# Petition — Children of the Chippewa, Ottawa, & Potawatomy Tribes v. Regents of the University of Michigan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 1088

## Text

82-724 OCT 25 192

3n the Supreme Court of the Gnited States

OCTOBER TERM, 1982

CHILDREN OF THE CHIPPEWA, OTTAWA
AND PoTAWATOMY TRIBES, ét. al.,
Petitioners,

vs.

REGENTS OF THE UNIVERSITY OF MICHIGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF MICHIGAN

Evmer E. WHITE

Attorney for Petitioners

205 City Center Building
Ann Arbor, Michigan 48104
(313) 995-2020

RENAISSANCE PRINTING COMPANY, 76 W. ADAMS
8TH FLOOR, DETROIT, MICHIGAN 48226 — (313) 964-3185

—~ *<

QUESTIONS PRESENTED

The native tribes of Michigan seek educational rights pro-
mised in exchange for 1,920 acres of reservation land con-
veyed to the University of Michigan.

Can Indian reservation land, conveyed pursuant to a treaty
to a then (circa 1817) agency of the federal government (a col-
lege established by a federal territory) be the subject of an
educational trust?

Il.

When a trust is established by both treaty and federal ter-
ritorial statute, can it be ignored by the subsequent state
government created out of the federal territory?

III.
Should a state be permitted to construe the provision of a

treaty as a “‘gift’’ to the state college when such construction is
to the detriment of the Indians who owned the land?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................
TABLE OF CONTENTS...............-02000
TABLE OF AUTHORITIES ..................
PARTIES TO THE PROCEEDING ............
LL ERR ei ean eo
JURISDICTION .....0..6..00.0. Foe

CONSTITUTIONAL PROVISIONS, TREATIES
AND MICHIGAN TERRITORY STATUTE ..

STATEMENT OF THECASE.................
REASONS FOR GRANTING THE WRIT ......
ET \enetnbs cee c.cdbutekss cvs sce'e

APPENDIX
Order of the Supreme Court of the State of
Michigan

eR TO, BOIE oo. sven kbs oe oc cece
Opinion of the Court of Appeals of Michigan

Dated January 26, 1981 ...............0005.
Opinion of the Washtenaw Circuit (Ann Arbor)

trial court

Dated February 28, 1979 ...............04..
Article 6 of the Treaty of Detroit of 1807 .........
Article 16 of the Treaty of Fort Meigs of 1817... ..
Michigan Territory Law of 1821 to establish

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iii
TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

TREATIES

EEE hs wOGENS cawevcaseseces
Article 16 of the Treaty of Fort Meigs of 1817, 7
Stat 160, 2 Kappler 145 ...............4..

MICHIGAN TERRITORIAL STATUTE

i Michigan Territory Laws 879, ‘‘An Act for the
establishment in the City of Detroit, an
University, April 30, 1821”’ ...............

CASES

Beatty v Guggenheim Exploration Co, 225 N.Y. 380,
SEUSUEDPOTAUID | 6. oo. . ci cececBecesss.

Choate v Trapp, 224 U.S. 665, 32 S Ct 565, 56 L
Oe a RS ieee Oe

Herman v Edington, 331 Mass 310, 118 NE2d 865
ees vg Sai ks A A es

Knights of Equity v University of Detroit, 359 Mich
235, 102 NW2d 463(1960)..............5.

Kobogum v Jackson Iron Co, 76 Mich 498, 43 NW
ARSE OP eee yy ene

Raymond v Shawboose, 34 Mich 142 (1876)... ....

Saxon v Howey, 247 Mich 508, 226 NW
EE 60k Ob O40 s 5 n0 £68.90 Sada ead se.

