# Amicus Curiae Brief — Cass County v. Leech Lake Band of Chippewa Indians > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0111%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 103 ## Text (it) rR tee 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 . = *. —— aper, excepting that your Great Father, in consideration of certain matters being unsettled, will send you the $90,000. These are matters we wish you to consider. Cast from you all you have heard contrary to what we say. The greatest responsibility rests upon you. Not only upon the chiefs, but upon the braves and the young men. Bic Dos. I am telling the chiefs to be very careful in what they say in their talk. I shake hands with you. This is a matter of the utmost consequence. I am speaking to the chiefs, the braves, and the young men, telling them to take into consideration that there are many here now who will not be here fifty years hence. Nor will those commissioners, by their looks. But there will be some people amongst them who will carry this out. (Kay-ke-now-aus-e-kung made a speech to the Indians which he did not wish to go on record, in which he coun- seled further consideration of a treaty.) NOw-WE-GE-SHIG. My friends, we now understand everything you have just said. Will you please not to hurry us, but allow us to deliberate on the matter. Mr. Rice. There is nothing gives us more pleasure than the prospect of your being united, because otherwise 104a you can not be strong, and I shall feel whenever a Pillager visits me in St. Paul, no matter whether he is an old or a young man, that I can take him by the hand,as I always have done. Now, that we have got down to business, we hope you will take in consulting all the time required. Any misunderstandings amongst yourselves must be set- tled by you. An adjournment was then taken, at the request of the Indians, until 4 o’clock. AFTERNOON SESSION. Bishop Marty. This bill will benefit the old men, and it is especially arranged for the good of the young men. If the young men had now plenty of game, then I would say to them, as I said to the Sioux, “As long as you have plenty of buffalo, stay as you are;” but you know as well as I do that the game is fast disappearing, and that there will after awhile be none left. During the fourteen years I have been with the Sioux the young men have concluded to take lands and go to farming, making a living in that way independently for themselves. Instead of going a great distance for berries, plums, or other fruits, they have in their fields and gardens whatever they wish of vegetables and other good things. Instead of running a great distance through swamps and over stumps and stones after moose or deer, they have the cattle right in their yards when they want meat. The lands the Chippewas have are even better than those of the Sioux. But you need to make use of the lands, with horses, cattle, and farming implements of every kind. Among white men, if one needs anything, he has to sell a part of what he has, buying with the proceeds that which he needs. The Indians can not do that because they are not very smart at making a bargain and generally do not get a good price. 105a We have an example of this in the Indians of Lake Superior. They have sold their pine, and to-day are as poor as they ever were. Your Great Father does not want you to lose your land and your pine in the same way. He first wants you to have all the land you can use, and then wants you to sell the remainder, which can be sold on your behalf at the very highest price. With the pro- ceeds he will buy whatever you need to make you prosper- ous farmers. I said to myself, in thinking it over, if the Sioux can succeed so well, surely the Chippewas, who have always been a peacable and tractable people, can do well. So I conclude, although it is pretty hard to travel in this country, and I was very sick on my way back from Red Lake, because I am an old man now, I concluded that I would come and talk with you so you would not lose these advantages, but be benefited by it just as the Sioux are. So I am here now to explain matters and answer all your questions. This is an important moment in your lives, and we can not take too much time to as- certain what is best and put it into effect. The Great Spirit who made you all wants you to have plenty in this life and to be happy when you reach the other world. He has given us reason so that we can see what is good and what is bad, and we must make use of that reason. He has given us eyes; but if we shut them, we do not see. If we use our reason, we can discover what is best for us. I have already prayed to the Great Spirit to help you to understand what is best for yourselves and your families. I shall not give it up until I see you started on the right road. Commissioner WHITING. My friends, I had purposed to say a word to you this afternoon, but the good bishop has come and has given you an interesting talk. As I believe you came this afternoon to ask questions of the Commission, I must not take up a single moment of your time, except so far as any inquiry may be made which I am able to answer. 