Amicus Curiae Brief — Cass County v. Leech Lake Band of Chippewa Indians
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No.97-174 5 15 %%
CLERK
In THE
Supreme Court of the United States
OCTOBER TERM, 1997
Cass County, et al.
4 Petitioners,
LEECH LAKE BAND OF CHIPPEWA INDIANS,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
BRIEF FOR LEWIS COUNTY, IDAHO;
AITKIN COUNTY, BENTON COUNTY,
CROW WING COUNTY, ISANTI COUNTY,
KANABEC COUNTY, MAENOMEN COUNTY,
MILLE LACS COUNTY, MORRISON COUNTY,
PINE COUNTY, AND SHERBURNE COUNTY,
MINNESOTA; GLACIER COUNTY, LAKE COUNTY,
AND ROOSEVELT COUNTY, MONTANA;
LYMAN COUNTY, SOUTH DAKOTA;
DUCHESNE COUNTY AND UINTAH COUNTY, UTAH;
AMICI CURIAE, IN SUPPORT OF PETITIONERS,
CASS COUNTY, MINNESOTA, ET AL.
JAMES M. JOHNSON Tom D. ToBIN *
Attorney at Law TOBIN LAW OFFICES, P. C.
1110 S. Capitol Way 422 Main Street
Olympia, WA 98501 P.O. Box 730
(360) 357-3104 Winner, SD 57580
(605) 842-2500
* Counsel of Record
[Additional Counsel Listed on Inside Cover]
WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
ms
KIMRON TORGERSON
Lewis County Prosecuting
Attorney
P.O. Box 398
Nezperce, ID 83543
(208) 987-2271
BRADLEY C. RHODES
Aitkin County Attorney
209 Second Street, N.W.
Aitkin, MN 56431
(218) 927-7347
MICHAEL JESSE
Benton County Attorney
531 Dewey Street
Box 129
Foley, MN 56329
(320) 968-6254
DONALD F. RYAN
Crow Wing County Attorney
326 Laurel St., Courthouse
Brainerd, MN 56401
(218) 828-3952
JEFFREY EDBLAD
Isanti County Attorney
555 18th Avenue, S.W.
Cambridge, MN 55008
(612) 689-2253
NORMAN LOREN
Kanabec County Attorney
18 Vine Street North—
Courthouse
Mora, MN 55051-1351
(320) 679-2870
ERIC BoE
Mahnomen County Attorney
P.O. Box 439
Mahnomen, MN 56557
(218) 935-2378
JENNIFER FAHEY
Mille Lacs County Attorney
635 Second Street, S.E.
Milaca, MN 56353
(320) 983-8305
CONRAD FREEBERG
Morrison County Attorney
Morrison County Government
Center
213 Ist Avenue SE
Little Falls, MN 56345
(320) 682-0190
JOHN CARLSON
Pine County Attorney
315 Sixth Street—Courthouse
Pine City, MN 55063
(320) 629-6781
WALTER KAMINSKY
Sherburne County Attorney
13880 Highway 10
P.O. Box 318
Elk River, MN 55330-1692
(612) 241-2565
LARRY EPSTEIN
Glacier County Attorney
512 East Main Street
Cut Bank, MT 59427-3016
(406) 873-2277
DEBORAH KIM CHRISTOPHER
Lake County Attorney
Lake County Courthouse
106 4th Ave. E
Polson, MT 59860-2125
(406) 883-7245
JAMES R. PATCH
Roosevelt County Attorney
400 Second Avenue South
Wolf Point, MT 59201-1600
(406) 653-2653
DALLAS E. Brost
Lyman County States Attorney
P.O. Box 38
100 South Main
Kennebec, SD 57544
(605) 869-2294
HERBERT WM. GILLESPIE
Duchesne County Attorney
500 East 100 South
P.O. Box 206
Duchesne, UT 84021
(801) 738-2435
JOANN B. STRINGHAM
Uintah County Attorney
152 East 100 North
Vernal, UT 84078
(801) 781-5436
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................-..-...
INTEREST OF AMICI CURIAE COUNTIES ............
II.
THE OPINION OF THE COURT OF AP-
PEALS IS CONTRARY TO A TRADITION
OF TAXATION AND CONFLICTS IN PRIN-
CIPLE WITH THE RELEVANT DECISIONS
eg EE
C. All Related Opinions Reflect That The Gen-
eral Allotment Act And All Other Legisla-
tion Were Clearly Understood To Generally
Authorize The Taxation Of Fee Patent
THROUGH THE NELSON ACT, CONGRESS
LEFT LANDS IN MINNESOTA FREELY
ALIENABLE AND TAXABLE (ONLY EX-
CEPTING THOSE HELD IN TRUST)
ED cenreceprepsnsstensssscensinipssncssdiqssnmtaninmngupretnemamenanss
APPENDIX
H.R. Exec. Doc. No. 247, 5ist Cong., Ist Sess.
K separately bound
11
19
21
ii
TABLE OF AUTHORITIES
CASES Page
Bailess v. Paukune, 344 U.S. 171 (1952) ..... 16
Board of Comm'rs of Jackson County, Kansas v.
United States, 308 U.S. 343 (19399999 13, 14, 15
County of Oneida v. Oneida Indian Nation, 470
TE Fo xa 10
County of Thurston v. Andrus, 586 F.2d 1212 (8th
Cir. 1978), cert. denied, 441 U.S. 952 (1979) 16
Draper v. United States, 140 U.S. 240 (18917 11
Goudy v. Meath, 203 U.S. 146 (1906) 5, 10, 12, 21
Larkin v. Paugh, 276 U.S. 431 (1928) .................... 10
Leech Lake Band of Chippewa Indians v. Cass Co.,
Minn., 108 F.3d 820 (8th Cir. 1997), cert.
granted (U.S. October 31, 1997) (No. 97-174) 7, 16,
24, 27
Mahnomen County v. United States, 319 U.S. 474
— v —— 15, 16
Mille Lacs Band of Chippewa Indiens v. Minne-
sota, 861 F. Supp. 784 (D. Minn. 199) 29
Moe v. Confederated Salish & Kootenai Tribes,
PI __e 10
Morrow, County Auditor v. United States, 243
BP, GIR —— — 23, 24
Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987),
cert. denied, 484 U.S. 848 (19877 16
Oregon Fish & Wildlife Dept. v. Klamath Tribe,
OE E>>———————————— 29, 30
Pennock v. Board of County Comm'rs of Franklin
County, 108 U.S. 44 (1881) ................................... 11
Red Lake Band of Chippewa Indians v. Minnesota,
614 F.2d 1161 (8th Cir. 1980) —..................... 28, 29
South Carolina v. Catawba Indian Tribe, Ine., 476
Fe ( _ — 10
Squire v. Capoeman, 351 U.S. 1 (1956) —................ 17
Stevens v. C. I. R., 452 F.2d 741 (1971) ......... 1 7
United States v. Mason, 412 U.S. 391 (1973 17, 18
United States v. McCurdy, 246 U.S. 263 (1918) 13
United States v. Michigan, 106 F.3d 130 (6th Cir.
1997), pet. for cert. filed (U.S. June 30, 1997)
0 ——————————————————————— 7
iii
TABLE OF AUTHORITIES—Continued
Page
United States v. Mitcheu., 445 U.S. 535 (1980)... 18, 19
United States v. Nice, 241 U.S. 591 (1916) 12, 13
United States v. Rickert, 188 U.S. 432 (1903) 11, 12, 13
United States v. Winans, 198 U.S. 371 (1905) 29
White Earth Band of Chippewa Indians v. Alez-
ander, 683 F.2d 1129 (8th Cir. 1982) 28
Yakima County v. .
r . ele te ae passim
STATUTES
General Allotment Act of 1887 (24 Stat. 388) passim
Nelson Act of January 14, 1889, ch. 24 (25 Stat.
6425 passim
Great Sioux Act of 1889 (25 Stat. 896)... 9
Joint Resolution of June 19, 1902 (32 Stat. 744) x
Burke Act of 1906 (34 Stat. 187 16
Act of February 14, 1923 (42 Stat. 1246) 25
RIS ne A CA 8
Indian Reorganizaiton Act of 1934 (48 Stat. 984) 8, 10
REE ̃ . 10
is ...... cic 10
MISCELLANEOUS
H.R. Exec. Doc. No. 247, 5ist Cong., Ist Sess.
11 passim
19 Op. Atty. Gen. 161 (188686 20
I: ... 20
D .. ee 20
rr 20
ES SB 2 20
r 8
Memorandum BIA. IA. No. 0943, April 21. 1989. 21
Memorandum Opinion of the Associate Solicitor,
Dept. of Interior, Division of Indian Affairs,
EE 7
Brief for the United States, Bailess v. Paukwne,
344 U.S. 171 (1952) (No. 242) 16
Brief for the United States, Board of Comm’rs of
Jackson County, Kansas v. United States, 308
U.S. 343 (1939) (No. 1728) 14
iv
TABLE OF AUTHORITIES—Continued
Brief for the United States, Leech Lake Band of
Chippewa Indians v. Cass Co., Minn., 108 F.3d
820 (8th Cir. 1997) (No. 95-4263) 7,9
Brief in Opp’n, Leech Lake Band of Chippewa In-
dians v. Cass Co., Minn., 108 F.3d 820 (8th Cir.
e 00
Brief for Lewis County, Idaho, et al. Amici Curiae,
in Support of Petitioners, Cass County, Minne-
sota, et al., Cass County, Minnesota v. Leech
Lake Band of Chippewa Indians (No. 97-174)
7. — 6
Brief for the United States, Mahnomen County v.
United States, 319 U.S. 474 (1943) (No. 12340,
——K A5 15
Brief for the United States, United States v.
Mason, 412 U.S. 391 (1973) (Nos. 72-654, 72-
606) 1 17
Brief for the United States, United States v.
McCurdy, 246 U.S. 263 (1918) (No. 685) 13
Brief for the United States, United States v.
Mitchell, 445 U.S. 535 (1980) (No. 81-1748) 18
Brief for the United States, Nice v. United States,
241 U.S. 591 (1916) (No. 681) 12
Brief for the United States, United States v.
Rickert, 188 U.S. 482 (1908) (No. 216) 11
Brief for Petitioner, Squire v. Capoeman, 351 U.S.
180 17
Brief for the United States as Amicus Curiae,
Yakima County v. Yakima Indian Nation, 502
U.S. 251 (1992) (Nos. 90-408, 90-577) 3, 9, 10
Reply Brief of Petitioners/Cross Respondents,
County of Yakima and Dale A. Gray, Yakima
Treasurer, County of Yakima v. Yakima Indian
Nation, 502 U.S. 251 (1992) (Nos. 90-408, 90-
5 | en Se eee 25
Memorandum for the United States as Amicus
Curiae in Support of Petition for Rehearing and
Suggestion for Rehearing En Banc, Yakima
Indian Nation v. County of Yakima, 960 F.2d
798 (9th Cir. 1992) (No. 88-3926) 8
*
TABLE OF AUTHORITIES—Continued
Brief for La Plata County, Colorado, et al.
Amici Curiae in Support of Petitioners, Yakima
County v. Yakima Indian Nation, 502 U.S. 251
(1992) (Nos. 90-408, 90-577)
Transcript of Oral Argument, United States v.
— 412 U.S. 391 (1978) (Nos. 72-654, 72.
Transcript of Oral Argument, United States v
Mitchell, 445 U.S. 585 (1980) (No. 81-1748).
Transcript of Oral Argument, Yakima County v.
Yakima Indian Nation, 502 U.S. 251 (1992)
(Nos. 90-408, 90-577)
G su Handbook of Federal Indian Law (1942
F. 2 Handbook of Federal Indian Law (1982
Conference of Western Attorneys General, Ameri.
can Indian Law Deskbook (1998)
——— ht ee
Page
18
19
IN THE
Supreme Court of the United States
OcTOBER TERM, 1997
No. 97-174
Cass CouN rv, MINNESOTA, et al.,
0 Petitioners,
LEECH LAKE BAND OF CHIPPEWA INDIANS,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
BRIEF OF THE
NATIONAL ASSOCIATION OF COUNTIES,
NATIONAL GOVERNORS’ ASSOCIATION,
NATIONAL LEAGUE OF CITIES,
NATIONAL CONFERENCE OF STATE LEGISLATURES,
U.S. CONFERENCE OF MAYORS, INTERNATIONAL
CITY/COUNTY MANAGEMENT ASSOCIATION,
INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION, AND COUNCIL OF
STATE GOVERNMENTS AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
INTEREST OF THE AMICI CURIAE
Amici are organizations whose members include state
and local governments and officials throughout the United
2
States. Amici and their members have a vital interest in
legal issues that affect the powers and responsibilities of
state and local governments.
Amici are concerned that serious erosion of ad valorem
tax bases could result if Tribes can unilaterally assert
sovereignty over land previously held by private parties,
in derogation of well-established state and local authority
to tax real property. The decision below allows Tribes to
create a tax-exemption on their own volition simply by
purchasing from private parties land that Congress had
previously ordered to be sold for the benefit of the Tribes.
Tribes have purchased land from non-Indians to develop
casinos, hotels, malls and convention centers, asserting
that their projects are immune from state and local govern-
ment real estate taxes. See discussion infra at 22-23, 26-27.
In addition, in at least one instance, non-Indians have
entered into a leaseback arrangement with a Tribe for
prime resort property in an effort to avoid state and local
taxes. See id. at 26.
By allowing Indians a new power unilaterally to expand
their federal immunity from state taxation, the decision
below also allows Indians to circumvent statutory proce-
dures specifically designed by Congress to govern the
reestablishment of federal trust status, 25 U.S.C. § 465,
and the Secretary of the Interior’s consideration of the
impact on state and local governments of removing prop-
erty from the tax rolls, see 25 C.F.R. § 151.10(e) (imple-
menting 25 U.S.C. § 465 and expressly providing for
state and local government comment on “the impact on
1 Pursuant to Rule 37.3 of the Rules of this Court, the parties
have consented to the filing of this brief amicus curiae. Their
letters of consent have been filed with the Clerk of the Court.
Pursuant to Rule 37.6 of the Rules of this Court, amici state
that no counsel for a party has authored this brief in whole or in
part, and that no person or entity, other than the amici, their
members, or their counsel, has made a monetary contribution to
the preparation or submission of this brief.
co
fact that Congress had, in the Nelson Act of 1889, or-
the sale of these parcels to the general public and
those sales in trust for the Tribe’s
vidual members in severalty. See County of Yakima v.
Yakima Nation, 502 U.S. 251, 254 (1992). The allot-
ment policy was designed to encourage Indians to become
4
self-sufficient yeoman farmers and to open land to non-
Indian settlers. See id.
Congress experimented extensively with allotment as
early as 1854.“ But it was not until 1887 that Congress
universalized allotment under the General Allotment
(Dawes) Act, ch. 119, 24 Stat. 388 (1887) (codified at
25 U.S.C. §§ 331-34, 339, 341-42, 348-49, 354, 381)
(“Dawes Act“) Under the Dawes Act, the United States
could survey tribal lands and allot to “each head of a
family,” in severalty, up to 80 acres for farming and 160
acres for grazing. Dawes Act § 1, 24 Stat. at 388. The
Secretary of the Interior was then authorized to negotiate
for the “purchase and release by said tribe” of the large
portions of the reservation remaining after allotment, with
the proceeds of such residual land sales to be held in fed-
eral trust for the benefit of the Tribe. Dawes Act § 5,
24 Stat. at 389; Hagen v. Utah, 510 U.S. 399, 402
(1994). Consistent with its desire to facilitate westward
expansion of the growing nation, Congress specified that
all “lands adapted to agriculture” made available through
this “purchase and release” process were to be used “for
the sole purpose of securing homes to actual settlers.
Dawes Act § 5, 24 Stat. at 389.
Dawes Act was to be held by the United States in trust
for the individual Indians for 25 years and then patented
“in fee, discharged of said trust and free of all charge or
2 See Treaty with the Confederated Ottoes and Missourias, Mar.
15, 1854, 10 Stat. 1038 (allotting lands in severalty and authorizing
the sale of the residue for the Tribe’s benefit); see also Feliz S.
Cohen’s Handbook of Indian Law 98-102 (Bernard Strickland, ed.
1982) (hereinafter Cohen“).
Congress later extended the provisions of the Dawes Act to
a toe heretofore purchased or which may be purchased by
authority of Congress for the use or benefit of any individual Indian
or band or tribe of Indians.” Act of Feb. 14, 1923, ch. 76, 42 Stat.
1246 (1923) (codified at 25 U.S.C. § 335).
5
incumbrance whatsoever.” Jd. Furthermore, Congress
made the allotted land subject to state laws of “descent
and partition” and gave the Indians on such lands “the
benefit of and [made them] subject to the laws, both civil
and criminal, of the State or Territory in which they may
reside.” Id. at § 6.“ Congress subsequently amended the
Dawes Act by the Burke Act of 1906, ch. 2348, 34 Stat.
182 (1906) (codified at 25 U.S.C. § 349), which clarified
that “state civil and criminal jurisdiction would lie
when the lands have been conveyed to the Indians by pat-
ents in fee.” County of Yakima, 502 U.S. at 255.“ The
Burke Act, however, expressly provided for state control
and taxation of allotted lands for which the Secretary had
issued fee patents before the trust period ended, known as
“prematurely patented lands.” See County of Yakima,
502 U.S. at 264.
B. The 1889 Nelson Act for the Chippewa in Minnesota
Responding in part to continuing pressure for expanded
settlement, Congress sought to integrate Indians into non-
* Congress later provided that all lands which had trust or other
restrictions and were sold with the approval of the Secretary by
the heirs of allottees are expressly “subject to taxation under the
laws of the [situs] State or Territory.” Act of May 27, 1902, ch.