2,3

2-7, 11-13

3,5, 7

10
10

iv

PARTIES TO THE PROCEEDING
Plaintiff- Petitioners
Paul J. Johnson
Bay Mills Indian Community Council
Cheboygan Indians United
Committee for Action of Rural Indians
Consolidated Bahweting Ojibwas, Inc.
Gogebic Ontonagon Non-Reservation Indian Council
Grand Traverse Area Indian Center
Grand River Band of Ottawa Nations, Inc.
Hannahville Indian Community Council
Huron Potawatomi, Inc.
Indians of North America Foundation, Inc.
Katakitegoning Indian Community Council
Keweenaw Bay Indian Community Council
Inter-Tribal Councils of Michigan
Les Cheneaux Tribe, Inc.
Leelanau Indians, Inc.
Northern Michigan Ottawa Foundation
Nadwegweyamsheing, Inc.
Original Band of Sault Ste Marie Indians
Potawatomi Indians of Michigan
Potawatomi Indian Nation, Inc.
Saginaw Chippewa Tribe
Thornapple Band of Ottawas
Tri-County American Indians, Inc.
Tri-County Indian Center
Organized Native Americans of the Marquette Area

Defendant-Respondent
Regents of the University of Michigan, an agency of the State
of Michigan

3n the Supreme Court of the Anited States

OCTOBER TERM, 1982

CHILDREN OF THE CHIPPEWA, OTTAWA
AND PoTvAWwATOMY TRIBES, éf. al.,
Petitioners,
vs.

REGENTS OF THE UNIVERSITY OF MICHIGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF MICHIGAN

OPINIONS BELOW

The order of the Michigan Supreme Court denying appli-
cation for leave to appeal is reported at 414 Mich 870 (1982).
It is set forth in full in the Appendix beginning at page 1a. The
opinion of the Michigan Court of Appeals is reported at 104
Mich App 482 (1982) and 305 NW2d 522 and is set forth in
full in the Appendix beginning at page 2a. The opinion of the
Washtenaw Circuit (Ann Arbor) trial court is reported at 104
Mich App 482, 493 and 305 NW2d 522 and is set forth in full
in the Appendix beginning at page 13a.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.
1257 (3). A right under a treaty of the United States is claimed
and the state courts of Michigan have declined to enforce the
right.

The Michigan Supreme Court’s order denying application
for leave to appeal was entered on August 10, 1982, and a
copy thereof is set forth in the Appendix at page 1a. The opin-
ion of the Michigan Court of Appeals was issued on
January 26, 198), and a copy thereof is set forth in the Appen-
dix at page 2a. The opinion of the trial court was issued on
February 28, 1979, and a copy thereof is set forth in the Ap-
pendix at page i3a.

The Constitution provides that ‘The Judicial Power shall
extend to all cases, in law and equity, arising under
... Treaties made, or which shall be made .. .’’ Art III Sec-
tion 2. The Constitution further provides that ‘“This Con-
stitution ... and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme
law of the land; and the judges in every state shall be bound
thereby, anything in the Constitution or laws of any state to
the contrary notwithstanding.’’ Art VI.

The Treaty of Detroit of 1807 provides in Article 6 that cer-
tain sections of land are reserved to the Indians as reservations
for their villages. Article 6 is set forth at page 34a of the Ap-

pendix. 7 Stat 105; 2 Kappler 92.

The Treaty of Fort Meigs of 1817 provides in Article 16
that the Indian village reservations be conveyed to the ‘‘col-
lege at Detroit’’ because the Indians were then ‘‘believing
they may wish some of their children hereafter educated.”’ Ar-
ticle 16 is set forth at page 34a of the Appendix. 7 Stat 160; 2

Kappler 145.

The Act of the Government of Michigan Territory of 1821
to establish the ‘‘University of Michigan’’ provided in Sec-
tion 8 that ‘‘the three sections of land, granted to the College
of Detroit by the treaty of Fort Meigs ... [be] ... subject,
nevertheless, to the uses, trusts and purposes for which the
same property was granted, given, conveyed or promised.’’
The 1821 Territorial Act is set forth at page 35a of the Ap-
pendix. 1 Michigan Territory Laws 879 (An Act for the
establishment in the City of Detroit, an University, April 30,
1821).