106a Some time before we part I want to speak a word so loud that every Pillager shall hear. The chairman will now give his attention to any question to which you invite it concerning this bill. NO-DIN-AH-QUAH-UM (after addressing the Indians). It has been understood that any excitement or ill-feeling in these councils should be put aside, and it is essential that it should be. We have always expressed our feelings relative to our friend who has paid us a visit here. We have expressed ourselves in such terms that it can not be mistaken that it was a pleasure to us to see him. Although circumstances have arisen which were unpleasant, it now seems brighter, and we will proceed to business on that basis. While our friend was on a visit to the other reservations we heard that he had had a misfortune, having lost his brother, and that he had to go to St. Paul relative to that. We said that we would cast everything to one side which would cause excitement or ill-feeling. We have heard that there was to be an arrest there of a young man, on account of that transaction, this morning. We wish to know if that is a fact. We understood that his name had been put down. Just see; the Master of Life listens to us. We sent for one of our ministers to implore divine aid. We wish everything should go peaceable. Have we asked in vain? I ask for my satisfaction and that of others. Here is a bishop and a priest who have come here. They are men of prayers, and we wish everything conducted with peace and a good feeling. Mr. Rice. I had supposed that all that had occurred this morning was buried. RuTH FLAT Moutu. I have been permitted to ask a few questions. I wish to know what will be the value of the land which troubles us so much and which was bor- rowed from the Pillagers? Also, what will be the amount paid for the damages done by the overflow, which destroys 107a our subsistence? That is all I have to say. This is all I am permitted to ask. We wish to know what the prospects are of obtaining anything for the land which we loaned, and for the damages for the reservoirs. Bishop Marty. I am sure that when the attention of Congress shall be called to this matter that they will pay you a reasonable sum for the land you gave for the Me- nomonees. Congress never acts upon anything until the matter is brought up by one having authority and in whom they have confidence. As we have been selected by the white people to come here and speak to the Indians in their name, Congress will listen to us when we speak in your behalf. The other two commissioners have already promised to bring this matter before Congress, and I am only too glad to join them in it. The claims arising from the reservoirs are more recent, as it is only three years since the damages were estimated by commissioners appointed by the Government. It is now well known what your claim is, and it needs only to be brought before Congress to be allowed. I told the men at White Earth why these grants had not been made sooner by Congress. It was because it was feared that the money would not do you any good; that it would slip through your fingers, like other money you have received. But when you accept this treaty and thereby show that you wish to make a fresh start, then the means will be given to you. If you accept this offer and sign the treaty, we can go before Congress and say, “Here is a people who are ready to make the very best use of what you give them. These men have sense, think- ing not alone of the present, but of the future; not only of themselves, but of their children.” We know that the majority in Congress, who are friends of the Indians, will be glad to hear it and will grant their petition. O-GE-MAH. My friend, I wish also to ask you a few questions. My friend, do not let my words offend you. 108a This is the first thing the Pilla gers wish to know of you. — is because all these other persons, who have made — — bargains, our old men, our fathers, most of them — died off, and a great many of our young men think, have 2 — * aod toe pt le airs set i new arrangement. „ My friend, when we heard that vou were i we thought that you were — top — yr the Pillagers. My friend, I speak to you because I know you are in power. I know you have the strength, which is why the Pillagers do not want to step over the old affairs, and begin a new one. Our fathers, who made the arrangement with you, told us, always to keep in view the — — had been borrowed from us. Some of these — 58. — “1 he is living, just ask these questions,” of you _ About the reservoir dams, my friend; you can imagine the damages done to all our — in the mw of subsistence. It is the sincere wish of all the Pillagers that you should be capable of managing so as to enable us to come to an arrangement relative to all these things The men, women, and children demand it of you. Now, my friend, do not be surprised at what I tell you. The reason there is SO much trouble with these Pillagers is the promises and the faith that has been broken with them; so many promises made have been brokn that they are suspicious about any promises made to them now. Now, my friend, I shall talk to you of somethin * . 