

payment of interest herein contemplated and pro-

vided for, which money shall be expended under

the direction of the Secretary of the Interior in

conformity with the provisions of this act. A

detailed statement of which expenses, except the

interest aforesaid, shall be reported to Congress

when the expenditures shall be completed.

Approved, January 14, 1889.

February 20, 1904,

{S. 1490.]

{Public, No. 23.]

Preamble.

Red Lake Indian

Reservation, Minne-

sota.

Vol. 32, p. 1009.

Agreement with

Chippewa Indians for

sale of.

Lands ceded.

— Xo

APPENDIX D

CHAP. 161.—An Act To authorize the sale of

a part of what is known as the Red Lake Indian

Reservation, in the State of Minnesota.

Whereas James McLaughlin, United States In-

dian inspector, did, on the tenth day of March,

anno Domini nineteen hundred and two, make

and conclude an agreement with the adult male

Indians of the Red Lake Reservation, in the State

of Minnesota, which said agreement is in words

and figures as follows:

‘‘This agrement made and entered into this

tenth day of March, nineteen hundred and two,

by and between James McLaughlin, United States

Indian Inspector, on the part of the United States,

and the Red Lake and Pembina bands of Chip-

pewa Indians belonging on the Red Lake Reserva-

tion in the State of Minnesota, witnesseth:

‘‘ARTICLE I. The said Indians belonging on

the Red Lake Indian Reservation, Minnesota, for

the consideration hereinafter named, do hereby

cede, surrender, grant, and convey to the United

States all their claim, right, title and interest in

and to all that part of the Red Lake Indian reser-

vation situate within the boundaries of Red Lake

County, Minnesota, as said county is at present

defined and organized the tract hereby ceded be-

ing more particularly described as embracing all

that part of the said Red Lake Indian Reservation

lying west of the range line between ranges thirty-

eight (38) and thirty-nine (39) west of the Fifth

(Sth) Principal Meridian, the tract of land hereby

ceded approximating two hundred and fifty-six

thousand one hundred and fifty-two (256,152)

Price.

Per capita payment

in cash

— A-25 —

acres, and also hereby agree that all of said In-

dians now residing on the tract hereby ceded shall

remove to the diminished reservation within six

months after the ratification of this agreement,

and shall be paid not exceeding five thousand

(5000) dollars in cash by the Indians of said Red

Lake Reservation out of the first payment re-

ceived by them from the proceeds of this cession

said five thousand (5000) dollars, or so much

thereof as may be necessary, to be paid equitable

to those thus removing, in proportion to the value

of their respective improvements, which payment

by said Red Lake Indians, shall be in full for all

improvements which they will abandon, and also

for the removal within the diminished reservation

of their dead from where they are now buried on

the tract hereby ceded.

*fARTICLE II. In consideration of the land

ceded, relinquished, and conveyed by Article I of

this agreement, the United States stipulates and

agrees to pay to said Indians, in the manner

hereinafter provided, the sum of one million

(1,000,000) dollars.

‘ARTICLE III. It is understood that of the

amount to be paid to said Indians, as stipulated

by Article II of this agreement, the sum of two

hundred and fifty thousand (250,000) dollars shall

be paid in cash, per capita, share and share alike,

to each man, woman and child belonging on said

Red Lake Indian Reservation, within ninety (90)

days after the ratification of this agreement, and

the remainder of the said sum of one million

dollars, viz, seven hundred and fifty thousand

(750,000) dollars shall be paid in cash, per capita,

in fifteen (15) annual installments of fifty thou-

Apportionment of

lands.

Benefits under ex-

isting treaties not dis-

turbed.

Effect.

— A-26 —

sand (50,000) dollars each, the first of which fif-

teen annual installments to be paid in the month

of October of the year following that in which

payment of the said two hundred and fifty thou-

sand (250,000) dollars is made, as provided in this

agreement, and in the month of October of each

year thereafter of the succeeding fourteen years,

covering the period of said fifteen annual in-

stallments.