CONSTITUTIONAL PROVISIONS, TREATIES AND
MICHIGAN TERRITORY STATUTE

Appended to the Petition beginning at page 34a of the Ap-
pendix are the following relevant constitutional provisions,
treaties and Michigan Territory statute: Article III, Section 2
and Article V1 of the United States Constitution (in part); Ar-
ticle 6 of the Treaty of Detroit of 1807; Article 16 of the Treaty
of Fort Meigs; and An Act for the establishment in the City
of Detroit, an University, April 30, 1821 (1 Michigan Ter-
ritory Laws 879).

STATEMENT OF THE CASE

In the 1807 Treaty of Detroit the Chippewa, Ottawa and
Potawatomy Indians sold a large portion of southeast
Michigan to the United States. Three parcels of land totalling
1,920 acres were not sold; these lands were ‘‘reservations.”’
Evidence adduced at trial showed that these particular reser-
vations were Indian villages and salt source sites.

Prior to the War of 1812 Father Gabriel Richard operated a
school for Indian children near Detroit. Father Richard was a

member of the Sulpician Order whose primary mission was
the education of Indians. When the school was shut down by
the federal government Father Richard wrote to President Jef-
ferson that:

I am certain that with constancy we shall succeed.

Father Richard was highly regarded and trusted by the In-
dians.

The Indians fought on the side of the British during the
War of 1812 which, in Michigan Territory, did not conclude
until 1815. The Michigan Indians were not friendly to the
United States government, its territorial employees or its

In August of 1817 the University of Michigania was
established by Michigan Territorial Act.

In September of 1817 Father Richard was appointed vice
president of the University of Michigania.

On September 29, 1817 the Treaty of Fort Meigs was
signed by plaintiffs’ forefathers and by Territorial Governor
Lewis Cass who also served as president of the board of
trustees of the University of Michigania.

Article 16 of the Treaty of 1817 provides:

Some of the Ottawa, Chippewa and Potawatomy
tribes being attached to the Catholick religion and
believing they may wish some of their children
hereafter educated do grant ... to the corporation
of the College at Detroit for the use of the said col-
lege to be retained or sold . . . three sections of land

The full text of Article 16 is set forth in Appendix at page 34a.

In 1821 the University of Michigania was re-structured by
Territorial Statute and its name changed to the ‘‘University
of Michigan.’ The Territorial Act provides in Section 8:

And be it enacted, That the three sections of land,
granted to the College of Detroit by the Treaty of
Fort Meigs .. . shall be vested in the said trustees,
agreeably to the terms of the grant ... subject,
nevertheless, to the uses, trusts and purposes for
which the sare property was granted, given, con-
veyed or promised.

The full text of the 1821 statute is set forth in Appendix at
page 35a.

On May 15, 1824 by Letters Patent the Indian land was
conveyed to the ‘‘University of Michigan formerly the Cor-
poration of the College of Detroit’’ pursuant to ‘‘the sixteenth
article of a Treaty, made and concluded on the twenty ninth
day of September one thousand eight hundred and
seventeen.”’

After receiving the Indian reservation lands the University
of Michigan sold them.

Fifty years later University president James Burrill Angell
delivered a ‘‘Commemorative Oration’’ and said that the
money the University realized from the sale of the Indian
lands were ‘‘surpassing in ulcimate value the gifts for which
the names of Nicholas Brown and Elihu Yale and John Har-
vard were bestowed on colleges in New England.”’

President Angell went on to say that:
There is something pathetic in this gift of the In-
dians who were even then so rapidly fading away.

They doubtless hoped that some of their descen-
dants might attain to the knowledge which the white
man learned in his schools and which gave him such
wonderful power and skill. Their hope has never
been realized, so far as I know, by the education of
any full-blooded Indian at the University.

After selling the land the University of Michigan failed to
apply the proceeds from the sale to the education of Indian
The courts of Michigan acted in a parochial manner to
deprive these plaintiffs of their patrimony. They held that,
even after a decade of warfare, th~ Indians conveyed the Arti-
cle 16 lands as a ‘‘gift.’’ The courts below ignored the admoni-
tions of this Court in the construction and interpretation
of Indian treaties.