8 At the time the Pillagers went down to — — ceded a large portion of the country, there was a promise made of some money that should go to one side—the utility fund—for the use of the Pillagers here. My friend I am a little foolish, and if I had not been I would have 3 the paper which was given to me in St. Paul. What allude to in that paper, I took $300 of the money to bring me here when I was coming back. That, my friend, 109a is what these Indians ask of you to-day, the utility fund. The Pillagers say that they wish our friend would cause that money to be placed in our hands. At another time when they were paying me here, they used to put some money into my hand for the services of my band, but while they were paying me, that money disappeared. Why does our Great Father take away from us that which he had promised to give us? I never take back any land that I once sell him. That is all I have to say, my friend. This other man will now speak to you. Mr. Rice. It is very hard to answer some questions. It is sometimes very difficult to give reasons, even when you think you have them. In regard to the land you lent and in regard to the reservoirs, I have done all I possibly could to keep the matters alive and keep them on the books. But you all know how it is; when you sce a big thing little things are lost sight of. If we could do so, we would take all these back matters and put them into this, but as I explained to you the other day, should we do it, the whole thing must go back to Congress, and how long it would remain there no one knows. But as it now stands, if it is successful here, the President’s signature makes an end of it. But the Great Father told us to listen to all you might say, put it in writing and send it to him that he might look it over, which we hoped would be satisfactory to you. After we received our appointments, we met in St. Paul, and spent several days consulting as to what course was best to pursue. When this business is disposed of, we can all go to work and see that justice is done as to past transactions. Council then adjourned. 110a SEVENTH COUNCIL AT LEECH LAKE. AuGusT 15, 1889. O-GE-MAH. What I want to say on behalf of the Pil- lagers is that matters should be pointed out to us in such a way that it will be impossible to misunderstand. It is absolutely our wish, and we covet to understand this matter thoroughly. We will, during the day, point out the different points on which we want information. NO-DIN-AH-QUAY-UM (after telling the Indians that they should begin to ask questions). The time has arrived when you should explain once more the whole nature of this agreement. How many bands will be included in this agreement of consolidation? How much will each person, including the children, be entitled to? Will it fall to our lot to remove from this place? Will there be any land left for children who may be born hereafter? Bishop Marty. As the other two commissioners have already spoken to you of these matters, I will talk to you this morning. You will see that we have the same under- standing, because I will tell you just what has already repeatedly been said. All the bands of the Chippewa In- dians in the State of Minnesota are included in the con- solidation. You are one people, and Congress wants you to be all treated alike. It is also the will of the Great Spirit that the Indians should be one family, one people, and that they should love each other as brothers. Is that a satisfactory answer to the first question? O-GE-MAH. I understand that. Bishop Marty. The second question was whether you would be allowed to settle here or would have to go else- where. Congress offers you the privilege of remaining here or going to White Earth. After you are once settled permanently you can not be removed. There is a great difference between this and all other treaties heretofore made, when men would come from the Great Father to llla you and leave after making promises and never come back. If that had been the plan this time I would have had nothing to do with it, as, if it had been like other treaties, a later messenger might have repudiated what we do. We three have been appointed, not only to get your consent, but to make allotments. Every one of you is to take the land to which he is entitled, when we will make report to the Great Father and procure the patent for him. Our work will not be done until each man has the writing for the land which he and his wife and his children own. You will then hold your land by exactly the same title as the white man. To make sure that you do not lose it no white man can buy it for twenty-five years. So the land you select is to be yours forever, and it will be free from taxes for twenty-five years. No land will be reserved for children born after the allotments are made, because every family will have so much land that it will be sufficient for them and their children. When a father or mother dies the land will go to the children, and when a child dies the land will go back to the father and mother, and when the parents are dead it will go to the brothers or sisters. There will always be sufficient land because it will remain in the family. Does the speaker understand it? NO-DIN-AH-QUAY-UM. Yes. KAY-ME-WUN-OUSH (after telling the Indians that he did not wish his motives to be misunderstood by them). Well, my friend [Mr. Rice], I suppose it has been ordained that we should meet. It must have pleased the Master of Life that we should ask these questions of each other. I shall inquire for the benefit of all the Indians and the mixed-bloods. At what time will the allotments begin to be made where you visited before coming here? When will the Indians be in possession of what you promise them? Will the Indian select for himself, or will a white man select for him? When is there a chance of our receiv- ll2a ing remuneration for the land we loaned the Government? That is all that I have to ask at