‘fARTICLE IV. It is further agreed that the

said Indians belonging on said Red Lake Indian

Reservation, Minnesota, shall possess their

diminished Reservation independent of all other

bands of the Chippewa tribe of Indians and shall

be entitled to allotments thereon of one hundred

and sixty (160) acres each, of either agricultural or

pine land, the different class of land to be appor-

tioned as equitably as possible among the allot-

tees.

‘ARTICLE V. It is understood that nothing in

this agreement shall be construed to deprive the

said Indains belonging on the Red Lake Indian

Reservation, Minnesota, of any benefits to which

they are entitled under existing treaties for

agreements not inconsistent with the provisions of

this agreement.

‘“‘ARTICLE VI. This agreement shall take ef-

fect and be in force when signed by United States

Indian Inspector James McLaughlin and by a ma-

jority of the male adult Indians, parties hereto,

and when accepted and ratified by the Congress

of the United States.

‘In witness whereof the said James McLaugh-

lin, United States Indian Inspector, on the part of

— A-27 —

the United States, and the male adult Indians be-

longing on the Red Lake Indian Reservation,

Minnesota, have hereunto set their hands and

seals at Red Lake Indian Agency, Minnesota, this

tenth day of March, A.D. Nineteen hundred and

two.

‘(JAMES McLAUGHLIN (SEAL).

‘‘United States Indian Inspector.

And

Whereas it is deemed for the best interests of the

said Indians that said agreement be amended

and modified as hereafter provided:

Therefore,

SR ee ae enacted by the Senate and House of

Representatives of the United States of America

in Congress assembled, That said agreement be,

and the same is hereby, modified and amended so

as to read as follows:

Lands ceded. ‘fARTICLE I. The said Indians belonging to

the Red Lake Indian Reservation, Minnesota, for

the consideration hereinafter named, do hereby

cede, surrender, grant, and convey to the United

States all their claim, right, title, and interest in

and to all that part of the Red Lake Indian Reser-

vation lying west of the range line between ranges

thirty-eight and thirty-nine, west of the fifty prin-

cipal meridian, the tract of land hereby ceded ap-

Removal of Indians proximating two hundred and fifty-six thousand

tion. one hundred and fifty-two acres, and also hereby

agree that all of said Indians now residing on the

tract hereby ceded shall remove to the diminished

reservation within six months after the ratifica-

Sale of ceded lands

Minimum price per

acre.

Payments.

Per capita distribu-

tion.

— A-28 —

tion of the agreement, and shall be paid not ex-

ceeding twenty thousand dollars in cash by the In-

dians of said Red Lake Reservation out of the

first payment received by them from the proceeds

of this cession, said twenty thousand dollars, or

so much thereof as may be necessary, to be paid

equitably to those thus removing, in proportion

to the value of their respective improvements,

which payment by said Red Lake Indians shall be

in full for all improvements which they will aban-

don, and also for the removal within the dimin-

ished reservation of their dead from where they

now are buried on the tract hereby ceded.

‘*ART. II. In consideration of the land ceded,

relinquished, and conveyed by Article I of this

agreement the United States stipulates and agrees

to sell, subject to the homesteead laws of the

United States, under rules and regulations to be

prescribed by the Secretary of the Interior, in

tracts not to exceed one hundred and sixty acres

to each individual, all of said lands, except lands

remaining unsold after five years from the first

sale hereunder, which may be sold without refer-

ence to the provisions of the homestead law. Said

land shall be sold for not less than four dollars per

acre, and shall be sold upon the following terms:

One-fifth of the purchase price to be paid at the

time of sale and the balance of the purchase price

of said land to be paid in five equal annual in-

stallments due in one, two, three, four, and five

years from date of sale, respectively, and to pay

over to said Indians all of the proceeds realized

from the sale of the said lands as herein provided.

‘‘ART. III. It is understood that of the amount

realized from the sale of said lands a sum of not

Independent posses-

sion and allotment.

Existing benefits not

affected.