The issue centers upon Indian reservation land and the
right of the Indians to convey the land in trust to a then ter-
ritorial college (which, upon statehood in 1837, became a state
college) for the educational benefit of Indian children.
Article 16 of the Treaty of Fort Meigs of 1817 conveyed the
Indian reservation land that had been reserved to the Indians
for their villages in the Treaty of Detroit of 1807. Article 16
uses language that, coupled with the conveyance of the land,
created an express trust. Plaintiffs concede that the express
trust is not drafted with the precision that a modern day trust
lawyer might draft such a document; however, plaintiffs con-
tend that the evidence adduced at trial fully supports an ex-
press trust.

It has been claimed that the word ‘‘wish’’ in Article 16 is
precatory; yet the evidence is that in the idiom of the day an
Indian leader would use the word ‘‘wish’’ in a

manner that was not precatory. The speech of Chief Noonday

of the Grand River band of the Ottawa on January 11, 1827 is
illustrative:
I wish our children to be instructed like the whites,
then these educated children will become capable of
assisting us in the transaction of business with white
people.

A few years after the treating at Fort Meigs, the Michigan
Territorial Government made further evidence of the inten-
tion of both parties to create a trust when it enacted the 1821
University of Michigan Act that speaks directly of the Indian
reservation lands in Article 8.

Both the treaties of 1807 and 1817 were ratified by the
Senate. Acting upon commission of the Congress, Richard
Peters compiled and offered interpretation of the various In-
dian treaties in the early 1840's.

This is Peters’ interpretation of Article 16:

“GRANT FOR THE EDUCATION
OF INDIAN CHILDREN’”’

Peters’ conclusion concerning Article 16 was published in
1846, less than 30 years after the Treaty was signed. Peters,
the Reporter to John Marshall and publisher of 16 volumes
of United States Reports, was of renown stature in the
jurisprudence of his time. In compiling the Statutes at Large
he worked under the authority of Congress as its ‘‘reporter.’’
His conclusion was that the intent of Article 16 was that In-
dian children would be educated.

Biographical information on Peters’ work is contained in
Dunne, ‘‘Early Court Reporters,’’ Yearbook of the Supreme
Court Historical Society, 1976, pp 64-67; 5 History of the
Supreme Court of the United States (Oliver Wendell Holmes
Devise), MacMillan, 1974, pp 298-306.

The Michigan court has said on the one hand that:
Where there is a writing in existence evidencing the
trust, we have not required that all ‘‘t’s’’ should be
crossed or all ‘‘i’s’’ dotted. Saxon v Howey, 247 Mich
508, 512, 226 NW 228 (1929)

However, in the instant case the Michigan courts have per-
mitted a nit-picky interpretation of the law of trusts to prevail
so as to defeat the claim of the Indian children.

Massachusetts has long been the seat of study of the
American law of trusts; in its law schools, its banking houses
and its courts. American jurists have long considered the
Supreme Judicial Council of Massachusetts as the leading
American appellate court in the area of trust law. In 1954 the
S.J.C. held that a writing on an envelope containing deeds
was sufficient to constitute an express trust:

The delivery of the envelope and its contents to the
plaintiff in the attending circumstances was a suffi-
cient declaration of an express trust in the land .. .
Neither state [Massachusetts and Florida] requires
any particular form of words to create a trust in real-
ty. [citing cases] .. . whether one [a trust] exists is to
be ascertained from the intention of the parties as
manifested by the words used and the circumstances
of the particular case ... There is no prescribed
form for the declaration of a trust; whatever evinces
the intention of the party that the property of which
he is the legal owner shall beneficially be another’s is
sufficient. Herman v Edington, 331 Mass 310, 314-315,
118 NE2d 865, 868 (1954)