888, § 7, 25 Stat. 245, 275 (codified at 25 U.S.C. § 379).
Congress passed the Burke Act in response to a decision of
this Court, In re Heff, 197 U.S. 488, 508, 509 (1905), overruled,
United States v. Nice, 241 U.S. 591, 601 (1916), which held that
Indians received “emancipation from Federal control” immediately
upon allotment. The Burke Act proviso specifically authorizes:
the Secretary of the Interior . . in his discretion, .. .
whenever he shall be satisfied that any Indian allottee is com-
petent and capable of managing his or her affairs at any time
to cause to be issued to such allottee a patent in fee simple, and
thereafter all restrictions as to sale, incumbrance, or taxation
of said land shall be removed and said land shall not be liable
to the satisfaction of any debt contracted prior to the issuing
of such patent
25 U.S.C. § 349 (emphasis added)
6
Indian society and to provide new land for settlement or
commercial exploitation by non-Indians by enacting nu-
merous tribe-specific surplus land allotment acts “to force
Indians onto individual allotments carved out of reserva-
tions and to open up unallotted lands for non-Indian
settlement.” Solem v. Bartlett, 465 U.S. 463, 467
(1984).* Often without explicit reference to the Dawes
Act, these Acts provided for the sale of lands remaining
after allotment and furthered Congress’ goals of promot-
ing assimilation of the Indians and ending the reservation
system. See Cohen, at 132-38." The inevitable result of
sales of individual parcels of reservation land to non-
Indians was that “reservations became checkerboarded as
the sale of surplus lands to whites isolated individual In-
dian allotments.” See id. at 137.
o See, e.g., Fort Berthold Reservation Act, ch. 264, 36 Stat. 455
(1910); Rosebud Sioux Act, ch. 260, 36 Stat. 448 (1910); Pine
Ridge Reservation Act, ch. 257, 36 Stat. 440 (1910); Flathead
Reservation Amendment Act, ch. 156, 36 Stat. 296 (1910) ; Cheyenne
River and Standing Rock Reservations Act, ch. 218, 35 Stat. 460
(1908) ; Rosebud Sioux Act, ch. 2536, 34 Stat. 1230 (1907); Okla-
homa Osage Allotment Act, ch. 3572, 34 Stat. 539 (1906); Colville
Reservation Act, ch. 1126, 34 Stat. 80 (1906); Wind River Reser-
vation Act, ch. 1452, 33 Stat. 1016 (1905); Devil’s Lake Reserva-
tion Act, ch. 1620, 33 Stat. 319 (1904) ; Flathead Reservation Act,
ch. 1495, 33 Stat. 302 (1904); Rosebud Sioux Act, ch. 1484, 33
Stat. 254 (1904); Colville Reservation Act, ch. 140, 27 Stat. 62
(1892) ; Appropriations Act of March 8, 1891, ch. 543, 26 Stat. 989
(1891) (containing agreements with the Fort Berthold Indians,
§§ 23-25; Sisseton and Wahpeton Sioux, §§ 26-30; and Montana
Crow, 88 81-34); Great Sioux Act, ch. 405, 25 Stat. 888 (1889).
After Lone Wolf v. Hitchcock, 187 U.S. 558, 567-68 (1903), in which
this Court held that involuntary statutory cession of Indian lands
was within Congress’ powers, tribal consent to surplus land acts
was not required.
Given the variation in the language of these Acts and the cir-
cumstances surrounding their passage, some of these Acts have
been interpreted as having diminished the reservation’s boundaries,
while others merely allowed for land sales to non-Indians within
the existing reservation boundaries. See Hagen, 510 U.S. at 410.
f
L
i
;
5
:
allotted to individual Indian households “in conformity
;
:
d
;
used to support “a system of free schools,” and the prin-
to be paid to tribal members in 50 years. Id. at
§ 7; see also IV Folwell, History of Minnesota, at 221-22.
C. The Indian Reorganization Act of 1934
Nearly 50 years after the Dawes Act, Congress enacted
the Indian Reorganization (Wheeler-Howard) Act of 1934,
reversed direction and abandoned the policy of integrat-
ing Indians into non-Indian society. See Mattz v. Arnett,
412 U.S. 481, 497 n.18 (1973). The Reorganization Act
* The Nelson Act was amended by an Act of June 27, 1902, ch.
1157, 32 Stat. an Act of June 25, 1910, ch. 431, § 27, 36
Stat. 855, 862, both of which related
ng
8
4
prohibited further allotments and extended indefinitely
any existing restrictions on alienation of federal trust
lands. Reorganization Act §§ 1-2. The Act further pro-
vided the United States with authority to restore the trust
status of land within or contiguous to reservations. Re-
organization Act § 5 (codified at 25 U.S.C. § 465).
The Reorganization Act did not, however, attempt to re-
verse the multitude of land transactions under the Dawes
Act or any of the other allotment acts that had authorized
the alienation of nearly two-thirds of former Indian lands.
See County of Yakima, 502 U.S. at 255-56; Cohen, at
138. Indian reservations shrank by approximately 90 mil-
lion acres from 1887 to 1934 due to sales by allottees to
non-Indians, cession of land to the United States, and other
sales to non-Indian settlers and businesses. See Cohen, at
138. The resulting checkerboard pattern of Indian and
non-Indian ownership within reservations’ former bounda-
ries thus continues. Today, only 54.1% of the population
of reservations are American Indians, Eskimos and Aleuts.
See Bureau of Census, U.S. Dep't of Commerce, 1990
Census of Population: General Population Characteristics:
American Indian and Alaska Native Areas 1, tbl. 1
(1992). For example, Osage County, Oklahoma, which
borders Tulsa, is coextensive with the Osage Reservation,
but Indians constitute only 14.8% of its population. See
id. Similarly, the Uintah Indian Reservation analyzed in
Hagen v. Utah, 510 U.S. 399 (1994), is 85% non-Indian
and contains Roosevelt City, which is 93% non-Indian.
Id. at 420-21.
D. Proceedings Below
This case involves twenty-one parcels within the reserva-
tion of the Leech Lake Band of Chippewa Indians in Cass
County, Minnesota, thirteen of which were originally allot-
ted to Indians, seven of which were sold as pine land, and
one of which was sold as a homestead. See Pet. App. 33.
Pursuant to the Nelson Act, each of these parcels was alien-
9
ated from federal trust status by allotment, fee patenting
and subsequent sale, or by direct sale in fee to non-Indians.
See id. During this period of non-Indian ownership, Cass
County had authority to assess and collect non-discrimi-
natory ad valorem taxes on each parcel.
The Leech Lake Band has recently repurchased in fee
several parcels lying within the boundaries of its reserva-
tion. Utilizing the authority in section five of the Re-
organization Act, the Band has placed some of its new
purchases, including the site of its casino, into federal trust
status, which clearly exempts those parcels from state
ion. See Pet. App. 24 n.14. But the Band has not
i
a
5
5 °
3
8
valorem taxes, an injunction
against such taxes, and refund of the amounts paid. See
34.
that
1 (1992). Pet. App. 37. The court
that the lands allotted to individual In-
terms of the Dawes Act are taxable under
Yakima, but reversed the distri
the parcels that Nelson Act §§ 4-6 designated
for homesteading and pine harvesting. Pet. App. 22-23.
The court of appeals held that Congress’ action in order-
ing the public of these parcels was an
manifestation of its intent to subject them
10
that parcels originally allotted to individual Chippewa
under the Nelson Act remain taxable, but the pine and
homestead lands sold to non-Indians under the Nelson Act
over a century ago have now become tax-exempt.
SUMMARY OF ARGUMENT
I. Indian tribes enjoy immunity from state and local
taxation only as an extension of congressional power. See
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163,
173 (1989); Montana v. Blackfeet Tribe, 471 U.S. 759,
764 (1985). Therefore, when Congress has expressed its
intent to allow state or local taxation, Indian tribes have
no independent basis for claiming exemption from state
authority. A “categorical allowance of State taxation
[exists] when it has in fact been authorized by Congress.”
County of Yakima, 502 U.S. 251, 267 (1992).
In County of Yakima, this Court reviewed the history
and legacy of federal allotment policy and the Dawes Act
and held that the Act expressly allowed a county to assess
ad valorem taxes on land owned in fee by Indians within
an Indian reservation. See id. at 266-67. Because Con-
gress authorized such taxation, this Court held that neither
a Tribe nor an individual Indian retained any inherent
power to prevent the assessment of state taxes. See id.
at 267.
Although this case concerns land conveyed to non-
Indians under one of the surplus land statutes that fol-
lowed the Dawes Act, the analysis here is no different—
once Congress has chosen to extinguish its protection of
the Indian land, Tribes lack any power unilaterally to re-
kindle federal supremacy. Thus, the relevant inquiry is
whether Congress intended to alienate the land from fed-
eral protection and control and whether Congress made its
intention to do so clear.
Pursuant to its policy of allotment and assimilation,
Congress enacted numerous statutes that allotted tribal
end
land. See County of Yakima, 502
U.S. at 267-68; Goudy v. Meath, 203 U.S. 146, 149
(1906). Accordingly, the Federal Government’s action
in selling parcels publicly to non-Indian settlers and busi-
process, 25 U.S.C. § 465. Accordingly, the efforts of the
Leech Lake Band unilaterally to reassert immunity from
ad valorem taxation should be rejected.
Although Congress has now reversed its policies of
allotment and assimilation, it has chosen not to disturb
the multitude of land transactions that occurred as a result
of those policies. See County of Yakima, 502 U.S. at
255-56. Instead, it has offered Tribes a specific statutory
method, 25 U.S.C. § 465, for the re-establishment of fed-
eral trust status, but only after due consideration by the
Federal Government of the fiscal and other impacts of
renewed federal immunity on the affected States and local
governments. See 25 C.F.R. § 151.10(e). Because the
decision below sanctions the Leech Lake Band’s circum-
vention of Congress’ prescribed mechanism for re-estab-
lishing federal trust status over Indian lands, the judg-
ment of the court of appeals should be reversed.
II. The rule that alienability equals taxability is con-
sistent with this Court’s long-standing objective of encour-
aging clarity in matters of Indian taxation and facilitates
the fair and efficient assessment of ad valorem taxation.
By expressly recognizing that Congress’ alienation of land
12
from federal control in itself manifested an intent to render
such land subject to state and local ad valorem taxation,
this Court can obviate the need for repeated, complex,
and protracted litigation over the tax status of Indian-
ment practices.
ARGUMENT
I. WHERE CONGRESS HAS CHOSEN TO RELIN-
QUISH FEDERAL CONTROL AND PROTECTION
OF RESERVATION LAND THROUGH ALLOT-
MENT OR PUBLIC SALE, THE TRIBE’S REPUR-
CHASE OF SUCH PARCELS IN FEE DOES NOT
RE-ESTABLISH FEDERAL IMMUNITY FROM
STATE AND LOCAL AD VALOREM TAXATION
At least since McClanahan v. Arizona State Tax
Comm'n, 411 U.S. 164 (1972), this Court has avoided
“platonic notions of Indian sovereignty” and instead deter-
mined the limits of state power by reference to the applica-
ble federal treaties and statutes. See id. at 172. As the
various allotment and surplus land acts make plain, Con-
gress decided long ago to end exclusive Indian sovereignty
over most tribal lands by allotment or public sale. Al-
though Congress later abandoned the policy of assimilation
through allotment, Congress has not given the Tribes the
power that the Leech Lake Band asserts—the power to
extend federal supremacy over a State’s lands by the
Tribe’s mere repurchase of a parcel in fee from private
parties.
A. Federal Supremacy Is the Sole Source of Any
Indian Immunity From State and Local Taxation
Absent express congressional authorization, the United
States is immune from state and local taxation. McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 430-32 (1819).
The United States shares this immunity with “the Indian
tribes for whose benefit the United States holds reservation
lands in trust.” Cotton Petroleum Corp., 490 U.S. at 175
13
(citing Blackfeet Tribe, 471 U.S. at 764). “Absent: ex-
plicit congressional direction to the contrary,” States thus
presumptively lack jurisdiction to tax Indian property on
an Indian reservation because of federal supremacy. Okla-
homa Tax Comm'n v. sac and Fox Nation, 508 U.S. 114,
128 (1993); see also Bryan v. Itasca County, 426 U.S.
373, 376 n.2 (1976); McClanahan v. State Tax Comm'n,
411 U.S. 164, 171 (1973); Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 148 (1973).
Given the significance of the power to tax, this Court
has declined to find such congressional authorization of
State taxation except where Congress has “made its inten-
tion to do so unmistakably clear.” County of Yakima v.
Yakima Indian Nation, 502 U.S. at 258; Blackfeet Tribe,
471 U.S. at 765. State and local taxation of Indians and
Indian tribes is thus categorically allowed “when it has in
fact been authorized by Congress.” County of Yakima,
502 U.S. at 267 (rejecting application of the test estab-
lished in Brendale v. Confederated Tribes & Bands of the
Yakima Indian Nation, 492 U.S. 408 (1980), which
balanced state and tribal interests in determining tribal
zoning powers over non-Indians within a reservation).
B. Indian Lands That Were Allotted or Sold Pursuant
to the Dawes Act or Other Congressional Action
Arye hay siete deh Alien-
1. This Court has already held in County of Yakima,
supra, and Goudy v. Meath, 203 U.S. 146 (1906), that
the General Allotment (Dawes) Act made land which was
allotted and patented to Indians freely alienable after the
® See also Washington v. Confederated Tribes of Colville Reser-
vation, 447 U.S. 134, 177 (1980) (Rehnquist, J., concurring in part
and dissenting in part) (“Either Congress intended to preempt
the state taxing authorities or it did not. Balancing of interests
is not the appropriate gauge for determining validity since it is
that very balancing which we have reserved to Congress.“)
14
expiration of federal trust restrictions and, therefore, un-
mistakably allowed States to impose ad valorem taxes on
fee land even if it is within a reservation and held by
Indians or their Tribe. See County of Yakima, 502 U.S.
at 263-64; Goudy, 203 U.S. at 149. “When § 5 [of the
Dawes Act] rendered the allotted lands alienable and
encumberable, it also rendered them subject to assessment
and forced sale for taxes.” County of Yakima, 502 U.S.
at 263-64." The Court confirmed this reading with the
Burke Act proviso, which applies literally only to land
for which the Secretary issued patents before the normal
expiration of the trust period (“prematurely patented
lands”), and which amended § 6 of the Dawes Act by
“specifically mentioning immunity from land taxation as
one of the restrictions that would be removed upon con-
veyance in fee” of the Indian lands. Id. at 259. As this
Court observed in Goudy, only by “disregarding the act of
Congress” could the Court hold that “the Indian, having
property, is not subject to taxation when he is subject to
all the laws, civil and criminal, of the State.” 203 U.S.
at 150. It would be unreasonable, this Court concluded,
to impute to Congress an intention to “permit the Indian
to dispose of his lands as he pleases, while at the same
time releasing it from taxation.” Id. at 149.
10 This conclusion comports with this Court’s traditional under-
standing that the Nonintercourse Act, 25 U.S.C. § 177, stands for
the rule that “the extinguishment of Indian title required the con-
sent of the United States.” Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 678 (1973); see also Larkin v. Paugh, 276
U.S. 431, 483-34 (1928) (finding no incidental restrictions against
alienation once the United States issues a patent). Apparently,
the Band intends to assert that the Nonintercourse Act operates
to restrict its ability to sell its repurchased fee parcels, rendering
them not freely alienable. See Respondent’s Br. in Opposition at
8-9. This position is untenable, however, because this Court in
County of Yakima expressly found similar plots to be “alienable
and encumberable” based on Congress’ clear intent to make them
so. County of Yakima, 502 U.S. at 263.
15
Contrary to the opinion of the court of appeals, this
Court in County of Yakima did not hold that only the
Burke proviso “provide[d] [the] unmistakably clear con-
gressional intent to allow state taxation.” Pet. App. 17.
Rather, the Court considered the Burke proviso, which
applies only to prematurely patented lands, to be “nothing
more than an acknowledgment (and clarification) of the
operation of § 5 with respect to all fee patented land.”
County of Yakima, 502 U.S. at 264 n.4. Accordingly,
the Court found it “inconsequential” that the record did
not reflect whether the parcels at issue became alienable
“pursuant to the proviso.” Id. If the court of appeals’
reading were correct, then the factor which this Court
considered “inconsequential”—-whether the land became
alienable directly under the Burke proviso—would have
been necessary to decide whether each parcel was taxable.
chased under the pine or homestead provisions of the
elson Act to state tax authority because there was no
do so—it would have been absurd to assume that a
non-Indian settler or commercial interest who purchased
the land on the open market could have continued to en-
joy the land’s former tax-exempt status.