present. Mr. Rice. In regard to the allotments, you can take them at once. After this agreement is concluded, you need not wait a day. You are allowed to make selections your- self, for yourselves and for your children. Your agent is authorized to select for the orphan children. I suppose he will consult with you. He is here and can speak for himself. We received news yesterday that the White Earth In- dians were tumbling over each other in their haste to secure their allotments. Their land is, however, surveyed into lots, which yours is not as yet. The law requires that whenever your lands shall cross a line there shall be just settlement between you before the deed is given, but that does not prevent your taking possession at once. One of you may have to move a little to one side or the other in order to let the Government lines come straight, so that you will always know where your boundaries are. The money is already appropriated to make the survey, and as soon as that is done we are authorized to come back here and give you your papers. The head of the family must take his 160 acres in one place, but he can locate his children around wherever he pleases. That is arranged so that you may have agricul- tural lands, sugar bush, hay lands, whatever you want. If we can get around in time the survey will probably be commenced this winter, as the money is already in the Treasury. We understand that the outside lines have been run, and if so, it will not take a great while to subdivide into smaller tracts. In regard to the land that I borrowed of you so many years ago, all that we can say is that we will go to work at once and see what we can get for you. We give you our word that we will do the best we can. WAY-ZOW-WE-GWON-ABE. I have also a few questions to ask our friends. Will there be any pine left for the KAY-HE-wWUM-OuUSH. Sometimes I feel it a burden to be pushed forward so much to ask questions, but I have so much to say. There is another thing that all these In- dians and mixed-bloods ask of you. The land that our and versions of it. We wish you to state what the size of the reservation for the Pillagers was. Sometimes it appears to me like a meal of victuals, as it were. The the ll4a cance. Is there any one who has taken a morsel or a bite out of that, so as to make it look small at this time? I remember very well the time the paper was handed over to you to read about the lines of the reser- vation. That is all I have to say. Mr. Rice. I remember very well all about the treaty. I have it over here in my room. There has never been anything intentionally taken from you under it. I have sent for the treaty and will read the boundaries to you. While I do not know that there was, there may have been some little mistake in the survey, owing to the change in names. An Indian stated that the blame would rest upon the surveyors. The boundaries, in the treaty of 1855, began at the mouth of the Little Boy River; thence up said river to Lake Hasler; thence through said lake to its western extremity; thence in a direct line to the most southern point of Leech Lake; thence through said lake so as to include all the islands. That is for the Pillagers of Leech Lake. The executive order of President Grant, dated Novem- ber 4, 1873, recites the following: Beginning at the mouth of Little Boy River; thence up said river to the first lake and to the southern end of the second lake on said river; thence in a direct line to the most southern point of Leech Lake. The additional land described in this Executive order was to be withdrawn from sale or other disposition and set apart for the Pillager Indians. So this reservation has been growing larger instead of smaller. (A map was then produced and the reservation lines or boundaries shown upon it.) (John Bassett then pointed out on the map the way he said the Chief Flat Mouth understood the lines of the reservation. ) 115a JohN Bassett. Is that in accordance with your undei- standing of the treaty of 1855? Mr. Rice. I do not know any more about it than is in- dicated on this map. Now-wWE-GE-SHIG. When Jim Whitehead was here he told the Indians there was a place there where there was very nice pine, near Little Boy River. He said not to mind it, because the time would come when this matter would be remedied. Mr. Rice. That is why this Executive order was made, to include that. That was made sixteen years ago, and is just as you wanted it then. NOW-WE-GE-SHIG. We were never told when or for what cause that piece was cut off by the surveyors. Mr. Rice. It was a mistake in the name of the lake, but the order of the President gives it back. KAY-ME-WUN-OUSH. Every one don’t understand; when was this Executive order issued making this larger? Mr. Rice. November 4, 1873; sixteen years ago next fall. KAY-WE-WUN-OUSH. There is no time lost in these ques- tions. How small was the reservation before it was en- larged by this executive order- Mr. Rice. What the President gave you then was 18 miles long. It was 6 miles wide at one end and tapered down at the other end. About three townships were in- cluded, some 70,000 acres of land. KAY-WE-WUN-OUSH. We are particular in asking this because some white men are locating and settling inside the reservation lines. They have camped and selected Bishop Marty. That would not do them any good, because they can not hold such land. 116 AFTERNOON SESSION. O-Ge-MAH (after addressing the