Trusteeship.

— A-29 —

exceeding three hundred thousand dollars shall be

paid in cash per capita, share and share alike, to

each man, woman, and child belonging on said

Red Lake Indian Reservation within ninety days

after the first sale herein provided for, and the re-

mainder of the proceeds of the sale of said lands

shall be paid in cash per capita in fifteen annual

installments, the first of which fifteen annual in-

stallments is to be paid in the month of October

of the year following that in which the payment of

the said three hundred thousand dollars is made,

as provided in this agreement, and in the month

of October of each year thereafter, and all

moneys received after the expiration of said fif-

teen years shall be apportioned in like manner

among said Indians and paid to them on the first

day of October in each year.

‘‘ART.IV. It is further agreed that the said In-

dians belonging on the said Red Lake Indian

Reservation, Minnesota, shall possess their

diminished reservation independent of all other

bands of the Chippewa tribe of Indians and shall

be entitled to allotments thereon of one hundred

and sixty acres each, of either agricultural or pine

land, the different classes of land to be appor-

tioned as equitably as possible among the allot-

tees.

‘ART. V. It is understood that nothing in this

agreement shall be construed to deprive the said

Indians belonging on the Red Lake Indian Reser-

vation, Minnesota, of any benefits to which they

are entitled under existing treaties or agreements

not inconsistent with the provisions of this agree-

ment. It is the intention of this agreement that the

United States shall act as trustee for said Indians

Effect.

Ratification

Lands to be sold sub-

ject to homestead laws.

Forfeiture.

— A-30 —

to dispose of said land and to expend and pay

over the proceeds as received from the sale

thereof only as received, as herein provided.

**ART VI. This agreement shall take effect and

be in force when accepted and ratified by the

Congress of the United States.’’

SEC. 2. That said agreement be, and the same

is hereby, accepted and ratified as herein amend-

ed.

SEC. 3. That the Secretary of the Interior is

hereby authorized and directed to sell, subject to

the homestead laws of the United States, under

such rules and regulations as he may prescribe, in

tracts not to exceed one hundred and sixty acres

to each individual, all that part of the Red Lake

Reservation, in the State of Minnesota, lying

westerly of the range line between ranges thirty

eight and thirty-nine west of the fifth principal

meridian, approximating two hundred and fifty-

six thousand acres. And the said land shall be sold

for not less than four dollars per acre, and shall

be sold upon the following terms: One-fifth of the

price bid therefor to be paid at the time the bid is

made, and the balance of the purchase price of

said land to be paid in five equal annual in-

stallments, due in one, two, three, four, and five

years from date of sale, respectively, payment to

be made to the receiver of the United States land

office for the district in which said land may be

situated. And in case any purchaser fails to make

such annual payments promptly when due, or

within sixty days thereafter, all rights in and to the

land covered by his or her purchase shall at once

cease, and any payments made shall thereupon be

Patents

Provisios.

Commutation.

R.S., see 2301, p. 421.

Final proot.

Sale, etc., of remain-

ing lands.

Minimum

price.

—s oe

forfeited and the Secretary of the Interior shall

thereupon declare such forfeiture by reoffering

said land for sale. And no patent shall issue to the

purchaser until the purchaser shall have paid the

purchase price and in all respects complied with

the terms and provisions of the homestead laws of

the United States: Provided, That such purchaser

shall have the right of commutation as provided

by section twenty-three hundred and one of the

Revised Statutes of the United States, by paying

for the land at the price for which it sold, receiv-

ing credit for payments previously made: Pro-

vided further, That such purchaser shall make his

final proof conformable to the homestead laws

within six years from the date of sale: that aliens

who have declared their intention to become

citizens of the United States may become pur-

chasers under this Act, but before making final

proof and acquiring title must take out their full

naturalization papers; and that persons who may

have heretofore exhausted their rights under the

homestead law may become purchasers under this

Act: Provided further, That after the first sale

hereunder shall be closed, the lands remaining un-

sold shall be subject to sale and entry at the price

of four dollars per acre by qualified purchasers,

subject to the same terms and conditions as herein

prescribed as to lands sold at said first sale: Pro-

vided further, That all lands above described

which shall remain unsold at the expiration of five

years from the date of the first sale hereunder

shall be offered for sale at not less than four

dollars per acre (and lands remaining unsold after

such sale shall be subject to private entry and sale

at said price), without any conditions whatever

except the payment of the purchase price: And

— A-32 —

Prior residence and provided further, That wherever the boundary line

Improvements.