2. Lands that Congress made alienable should be tax-
able irrespective of the method—allotment to individual
Indians or sale to non-Indians—Congress used to remove
16
the land from federal protection. The land in question is
not “land set aside for [tribal] mem Sac
Nation, 508 U.S. at 124. Rather, it is land Congress
once chose to accord federal trust status and later chose
of and interest in the land was extinguished. See Hagen,
510 U.S. at 412-13. As this Court has repeatedly ob-
served, “treaty rights with respect to reservation lands
must be read in light of the subsequent alienation of those
lands.” South Dakota v. Bourland, 508 U.S. 679, 697
(1993); Blackfeet Tribe, 450 U.S. at 561; see also Bren-
dale, 492 U.S. at 436-37 (Stevens, J.). And the effect of
congressionally-authorized alienation of tribal lands is the
termination of pre-existing attributes of tribal sovereignty
and the creation of state taxing authority. See Bourland,
508 U.S. at 697; Blackfeet Tribe, 450 U.S. at 560 n.9.
Current tax status of a parcel that has been bought and
sold in the open market for a century. Such an
leads to ahistorical and anomalous results. The Nelson
3
2
a
2
i
8
:
*
u See note 6 supra, listing a small sample of these Acts.
17
to “eliminate tribal relations”); Cohen, at 128-29. The
“Members of Congress voting on the surplus land Acts
believed to a man that within a short time—within a gen-
eration at most—the Indian tribes would enter traditional
American society and the reservation system would cease
to exist.” Solem, 465 U.S. at 468.
It is at the very least revisionism to impute to Congress
an intention that lands that it purposely sold into non-
Indian ownership could regain federal tax immunity with-
out its consent. Although ambiguous expressions in stat-
utes are to be construed liberally in favor of the Indians,
see County of Yakima, 502 U.S. at 269, canons of con-
struction do not permit a reading that amounts to a dis-
regard for such a clearly and repeatedly expressed con-
gressional intention. See Negonsott v. Samuels, 507 U.S.
99, 110 (1993); South Carolina v. Catawba Indian Tribe,
Inc., 476 U.S. 498, 506 (1986); see also Rice v. Rehner,
463 U.S. 713, 732 (1983) (refusing to apply an Indian
law canon of construction “when application would be
tantamount to a formalistic disregard of congressional
18
owners to enjoy federal immunities that arose from the
land’s long-past trust status.
In effect, the Band argues that its tax immunity laid
dormant during non-Indian ownership, but then sprang
forth when the Band purchased the land. Only the fact
that the purchasers were Indians makes this claim even
colorable. But Indians enjoy immunity from state and
local ad valorem taxation only derivatively from federal
tax immunity. Accordingly, in order to justify its claim
in this case, the Band must show a grant of congressional
power that allows it to remove land from the tax base
and make it part of the area over which it exercises attri-
butes of exclusive sovereignty simply by purchasing it in
fee from a private non-Indian party. This showing can-
not be made.
3. The power to tax is “basic to the power of the
State to exist.” Arkansas v. Farm Credit Servs., 117 S.
Ct. 1776, 1780 (1997); see also Board of County
Comm'rs v. United States, 308 U.S. 343, 351 (1939)
(urging “due regard for local institutions and local inter-
ests” in an Indian challenge to county taxation). The
taxes at issue here—non-discriminatory ad valorem as-
chased on the open market. Oklahoma Tax Comm'n v.
Chickasaw Nation, 515 U.S. 450, 466 (1995) (holding
that Indian tribes lack any “super-sovereign authority to
interfere with another jurisdiction’s sovereign right to tax
income”). Any such rule would inflict serious harm on
amici’s members.
The Leech Lake Band’s assertion of a tribal power to
expand its tax-exempt lands, sua sponte, by the mere pur-
of land from private parties labors hard against the
i his Court’s Indian law decisions. In case
19
dilution of Indian populations on reservation lands has
created the need for “States and tribes [to] have concur-
rent jurisdiction over the same territory.” Cotton Petro-
leum Corp., 490 U.S. at 192; see also Solem, 465 U.S. at
467 (“[FJederal, State and tribal authorities share jurisdic-
tion” over unallotted lands even “if the relevant surplus
land Act did not diminish an existing Indian reserva-
tion.”). Thus, while affirming that “Indian tribes retain
inherent sovereign powers to exercise some forms of civil
jurisdiction over non-Indians on their reservations, even
on non-Indian fee lands,” the Court has limited the juris-
diction that Tribes can assert even within their own reser-
vations.” Strate v. A- Contractors, 117 S. Ct. 1404,
1409 (1997) (quoting Montana v. United States, 450
U.S. at 565). Accordingly, in South Dakota v. Bourland,
508 U.S. 679 (1993), this Court held that a Tribe could
not regulate hunting and fishing by non-Indians within its
reservation because the Tribe had lost “regulatory juris-
diction over the use of land by others” when it “convey[ed]
ownership of its tribal lands to non-Indians.” Id. at 689.
Tribes of course retain rights to protect their “political
integrity, economic security, [and] health and welfare.”
12 Indeed, Congress gave Minnesota “jurisdiction over civil causes
of action between Indians or to which Indians are parties which
arise in . . Ialll Indian country within the State, except the Red
Lake Reservation.” Act of Aug. 15, 1953 (Public Law 280), ch.
505, § 4, 67 Stat. 589 (1953) (codified at 28 U.S.C. f 1360 (a)). The
Act gave similar jurisdiction to five other States and created a
mechanism for additional States to acquire such jurisdiction. See
id, Congress, however, substantially modified the Act through Title
IV of the Civil Rights Act of 1968, Pub. L. No. 90-284, § 301, 82
Stat. 73, 78 (1968) (codified at 25 U.S.C. §§ 1321-26). See Bryan
v. Itasca County, 426 U.S. 373, 386-87 (1976).
1 The fact that the reservation lands in question are part of
“Indian Country,” 18 U.S.C. § 1151, does not affect the analysis.
Indian Country includes “all land within the limits of any Indian
reservation” including the lands of non-Indians. Yet in County
of Yakima, this Court concluded that land plainly part of Indian
Country was subject to ad valorem taxation. See 502 U.S. at 256.
20
Strate, 117 S. Ct. at 1409. But as this Court observed in
County of Yakima, it would be a “great exaggeration” to
suggest that “the mere power to assess and collect a tax
on certain real estate” imperils a Tribe’s political integrity,
economic security, or health and welfare. County of
Yakima, 502 U.S. at 265. Indeed, the in rem nature of
ad valorem taxation guarantees that it burdens only prop-
erty in which the federal interest has been eliminated, as
opposed to affecting Indians in personam. See id. at 266
(noting that because ad valorem taxation “flows exclu-
sively from the ownership of realty,” it can create only
“a burden on the property alone”).
Moreover, this Court has expressly recognized the in-
terests of state and local governments in implementing
neutral systems of regulation and taxation within the
borders of Indian reservations. For example, in Washing-
ton v. Confederated Tribes of the Colville Indian Reser-
vation, 447 U.S. 134 (1980), the Court upheld the im-
position of state sales taxes on purchases made by non-
Indians on reservation lands. Id. at 161.“ Similarly, this
Court has rejected any notion of an impermeable, land-
based tribal sovereignty by upholding state collection of
excise taxes within reservations, see California State Board
of Equalization v. Chemeheuvi Indian Tribe, 474 US. 9,
12 (1985); exclusive state power to zone in the largely
non-Indian areas of reservations, see Brendale, 492 U.S. at
427 (White, J.); 492 U.S. at 434-45 (Stevens, J.), and,
most recently, ad valorem taxation of allotted Indian-
owned lands within a reservation, see County of Yakima,
502 U.S. at 265-66." Absent from these cases is any sug-
14 See also Department of Taxation & Finance v. Milhelm Attea
& Bros., 612 U.S. 61, 73 (1994) (reaffirming tribal obligation to
collect state sales taxes levied on sales to non-Indians within res-
ervation boundaries); Oklahoma Tax Comm’n v. Citizen Band
Potawatomi Indian Tribe, 498 U.S. 505, 512 (1991) (same).
15 See also Duro v. Reina, 495 U.S. 676, 693 (1990) (holding that
Tribes do not have inherent criminal jurisdiction over Indians who
pro-
posal to place lands in trust. See 25 C.F.R. § 151.10.
are not members of their tribe), superseded by Act of Oct. 28,
1991, Pub. L. No. 102-137, 1991 U.S.C.C.A.N. (105 Stat.) 646:
Montana v. United States, 450 U.S. at 566-67 (forbidding tribal
regulation of hunting and fishing by non-Indians on fee lands
Hi
Afi
i
F
J
2
i
2
:
11 L
588 2
i
23
James Dao, Gambling in the Middle of Nowhere, N.Y.
Times, Nov. 10, 1997, at BI.“ Similarly, in order to win
the support of a neighboring town council for its applica-
tion for federal trust status, the Narragansett Indians
agreed to use a 31-acre fee site only for housing and to pay
$25,000 in back taxes. See Sara Olkon, Town Council
Backs Tribes Application for Trust Status, Providence
Journal-Bulletin, Aug. 25, 1997, at 1C.
This Court should not give to the Leech Lake Band
and other Tribes a trump card in negotiations with state
and local governments that Congress and the Secretary
have denied them. Amici respectfully submit that the
need to preserve the integrity of the existing scheme to re-
store taxable land to trust status under Section 5 of the
Reorganization Act is further reason to reverse the judg-
ment of the court of appeals.
II. EXEMPTION FROM AD VALOREM TAXES FOR
LANDS THAT TRIBES HOLD IN FEE WOULD
IMPAIR STATE AND LOCAL GOVERNMENT AD-
MINISTRATIVE AND ECONOMIC INTERESTS
1. This Court has “traditionally followed ‘a per se
rule’ ‘in the special area of State taxation of Indian tribes
and tribal members’” that recognizes the administrative
needs of state and local governments. County of Yakima,
502 U.S. at 267-68 (quoting California v. Cabazon Band
of Indians, 480 U.S. 202, 215 n.17 (1987)). This con-
17 These negotiations were under the Indian Gaming Regulatory
Act, 25 U.S.C. §§ 2701-2721, which is not directly implicated in this
case but gives rise to similar negotiations over tax and regulatory
issues. For example, the Mohegan Indians took a 240-acre site
off the tax rolls for their casino but gave the town of Montville,
Connecticut, $500,000 per year for capital improvements and $3
million for an extension of the town water line in exchange. See
Lyn Bixby, Mohegan Sunrise, Hartford Courant, Oct. 11, 1997,
at Al. Similarly, the Eastern Shawnee Tribe of Oklahoma
1
State and local governments have an obvious and com-
pelling interest in the certainty, lower administrative costs,
and reduced litigation that result from per se rules in
Indian tax matters. Practical considerations require that
the tax status of a parcel be readily and clearly determined
lest litigation “engulf the States’ annual assessment and
taxation process, with the validity of each levy dependent
upon a multiplicity of factors that vary from year to year,
and from parcel to parcel.” County of Yakima, 502 U.S.
at 267. In addition, in this era of growing local responsi-
bilities, state and local governments require more stability
in their tax bases to allow for fiscal planning. Amici urge
this Court to obviate the need for repeated, complex, and
protracted litigation over the tax status of particular par-
cels of land by articulating a clear, bright-line rule for the
ad valorem taxation of parcels owned in fee by Indians or
Indian tribes within Indian Country.
2. Under a rule of “alienability equals taxability,” state
and local governments would be able to assess non-
discriminatory ad valorem taxes on all land not held in
federal trust or restricted status. Consistent with universal
the parcel’s history. See, e.g., White Earth Land Recovery
Project v. County of Becker, 544 N.W.2d 778, 780
18 All non-discriminatory tax exemptions, such as those for reli-
gious, educational, and other not-for-profit organizations, are of
course available to Indian tribes.
25
(Minn. 1996) (“All property is presumed taxable, and the
burden is on the party seeking tax-free status to prove
entitlement to the claimed exemption.”). While some
amount of parcel-by-parcel assessment of property is of
course inevitable given the nature of ad valorem taxation
and the checkerboard pattern of reservation lands, the rule
that alienability equals taxability has the advantage of
requiring a single, lasting determination of the tax status
of each parcel. Repeated reference to the nuances of spe-
cific treaty and statutory provisions would thus not be
necessary every time fee land within a reservation changed
3. The court oi appeals’ decision results in an unduly
complicated system of ad valorem taxation that requires
of
such lands are held in federal trust status or
on alienation. See, e. ., 1996 Idaho
Op. Atty. Gen. 24; 1998 Minn. Op. Atty. Gen. 414A-5.
26
4. In light of the fact that nearly half of the residents
on reservations are not Indians, see Bureau of Census,
1990 Census of Population, at 1, tbl. 1, amici fear the pro-
liferation of aggressive land development practices if this
Court affirms the court of appeals’ decision. Giving Tribes
unilateral power to exempt prime real estate from ad
valorem taxes erodes the tax base even though the need
for governmental services remains constant.” Illustrations
of the problem abound. At the edge of Shakopee, Min-
nesota, Shakopee Indians with a tribal income in excess
of $600,000 per capita plan to build a shopping center
that would result in lost local tax revenues estimated to
exceed $97.5 million over 12 years. See Mike Kaszuba,
Tensions Rise Over Tribe’s Land in Shakopee, Minne-
apolis Star Tribune, Nov. 9, 1997, at 1A. Similarly, three
small Connecticut towns have had to join together to
oppose the Mashantucket Pequots’ use of casino profits
to buy 5,000 acres of land, an action that could decimate
the towns’ tax rolls. See Jonathan Rabinovitz, Towns Near
Pequot Casino Object to Annexation Plan, New York
Times, Nov. 25, 1997, at BS; Jeff Nesbit, Indian Tribes
Cant Lose Bets on Casinos, Washington Times, June 28,
1996, at B7. Finally, in a striking example of how the
system can be manipulated, non-Indians have entered into
99 year leases with the Cochiti Pueblo Indians for Cochiti
Lake properties and are fighting New Mexico’s efforts to
assess ad valorem taxes on their leases. See Andrew
Padilla, Cochiti Residents Fight Tax, Albuquerque Jour-
nal, Nov. 6, 1997, at 4. This Court’s approval of the
20 Such tax status would also provide tribal businesses with a
structural advantage over nearby non-Indian competitors and
thereby decrease the value of taxable business. For example, a
Tribe could purchase fee land near an interstate exit, declare it
sovereign territory, and offer gasoline or other products at a
significant discount to its non-Indian competitors. See, e. g., Larry
Richardson, Oneidas Purchase New Plot: Site at Thruway Exit
384 May Be Used for a Casino and Truck Stop, Syracuse Herald
Journal, Mar. 1, 1997.
valuable sections of municipalities that were once part of
reservations, such as resort locations near Taos, New
Mexico, with the resulting steady erosion of local tax
As even one of the courts of appeals that ruled in favor
of the Indians’ position noted:
It is not very satisfying as a policy matter to treat
lands that were initially conveyed over 100 years ago
pee gan fell wy ge dy — . wel
the General Allotment Act
United States ex rel. Saginaw Chippewa Indian Tribe v.
Michigan, 106 F.3d 130, 134 (6th Cir.), petition for cert.
filed, 66 U.S.L.W. 3085 (U.S. June 30, 1997) (No. 97-
See id. But when Congress acts for more than 50 years
a multitude of
4
:
3
CONCLUSION
The judgment of the court of appeals as it relates to
pine lands and homestead lands should be reversed.
Respectfully submitted,
CARTER G. PHILLIPS RICHARD RUD
JACQUELINE GERSON COOPER Chief Counsel
EDWARD R. MCNICHOLAS STATE AND LOCAL LEGAL
SIDLEY & AUSTIN CENTER
1722 Eye St., N.W. 444 N. Capitol St., N.W.
Washington, D.C. 20006 Washington, D.C. 20001
(202) 736-8000 (202) 484-4850
* Counsel of Record for the
December 15, 1997 Amici Curiae
APPENDIX
No. 97-174
In THE 8
Supreme Court of the United State
OCTOBER TERM, 1997
Cass Counrry, et al.
. Petitioners,
LEECH LAKE BAND OF CHIPPEWA INDIANS,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
APPENDIX TO
BRIEF FOR LEWIS COUNTY, IDAHO;
AITKIN COUNTY, BENTON COUNTY,
CROW WING COUNTY, ISANTI COUNTY,
KANABEC COUNTY, MAHNOMEN COUNTY,
MILLE LACS COUNTY, MORRISON COUNTY,
PINE COUNTY, AND SHERBURNE COUNTY,
MINNESOTA; GLACIER COUNTY, LAKE COUNTY,
AND ROOSEVELT COUNTY, MONTANA;
LYMAN COUNTY, SOUTH DAKOTA;
DUCHESNE COUNTY AND UINTAH COUNTY, UTAH;
AMICI CURIAE, IN SUPPORT OF PETITIONERS,
CASS COUNTY, MINNESOTA, ET AL.
JAMES M. JOHNSON Tom D. ToBIN *
Attorney at Law TOBIN LAW OFFICEs, P.C.
1110 S. Capitol Way 422 Main Street
Olympia, WA 98501 P.O. Box 730
(360) 357-3104 Winner, SD 57580
(605) 842-2500
* Counsel of Record
[Additional Counsel Listed on Inside Cover]
WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
Supreme Court
* J.
(3) | * r *
* 1
sities
. =
*. —— <e me
KIMRON TORGERSON
Lewis County Prosecuting
Attorney
P.O. Box 398
Nezperce, ID 83543
(208) 987-2271
BRADLEY C. RHODES
Aitkin County Attorney
209 Second Street, N. W.
Aitkin, MN 56431
(218) 927-7347
MICHAEL JESSE
Benton County Attorney
531 Dewey Street
Box 129
Foley, MN 56329
(320) 968-6254
DONALD F. RYAN
Crow Wing County Attorney
326 Laurel St., Courthouse
Brainerd, MN 56401
(218) 828-8952
JEFFREY EDBLAD
Isanti County Attorney
555 18th Avenue, S.W.