Plaintiffs asserted, in the alternate, that all the facts exist for
equity to construct a trust. In the alternate, the courts below
should have imposed a constructive trust and required that

funding be provided for Indian education at the university.

af j

The Manhattan Indians are reputed to have sold their island
for $24, therefore no constructive trust could be imposed by
equity in their favor. The record in the instant case is clear and
uncontroverted on the issue of consideration: no money or
consicieration of any sort was ever paid to the Michigan In-
dians for their reservation lands taken by the defendant. On
October 3, 1817 the Detroit Gazette reported that the Article 16
lands were ‘‘to be selected out of tracts reserved to the Indians
by the treaty of Detroit, and is consequently among the most
valuable lands in the Territory.’’ This is a situation where
equity should impose a trust.

The constructive trust, as it was put by Mr. Justice Car-
dozo, ‘‘is the formula through which the conscience of equity
finds expression. When property has been acquired in such
circumstances that the holder of the legal title may not, in
good conscience, retain the beneficial interest, equity converts
him into a trustee.’’ Beatty v Guggenheim Exploration Co., 225
NY 380, 386; 122 NE 378 (1919).

In negotiating treaties prior to 1836 the Indians acted
toward the treaty commissioners in the manner that a child
might toward a parent. Evidence adduced at trial of the in-
stant case was:

That is the way they [the Indians] characterized
themselves in dealing with the people who were the
[treaty] Commissioners. ‘‘We are the children and
you are our father.’’ They observed this as a per-
sonal relationship. This is the language they used.

The photocopy of the Treaty from the National Archives
shows that the Indians evidenced their assent to the treaty by
marking ‘‘X’’s and making tiny drawings of animals and
aware of the undue advantage that has been taken of the
native people of Michigan. In 1876 the Michigan Supreme

10

Court opined that ‘‘Shawboose can neither read nor write,
and was helpless in the hands of these parties.’’ Raymond v
Shawboose, 34 Mich 142, 149 (1876). In 1889 it said that ‘‘I¢ is
undoubtedly true that Indians may be easily led to make bad
bargains, and, when made, usually stick to them.’’ Kobogum v
Jackson Iron Co, 76 Mich 498, 506; 43 NW 602 (1889).

It is interesting to note that Michigan does recognize that a
scholarship fund can be established to benefit a specific ethnic
group. Knights of Equity v University of Detroit, 359 Mich 235;
102 NW2d 463 (1960). That case concerned scholarships to
benefit Irish children; it was held that the University obliga-
tion was limited to the income generated by the trust assets.
Plaintiffs seek nothing more in the instant case.

However, unlike their treatment of the Irish twenty years
ago, the contemporary Michigan courts rationalized to their
satisfaction the failure of the University to live up to its trust
obligations by the simple device of labeling the transaction a
**zift.”’

The historical personage the Michigan courts selected as
the focus of the ‘‘gift’’ was Father Gabriel Richard.

Father Gabriel Richard operated a school for Indian
children that was shut-down during the War of 1812. But
Father was undaunted in his quest to educate Indians. He
wrote that:

God knows how may projects great and small go
through my head of schools and missions for the In-
dians . .. My spirit, my imagination, and still more
my heart is full of plans, designs, projects and con-
ceptions which I should call extravagant, and which
always remain sterile, they abort or they die at birth.

In a very unfair and unjust reading of history the courta
below held that since the Indians loved Father Richard and he

il

was connected with the university, therefore the Indians in-
tended a ‘‘gift’’ of their village reservation lands to the univer-
sity. Thus the defendant escaped an obligation to do equity to

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the Michigan courts
have decided an important question of federal Indian treaty
law which should be settled by this Court. The Treaty of Fort
Meigs of 1817 is the only treaty of the 388 Indian treaties on
record that mentions any college. In no other Indian treaty is
there any mention whatsoever of any college.

The trial court said at 104 Mich App 496 that ‘‘This case is
especially difficult because this Court has to leap backward in
time some one hundred sixty-two years to figure what
happened.”’