Removal of Indians

to diminished reser-

vation.

Payment for im-

provements.

Per capital distribu-

tion of proceeds.

of said reservation runs diagonally so as to divide

any Government subdivision of a section, and the

owner of that portion of such subdivision now be-

ing outside of the reservation becomes the pur-

chaser of that portion of such subdivision lying

within the reservation, residents and improve-

ments upon either portions of such subdivision as

provided by the homestead law shall constitute a

compliance as to all such Government subdivisi-

sions.

All of the Indians residing upon the tract above

described shall remove therefrom to the diminish-

ed reservation within six months after the passage

of this Act; and there is hereby appropriated from

the proceeds of said sale the sum of twenty thou-

sand dollars, or so much thereof as may be

necessary, to be paid to those thus removing in

proportion to their respective improvements,

which payment to the said Red Lake Indians shall

be in full for all improvements which they will

abandon, and also for the expense of removal

within the diminished reservation of their dead

from where they are now buried on the tract

above described, and the expense of making

allotments.

The proceeds of said lands as realized from

time to time shall be paid into the United States

Treasury to the credit of the Indians belonging on

said reservation. Of the amount realized from the

sale of said lands a sum not exceeding three hun-

dred thousand dollars shall be paid in cash, per

capita, share and share alike, to each man,

woman, and child belonging on said Red Lake In-

dian Reservation within ninety days after the first

Regulations, etc

Entry tees, etc.

United States not

bound to purchase

land, etc.

Effect.

— A-33 —

sale herein provided for, and the remainder of the

proceeds of the sale of said lands shall be paid in

cash, per capita, in fifteen annual installments,

the first installment to be paid in the month of

October of the year following that in which the

payment of the three hundred thousand dollars is

made; and all moneys received after the expira-

tion of said fifteen years shall be apportioned in

like manner among said Indians and paid to them

on the first day of October in each year.

The Secretary of the Interior is hereby vested

with full power and authority to make such rules

and regulations as to the time of notice, manner

of sale, and other matters incident to the carrying

out of the provisions of this Act as he may deem

necessary, and with authority to continue making

sale of said lands until all of said lands shall have

been sold.

In addition to the price to be paid for the land,

the entryman shall pay the same fees and commis-

sions at the time of commutation or final entry as

now provided by law where the price of the land is

one dollar and twenty-five cents per acre.

SEC. 4. That nothing in this Act contained

shall in any manner bind the United States to pur-

chase any portion of the land herein described, or

to guarantee to find purchasers for said lands or

any portion thereof, it being the intention of this

Act that the United States shall act as trustee for

said Indians to dispose of said lands and to ex-

pend and pay over the proceeds received from the

sale thereof only as received as herein provided.

SEC. 5. That this Act shall take effect and be

in force from and after its passage.

Approved, February 20, 1904.

— A

APPENDIX E

Treaty With The Chippewa—Red Lake And

Oct. 2, 1863.

13 Stats., 667.

Ratified Mar. 1, 1864.

Proclaimed May §,

1864,

Perpetual peace and

friendship.

Lands ceded to the

United States.

Boundaries.

Pembina Bands, 1863.

Articles of a treaty made and concluded at the

Old Crossing of Red Lake River, in the State of

Minnesota, on the second day of October, in

the year eighteen hundred and sixty-three, be-

tween the United States of America, by their

commissioners, Alexander Ramsey and Ashley

C. Morrill, agent for the Chippewa Indians,

and the Red Lake and Pembina bands of Chip-

pewas; by their chiefs, head-men, and warriors.