Cambridge, MN 55008
(612) 689-2253
NORMAN LOREN
Kanabec County Attorney
18 Vine Street North—
Courthouse
Mora, MN 55051-1351
(320) 679-2870
ERIC BoE
Mahnomen County Attorney
P.O. Box 439
Mahnomen, MN 56557
(218) 935-2378
JENNIFER FAHEY
Mille Lacs County Attorney
635 Second Street, S.E.
Milaca, MN 56858
(320) 988-8805
CONRAD FREEBERG
Morrison County Attorney
Morrison County Government
Center
213 Ist Avenue SE
Little Falls, MN 56845
(320) 682-0190
JOHN CARLSON
Pine County Attorney
315 Sixth Street—Courthouse
Pine City, MN 55063
(320) 629-6781
WALTER KAMINSKY
Sherburne County Attorney
18880 Highway 10
P.O. Box 318
Elk River, MN 55830-1692
(612) 241-2565
LARRY EPSTEIN
Glacier County Attorney
512 East Main Street
Cut Bank, MT 59427-8016
(406) 873-2277
DEBORAH KIM CHRISTOPHER
Lake County Attorney
Lake County Courthouse
106 4th Ave. E
Polson, MT 59860-2125
(406) 888-7245
JAMES R. PATCH
Roosevelt County Attorney
400 Second Avenue South
Wolf Point, MT 59201-1600
(406) 653-2653
DALLAS E. BrosT
Lyman County States Attorney
P.O. Box 38
100 South Main
Kennebec, SD 57544
(605) 869-2294
HERBERT WM. GILLESPIE
Duchesne County Attorney
500 East 100 South
P.O. Box 206
Duchesne, UT 84021
(801) 738-2435
JoANN B. STRINGHAM
Uintah County Attorney
152 East 100 North
Vernal, UT 84078
(801) 781-5436
la
APPENDIX
HOUSE OF REPRESENTATIVES
Sist ConGress, Ist Session. Ex. Doc. No. 247
CHIPPEWA INDIANS IN MINNESOTA
MESSAGE
From The
PRESIDENT OF THE UNITED STATES,
Transmitting
A communication from the Secretary of the Interior
relative to the Chippewa Indians in the State of Minnesota.
March 6, 1890.—Referred to the Committee on
Indian Affairs.
To the Senate and House of Representatives:
In pursuance of the authority and direction contained
in the act of Congress approved January 14, 1889, en-
titled “An act for the relief and civilization of the Chip-
pewa Indians in the State of Minnesota,” three commis-
sioners were appointed by the President on February 26,
1889, as therein authorized and directed, namely: Henry
The commissioners have submitted their final report,
with accompanying papers, showing the results of the
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negotiations conducted by them, and the same has been
carefully reviewed by the Secretary of the Interior in his
report to me thereon.
Being satisfied from an examination of the papers sub-
mitted that the cession and relinquishment by said
pewa Indians of their title and interest in the lands speci-
fied and described in the agreement with the differen
bands or tribes of Chippewa Indians in the State of Minne-
sota was obtained in the manner prescribed in the first
section of said act, and that more than the requisite num-
ber have signed said agreement, I have, as provided by
said act, approved the said instruments in writing con-
stituting the agreement entered into by the commissioners
with said Indians.
The commissioners did not escape the embarrassment
which unfortunately too often attends our negotiations with
the Indians, viz: An indisposition to treat with the Gov-
ernment for further concessions while its obligations in-
curred under former agreements are unkept. I am sure
it will be the disposition of Congress to consider promptly,
and in a just and friendly spirit, the claims presented by
these Indians through our commissioners, which have been
formulated in the draught of a bill prepared by the Secre-
tary of the Interior and submitted herewith.
The act of January 14, 1889 (25 U. S. Stat., 612)
the
a —
port that quite a general desire was expressed by the
Indians to avail themselves of this option. The result of
this is that the ceded land can not be ascertained and
brought to sale under the act until all of the allotments
are made.
— —
Za
able, so that the work may be begun and completed at
the earliest possible day.
A copy of the report made by the commissioners, with
copies of all of the papers submitted therewith except the
census rolls, is herewith presented for the information of
the Congress.
EXECUTIVE MANSION,
March 4, 1890.
BENJ. HARRISON.
DEPARTMENT OF THE INTERIOR,
Washington, January 30, 1890.
The PRESIDENT:
There has been filed in this Department the report of
the Chippewa Commission, one copy whereof is herewith
transmitted for your consideration and action.
This Commission was formed under an act entitled “An
act for the relief and civilization of the Chippewa Indians
in the State of Minnesota,” being chapter 24, United
States Statutes at Large, volume 25, page 642, approved
January 14, 1889.
The first section of the act authorizes the creation of
the Commission, designates its purposes, provides for cer-
tain conditions precedent as to a census to be taken, and
declares in what manner the cession and relinquishment
of the lands therein sought to be obtained by the Govern-
ment shall be effected. The section is as follows:
That the President of the United States is hereby au-
thorized and directed, within sixty days after the passage
of this act, to designate and appoint three commission-
ers, one of whom shall be a citizen of Minnesota, whose
duty it shall be, as soon as practicable after their appoint-
ment, to negotiate with all the different bands or tribes
of Chippewa Indians in the State of Minnesota for the
complete cession and relinquishment in writing of all
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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 those two reservations as in the judgment of said com-
mission is not required to make and fill the allotments
required by this and existing acts, and shall not have been
reserved by the commissioners 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 Reservation, 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 Indians occupying and beloning to
such reservations; and as to the Red Lake Reservation
the cession and relinquishment shall be deemed sufficient
if made and assented to in like manner by two-thirds of
the male adults of all the Chippewa Indians in Minnesota:
and provided that all
proved by the President of the United States before taking
effect: Provided further, That in any case where an al-
lotment in severalty has heretofore been made to any
Indian of land upon any of said reservations, he shall not
be deprived thereof or disturbed therein except by his own
individual consent separately and previously given, in such
form and manner as may be prescribed by the Secretary
of the Interior. And for the of ascertaining
whether the proper number of Indians yield and give their
assent as aforesaid, and for the purpose of making the
allotments and payments hereinafter mentioned, the said
commissioners shall, while engaged in securing such ces-
sion 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 Secre-
tary of the Interior and the other with the official head
—
Ja
of the band or tribe; and the acceptance and approval of
such cession and relinquishment by 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 ex-
tinguishment of the Indian title without any other or fur-
ther act or ceremony whatsoever for the purposes and
upon the terms in this act provided.
The Commission was appointed by the President on the
26th day of Feruary, 1890, and the several members
thereof became duly qualified by giving the bond required
by section 2 and taking the oath thereunder required, as
appears by the files of this Department. The census re-
quired to be taken by section 1 was completed and one
of the duplicate lists thereof filed with the Secretary of
the Interior on the 3d day of January, 1890, and the
other with the official head of the band or tribe.
It appears by the report of the Commission that it
sought and obtained the assistance of Bishop Whipple and
Archbishop Ireland in its labors, and that all that was
done was conducted in a spirit of fairness towards the
Chippewas. There were distributed among them 500
copies of the act of January 14, 1889, and several hun-
dred copies of the general allotment act of February 8,
1887.
Councils were held at Red Lake, White Earth, Gull
Lake, Leech Lake, Cass Lake, Lake Winnibagoshish,
White Oak Point, Mille Lac, Grand Portage, Bois Forte
and Vermillion Lake, and Fond du Lac.
At Red Lake the assent of all the Indians to the agree-
ment was obtained except a few called “pagans,” residing
on the northern shore of the lake. The Indians at Red
Lake complained of unfulfilled promises, plead for mills
and cattle, and that their boundaries might be surveyed
in accordance with treaties. They also prayed for an
agent, as they were 80 miles from the White Earth
Agency. The Red Lake Reservation, two-thirds of which
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at least is ceded to the United States, contains 3,200,000
acres, and the number of Indians occupying it is 1,168.
The boundaries of the diminished reservation, from which
allotments to the Red Lake Chippewas are to be made,
are given in the report. The commissioners report that—
This reservation is larger than will eventually be re-
quired, but as there are swamps and other untillable lands
therein, it can not be reduced until after survey and allot-
ments shall be made.
Whether the surplus lands that may remain after allot-
ments shall have been completed as required by the law
can be disposed of without further legislation is a ques-
tion which will require consideration, but such considera-
tion is not necessary at this time.
The Indians on the Red Lake Reservation were suffer-
ing for want of food, owing to the loss of crops the last
season.
The Indians of the White Earth Reservation were also
suffering for food. They insisted upon the provisions of
article 9 of the treaty of September 30, 1854, and that
damages should be paid because of the construction of
reservoirs on the reservation near the headwaters of the
Mississippi, provision for which had been made by the
Northwest Commission three years ago, and which nego-
tiations have not been acted on by Congress. No explana-
tion could be given why the provisions of the treaty of
September 30, 1854, had not been fulfilled, but the In-
dians were promised that the best efforts would be given
to secure justice in this case, and upon these assurances
the acceptance and signing of the propositions made were
nearly unanimous. This matter is incorporated in the
draught of a bill herewith presented for submission to
Congress.
The White Earth Reservation contains 796,762 acres,
and the number of Indians occupying the same is 2,044.
They complain of want of milling facilities. They have
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about 5,000 acres seeded in wheat, barley, and vegetables,
but owing to want of rain not more than half a crop will
be grown. At least 2,500 acres heretofore cultivated lies
fallow for want of seed and teams.
There were but 277 Chippewas at Gull Lake, all of
whom signed the agreement and agreed to make their
permanent home on the White Earth Reservation as soon
as they should be furnished with means to cultivate the
soil and subsist until they could make a living.
At Leech Lake Reservation, amid pompous demonstra-
tions, the Commission was received, and the first demand
made of them was that there should be settlement of out-
standing claims. Nor was the business allowed to proceed
until the Commission had given a solemn promise with
raised hands that they would to their utmost ability urge
the immediate settlement of these unadjusted demands.
These Pillager Indians have a claim for lands ceded to
the United States under the treaty of 1847, which it is
urged should be carefully investigated, and the Pillagers
allowed what may be found in equity due them, and also
for damages arising from the construction of reservoirs at
the headwaters of the Mississippi. For these damages it
is recommended that there be paid $150,000, with 5 per-
cent per annum to date, and $1.25 per acre for the over-
flowed lands. The Indians have absolutely ceded to the
United States 46,920 acres, which can not be sold, as
provided in the act of January 14, 1889, for their benefit,
and it is and must be reserved for the overflow caused by
the reservoir dams. An item covering the claim for dam-
ages by reason of the construction of the dams is also
incorporated in the inclosed draught of bill.
The alleged claim of the Pillagers for further compen-
sation for land ceded under the treaty of 1847 is a matter
for consideration by Congress, and I would recommend
that it be brought to the attention of that body. The state-
ment upon which this claim is based by the Indians is set
forth in the report of the Commission.
At Cass Lake a like demand was made by the Indians
for the settlement of unsatisfied demands, but all gave
their assent and signatures to the proposition.
The Indians at Lake Winnibagoshish depend much
upon their wild rice, which they were gathering at the
advent of the Commission. The injury done them by the
building of the reservoirs is very great. They are destitute,
as are those at Cass Lake, of aid from the Government,
having no missionary, school, farmer, blacksmith, or phy-
sician. The Commissioners observe that the Winnibago-
shish Reservation is marked upon the map by township
lines, which is erroneous, as the treaty fixes its line by
natural boundaries beyond those shown by township lines.
This has given much dissatisfaction, as the whites have
settled between the two lines and consequently upon the
reservation, as the Indians claim. This marking is erro-
neous, and should be adjusted. All the adults of this
band gave their consent to the agreement.
The condition of the Indians at White Oak Point is
described as beyond hope of improvement, they being
dissapated and dissolute, but they have still intelligence
enough to ask that whisky may be kept from the country
and that missionaries and school teachers be sent them.
They all signed the agreement, and it will be the purpose
of this Department to supply and enforce so far as may
be in its power the regulations so reasonably demanded.
Scattered members of the White Oak Point bands were
found at Kimberly, who were healthy in mind and body,
unusually bright and careful of themselves, and all of
whom were anxious to acquire lands in severalty and the
young men eager to find work. They number one hun-
dred, and all except one signed the agreement.
The Indians at Mille Lac were found to be intelligent,
cleanly, and well behaved, and of good reputation among
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the neighboring whites. White men unfortunately have
been permitted to rob them of their pine, and for years
to settle upon their agricultural lands, to great injury and
fear of the Indians. Squatters are now settling upon this
reservation, as the commissioners report. The question of
right should be settled at the earliest possible moment,
for the greater the delay the more difficult will be the
adjustment. All signed the agreement at this place.
The rights of the Indian upon this reservation have been
a vexed question, full of difficulties and embarrassments,
but it is hoped that this agreement will furnish a basis
for its early and final solution.
At Grand Portage the Indians expressed themselves as
fully understanding and satisfied with the terms of the
act, and signed with cheerfulness and unanimity. They
complained that the white fishermen spread so many
large nets near their reservation that the Indians were
unable to procure a supply of fish for food.
At Bois Forte and Vermilion Lake the Indians seemed
timid and distrustful, but they “touched the pen” finally
with great solemnity and much formality. They have
the best hunting grounds of the Chippewas. They seem
willing to learn to till the soil, but ask for assistance in
the way of better facilities. Much of the land on the
Lake Superior reservations is unfit for cultivation, and
the Bois Forte Indians complain that a large amount of
their timber is cut without compensation, and is run
down Little Fork River to the British Possessions.
Many of the Indians at Fond du Lac are in danger of
suffering during the winter and spring, having been denied
the right of cutting timber on their reservation. Like all
of the Mississippi bands, they feel greatly grieved at the
long-continued withholding of the money due them from
the Government. On the positive assertion of the com-
missioners that justice should be speedily done, not only
in this respect but in the matter of a palpable error in the
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boundary lines of their reservation, they were induced to
listen, and finally signed by touching the pen.
This claim for additional land to which the Indians
insist they are entitled under the plain and unmistakable
meaning of the treaty should have careful consideration
and be fairly and speedily adjusted.
The Commission reports:
As the various bands decided to take their allotments
on their respective reservations, the Commission told them
that the $90,000 to be advanced and already appropriated
would be paid pro rata as soon after the approval of
these negotiations by the President as should be prac-
ticable, but not later than the coming spring.
The Commission further reports that—
The clause of the act of January 14, 1889, providing
for the payment of the interest that may accrue on the
permanent fund, was to the Commission obscure, and
they promised the Indians that cash payment should be
made per capita in equal shares.
It is provided in section 7 of the act of January 14,
1889 (25 Stats., 642):
That one-half of said interest shall, during the said
period of fifty years, except in the cases hereinafter other-
wise provided, be annually paid in cash in equal shares to
the heads of families and guardians of orphan minors for
their use; the fourth of said interest shall, during the same
period and with the like exception, be annually paid in
cash in equal shares per capita to all other classes of said
Indians; and the remaining one-fourth of said interest
shall, during the said period of fifty years, under the direc-
tion of the Secretary of the Interior, be devoted exclusively
to the establishment and maintenance of a system of free
schools among said Indians, in their midst and for their
lla
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.
This construction by the Commission is deemed reason-
able. While there may be some discussion possibly in
regard to its validity, it is deemd that it is in harmony
with the spirit of the act, and having been made the basis
of the Indians’ assent it should be adhered to.
The Indians desire that the Government will set aside a
sufficient quantity of land on each reserve for Government
buildings, such as may be necessary for physician, black-
smith, farmer, carpenters, and for missionaries, traders,
etc. The commissioners recommend this, and the reserva-
tion, it is submitted, should be made, and the order as to
the location and erection of such buildings should be
enforced.
The reservation of the necessary and suitable tracts of
land for these purposes can be made the subject of an
executive order when proper selections shall have been
made, which should be attended to before the lands are
offered for disposal under the act.
The commissioners further recommend that on each
reservation a tract of pine land should be reserved and
held by the General Government as might be necessary
for their common use, to be so held during the pleasure
of the Secretary of the Interior.
I doubt whether this request for the reserving and hold-
ing by the General Government of a tract of pine land
upon each reservation for the common use of the Indians
remaining thereon can be complied with without legislative
authority therefor, in view of the terms and conditions of
the act to which the Indians have given their consent.
They ask for saw-mills, cattle, agricultural and mechani-
cal implements, which they must have, or they can make
no substantial progress.
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The commission reports that although the Indians have
decided to take allotments on their reservations, it is be-
lieved that many may be induced to remove to White
Earth, and for this reason it is not prudent to urge in-
dividual allotments elsewhere than on the White Earth
and Red Lake Reservations at present.
The removal of those who will go to White Earth will
take place as soon as provisions can be made for their
subsistence. It will be of the greatest benefit to the Indians
and to the State to have the removal made.
The Commission ask that there may be granted 10 acres
of maple timber for making sugar to each family occupy-
ing the same. This is deemed ample and is as much as
should be granted. The matter should receive attention
when the individual allotments are made to the Indians.