Indians). My friends, no one urges me to speak. I have been a listener here. There are only two sentences that I shall utter. Although the matter has been submitted to you since the beginning of these councils, we wish once more to ask at what time, in your opinion, shall we be paid, if it can be effected, for the money for the damages by the dams? That is one question. As far as I am concerned, I have put every other thing into my heart, and I accept everything you have told me. That is all I have to say. (Addressing the Indians.) You must speak very frankly and openly, and if you have anything to ask, it will be listened to. Mr. Rice. The Great Council meets this fall. We are in hopes to get everything before your Great Father before the Council meets, and have him recommend for adjust- ment to the Council the reservoir and all other unsettled matters. We hope the appropriation will be made next winter, so you can get it early next season. We shall say to the Great Father and to the Great Council that if you ever will need it it will be next spring. Bishop Marty. I told you yesterday that one reason Congress did not send you the money was, that they were not sure you would make good use of it. At present your situation is like that of a pail without any bottom, in which no water will stay no matter how much you put in. No matter how much money is given the Indians, as they now live, they are always poor: but this treaty, when accepted by you, will be like putting a solid bottom in the pail, so that we can tell Congress that money may be paid and will remain with you. If we can tell Congress this winter that you have accepted this, and are going to work and make good use of what you have, they will pay what is due you. If you should not accept this, your friends in Congress would have no strength, but if you 117a all take hold of this, you can make us strong so that we can do this for you. KAY-KE-NOW-AUS-E-KUNG (addressing the Indians). The words uttered »y that man are rather a surprise to us. I do not wish to say anything to antagonize his words, but that was not the understanding at which we had arrived. We had something else to say, but let us beg a little indulgence to allow us to think over the matter more thoroughly, and to-morrow will be the great day of the negotiations. WAB-ON-A-NO-NE. Now that you have stated the object of your mission and questions have been propounded on both sides, we have arrived at a crisis where we must understand each other. All that I have to do is to look to my chiefs here, who are going to regard the interest of the children hereafter, and for what will be our support in the coming time. KAY-KE-NOW-AUS-E-KUNG. I wish to relate facts only as I see them. I wish to state them to Mr. Rice, because he is a very old friend and knows a good deal of our busi- ness. It can net be possible that our friend, Mr. Rice, is ignorant of the burden that he was carrying when he came among the Pillagers. The Pillagers had this idea all the time—that they wished to have that Leaf River matter settled, and also the dam arrangement. It also depended a great deal upon that being settled before they made any new arrangement. They had made up their minds that there should be no arrangement until these back affairs had been settled. Had they been you would have achieved your object immediately. The Pillager In- dian made up his mind that he would accept no proposi- tion otherwise, and this was their ultimatum. [Shaking hands.] There is just one thing that I regret, and that is, that the Government did not have you bring to us a big bank check. 118a EIGHTH COUNCIL AT LEECH LAKE. AuGuSsT 16, 1889. NO-DIN-AH-QUAH-UM. I wish to state that I think that what those commissioners bring is a very heavy load, but I understand it. I have been advised by no one. No one has invited me to touch the pen. What I have said is of my own volition. I should have a very small allotment of land myself, compared with those who have large families. When we heard that our friend would arrive here, we prepared to receive him as he should be received. The emblem that I see floating above us, that is the sign of good feeling, of peace and friendship. I thoroughly believe that it is the intention to fulfill everything in the agreement. We ought to be guided by the course of our relatives who have accepted this agreement. I myself believe that it is all done in good faith and that the Indians can rely on the fulfillment of everything that has been said. We are told that if we accept the propositions made, the matter will be laid before our Great Father in sixty days, at the time when the first snow falls. We call upon the bishop. He is an apostle of Almighty God, and would of course not say otherwise than as God told him. I will ask these com- missioners to raise up their hands and say that they will fulfill the arrangements made, if they are serious with us. I understand that just as soon as I get my allotment of land in severalty, it will be like a rope put on me and I will be attached to it so it can not get away. Also, that we can then, like white men, go here and there and fear no one’s menaces as long as we behave ourselves. We do not understand that the lands in severalty will chain us to our places. It seems to me a very difficult task to have all the land allotted around this lake so that no one can come inside the land we have marked. I think that