Rather than contemplating the rules for leaping backwards,
this Court has upon many occasion. described the judicial
analysis that ought to be applied to Indian treaties.

The construction, instead of being strict, is liberal;
doubtful expressions, instead of being resolved in
favor of the United States, are to be resolved in
favor of a weak and defenseless people.
The language used in treaties with the Indians shall
never be construed to their prejudice, if words he
made use of susceptible of a more extending mean-
ing. —Choatev Trapp, 224 US 665, 675; 32 S Ct 565;
56 L Ed 941 (1911)
This was the historic position of Chief Justice Marshall. In
the instant case Marshall’s reporter, Richard Peters, had no
difficulty whatsoever in observing in Article 16 that the drafter

12

had placed therein words ‘‘made use of susceptible of a more
extending meaning.”’

Plaintiffs ask this Court to consider the human motivations
that were expressed in Article 16 and the 1821 Michigan Ter-
ritorial Act; plaintiffs seek justice for the reasonable expecta-
tions that were induced in their forefathers and were recorded
in those solemn writings.

The title of the Chippewa, Ottawa and Potawatomy peoples
to their Michigan lands was the most ancient, pure and abso-
lute known to man; its validity confirmed by possession and
enjoyment antecedent to all pretense of claim by the Regents
of the University of Michigan.

The consent of the Indian peoples at Fort Meigs in 1817
was indispensable to a transfer of their title to the University.
The Indians fulfilled their part of the bargain: the University
got the land. The University has not fulfilled its part: the
Indian children did not receive the education.

Plaintiffs believe the opinions of the courts below are based
upon a misapprehension of history and the law. This Court is
in a unique position to do justice by examining the facts and
doing equity. Gabriel Richard wrote:

The Indians seem desirous to have their children
educated . . . it is contemplated to admit them in our
Seminary together with the White children. By liv-
ing under the same roof, Eating the same bread,
and receiving the same Instruction, they shall learn
that they are all Brothers, and believe to be one and
same people and one family.

It is haunting to read those words, penned so many years
ago, because they remind us that the power of the ideas ex-
pressed in Brown v Board of Education, were not conceived in
the post World War II era. The roots of those ideas are buried
deeply in our history.

13

On September 29, 1817 the sachems, chiefs and warriors of
the Chippewa, Ottawa and Potawatomy tribes tried to pro-
vide for their children’s education in the manner that
appeared to them most likely to insure the spoken promise.
For who could possibly believe that these Indian men in 1817
would give away their ancient tribal village lands and not pro-
tect their children?

The children aie the natural object of bounty of their fore-
fathers who signed the treaty; not some then little known
month-old college at Detroit.

This case is not concerned with the legal rights of a single
individual; it is concerned with the equitable rights of an
entire class of people who are the original people of Michigan.

The class of Michigainers that bring this case have the
highest rate of unemployment, of illiteracy, of alcoholism and
the lowest standard of housing, health care and income of any
class of people in the state.

Their adversary is the second oldest corporation in Michi-
gan, founded in 1817. Then a penniless institution, it received
1,920 acres of Indian reservation land when it was four weeks
old. This land was, in the words of the 1821 statute, ‘‘subject
nevertheless to the u3es, trusts and purposes for which it was
conveyed.’’ Today that then penniless college enjoys an
annual budget that exceeds one half billion dollars.

CONCLUSION

Article 16 of the 1817 Treaty effected a taking of tribal prop-
erty by the University of Michigan, property which had been
set aside for the exclusive occupation of the Chippewa,
Ottawa and Potawatomy by the 1807 Treaty. That taking
implied an obligation on the part of the university to make just

i4

compensation to the Indians in the form of education benefits
since no money was paid to the Indians for their tribal reserva-
tion lands. The courts of Michigan have erred in favor of the
university. Your plaintiffs pray this Honorable Court grant,
their prayer and issue the writ of certiorari so that justice may
be done.

Respectfully submitted,

Elmer E. White
Attorney for Petitioners

ate

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1067%3A1. Public record. Not legal advice.