The commissioners state that it is important that the
four townships of pine land on the White Earth Reserva-
such manner and upon
act, Ww
All other lands acquired from the said Indians on said
The commissioners state that the pine ceded is estimated
by various parties from $25,000,000 to $50,000,000.
necessary appropriation
for the purpose of defraying the expenses of the Indians
who may desire to visit the White Earth Reservation, with
the expectation of removing there before allotments should
be taken or confirmed elsewhere.
Section 8 of the act makes an appropriation of $150,000
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adults, and male and female minors; and the minors into
those who are orphans and those who are not orphans;
giving the exact number of each class.
* * * *
The commissioners also submit reports showing the
number of male adults of each of the separate bands and
the number of such male adults assenting to the act of
which the following is a summary:
17a
Male adults
Total Assenting
Red Lake and Pembina bands:
Red Lake 303 247
Pembina 83 77
Total 386 324
Mississippi bands: oe ea
White Earth 284 270
Gull Lake and scattering 61 57
White Oak Point 176 172
Mille Lac 213 189
Total 734 688
Pillager and Lake Winibigoshish bands:
Leech Lake 324 217
Otter Tail 164 144
Cass Lake 67 65
Lake Winibigoshish 45 40
Total 600 466
Grand Portage, Bois Forte, and
Fond du Lac bands:
Grand Portage 73 72
Bois Forte 228 211
Fond du Lac 157 123
Total 458 406
RECAPITULATION wey
Red Iake and Pembina bands 386 324
Mississippi bands 734 688
Pillager and Lake Winibigoshish band 600 466
Grand Portage, etc., bands 458 406
Total 2,178 1,884
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This summary shows that the total number of male
adults is 2,178 and that 1,884 of that number signed
their acceptance and consent to the act, being over 86
per cent, of such male adults, and more than the requisite
“two-thirds of the male adults over eighteen years of age
of the band or tribe of Indians occupying and belonging
to” each of the several reservations, and more than “two-
thirds of the male adults of all the Chippewa Indians in
Minnesota,” as is required in the case ef the Red Lake
Reservation. (Section | of the act.)
The commissioners have not submitted their recom-
mendations in separate form, and what is herein stated
has been gathered from the general purport of their report
all of which will be more fully considered by the appro-
priate committees, with the view of doing compiete justice
to this tribe, which has reposed its confidence so firmly
and fully in the Government and relied upon its justice.
It is provided in section 1 of the act authorizing nego-
tiations “that all agreements therefor shall be approved
by the President of the United States before taking effect.”
The agreement or acceptance and consent of the In-
dians to the act, herewith, in ten parts, is therefore re-
spectfully submitted for your action.
Before the ceded lands within any of the reservati
can be disposed of as — in the act, all of
said ceded lands must be surveyed as the public lands are
surveyed, after which they are to be carefully exa’ ined
in 40-acre lots, by competent and experienced examiners
to be appointed for that purpose, and classified into “pine
lands” and “agricultural lands,” the pine lands are then
vd. Ae ping and ony err 4), and finally pro-
d as in market and offered i
— 144 for sale in the manner
The agricultural lands not allotted nor reserved f
N or th
use oi the Indians, after having been surveyed, are to be
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advertised for thirty days and disposed of to actual settlers
under the provisions of the homestead laws, each settler
being required to pay $1.25 per acre for the lands so
taken by him.
Besides all this it will be necessary to ascertain how
many and who of the Indians of the several reservations
elect to take allotments on the reservations where they
now live, as by the terms of the act they are permitted
to do, instead of being removed to White Earth Reserva-
tion (section 3). It is not seen how any of the ceded
lands, except possibly those of the Red Lake Reservation
and the four townships ceded in the White Earth Reserva-
tien, can be offered for sale or settlement until the Indians
of the several reservations who elect to remain and take
allotments where they are shall have signified their inten-
tion to so remain and shall have made their individual
selections for allotment; nor can the Red Lake ceded
lands be so offered until the surveys, examinations, classi-
fication, etc., shall have been fully completed.
Your approval, therefore, of the agreement will not
open any of the reservations to white settlement, nor
render them subject to occupancy or disposal in advance
of the complete fulfillment of the preliminary work of
surveys, examinations, etc., and in the case of the “pine
lands,” after all these preliminaries have been met, the
lands must be “proclaimed as in market and offered for
sale.”
It is perhaps unnecessary, then, that any action should
be had at this time other than the approval of the
agreement.
Advertising here to the recommendation of the Com-
mission that the Indians of the Red Lake Reservation be
allowed to utilize the dead and fallen timber upon their
reservation until such time as the survey, appraisement,
etc., shall be made, I think this is reasonable, and it seems
20a
to me can be done under authority conferred by the act
of February 16, 1889 (25 Stats., 673), which provides:
That the President of the United States may from year
to year in his discretion under such regulations as he
may prescribe, authorize the Indians residing on reserva-
tions or allotments, the fee to which remains in the United
States, to fell, cut, remove, sell, or otherwise dispose of
the dead timber, standing or fallen, on such reservation
or allotment for the sole benefit of such Indian or Indians.
Under the authority thus conferred, the President, on
October 16, 1889, authorized the Indians on the White
Earth, Red Lake, and White Oak Point Reservations to
cut and sell dead and down timber on their respective
Reservations and I see no reason why the cutting and
sale of the dead and down timber under the authority so
granted and the regulations then prescribed may not be
continued until the lands are placed upon the market as
provided in the Chippewa act of January 14, 1889.
I invite attention to the fact that the instruments pre-
sented by the Commission as the result of the negotiations,
and as the evidence that the Chippewa Indians in Minne-
sota have given their consent in writing to the cession and
relinquishment of their title and interest in and to the
lands as therein set forth, comprise ten parts, marked
separately as A, B, C, D, E, F, and H, G, I, K, and
L; these, however, in fact constitute as a whole one instru-
ment, and the part marked C, and entitled “Signatures
Roll Mississippi Chippewa Indians, White Earth Reserva-
tion, Minnesota,” should be placed and considered as the
first part, for the reason that it is the only part that em-
braces the text of the act under and for the purposes of
which the Commission was appointed.
This is considered necessary, in view of the fact that
the act is not recited in the other parts of the instrument,
but is referred to therein as follows: “Which said act is
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embraced in the foregoing instrument,” meaning evidently
that part marked C, etc., as above stated.
i i f record for
With this as explanation, and as matter of rec
8 understanding of the instruments, I think it would
nevertheless be well for the approval of the President —
de indorsed upon each of the separate parts of the sai
instrument.
I further recommend that a copy of the report of the
Commission, and of all its accompanying papers (except
the census rolls, which are bulky), with copy of this
letter of the Department reviewing the same, be submitted
to Congress for its information, together with the accom-
panying draft of bill for making the appropriations herein
suggested.
I have the honor to be, very respectfully, your obedient
— JohN W. NoBLE,
Secretary.
L to enable the Secretary of the Interior to carry
1 "a an act, entitled “An act for the relief and civili-
zation of the Chippewa Indians in the State of Minne-
sota, approved January 14, 1889,” and for other
H FR ta
it enacted by the Senate and House of Representa-
Pane the United States of America in Congress assem-
bled, That the following sums, or to much thereof as may
be necessary be, and the same are hereby, appropriated
out of any moneys in the Treasury, not otherwise —
priated, to be immediately available, to enable the e-
tary of the Interior to carry out an act entitled An Act
for the relief and civilization of the Chippewa Indians in
the State of Minnesota, approved January fourteenth,
eighteen hundred and eighty-nine, and for other purposes:
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For amount due the Chippewa Indians of Lake Superi
and Mississippi, arising from balances of —
under treaties with said Indians, and covered into the
Treasury between the years eighteen hundred and forty-
three, and eighteen hundred and seventy-eight, inclusive;
also, the aggregate difference between the coin value of
payments made in currency during the years eighteen
hundred and sixty-three and eighteen hundred and sixty-
four, at the dates of Treasury warrants, and the amounts
due in coin by treaty stipulations, with interest at the
rate of five per centum per annum, from the date of said
Treasury warrants to June thirtieth, eighteen hundred and
ninety, the sum of one hundred and ninety thousand dol-
lars, or so much thereof as may be required, to be ex-
pended by the Secretary of the Interior in the purchase
of such articles as he may deem best, or in the payment
of cash, to be apportioned in accordance with article eight
of the treaty proclaimed January twenty-ninth, eighteen
hund - .
— —4 and fifty-five, one hundred and ninety thousand
For compensation for losses and damage i
the Chippewa Indians on account of the Sulton af denn
and reservoirs on Lake Winnebagoshish, Cass Lake. and
Leech Lake, the sum of one hundred and fifty thousand
dollars, with interest at the rate of five per centum per
annum from the seventeenth day of September, eighteen
hundred and eighty-six, up to and including June thirtieth
eighteen hundred and ninety, the sum of one hundred and
eighty thousand dollars, or so much thereof as may be
reside on the Leech Lake, Lake Winnebagoshish
Cass Lake Reservations, and one-third to the Missi —
band, now residing or entitled to reside on the White
Earth, White Oak Point, and Mille Lac Reservations. one
hunudred and eighty thousand dollars.
23a
For compensation for forty-six thousand nine hundred
and twenty acres of land at one dollar and twenty-five
cents per acre, on account of land overflowed in the
construction of dams and reservoirs on Lake Winneba-
goshish, Cass Lake, and Leech Lake Reservations, to be
divided in the same manner as the compensation for losses
and damages above referred to, and to be paid in cash,
per capita, fifty-three thousand six hundred and thirty
dollars.
For the purchase and erection of saw and flour mills,
agricultural implements; for surveys, appraisals, removals,
and allotments; for payment of expenses of delegations of
Chippewa Indians to visit the White Earth Reservation;
for the erection and maintenance of day and industrial
schools, for subsistence and pay of employes, and for such
other purposes as the Secretary of the Interior may deem
proper, the sum of two hundred and fifty thousand dollars;
Provided, That this amount shall be reimbursed to the
United States from the proceeds of sales of land ceded by
the Chippewa Indians under the act of January fourteenth,
eighteen hundred and eighty-nine, two hundred and fifty
thousand dollars.
Sec. 2. That the Secretary of the Interior is hereby
authorized and directed to pay, per capita, to the Chippe-
was entitled to it, under the act of January fourteenth,
eighteen hundred and eighty-nine, the sum of ninety thou-
sand dollars, appropriated by section eight of said act
of January fourteenth, eighteen hundred and eighty-nine
(Statutes 25, page 645), as first annual payment of inter-
est contemplated and provided for, in lieu of expending
it in conformity with the provisions of the above-mentioned
act of January fourteenth, eighteen hundred and eighty-
nine.
24a
DEPARTMENT OF THE INTERIOR,
OFFICE OF INDIAN AFFAIRS,
Washington, January 2, 1800.
Sm: Agreeably with personal
ultimo, I have the bende te transmit —— = *
report (in triplicate) of the Commission appointed to
negotiate with the different bands or tribes of Chippewa
Indians in the State of Minnesota, under authority of the
act of January 14, 1889 (25 Stat. 642), together with
the several agreements entered into, the census of the
— * the proceedings of the several councils held
Very respectfully, your obedient servant,
T. J. MORGAN,
Commissioner
The SECRETARY OF THE INTERIOR.
UNITED STATES CHIPPEWA COMMISSION,
St. Paul, Minn., December 18, 1889.
Sir: We have forwarded to your artment
December 10, 17, and 18, one * of the 449 —
by the Commission of the Chippewa Indians of the State
of Minnesota; two copies of the stenographic record of
proceedings in the councils held with them by the Com-
mission: one copy of the agreements with the bands in
the State, with the original signatures of the Indians at-
tached; and inclose herewith one copy of a summarization
of the census, and one copy of a summary showing the
number of male adults in the various bands and the
number of those who signed the agreements.
I shall be obliged if the receipt of
5 pt of the various papers is
25a
Respectfully,
HENRY M. RICE,
Chairman.
Hon. T. J. MORGAN,
Commissioner of Indian Affairs,
Interior Department, Washington, D. C.
UNITED STATES CHIPPEWA COMMISSION,
St. Paul, Minn., December 26, 1880.
Sir: In obedience to instructions from your office, dated
May 24, 1889, accompanied by “An act for the relief
and civilization of the Chippewa Indians in the State of
Minnesota,” approved January 14, 1889, this Commission
met in this city June 11, 1889. After several meetings,
it was deemed proper, owing to the deep interest the Right
Reverend Bishop Whipple, and his grace Archbishop John
Ireland, had taken in the welfare of the Chippewas, that
they should be consulted. A copy of the following note
was addressed to each, dated June 15, 1889
Dear Sm: Your church has missions established among
the Chippewa Indians in the State of Minnesota, with
whom we are instructed to negotiate.
On account of the intimate knowledge you have, and
the deep intrest you have manifested in the elevation of
this race, we deem it proper you should be represented,
and it will be a pleasure to the members of this Commis-
sion to have with us some one delegated by you who may
explain to the Indians any matters affecting their interests,
which may be presented to them.
In response to this invitation, Bishop Whipple selected
Rev. E. S. Peake, who had long resided with these Indians,
and Archbishop Ireland selected the Rev. Father Aloysius,
O. S. B., a resident priest among them, both of whom
accompanied us to Red Lake.
26a
That nothing should be omitted that could enligh
the Indians as to the intent of the Government, we had
printed 500 copies of the act of January 14, 1889, and
several hundred of the “Act to provide for the allotment
of lands in severality to Indians,“ etc., approved Februa
8, 1887. These we caused to be distributed among he
a teachers, and other employes of the Govern-
’ — ‘
send tee ection oe — bloods, and Indians who
Owing to their destiute condition, the i
. Indians
aa —— search 7 food, their crops having failed the
— , an much time was taken in collecting
The first council was held at Red Lake. J
we remained until July 8. We found — a
dignified, and courteous, but for several days indisposed
to give a favorable hearing. The propositions were not as
favorable as those made three years ago, which did not
require the proceeds of their reservation to be shared with
tofore, being necessarily shared with the idle.
did not like the provision for providing with athe benz,
the
beyond the Red
North, was, by the united efforts of all the Chippewas
taken by conquest from the Sioux, and that i
i
5
:
3
1
2
8
3
F
Of
fore made, there is little, and in many cases nothing, left
by the Indi
As a result of the reverence, the young men have for
their chiefs, they would not speak in council, but a dele-
gation called upon the Commission after adjournment
and requested it should have patience, as they had re-
solved to have a council among themselves, in hope of
influencing their leaders, and if successful they would
continue to keep in the background. They clearly saw the
advantage to them of the propositions made, including the
offer of the protection of the law. Their efforts were
successful and all of their bands cordially gave their assent
by signing the agreement, except a few called pagans,
residing upon the north shore of the lake; their head chiefs
and others, however, said they had no objections, and
would sign when “they saw fulfilled the promises made.”
We found them very poor, having comparatively nothing
to work with, not even farming implements. Years ago
they had a saw-mill, but from neglect, when a small
expenditure would have kept it in repair, it was permitted
to go to decay. So for years they have not had lumber
to build new or repair old structures, or even make a
plead for a saw-mill, and also cattle
and such other helps as would enable them to commence
at once to improve their condition.
29a
th of Red Lake); thence down Clearwater
southwesterly reservation line; thence along
of beginning (excepting the right
all the water-ways within the above
the
171 1225 1 b:
1 ite 3 332 l 10 i
4} 117 5 171 = Ae sgt +
U e Ll
i 4 101 1271 i; 124, 1715
f liek 275 21404 115
4 bail 1 is +F
27 E : |
Fi 11321121575 Hit 2111 ae!
+ Fi 28 1 38 £2 PES 35 23
E 2 ga Se 3 213
1 2 i 1 it 5 1 i
1711 141.5 15 2105715
11 „ ote: 2
uP ipa dadede
11411 % stipe
111715 ABEL TE 4 2 177 4
144% 11 f | [ath 115
f ida CED
30a
sum of $118,400, which had accrued from balances
had been covered into the Treasury between the year
1843 and 1878. This amount has never been questioned
as being due under the treaty stipulations, and in the
opinion of this Commission should be included in regular
estimates. We gave the most solemn promises that our
best efforts would be given to secure justice in this case,
believing that we but voiced the intent of the Government
in so doing. After giving assurances that justice would
be speedily done and that we would bring the attention
of the Department to those claims, the acceptance and
signing of the propositions made was nearly unanimous.
The following will show that the Indians
officially informed of the amount due them a
including the year 1878. (Two-thirds of this amount goes
to the Chippewas of Lake Superior, and one-third
of the Mississippi. ) — aaaiatam
OFFICE OF INDIAN AFFAIRS,
Washington, December 8, 1884.
Sir: I am in receipt of your letter dated
; the 29th
ultimo, in which you state that four years ago you were
called to this city to converse on matters concerning your
a that while you were informed that there was
ue to your people the sum of $118,400; that said sum
— md sy in — installments; that 50,000 thereof
— that said i ;
sata said interest would be paid
You want to know why these i
promises have not been
— ; ,
—— oon you be informed in brief what you are to
In reply I have to state that on the recommendati
tion of
— on the Sth Gay af Agel, 1880, a bill was in-
uced in to authorize the Secretary of the
Interior to fulfill certain treaty stipulations with the Chi
pewa Indians of Lake Superior and Mississippi. This bill
3la
proposed an appropriation of the sum of $118,406.29,
being the total amount arising from balances of appropria-
tions under treaties with said Indians and covered into the
Treasury between the years 1843 and 1878, inclusive.