ARTICLE 1. The peace and friendship now

existing between the United States and the Red

Lake and Pembina bands of Chippewa Indians

shall be perpetual.

ARTICLE 2. The said Red Lake and Pembina

bands of Chippewa Indians do hereby cede, sell,

and convey to the United States all their right, ti-

tle, and interest in and to all the lands now owned

and claimed by them in the State of Minnesota

and in the Territory of Dakota within the follow-

ing described boundaries, to wit: Beginning at the

point where the international boundary between

the United States and the British possessions in-

tersects the shore of the Lake of the Woods;

thence in a direct line southwesterly to the head of

Thief River; thence down the main channel of

said Thief River to its mouth on the Red Lake

River; thence in a southeasterly direction, in a

direct line toward the head of Wild Rice River, to

the point where such line would intersect the

northwestern boundary of a tract ceded to the

Payment tor lands

ceded.

Proviso.

Amount reserved.

— A-35 —

United States by a treaty concluded at Washing-

ton on the 22nd day of February, in the year eigh-

teen hundred and fifty-five, with the Mississippi,

Pillager, and Lake Winnebigoshish bands of

Chippewa Indians; thence along the said boun-

dary-line of the said cession to the mouth of Wild

Rice River; thence up the main channel of the Red

River to the mouth of the Shayenne; thence up

the main channel of the Shayenne River to Poplar

Grove; thence in a direct line to the Place of

Stumps, otherwise called Lake Chicot; thence in a

direct line to the head of the main branch of the

Salt River; thence in a direct line due north to the

point where such line would intersect the interna-

tional boundary aforesaid; thence eastwardly

along said boundary to the place of beginning.

' ARTICLE 3. In consideration of the foregoing

cession, the United States agree to pay to the said

Red Lake and Pembina bands of Chippewa In-

dians the following sums, to wit: Twenty thou-

sand dollars per annum for twenty years; the said

sum to be distributed among the Chippewa In-

dians of the said bands in equal amounts per

capita, and for this purpose an accurate enumera-

tion and enrollment of the members of the respec-

tive bands and families shall be made by the of-

ficers of the United States: Provided, That so

much of this sum as the President of the United

States shall direct, not exceeding five thousand

dollars per year, may be reserved from the above

sum, and applied to agriculture, education, the

purchase of goods, powder, lead, &c., for their

use, and to such other beneficial purposes, calcu-

lated to promote the prosperity and happiness of

the said Chippewa Indians, as he may prescribe.

Ammesty for past

Appropriation for

former depredations.

Claims, how to be

Appropriation for

powder, lead, etc.

— A-36 —

ARTICLE 4. And in further consideration of

the foregoing cession, and of their promise to ab-

stain from such acts in future, the United States

agree that the said Red Lake and Pembina bands

of Chippewa Indians shall not-be held liable to

punishment for past offences. And in order to

make compensation to the injured parties for the

depredations committed by the said Indians on

the goods of certain British and American traders

at the mouth of Red Lake River, and for exac-

tions forcibly levied by them on the proprietors of

the steamboat plying on the Red River, and to en-

able them to pay their just debts, the United

States agree to appropriate the sum of one hun-

dred thousand dollars, it being understood and

agreed that the claims of individuals for damages

or debt under this article shall be ascertained and

audited. In consultation with the chiefs of said

bands, by a commissioner or commissioners ap-

pointed by the President of the United States; fur-

thermore, the sum of two thousand dollars shall

be expended for powder, lead, twine, or such

other beneficial purposes as the chiefs may re-

quest, to be equitably distributed among the said

bands at the first payment: Provided, That no

part of the sum of one hundred thousand dollars

shall be appropriated or paid to make compensa-

tion for damages or for the payment of any debts

owing from said Indians until the said com-

missioner Or commissioners shall report each

case, with the proofs thereof, to the Secretary of

the Interior, to be submitted to Congress, with his

opinion thereon, for its action; and that, after

such damages and debts shall have been paid, the

residue of said sum shall be added to the annuity

funds of said Indians, to be divided equally upon

said annuities.