the Great Father is about to utilize that land on the other 119a side here, that which belongs to the Chippewas of the Mississippi. Do you not know that we were told we did not own a single foot of land on this reservation. As I understand it, the United States, on account of its sov- ereign power, owns all the land in the State of Minne- sota. When I was a young man I went to the Pembina settlement and saw there the stake that marked the inter- national line. On one side of that stake was one power, the power of our Great Father. My wife is a Mississippi Indian, and is entitled to the Mississippi lands. There is nothing left there, because the whites have robbed that section of the country of everything that is of any value. The Leech Lake Reservation is the place where I should want to abide. Mr. Rice. What has been said by the man who has just spoken is the truth. We are not only ready to attest it here but also to attest it before the Great Spirit. The white men go into the country in advance of the surveyors. They are permitted to remain there, but they do not own the land until it has been given them in allotments. There is one point upon which we must understand each other, and that is in regard to the reservation here. You will be permitted, before the Great Father takes possession, to take your allotments. No white man will, under no circumstances, be permitted to come in here and take any piece until you are all satisfied. But after you have got your allotments you have nothing to do with what is left. That is the point I wish you to understand. As to going where you please, you can do it as well as the white man and under the same circumstances. When a white man travels he must behave himself. That is your only restraint. You will be permitted to take your allot- ments in White Earth if you wish to. Not pine, but you can take the sugar bush, or any other timbered lands you want. We propose to make a paper covering all these points about unsettled matters. Then you will know 120a what we have promised. We will not only sign it, but a witness will sign it, and we will have it put into the paper we send to Washington. We do this so there may be no dispute after we are gone. NO-DIN-QUAH-UM. I insist upon the raising of hands as to what I told the bishop. (The three commissioners then rose and raised their hands in affirmation of the promises made, the chairman saying: “We promise to do all in our power to carry out the understanding.” ) Mr. Rice. You have been deceived and disappointed many times, so that I am not surprised that you should put us to this unusual test. KAY-KE-NOW-AUS-E-KUNG (after telling the Indians that the commissioners had given the strongest possible test). The reason we take so much pains in this matter is that the Government has never fully kept its promises to us in the past, and I can not be blamed for doing so when I am acting for my own benefit and for my own interest and the benefit and interest of my children. KAY-ME-WUN-OUSH. My friends, the Pillagers, what slays us is the false promises of men who have come here to misrepresent things to you. I wish to ask you what has become of that which I and my children use for our subsistence and which gives us a living? Can the Pillager Indian go on the other side of this lake and select his allotment? This lake here is what the Pillager likes, here and the other side. That is the reason that the Pillager raises his voice in supplication. Another thing: If an Indian should go outside of the reservation, where the land is not occupied by the whites, could he take his allotment there? And how is the $10 mentioned to be paid? Now, here is the point: We have chiefs and leaders of our bands. They say that as soon as we receive our allotments we cease to be chiefs. I wish an answer. 121a Mr. Rice. In regard to going off the reservation, the law says that an Indian belonging to no reservation can go anywhere on lands not already occupied to take his allotment. That by doing so he is not deprived of his annuities. But you can not make a selection in both places. I have told you the words of the law exactly. But as you have a reservation of your own, I do not know what construction your Great Father would place upon such cases. In regard to the money, it will be paid to you here; that is, to such as remain here. Those who go to White Earth will be paid there. We think it will amount to about $10. As to the rumor about your chiefs, I have heard noth- ing. We are ordered to leave the decision of questions under the census to the chiefs, and that will have an im- portant bearing upon the payment of the money and the selection of land. No government, of whites or Indians, can exist without leaders, and I can not understand why any one should wish to disorganize you. When the time comes for making the allotments and carrying out this arrangement we wish the assistance of every man—the young men and the chiefs—and we want it arranged sat- isfactorily to every one. No-DIN-AH-QUAH-UM. If a person in taking land wishes to take his own field, can he also take some sugar bush; could he make two selections. Mr. Rice. If there is no more than one in the family, of course the different selections can be made. No-DIN-AH-QUAH-UM. What is meant by the “head of the family”? Does the wife come in as another person under the law as to allotments? Mr. Rice. Yes, the law says, “The head of the family and other persons.” 