And the aggregate difference between the coin value of
payments made in currency during the years 1863, 1864,
and the amounts due in coin by treaty stipulations with
interest at 5 per cent, per annum, from date of Treasury
warrants to February 6, 1880.
Section 2 of this bill provided that of the above amounts
$38,400.29 should be paid to the said Indians and that
the remainder, $80,000, should remain in the Treasury
to draw interest at 5 per cent., said interest to be paid
annually per capita or expended for the benefit of the
Chippewa, under the direction of the Secretary of the
Interior.
This bill never became a law through the failure of
Congress to take action, and this office has exhausted its
endeavors to obtain the appropriation named.
Very respectfully,
H. PRICE,
Commissioner.
ANKE-WAIN-ZE,
Head Chief of Lac Courte D’Orielles.
(Care United States Indian Agent, La Pointe Agency, Wis. )
See also the speech of Hon. Jacob H. Stewart, of Min-
nesota, in the House of ives, delivered Monday,
February 24, 1879, on the bill (H. R. 6471) making ap-
propriations for civil of the Government for the
fiscal year ending June 30, 1880, and for other purposes,
as printed in the Congressional Record, March 1, 1879.
under “Sundry Civil Appropriation Bill.” The speech
referred to contains the report of the committee upon this
subject.
Messengers are now out, sent by the Chippewas of
Lake Superior to those of the Mississippi, inviting them
32a
to send delegates to meet in convention at Ashland, Wis.,
on January 11 next, for the purpose of employing claim
agents to prosecute and collect the amount found due, to,
and including the year 1878, as stated by the Indian
Office, April 5, 1880, viz, $118,400, with interest to date
at 5 per cent., $59,200; total, $177,600.
The claim agents expect the Indians to allow them 15
per cent. of the amount. It can but be determined to the
Indians to be thus harassed, kept in suspense, and finally
compelled to pay to others a large commission in order
to secure the payment of a just claim against the Govern-
ment.
These Indians have an old saw-mill, but for want of
repairs it can not be used.
Their flouring-mill, not being properly cared for, was
burned a short time ago, but for want of repairs had not
been running for several years. Consequently the Indians
such as had grain have been compelled to go many miles
to have it ground.
When in the settlements of the whites, to say nothing
of the expense and loss of time, they are subject to un-
avoidable temptations. Many have not teams and have
to employ others to take their grain to the mills, and after
paying transportation and toll, leaves but a moiety for
their use. The Indians made special complaints in regard
to the want of milling facilities. At their request, with
the aid of Agent Schuler, we investigated the condition
of their farms, and found about 5,000 acres seeded in
wheat, oats, barley, and vegetables, but owing to the want
of rain not more than half a crop will be grown. At least
2,500 acres heretofore cultivated lies fallow for the want
of seed and teams.
Here, as well as at Red Lake, Rev. Mr. Peake, rendered
valuable services.
33a
After completing our work at White Earth we went to
Gull Lake, where we found a small band, numbering 277,
belonging to the Chippewas of the Mississippi. Some of
them had attended the councils at White Earth, and all
seemed familiar with the propositions submitted to them.
We, however, went through with the explanations in de-
tail, and after consultation among themselves all signed
the agreement. They promised to make their permanent
home on the White Earth Reservation as soon as they
should be furnished with means to enable them to culti-
vate the soil and to subsist until they can make a living.
This agreement was concluded on the Sth of August.
We held the first council at Leech Lake, August 8. We
were received at this place with all the pomp and show
|
.
f
i
1
at Red Lake and White Earth, were fully determined that
no business should be transacted between the band and
the Commission until they should be satisfied that it had
the authority to provide for the settlement of outstanding
claims. They were polite and courteous, but were resolved
to keep us, as well as the uncertain of their band, under
the restraint of the guard. They felt that they had been
grievously wronged. ) :
After a few days we broke their lines, inducing the
chiefs to speak in council who for several days had not
34a
been heard. Stormy debates took place in council, acco
* val
panied by threats, which afterwards, at the request of the
— the commission directed to be stricken from the
utes.
These Indians, even the most bitterl opposed, said that
had we come empowered to adjust 2 matters they
would not have made any objections to the propositions,
nor would they have detained us long. Enough, however
gave their consent as required in writing. Others said
that they would assent when they saw a disposition on the
part of the Government to right the wrongs they had
suffered. We were kept there until August 22. We had
to give a solemn promise with raised hands that we would
to our utmost ability urge the immediate lemen
unadjusted claims. 27 ‘oom
On the 21st of August, 1847, the Pilla i
’ , ger Indians at
Leech Lake, Minn., ceded to the United Stat
of land bounded as follows: N
Beginning at the south end of Otter Tail Lake; thence
southerly on the boundary line between the Sioux and
Chippewa Indians, to Long Prairie River; thence up said
river to Crow Wing River; thence up Crow Wing River
to Leai River; thence up Leaf River to the head of said
river; and thence in a direct line to the place of the
beginning.
This tract contains nearly 700,000 acres, and was sold
to the Government for about $15,000. The Pillagers
parted with it, believing, as they were told, that it was
for the occupancy of the Menomonee Indians, a tribe at
peace with them as well as with the Sioux. For genera-
tions a fierce war had raged between these two last-named
tribes. The pillagers believed that if the friendly Menomo-
nees were between the belligerents peace might follow.
By the treaty of October 18, 1848, the United States
ceded to the Menomonees the above-described tract in
exchange for all their lands in the State of Wisconsin.
35a
The Menomonees, manifesting a great unwillingness to
remove west of the Mississippi, by treaty dated May 12,
1884, receded to the United States the foregoing tract in
exchange for a part of their old home in Wisconsin and
the sum of $242,686, for which the Pillagers received
less than $15,000. According to Indian reasoning the
consideration stipulated was never paid; that is, the oc-
cupancy of said tract by the Menomonees, thus protecting
them from the incursions of Sioux war parties.
The Pillagers, at the time of the cession, were told by
the commissioners that the said tract would be held as
Indian lands are usually held, and that their friends, the
Menomonees, would occupy it. The commissioners were
Isaac A. Verplank and Henry M. Rice. The Pillagers
from the time that they heard that the tract was not to
be occupied by the Menomonees, as stipulated, have to
this day considered that they have been injuriously over-
reached. They have never ceased to complain of this, and
never will until reparation shall be made. We can not too
strongly urge that the Government cause this matter to be
carefully investigated, and in some way allow the Pillagers
what may be found to be in equity due them. Indians are
not unreasonable when fairly dealt with, and as they are
about starting out as citizens under this act, aid will be
of greater benefit now than heretofore, and is more need-
ful now than it can be at any future time.
As to the damage done by the overflow of the reservoir
dams, the Department is respectfully referred to the fol-
lowing communication:
DEPARTMENT OF THE INTERIOR,
OFFICE OF INDIAN AFFAIRS,
Washington, December 19, 1883.
Sir: By a provision in the river and harbor act of June
14, 1880 (21 Stat., 193), the sum of $75,000 was appro-
priated for the reservoirs at the headwaters of the Missis-
sippi River, to be used in the construction of a dam at
36a
Lake Winnebagoshish, with the proviso injuri
occasioned to individuals by — — of — or ag or
be ascertained and determined by agreements, in accord-
ance with the laws of Minnesota, and shall not exceed
in the aggregate $5,000, etc.; and by a provision in the
river and harbor act of March 3, 1881 (Id., 481), the
— of $150,000 was appropriated for reservoirs upon
= 8 ters of the Mississippi River and its tributaries
Secretary of the Interior is authorized and di.
rected to ascertain what, if any, injury is occasioned to
the rights of any friendly Indians occupying any Indian
reservation by the construction of any of said dams, or
the cutting or the removal of the trees or other materials
from any such reservation for the construction or erection
of any of said dams, and to determine the amount of dam-
ages payable to such Indians therefor, which dama
when determined, to be paid by the United States with
the proviso that such damages shall not exceed 10 r
centum of the sums hereby and heretofore (act 1880,
$75,000 : ;
pir = | appropriated for the construction of said
Under these provisions of law Messrs
. A. Barnard, of
— — Thomas Simpson, of Winona, Minn., and
— ~~ 7 rn * n —＋
8 11 ugust, 1881, as i
ascertain the injury occasioned friendly — —
construction of the reservoirs at Lake Winnebagoshish and
to friendly Indians.
On the 6th of October, 1881, these
. . < . a ts
their findings and award, which was —— 88
partment on October 18, following, for consideration
37a
and, if approved, to be forwarded to the Secretary of War
for settlement under the act of 1881.
The injuries arising from the construction of these res-
ervoirs and the assessments of damages to friendly Indians
were considered by these agents and reported in separate
schedules, one for Lake Winnebagoshish and the other
for Leech Lake, being classified as (1) injuries to individ-
ual property, and (2) injuries to tribal property.
The damages were, in the aggregate, at Lake Winne-
bagoshish, assessed at $8,393.30, and those at Leech
Lake, $7,073.60.
These valuations, amounting jointly to $15,466.90,
were approved by the Department and forwarded to the
War Department, and the money was placed to the credit
of the Interior Department for distribution under the
award.
The Indians protested against this assessment as being
entirely too small, and at one time there was danger of a
serious outbreak, but the violence was prevented by the
friends of the Indians, with the hope that the question of
damages would be reconsidered.
These facts having come to the knowledge of the De-
partment, it was determined to appoint a new commission
to assess the damages and on December 23, 1882, you
appointed and commissioned for that purpose General
H. H. Sibley and William R. Marshall and Rev. J. A.
Gilfillan, who were to serve without compensation other
than their necessary expenses. Subsequently General Sib-
ley, on account of ill health, resigned, and R. Blakely,
esq., was appointed to fill his place.
I am now in receipt, by Department reference, of the
report of these gentlemen, dated the 4th instant, submit-
ting in detail the result of their findings. They state that it
was entirely out of the question for the commission to ar-
rive at a reasonable agreement with the Indians as to the
38a
amount of damages by the reason of the construction of
the dams; and that the amount of land overflowed has
been materially reduced, as indicated in letter of Major
Allen, of October 24, 1883, the amount being only
46,920 acres, instead of 101,940 acres, as heretofore re-
ported, and in the aggregate is divided as follows, viz:
Winnebagoshish reservoirs, 23,240 acres; Leech Lake
reservoirs, 28,680 acres.
The commission make awards for timber cut, rock
taken, and damages to industries, but none for land taken.
Lake Winnebagoshish and Cass Lake:
Personal propertnt .. $1,936.50
R 3,649.58
5,586.08
Leech Lake:
Personal property .................. 105.00
„ ( 1.075. 00
1,180.00
White Earth and Mississippi bands, pine cut, $3,272.10.
The Commission estimate for these latter bands an an-
nual damage for rice, at 10 cents per pound, $8,610, and
for hay, at $28 per ton, $9,800: total $18,410.
For the Indians at Lake Winnebagoshish and Cass Lake
they estimate the annual damage as follows, viz:
a ER PE tet seer ai aee $3,640.00
r 4,350.00
K A teen, aaa 300.00
II. 100.00
—ͤͤ ies Matic ld ii si ~ 8,390.00
39a
issi i ill be very ma-
The Commission say that the Indians wil : ,
terially damaged in their industries and will — ——
manent provision. The total damage awarded by the ¢ om-
mission, outside of resultant damages, is as follows, viz:
50
Individual propertiʒꝛzꝛ coe
Tribal properti y :
i eee ee ee 10,038.18
The total annual damage awarded by them is $26,800.
The estimate of the Commission for annual damages
for rice at 10 cents per pound, and hay at $28 per —
would appear at first sight to be rather extravagant, but
when we consider that over 46, 000 acres of land are
taken from the Indians without any compensation what-
ever, it is believed that the estimate is not too high.
There funds now at the disposition of this Depart-
ment, — od a act of 1881, sufficient to pay the 11
awarded for individual and tribal property, 1
but as the Indians refused to accept the award in =
respect of the former Commission, which is some —
greater than that of the present Commission, they wi
aaiy ang Se hae ea Gee ©
to pay the annual damages awarded by the latter
mission. Re
In accordance with the award of the Commission it will
require $36,838.18 for present payment, of which a
as before stated, $10,038.18 is available, leaving $26,
to be provided for. ;
of 1880 and 1881 make provision for pay-
ment of present damages only and some forthe payment
of annual damages, I am of opinion that this sum for the
.
mend that Congress be asked to attach an item to
deficiency bill, already submitted by this — eng) ap-
propriating the sum of $26,800, and that annually here-
40a
after an appropriation of $26,800 made in order
Carry out the award of the a — ry v9
Very respectfully, your obedient servant,
H. Price, Commissioner.
The SECRETARY OF THE INTERIOR.
It appears by this that the aw
ard, amountin
2 was without hesitation rejected by ry in.
ans. Is it surprising that they showld have done so
nation these gentlemen estimated the annual dama |
$26,800, and the damages to individual and —
In accordance with the award of the Commission ion i
will require $36,838.18 for the present payment, of which
— as before stated, $10,038.18 is available, leaving
800 to be provided for; and that annually thereafter
an appropriation of $26,800 be made, in order to carry
out the award of the Commission.
The Secretary of the Interior, i
cae erior, in approving of the fore-
4la
No award is made by the Commission for or on account
of the land taken and occupied in the construction of the
From information received on this subject, this Com-
mission can not recommend a less award than the amount
mentioned, viz, $150,000, with 5 per cent. interest per
annum to date, and $1.25 per acre for the overflowed
lands. These Indians have absolutely ceded to the United
States 46,920 acres, which can not be sold as provided
in the act of January 14, 1889, for their benefit, as it is
and must be reserved for the overflow caused by the
reservoir dams.
From Leech Lake we went to Cass Lake, holding our
first council there August 23, and the last on the 26th
of the same month. As many of the Indians of this band
attended all the councils at Leech Lake, all they required
was that explanation should be made to those who were
not present at the latter place. They in strong terms asked
that unsettled matters be liquidated as soon as possible.
All freely gave their assent and signatures to the propo-
sitions.
From there we went to the Lake Winnebagoshish band.
We had much trouble in assembling them as they were
out gathering wild rice. Our first council was held August
31, and the last September 2, but we were in almost
constant session day and night, as they were anxious to
return to their rice fields. Several of the chiefs had at-
person at Leech Lake when thei — a
without them. This — ee eS
shown by township lines. This has gi dissati
faction, as whites have settled —7 — —
— — upon the reservation, as the Indians claim.
should be adjusted. Every adult male of the
band gave his assent to the agreement.
the hope of improvement They
— of their condition, and tremblingly asked o
— might be kept from the county. They also asked
1 and school teachers be sent them. They
— a e lost wards of the Government, who had fallen
a hands of their worst enemies, the whisky sellers
present gave their signatures. f
432
a
From the last point we sent our messengers to find
scattered members of other White Oak Point bands,
succeeded in gathering them at Kimberly, a water
station on the Northern Pacific Railroad, where
F 8
EEE
Ee
4
i
|
i
42
2
&
4 S
ELE
and mind, unusually bright, and !
anxious to acquire land in severalty, and the youn
Their bands numbered one hundred men. All except one
signed the agreement.
On the 2d of October we met the Mille Lac Indians,
and were with them until the close of the Sth, and almost
constantly in council.
molested in person or property by them. Upon this reser-
vation there are a large number of whites, who have made
claims thereon, and even many of these testified to the
harmless conduct of the Indians. Their principal fault
seems to lie in possessing lands that the white man wants.
This reservation was set aside for their use by treaty of
February 22, 1855, and was guarantied as their perma-
nent home. By this treaty land was to be plowed and pre-
pared for cultivation. As a sample of injustice to them we
were told that the land had been plowed several miles
north of their reservation, and not a foot for their use
thereon. To satisfy ourselves of this, we visited the place
designated (lots 1 and 2, section 13, township 44, range
28 west) and ascertained from the then occupant, a very
44a
respectable citizen by the name of Dinwiddie i
, that his
farm embraced the improvement mentioned, which had
been made before he purchased.
By the treaty of March 11, 1863. this j
ceded to the United States, but by a proviso in —
it was stipulated—
That owing to the heretofore good cond
) uct of i
. n
as they shall not in any way interfere with or in any
manner molest the persons or property of the whites.
By article 4 of same treaty it was
agreed that the United
States should clear and stump and grub and break for the
— ¢ band, upon said reservation, 70 acres of land
w confirmed the belief that they were not only per-
manent!
— y located, but had the sole occupancy of the reser-
In the treaty of May 7, 1864, whi
supersede the one last alluded to, 1 —
stipulation as to the breaking of 70 acres of land et,
article 12 a promise as to their living thereon the —
as provided by the treaty of March 11, 1863.
The Interior Department now holds that—
The Mille Lac Indians have
never f ir ri
to occupancy and still reside on the — 3
But. notwithstanding this, White men have deen per-
mitted to rob them of their pine, and for years to settl
upon their agricultural lands, and there to remain in ve
E n b 4 to the great injury and fear of the
10 take as, Of the whites had the shameless audacity
wh pd. the Indians land the latter had, with much
. perseverance, put into cultivation. Squatters are
ng upon this reservation, and the interest of the
give in some way protection to the well intentioned but
misled whites who have made homes upon this tract; but
be that as it may, the question of right should be settled
at the earliest possible moment, for the greater the delay
the more difficult will be its adjustment.
All present assented to the agreement and signed the
same.