Appropriation to en-

<ourage the adoption

of habus of civilized

life.

For road trom Leach

Lake to Red Lake.

Board of visitors,

their appointment;

duty, pay.

Spirituous liquors

prohibited.

— A-37 —

ARTICLE 5. To encourage and aid the chiefs

of said bands in preserving order and inducing, by

their example and advice, the members of their re-

spective bands to adopt the habits and pursuits of

civilized life, there shall be paid to each of the said

chiefs annually, out of the annuities of the said

bands, a sum not exceeding one hundred and fifty

dollars, to be determined by their agents accord-

ing to their respective merits. And for the better

promotion of the above objects, a further sum of

five hundred dollars shall be paid at the first pay-

ment to each of the said chiefs to enable him to

build for himself a house. Also, the sum of five

thousand dollars shall be appropriated by the

United States for cutting out a road from Leach

Lake to Red Lake.

ARTICLE 6. The President shall appoint a

board of visitors, to consist of not less than two

or more than three persons, to be selected from

such Christian denominations as he may desig-

nate, whose duty it shall be to attend at all annui-

ty payments of said Chippewa Indians, to inspect

their field and other improvements, and to report

annually thereon on or before the first day of

November, and also as to the qualifications and

moral deportment of all persons residing upon the

reservation under the authority of law; and they

shall receive for their services five dollars a day

for the time actually employed, and ten cents per

mile for travelling expenses: Provided, That no

one shall be paid in any one year for more than

twenty days’ service or for more than three hun-

dred miles’ travel.

ARTICLE 7. The laws of the United States

now in force, or that may hereafter be enacted,

Grant of 160 acres

of land to certain of

these Indians.

— A-38 —

prohibiting the introduction and sale of spirituous

liquors in the Indian country, shall be in full force

and effect throughout the country hereby ceded,

until otherwise directed by Congress or the Presi-

dent of the United States.

ARTICLE 8. In further consideration of the

foregoing cession, it is hereby agreed that the

United States shall grant to each male adult half-

breed or mixed-blood who is related by blood to

the said Chippewas of the said Red Lake or Pem-

bina bands who has adopted the habits and cus-

toms of civilized life, and who is a citizen of the

United States, a homestead of one hundred and

sixty acres of land, to be selected at his option,

within the limits of the tract of country hereby

ceded to the United States, on any land not

previously occupied by actual settlers or covered

by prior grants, the boundaries thereof to be ad-

justed in conformity with the lines of the official

surveys when the same shall be made, and with

the laws and regulations of the United States af-

fecting the location and entry of the same: Pro-

vided, That no scrip shall be issued under the pro-

visions of this article, and no assignments shall be

made of any right, title, or interest at law or in

equity until a patent shall issue, and no patent

shall be issued until due proof of five years’ actual

residence and cultivation, as required by the act

entitled ‘‘An act to secure homesteads on the

public domain.”’

Reservations of 640

acres each for the

chiefs Moose Dung

and Red Bear.

— A-39 —

ARTICLE 9. Upon the urgent request of the

Indians, parties to this treaty, there shall be set

apart from the tract hereby ceded a reservation of

(640) six hundred and forty acres near the mouth

of Thief River for the chief ‘‘Moose Dung,’’ and

a like reservation of (640) six hundred and forty

acres for the chief ‘‘Red Bear,’’ on the north side

of Pembina River.

In witness whereof, the said Alexander Ramsey

and Ashley C. Morrill, commissioners on the part

of the United States, and the chiefs, headmen,

and warriors of the Red Lake and Pembina bands

of Chippewa Indians, have hereunto set their

hands, at the Old Crossing of Red Lake River, in

the State of Minnesota, this second day of Oc-

tober, in the year of our Lord one thousand eight

hundred and sixty-three.