122a Commissioner WHITING. A man and his wife can take their allotments adjoining if they please, and then the allotments of the children can be taken elsewhere if desired. KAY-ME-WUN-OUSH. Now, my friends, I am getting to be an old man, and you see many before you who are advancing in age. How do you suppose these old men are going to make any progress with their lands in sev- eralty? Also, how will the money for the damages from the reservoirs be paid to us. This was talked over three years ago, and three years before that. That was the cause of our poverty, as it took from us everything upon which we depended for our subsistence. Mr. Rice. As to the reservoir money, we think you had better let that stand just as it was in the old treaty. In that $100,000 was paid to you, and $50,000 to the other Indians. It may be possible that your Great Father will be willing to add the interest, but do not expect it, as we do not promise it and can only say that we shall try to get it. But that which is coming to you will be sufficient to furnish you with something to ride in. That, with the $90,000, will give you a good start. NO-DIN-AH-QUAH-UM. In shaking hands with the chair- man I shake hands with you all. Every one must under- stand the explanations made about the dams. Since the dams were built, however, we have been unable to get two crops of rice. As to that money, we are imposing many tasks upon you, but wish this matter of the money for the dams to be the heaviest one. We would like some assurance from you on this subject. Mr. Rice. After we get through this business the mat- ter of the reservoirs is the hardest job before us. We will do all in our power to have the wrongs redressed which have been inflicted upon you. If we can clean up all these matters next winter, we will come back feeling like young 123a men again. All that has been said has been taken down on paper and will go to your Great Father. If we neglect any duty you have imposed upon us, it will be known not only to our posterity, but it will be known above. As we proceed during the winter we shall write to you, so that you will know just what we are doing. STURGEON MAN. Those who did not sign the last agree- ment have asked me to talk for them in this matter. The men who held the councils in that school-house three years ago, the Northwest Commission, they are the very men who asked me to go and pay a visit to our friend, Mr. Rice. At the time I refer to Now-we-ge-shig, Chief of the Mountain, and John Bassett were with me. We were prom- ised at that time by the commission $100,000 for the Chippewas of Leech Lake and $50,000 for the Chippewas of the Mississippi. That was three years ago. We said then we did not want to set any price relative to that, but that we would wait until some other time. We told Mr. Rice that when we paid him a visit. Our friend, Mr. Rice, asked us, “What did they say to you about the dams?” We told him what we had been promised, and then he asked us, “What answer did you give?” We said that we did not wish to comply with the treaty. Hence we think that the question is still open. It is three years since that time. We think now that as we did not wish to comply with that treaty of the Northwest Commission, and as it was not ratified, we do not think that the award for the damages has been agreed to by us, as we did not sign at that time. Six years ago there was another price fixed by the commission—the Blakely commission. We expected that that would be the award. There are a great many here who do not wish to accept this arrangement now. All the chiefs are rather timid about the matter. They do not dare to say a word. It is time for us to think over the matter. There are a great many who wish to accept the arrangement. It is time we tried to come to some understanding. I have heard many say they were in 124a favor of the propositions, but we are waiting for each other, and should try to do what is best for all. We are always thinking of the raid. After this let us always do what is best for the Indians. If we see this is good for us, let us look out for the children, and let us not lose a good opportunity. I speak now very seriously. I think it is about time that we should make up our minds and bring this wrangle to an end. WoB-ON-A-QUAY. Let us try to come to an understand- ing. We should be united, but we should not be too hasty. KAY-KE-NOW-AUS-E-KUNG. Will the man who does not And if I should sign, may be a great many of my band would leave me. How do you view that matter? Mr. Rice. If we should say that these who do not sign should not paticipate in the benefits, it would be a threat. All such matters were buried the other day, and we will keep them out of sight. No distinction will be made between the man who signs and the man who does not. When the money comes, those who have not signed will probably change their minds and take their shares. Adjourned. NINTH COUNCIL AT LEECH LAKE. August 17, 1889. RuTH FLAT Moutu. I have come here again for the purpose of speaking with you about the arrangement you bring for our acceptance. I view it favorably, and I wish to say that I am very much delighted with it. | want to know if it is the desire of the Government that all of those who are living on the different reservations should participate with us. The time at which I said I would sign has twice passed, and I feel as though