One council was held at Grand Marais, with a part of
the Grand Portage band, October 20. These Indians
ied the Commission to Grand Portage, where
councils were held October 23, 24, and 25. At these
councils the Indians gave very marked attention, and at
the last council expressed themselves as fully understand-
ing and fully satisfied with the terms of the act, and signed
the article of agreement with much cheerfulness and un-
animity. These Indians complain that white fishermen
spread so many large nets near their reservation that the
Indians are unable to procure a supply of fish for food.
Bois Forte and Vermillion councils were held Novem-
ber 9, 10, 11, and 12.
At the first council the Indians seemed timid and dis-
trustful. Indeed, the Vermilion Lake and Net Lake parties
seemed to distrust each other, and declined to enter into
the discussion of the subject presented to them. Subse-
quently better councils prevailed, and the Indians an-
nounced that they should hereafter act as a unit. From
this time the discussion was entered into with freedom
and cheerfulness, and finally resulted in their “touching
the pen” with great solemnity and much formality.
46a
These Indians have the best hunting grounds of
the Chippewa bands; there being — to on —
immense tract of timber land over which the white man
seldom passes. They seem willing to learn to till the soil,
but ask for better facilities. When asked how they culti-
vated their potatoes, these men of the North say they
drove a stake into the ground and pried up the earth,
and then made it fine with their hands. Much of the lands
on the Lake Superior Reservations is unfit for cultivation.
And it is believed that if representatives from these bands
can visit White Earth, many of them will cheerfully re-
move there. The Bois Forte Indians complain that they
have been despoiled of a large amount of timber cut from
their reservation, which is run down Little Fork River to
the British possessions. We promised to call the attention
of the Department to this.
At Fond du Lac the first council was held November
18, and continued daily until and including November 21.
It will be seen by the proceedings that Nah-gah-nub
the head chief, did much of the talking. He is 24
man and not in his prime, physically or mentally, but is
respected by all. Many of his band for want of work (the
cutting of timber on this reservation having been sus-
pended by order of the Department) are in great danger
of suffering during this winter and coming spring. Hereto-
fore, while permitted to cut timber, they were well to do
and contented.
Like all of the Mississippi bands, they feel
grieved at the long continued withholding “of the —
due them from the Government. Our positive assertions
that justice should speedily be done, not only in this re-
spect, but in the matter of a palpable error in the bound-
ary lines of their reservation, induced them to listen at-
tentively to the propositions submitted, and all touched
the pen.
47a
By the fourth article of treaty at La Pointe, September
30, 1854, it is stipulated, that the Fond du Lac Reserva-
tion shall embrace the following boundaries:
Beginning at an island in the St. Louis River, above
Knife Portage, called by the Indians Paw-paw-sco-me-me-tig,
running thence west to the boundary line heretofore de-
scribed, thence north along said boundary line to the
mouth of Savannah River, thence down the St. Louis
River to the place of the beginning. And if said tract shall
contain less than 100,000 acres, a strip of land shall be
added on the south side thereof large enough to equal
such deficiency.
Whoever was sent to make a survey of this reservation
followed the last clause of the article, and by his survey
limited the area to 92,346 acres, the north end of his
survey line on the west not reaching within 12 miles of
the mouth of the Savannah River, thus defrauding these
Indians of over 100,000 acres, which lands were put into
the market and long ago disposed of by the United States;
and for over a quarter of a century this injustice has been
permitted to exist, a festering and deep-seated cause of
complaint against the Government. The Indians at the
time of the making of the treaty had the boundary lines
definitely fixed, by natural lines to them unmistakable.
They knew no more about acres than they did of the
mariner’s compass.
We had no hesitation in promising that the Government
would speedily remedy this grave error.
As the various bands decided to take their allotments
on their respective reservations, and have constructively
done so, we told them that the $90,000 to be advanced
and already appropriated would be paid pro rata, as soon
after the approval of these negotiations by the President
as should be practicable, but not later than the coming
spring. The amount will be so small to be paid to each
individual that it is not probable that any will elect to
48a
receive anything but money. As they are in the most
destitute condition, and as we gave them to understand
that the money would be so paid, we trust neither the
Indians nor the Commission will be disappointed in this.
The clause of the act of January 14, 1889, providing
for the payment of the interest that may accrue on the
permanent fund, was to us obscure inasmuch as it says
“one half of said interest shall 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 interest
shall during the same period and with the like exception
be annually paid in cash in equal shares per capita to all
other classes of said Indians,” etc., and as we could neither
explain this to the Indians or comprehend it so as to give
it such an interpretation as would do equal justice we
promised the cash payment should be mad ita i
— ade per capita in
Wherever we went the Indians expressed a desire that
the Government would set aside a sufficient quantity of
land upon each reservation for Government buildings
such as may be necessary for physician, blacksmith, farmer,
carpenters, and for missionaries, traders, etc. We hope
this will be done, and that order, as to the location and
the erection of all such buildings, will be enforced.
They also requested that upon each reservation a tract
of pine land be reserved and held by the General Govern-
ment, as might be necessary for their common use, and to
be so held during the pleasure of the Secretary of the
Interior. We earnestly commend this request.
They all earnestly plead for saw-mills, cattle, agricul-
tural and mechanical implements, which they 4
or they can make no substantial progress. They must be
assisted in breaking and fencing land, building houses, and
with provisions, until they can sustain themselves. They
are no longer tribal Indians, but citizens at present help-
less, and must be treated as such. The saw-mills are of
49a
the utmost importance, for at present nearly all live in
single-room wigwams or huts, where privacy is unknown,
without or within. To return young boys and girls to such
abodes who have been educated in refined and chaste
society at Government schools in the East will be destruc-
tive to their morals and a loss of the expense incurred.
Although the Indians have decided to take their allot-
ments upon their reservations, it will not be well, in many
cases, they should do so, and we believe that if rightly
cared for, many can be induced in the near future to
remove to White Earth. For this reason it may not be
prudent to urge the making of individual allotments upon
other than White Earth and Red Lake Reservations at
present.
According to the established custom, none but chiefs
and headmen speak in council, but at various places others
conferred with us by day and by night, and many as in-
dividuals expressed a desire to remove to White Earth as
soon as provisions can be made for their subsistence.
Their removal should be encouraged, as it will be of the
greatest benefit to the Indians and to the State. It is now
impracticable to make allotments upon any save the White
Earth Reservations, and will be until the others shall be
surveyed. All but the White Earth and a part of the Red
Lake Reservation, are heavily timbered and unfit for culti-
vation without a heavy expenditure of money and labor,
and at best can not for many years be profitably farmed;
and it is doubtful, now that the game has nearly all dis-
appeared, if for several years they can raise enough for
self-support.
As 10 acres of maple timber for sugar making is a large
tract for one family, they requested that, to accommodate
as many as possible, 10 acres only, by legal subdivisions,
should be allowed each family now occupying the same.
We promised to ask that this most sensible request be
granted.
50a
As the four townships of pine land ceded to the Govern-
ment, of the White Earth Reservation, have been surveved,
and as the timber is liable to be stolen or burned, the
Indians desire an early estimate and sale of the same.
On some of the reservations there are swamps of valu-
able cedar and tamarac which can not be cultivated or
sold for agricultural purposes, and the land is liable to be
denuded of the timber by trespassers. The Indians request
that such land be withheld from sale under the preemption
laws, and that the Secretary of the Interior be authorized
to cause the same to be sold in such manner and upon
such terms as to him shall seem best for their interest.
It is reported and believed that upon the Grand Portage,
Bois Forte, and Vermilion Reservations there are valuable
mines, and that if such are discovered after examination
they shall be disposed of by the Secretary of the Interior
so as to best subserve the interests of the Indians. This is
in accordance with their request.
A further appropriation for surveys and examination
of lands will be necessary. The pine ceded is estimated
by various parties to reach in value from twenty-five to
fifty millions of dollars. A small appropriation can be used
for the purpose of defraying the expenses of Indians from
a distance who may desire or can be persuaded to visit
the White Earth Reservation with the expectation of re-
moving thereto before allotments shall be taken or con-
firmed elsewhere.
Provision should be made for a mill, furnishing cattle,
and farming implements, etc., to enable the Red Lake
Indians to commence farming and building houses the
coming spring.
The head chief of the Pillagers, Flatmouth, has for sev-
eral years resided in Canada, his sister, Ruth Flatmouth,
is in her brother’s absence the acknowledged Queen, or
leader of the Pillagers; two other women of heriditary
51a
right acted as leaders of their respective bands. and at
the request of the chiefs were permitted to sign the agree-
ments.
In taking the census, which was a tedious work, we took
unusual pains to see that all rightful persons were in-
cluded, and in every case not only submitted it to the
chiefs and leading persons of the tribe, but secured their
presence and assistance. After having explained to them
the importance of accuracy, they fully and earnestly gave
their best efforts to insure its correctness.
United States Agent B. P. Schuler accompanied us to
each and every band within his jurisdiction, and gave us
most valuable official as well as personal assistance.
Mr. A. Leahy, United States agent at Ashland, joined
the commission at the Fond du Lac Reservation and en-
dered us material aid.
Father Aloysius, O. S. B., was with us at Red Lake,
White Earth, and Leech Lake, and at all times used his
influence in the interest of our work.
In no instarice did we encounter opposition from the
traders or white men, husbands of Indian women; on the
contrary all readily gave such assistance as they could.
We feel warranted in saying that there was not an Indian
who was not fully informed of the purport of our mission,
and that the assent of all would have been obtained had
authority been given us to put in the way of adjustment
unsettled claims.
In the expenditures incident to the long distance trav-
eled, the length of time consumed, the number of Indians
we were compelled to subsist, and the large force we had
to employ as messengers in taking the census and aiding
in securing the signatures of such only as were author-
ized to sign the agreements, and making in duplicate said
agreements, and in triplicate the census rolls, we have had
52a
constantly in view the injunction of “observing and prac-
ticing the utmost economy.”
Among the Indians are many well-educated mixed-
bloods, who will be of great assistance in leading the
unenlightened onward.
In Michigan, Wisconsin, and elsewhere we know there
are persons of Chippewa blood that will claim, and no
doubt many are entitled to, the benefits under the recent
negotiations, who were, from their higher education and
associations, forced to separate from their bands and seek
a living and more congenial society elsewhere, who, now
that they can hold lands in severalty and come under the
protection of the law, will return to their old homes; for
such consideration should be given hereafter. We think,
however, that the safe rule to be observed will be to con-
sult the chiefs and head men as to the justice of their
claims.
To enable the Indians to commence their new life in
such a way as will, without loss of time, encourage them
to follow all industrial pursuits possible, it is evident a
sum should be advanced by the Government sufficient to
enable them, with their labor, to put as much land under
cultivation and build as many homes as practicable. At
each and every place, either in open council or in private
consultation, they were urgent in requesting such aids as
are indispensable to white men. Especially, all not pagans
expressed a decided preference for mission schools, deem-
ing it essential that the morals of their children, as well
as their education, should receive careful attention.
If this shall be done and the Indians are properly
guided, the most happy results may be expected to follow.
Give the Indian justice, kind and patient treatment, and
his confidence can be gained, and by a wise hand he can
be started on the road to a useful life. He is naturally
trustful, with strong attachments for those he believes to
53a
be his friends. To his enemies and to those he distrusts,
a different nature will be unmistakably visible.
rryin t this new departure, many details must
Mes | 05 the final result of this most beneficent
measure, properly put into execution, there can not be a
doubt.
Respectfully,
Henry M. RICE.
MARTIN MARTY.
JosePH B. WHITING.
Hon. T. J. MORGAN, i
Commissioner of Indian A ffairs,
Interior Department, Washington, D. C.
Schedule showing the number of acres in the
Chippewa reservations in the State of Minnesota.
107,509
ancien 23,040
Fond du Lac —— —
——. Lake 94,440
Mille Lac 61,014
Red Lake and Pembina bands ens 4
Vermillion Lake .
White Earth 796,672
Winnebagoshish, Cass Lake, and White Oak Point 329,000
Total 4,747,931
54a
Number in each band
Name of band Adult Adult
males females Minors Total assenting
Red Lake and
Pembina Chippewas 386 422 578 1,386 324
Mississippi Chippewas 934 854 1,414 3,002 688
Pillager and Lake
Winnebagoshish 600 649 959 2,208 466
Grand Portage
Chippewas 73 85 136 294 72
Bois Forte
Chippewas 228 224 291 743 211
Fond du Lac
Chippewas 157 187 327 671 123
Total 2,178 8,304 1,884
* * * *
FIRST COUNCIL AT LEECH LAKE.
AucustT 8, 1889.
Mr. RICE. After the lapse of many years, it is pleasant
to return and meet so many of you here. It, however,
makes me sad to miss so many faces that I saw long, long
ago, but those who have been called by the Master of Life
to the spirit land have left their representative behind. In
dealing with you, I can not but think that your fathers or
their spirits are present, and if the result of our negotia-
tions shall be as pleasant as those had with your fathers,
I shall leave here with a light heart. We may not have
brought as much sunshine as we or you would desire. but
we hope that we have brought something which will clear
away the clouds that have hung over you so long.
The business upon which we have come is of the utmost
importance. It is of more importance to you than any
business you have ever transacted. It is not so much for
the present as for the long future. It will require your best
attention, your best thought, and the aid of your wisest
men. We do not expect that you will all be of one mind;
55a
i i Ives
will at first differ very materially among yourse „
but by discussion and comparison of views, some of you
will perhaps see the matter differently than at first. All we
want now is your earnest consideraiton, and we will give
you all the time that is necessary for consultation. We
shall not hurry you. We wish you to bear in mind partic-
ularly that whatever your answer may be, if it is given
in the spirit of friendship, it will be satisfactory to us.
We shall leave the decision entirely to you and will be
satisfied with it, hoping that it will be for the best.
t perha ou might desire another in-
teqyreter one — and familiar with
you than the one we have brought—and if so, you may
have one. So far as in our power we will gratify you in
everything that is right which you demand. We will wait
a moment before proceeding with the business before us,
for you to determine whether or not you will select an-
other interpreter. If you do not desire to name another
we will proceed with the reading of the act, and at the
next session, if you desire another one, all you will have
to do is to say so.
Colonel Whiting will now read the act to you.
Commissioner WHITING. Friends, although I am a
stranger to you, I beg you to accept my kindly greeting.
The chairman of the commission directs me to read to
you the law under which we proceed.
Commissioner Whiting then read the act of Congress,
it being carefully — phrase by phrase, by the
interpreter.
Mr. Rick. You have heard the act read, and we wish
to know whether you have anything to say in reply. If
not, we will fix upon an hour to which we will adjourn.
ready this afternoon we will give you an
exnlasedion af too att; tho counell now sands adjourned
until 2 o’clock.
56a
(Upon the announcement of the adjournmen
t, Ruth
Flat Mouth, the only representative on the reservation of
the family of the celebrated chief, Flat Mouth,
4
f
layed by a council which was held by Indians.
— 2 ———⏑⏑i ,
in the council outside did not wish those in the council
inside to say anything until the outside council was
O-ge mah remarked to the Indians then present i
2 ast Gp quem amen te tients
mate any reply during negotiations uatil everything said
by — — — —
sponse made, t he recommended
procedure. 2
The Indians who had been in council elsewhere
N came
in half an hour later, when the council was called to
Mr. Rice. If you are ready, I will now endea
. vor to
explain to you the provisions of the act. If you are not
ready we will postpone it until you are.
I do not expect that all the explanations to-da
will
fully understood, but we will hereafter answer ull quee
tions you may ask about them.
After fully explaining the act, the chairman ended
saying Aa you gecbilily wtih to talk over senty matter
57a
SECOND COUNCIL AT LEECH LAKE
Aucust 9, 1889.
The council was held out of doors, there being no room
large enough
STURGEON MAN. My friends, I wish to say a few words
to you I shall tell you what the feelings of the Pillagers
ir mi do, I took some of my money
and called upon you. It is not my purpose to
charge the Pillagers anything for my services, nor for
what I expended in their behalf. We wish an Indian to
stand by and listen—an Indian interpreter.
Mr. Rice. Name your man.
STURGEON MAN. Those men will select one.
John Bassett (Way-me-te-gozh) and Charles Martin
(Maysh-kow-e-gah-bow) took seats in front as interpreters.
STURGEON MAN. You see these boys are full-blooded
Indians, and we wish to have them listen to what is said.
Mr. That is right. The council is now open for
business.
Paut H. BEAULIEU. I think it is expected that the Com-
pleasure.
We wish to say that the President directed us to take
down whatever you may have to communicate to him,
and all we may say or you may say will be put in writing
and sent direct to your Great Father. We know that there
are some matters which will develop as we proceed, upon
which you will wish information, and so far as we can
we are ready to give it.
58a
_ No-DIN-AH-QuUN. I do not wish to sa anything defini
in what I say. We aso waiting for the thas then om
braves and young men will allow us to proceed to this
business—to talk to you. It is our sincere wish that you
should once more explain the paper that you have before
stand. We wish it set forth so plainly that no
one can
misunderstand. The reason we do not give you an answer
at the present time is that we want more light on the sub-
Mr. Rice again explained the act in detail.
MAY-COD-AY-WE-CO NOVA. I want to know i i
, if
all the message that you have to give us? =
MAY-COD-AY-WE-CO-NoY-AYy. I am a pries i
t, and I
to talk to my friends. 12 n
f . *
— and shake hands. I wish to have a little rest for
Mr. é‘
*— (io the interpreter). That is, they wish to
Mr. BEAULIEU. Ves, sir.
Mr. Rice. The council is now adjourned
morrow morning at 9 o'clock. 2
59a
THIRD COUNCIL AT LEECH LAKE.
Auoust 10, 1989.
secretly. This is referred to to show you that the signature
of no Indian will be taken in the
houses, or in the dark. Whoever signs this paper must do
it openly and before you all. None but a coward would
do otherwise, so you need not be afraid: whatever is
must be done here in daylight, where all can see and all
can hear. I wish now to have you rest assured upon this
subject. We have not come here to disgrace our Great
be
you to sign, or to bribe you to sign. Your Great Father
has made you an offer, and it is optional with you, after
you understand its terms, as to whether you accept or not.
It makes no difference to us as to whether you do or do
not accept it. You are the ones to suffer, not we.
You sent him word three years ago, many of you, that
you did not want to leave this place. He listened to you,
and has consented to your remaining. I know all about
it as the papers are here before me. Your Great Father
knows well your condition. He knows how very poor you
are: that you have no mill; that there are many other
are in need of, and that you have not even
a coffin in which to bury the dead. He
well as we do that many of your young men
can not get work. He knows that you are driven to the
ig snake-root to sell, in to li
60a
MAY-COD-AY-WE-CO-NoyY-AY. I am coming to tell these
chiefs something. I shall point out to them the persons
whom we wish to appoint our spokesmen, and who will
speak to you the words that we put in their mouths. That
is what the braves here of the Pillager band say, and our
young men also.
Ah-zhow-we-ge-shig will be the first speaker of the
chiefs, and Wob-on-a-quay will also speak. That is the plan
adopted by all the braves present. That is the organiza-
tion as now formed. There are a few of the braves that
are selected from their bands who will speak after the
chiefs have spoken. Mah-je-gah-bow will be the first one
to speak after the chiefs, and after him, two young men
will speak in behalf of the young men, and after that
AH-ZHOW-WE-GE-SHIG. You have heard speak the man
who was selected to make the speech to you. And as I
have been selected as the first speaker, the task is a very
difficult one and a complicated one for me to begin. If
you feel an anxiety relative to this, it is the same anxicty
I feel. Now, if you may be pleased to allow us, we will
go and sit around and discuss the mater as to what shall
be said. I think that it is just the way you ought to do.
Mr. Rice. The council now stands adjourned until
3 o'clock.
AFTERNOON SESSION.
The council was called to order by the chairman, who
stated that the Commission was ready to hear the speak-
ers who had been appointed.
AH-ZHOW-WE-GE-SHIG. I am selected by the chiefs,
those that you see before you here, by the braves, and also
by the young men of the tribe. The chiefs from Pine
Point, on the White Earth Reservation; the chiefs of Cass
Lake and Lake Winnebagoshish Reservations, and their
friend, the reason we are all happy to have the
n
these chiefs and these braves were in the past; you have
heard of their prowess in war and how they have con-
ducted themselves in dealing with their enemies. For those
reasons they feel like men. Everything that they used to
take glory in—in warring with their enemies. —
of that kind, however, is now buried underground, an
our record is clean of any crime.
62a
you meet us right on our own reservation, to see you
present among us, makes us feel as though you were right
in the palm of our hand. I state all these matters to give
you an inkling of the feeling in our minds. I shall now
follow a topic that pertains not only to the chiefs, but to
the tribe in general.
My friend, do not entertain the idea that you have one
before you who does not understand when anything is
said to him. My friend, we do not wish you to follow a
track that you can not go over, but neither do we wish to
get over you.
My task is ended—that is what the chiefs, the braves,
and the young men told me to say. You should consider
me as a pioneer who is making a road, or laying one out
for the others to follow.
NO-TIN-NAH-QUAH-UM. I have also been selected to lay
before you the wishes of these people, the whole of those
here.
We have been very much pleased to see you here in
our midst. Had it pleased the Master of Life to take you
away from the land of the living we should have felt very
sorry, and as one man, on account of the business that
transpired in the past. I refer to the cessions made by the
Pillager band of the Chippewas. You will very well
remember the cession. This is the first thing in the minds
of these people, and we wish to have an understanding in
the matter. We think of it as having never been fairly
understood, and we should very much like to have you
inform us as to its status at the present time. We do not
at all oppose the act you now lay before us for our con-
sideration. Our Great Father is the person who employs
you. The Pillagers always receive word from you, in
which you say: “My friends, be very careful about your
behavior; always do what the Government wishes you to
do, which is to be peaceful; never incur enmity. I beg
of you as friends to listen to me and do no covert act.
63a
Some day my hands will be let loose so that I can help
you.” That is the word you sent us, and that is the very
reason that the Pillager bands are so pleased to see you,
and why they respect you—for the kindness you have
shown, and for the words I have repeated.
men see here are in poverty, in extreme
ea That poverty began at the time of the first ces
sion you obtained from them. You are cognizant of all
the cessions we have made, and we wish that while you
are here you should try to redress any wrong committed
relative to the obtaining of those cessions. The Long
Prairie is the piece of land that I refer to, the river coun-
try. That is a piece of land that you borrowed from my
forefathers, and the amount of money that we were to
receive relative to that. We wish you to take that into
consideration and see if you can not redress it.
Another thing that we wish you to strictly bear in mind
is, that the Government of the United States has caused
dams to be built, which have overflowed everything here
that we had as a dependence for subsistence. They have
destroyed all that without ever offering compensation for
it. These people are all in accord in this matter. They
wish to have an understanding about the Long Prairie
matter, and also about the reservoir dams established, and
they wish to hear from you what can be a
. ou can give them an encouraging answer in an
. , we shall not be unfavorable to this
arrangement about to be made and which lies before you.
The amount of money that would accrue if justice was
done to us, and the money paid to all these families before
you here, would be a great source of revenue to them.
It would help alleviate their poverty and be a source of
help to these young men, to these old men, and the women
and the orphans. That is the nature of our negotiations
to-day. The only stumbling block there is to the arrange-
ment you now bring and lay before us is the adjustment of
those old dues which now belong to us. It was said to us,
64a
“The money shall be placed in your hands and it will help
to relieve your wants.” That was only a matter of speech;
the thing was never carried into effect. It never came to
pass.
An arrangement was made a few years ago whereby the
Indians were to be well supplied with agricultural imple-
ments. I was very much elated when I heard of it; but
when I saw the fulfillment of the promise, what did I see
but a log-chain laid before me, which was to go around
for one whole band. And then there was a yoke there
also. When I looked at the yoke I thought o myself that
I would not have sent a yoke without something to put
under it. Come to find out, it was sent only for me to
look at, and I never found out who the yoke was used
on. If they had only said to me that they brought the
yoke for the purpose of putting it on me and yoking me
with it I should have kept it as a memento to show you
this very day.
I have referred to all these back matters because when
this act is now read to me, having been treated as I have—
and it is no exaggeration as I have stated it—I am afraid
of getting my foot into the trap again; so that I can not
be too careful how I make promises hereafter.
WoB-ON-A-QUAY. My friend, now that I am about to
talk to you, remember that my ancestors were your friends
and what my ancestors thought of you. That is just the
way that I think of you; I think of you as my greatest
friend. My friend, the question that I wish to ask of you
is, Here is an arrangement that you have left unsettled;
why should you wish to tread over the arrangement and
place a new one before it? My friend, there is a big lot
of country, a big tract that you borrowed from me; I wish
you to make that loan good. My friend, I do not under-
stand the act. Do you not know that everything which
grows under our feet springs anew every year? It does.
There is something that is buried away underneath that
Ought to be taken up before beginning again.
65a
I am old and tired, but I will depend upon my stomach
feeling a little better after the big hunter (Commissioner
Whiting) has shot something.
Mr. Rice. Yesterday I walked up to the old post to see
the graves of my old friends, Flat Mouth and George
Bonga and others, and to see again the ground upon which
the first treaty was made. Sometimes in our dreams events
that occurred years ago pass vividly before us. While
standing there I fancied that I was again a young man,
and all that happened there forty years ago this month
flitted distinctly through my mind. There are some of
you now before me who were present then; then you were
the young men. You will well remember the words I at
that time used. I said that you were not selling the land;
that the price paid was inadequate. So, you see, the words
of your second speaker were true.
The Great Father wanted that land for the Meno-
monies. The Menomonies in early days used to come up
a few at a time and hunt and trap in your country. They
held for Indian purposes. It was given to the Meno-
monies. Your Great Father was sincere in it. It was
expected that the Menomonies would remove there, but
they were told by their friends in Wisconsin that owing
to the war between you and the Sioux it would be danger-
them to do so; that they would be between two
considering the matter for several years they
would not come, but would take a
of land and remain in Wisconsin.
came, soon after, a change of administration,
matter was f , was laid aside. You did
anything about it. No one seemed to take any
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66a
transaction really was. You called the subject up three
years ago, before the commissioners acting at that time,
and I was in hopes that the matter would be thoroughly
sifted, but although I see that you allude to it in their
report, they did not seem to understand the subject. But
the paper I gave you was printed. It is now on file with
the public documents in Washington. While I felt very
sorry that the transaction terminated as it did, and was
disappointed about it, I never felt ashamed, because I
never told you an untruth. I have, however, lived in
hopes that the matter would be settled to your entire
satisfaction, and I believe that the day is not now far
distant when it will be. But it stands in the same position
as the old balances due to the Chippewas of the Missis-
sippi, and it required a great deal of explanation there to
make them understand the true state of affairs. At the
negotiations three yars ago they paid the amount to be
paid for the damages caused by the reservoirs.
In looking back to the distant past it was seen that the
Chippewas of the country were once one people, that you
fought the Sioux from day to day, that you were a brave
people, a people to be feared, and that this vast country,
from Lake Superior to the Red River of the North, was
taken by you from your enemies, and when I first came
among you much of this region was covered with the
bones of the dead. In those days whenever one band was
in danger or in trouble the others were called upon, and
you all helped each other. It was by your common efforts
that you conquered and retained this country, and the
Great Council has thought that you should all participate
in the benefits when it should be sold. Those are the
subjects that occupied the attention of the law-makers.
The other matters were not even considered. They thought
them of too small importance, and it was not the proper
business of those who originated this measure to first
examine into those details. So these matters were never
brought as to the attention of your Great Father, but he
told us in the instructions to listen attentively to every
67a
complaint you might make, and to everything you might
say, and put all down in writing and send it to him.
I am very glad to have heard what you have said in
to those matters. I have never felt at ease—I have
never thought of it that it did not make me unhappy that
the old matter, in which I was the instrument of the
Government, had not been closed to your satisfaction.
When they commenced building the reservoirs I had that
in my mind, and I wrote constantly to your people to
keep quiet and to bear with the ills upon you in hopes
that something would occur by which we could go back
and settle up the old matters together with the new.
Many of my letters are now among you; none of them
are private, and they all speak in the same tone. But, my
friends, the truth is this: You have been so poor that
your entire attention has been given to procuring food
enough to supply your daily wants, so you have not had
time to give to these great questions; consequently, you
have neglected them.
We would not be unwilling to make this a part of the
treaty if we could; but should we do so it must go back
through that long, long road—through both branches of
Congress, through the Interior Department, and then back
to the President, after which appropriations would have
to be made, which might consume a year or two.
We have no advice to give in regard to this. We have
stated to you the plain truth, the facts as they exist, and
it is for your better judgment to decide what to do.
In regard to the reservoirs, you know very well that I
at once wrote to Washington and did everything in my
power to see nothing should be done until a satis-
factory arrangement with you had been made. But in
the making of public improvements no one can stop the
Great Father. Only a few years ago your Great Father
wished to cut a canal through the point of land at the
west end of Lake Superior, at the outlet of the St. Louis
* e
River. The whole State of Wisconsin objected because
it would throw the course of that river over to this side.
They took it to the highest court in the world, the Supreme
Court of the United States, and that court sustained the
you are just as much entitled to the amount as you would
have been had you made an arrangement before the work
was done. This is so plain a case I can not but think
there has been some mistake or some misunderstanding
or you would have been paid long ago.
I believe that it is now your wish that we should ad-
journ until Monday. You may, meantime, think of some-
thing that you wish to ask—your chiefs, braves, or young
men—and we will patiently listen to anything that you
may have to say. We wish to go away leaving you all
satisfied and in a better frame of mind than we found you.
When you act together your action is more effective.
we get a paper from you and know it comes from
all we feel encouraged to work. All you now have to do
is to respect the opinions of each other. Consult together
freely, like men, and while you may differ at first you
will probably agree in the end. I now pronounce the
council adjourned until Monday morning at 9 o'clock.
FOURTH COUNCIL AT LEECH LAKE,
AuGusT 12, 1889.
This council was also held in the open air.
Mr. Rice. The persons you have sclected to speak this
morning will now be heard.
69a
KAY-ME-wun-OUSH. You have, I suppose, been in-
formed that it is hard work for me to speak this morning.
I have a few questions to ask. There were some questions
asked of you yesterday, There is something different that
I wish to ask you this morning.
About the cessions of which we spoke, I do not wish
to refer to that. I wish to begin the subject of the reservoir
dams established which have caused us so much damage.
voir built there has taken away my subsis It has
created not only hard feeling, but hardships also. You
Mr. Rice] have written us to be very careful not to injure
our property—to respect that dam
property. We have done so, but we have, nevertheless,
suffered from that cause. The respect which the Pillager
is the cause of our not saying anything
we were not troublesome.
stipulation in which there was a sum of money named
Meaning the utility fund of $4,000.}
And the Mississippi money that was put on one pile;
There is another thing we wish to mention for the con-
Ar beatae tenets be Gt:
That the Government of the United States, under solemn
treaty, promised to pay the chiefs for their services, a
surplus that came out of the annuity fund.
(This refers to the treaty proclaimed March 20, 1865,
)
70a
I do not utter these words fri , but wish that the
greatest consideration should be paid to them.
matter of great interest to us; and we present it
we respect you and know that you are an honest
for us; because you pity us, and because of the
you occupy as a representative of the Government.
is all I have to say. I will leave the matter to be discussed
further by the braves and young men.
MAY-COD-AY-WE-CO-NOY-AY. I wish to say,
of the band, what I was told. A man will speak
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unprepared with my remarks, except in
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71a
do so as a unit, and if they conclude not to accept it, it
will as a unit be rejected. I am speaking to you so that
if you do not see me over there you will know I have done
what I was hired to do. I am one of the Cass Lake chiefs
but I am living here.
MAH-GE-GAH-BOW. I have been selected by the chiefs
and the braves have also selected me, and the young men
also selected me, our women and children selected me.
My friend, it is to lay before you what engrosses our whole
mind that I address you.
fathers who made all those negotiations, have always said
that time )
lay before him these matters, so that he can explain to us
all about it, and as to which we are so anxious. So you
see, my friend, that you are the person who made this
know all about it. It was at that time, in 1855,
72a
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74a
like you hiring this secretary; we have no business to say
that you must not hire him, and that is the way we feel
about the man we have hired.
At the time, my friend, that you borrowed that land
from the Pillagers, who were our fathers? It may be that
I was not born then, but I have heard all about it. It was
this year forty-two years ago since you entered into that
agreement with our fathers. That is the first thing.
It is going on thirty-five years that the other cession
was made, in which the old men here ceded the other land
to the Government. The arrangement made for thirty
years is now passed by, and that was the number of years
for which the Pillagers were to receive payment for the
land they ceded.
Twenty-two years ago there was an arrangement made
by which the Pillagers should receive pay, extending their
annuities ten years longer than the time stipulated in the
treaty. Those two men who were there at Washington at
the time stated that the land on the other side here [indi-
cating] was given back to the Pillager bands.
At the time of the raid which the Mississippi Indians
got up against the Government there was a sum of money,
$16,000, which was taken from us and paid on account
of the depredations committed in that raid, when we had
nothing to do with it. It was none of our getting up;
only a few of our men as individuals joined in; yet we
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memento.
The paper handed Mr. Rice read as follows:
St. PAUL, October 4, 1880.
The following statement is made at the request of Flat
Mouth, chief of the Pillager Indians.
76a
at war. The old men thought by having the region th
occupied peace would follow; hence their consent to yield
to the request of the Government.
HENRY M. Rice,
One of the Comnaissioners.
77a
It was not long after Flat Mouth was in Washington
that there came a change in the administration, and then,
or soon after, came the great war, when everything else
the great debt incurred, taking care
blacks who were thrown upon our hands; of the widows
and orphans of the soldiers killed in battle, and of the
to your Great Father, but of great importance to you,
should have been laid aside or overlooked.
In regard to the reservoirs, your Great Father has not
said that he did not owe you damages. He has sent two
commissioners here to consult with you and ascertain
the amount that shall be paid. The commission of three
years ago also took the matter into consideration.
It was said by one of your speakers that you wished
us to do nothing here, but to pass on to the next band,
and it may be better to make no arrangement here, but
to go home, because it would not look well if we left
behind us a stream unbridged. In regard to many other
matters, some of which Sturgeon Man has referred to,
as to the non-fulfillment of the treaties, we can not give
you an answer without first examining into the question.
But these are matters which are properly brought before
your agent, who has the books showing the money paid
and the cattle furnished. I know you brought these mat-
ters before your former agents, and that, as it were, your
words were blown away by the wind. The reason was
78a
that they did not understand business matters, but
This text is long and has been trimmed here. Open the source document for the complete record.
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