I had been talking in vain, and I wish now that the pen should 125a be handed to me that I may sign. I say this as a figure of speech, but I will do so at 9 o’clock on Monday morn- ing, when I hope there will be no more drawing back. Kay-ME-wUN-ousH. My friend, we beg of you to have a little more patience. Do not get tired of us. After you have left we should be sorry had there been any question unasked and unanswered. My friend, I wish to state something relative to the dam. We wish to know whether the payment of the damages will stop with the payment of the $100,000. You speak of the interest on the money. Can not our Great Father put a little kettle on the fire and make a medicine which will cause that interest to grow? Whenever I have any patients to attend I put my little kettle on the fire and make it boil, when I do not fail to achieve my object if the medicine is good. Mr. Rice. In looking over my papers last night I found that two commissions had been appointed. The award of the first commission was thrown aside without being con- sidered at all. We have examined the last award and the amount put into the treaty which has not been satisfied, and with those we shall do the best we can. We will tell the Great Father that a bottom has been put into the “kettle,” and that it will hold a great deal. We will tell him and the great council how you are situated, and that with thc help you need you can advance rapidly. As we expect to return here we will do what we can to make you glad to see us again, which is all we can say upon that subject. KAY-ME-WUN-OSH. There is another matter. There are still two of us who went to Washington at the time I refer to. It is about what the Mississippi Indians did when we were down there—about the land on the other side. I recognize you when this arrangement was made in Washington. We wish you to state about that cession of the Mississippi Indians—about the property on the other side—the piece north of the lake. 126a Mr. Rice. The treaty of 1865? I was not in Washing- ton at that time, and had nothing to do with it. I was there in 1863, when the treaty was made, and this was concluded afterwards. Then they ceded the Gull Lake, Lake Pokegamon, and e Lake, sold all the land and took this north of here in place of it. They found afterward that there was land that was good for agricultural pur- poses, so in 1807 was sold, the western portion of it, for the White Earth Reservation, but kept this immediately north of you. That is the way it was brought about, just exchanging twice. Is that satisfactory? KAY-ME-WUN-OUSH. Ves, sir. No-DIN-AH-QUA-UM. I am yet capable of working, and if I was incapacitated I would not mention this. There is one essential thing we would like you to get for us, and that is, a mill. If we have a mill I should not like to sell the whole of our pine, so that we may have something to depend upon in building. It would also be well if we could have the boundaries of our land defined. We are now blind as to how our lands shall lie. We hope that as soon as those arrange- ments are completed you may be pleased to use your in- fluence so that we can have a mill, when we can progress at once. We would like to know when, in your opinion, we may expect a revenue from these negotiations, the $90,000; how soon do you think it will reach us? During the fall or in the beginning of the winter there is an annuity pay- ment made here. If this money was not here at that time, many would say, “See, we expected that money and it is not here.” I suppose it is because we have increased in number that we get a less amount as annuities than we used to. I do not speak for myself, because I am barren. We are told that we are increasing in numbers on account of the number of births, but we think the number of deaths are 127a greater. It would be a good thing to talk to the law- makers to make the amount of the annuities a full sum, at White Earth. Their mill stopped only two years ago, You are in greater need of a mill than they are. tried to purchase a board the other day might as well have tried to find a silver mine. When we saw here the ing of it. Whatever else you may have, you can not get ahead unless you have a mill. That man over there spoke the other day of your pine. We intend to recommend for each of these three reserva- tions that the President, when he knows what pieces to stake, shall reserve enough for your use. There will be nothing taken from you, and nothing will be done until you get your allotments. NOW-WE-GE-SHIG. My friend, which our Lee i EESTESEEE G87 § 11 1 ei 5275 1 27 3 5 14571115 is — at 12112 34 te E 2331 =. 317 E 1145172711111 Bal 518275 31 k 217117141715 ae 121115 4 38 2 g 1181111 25 8 2555 343331 E la es? 9 2 127 spin 832474½ 1 „ 1111 1475 e tages Hl Dguay tee 3 pale stipes 111 271275 21111147 il! i HHI PEERY . — — —2ö n — 22328811 817125 11 7 1 ee 3 111 tig! 1770155 11 le pe 1 4 1155 S. 5 +. i = 35 3. 7271271 + 35 2141141 J e it oo gE FS oe: = 8 8 8 Ho. — 28 2 ee eee 132123 8 AU gfe: 122752227 1 332 23332 2 2 eas 9 8. . aye 7153 12571215 2277 a re 112430 eerie gal py 172155 TE I e 1 Be 31127225 1 112147515144277111121 585 130a SONG-GE-GE-SHIG. We will meet and have a pleasant talk here. Mr. Rick. I shall be glad to see the old ground again. KAY-KE-NOW-AUS-E-KUNG. My friend, when do you think you will pay us another visit? Will you bring an- other secretary when you come again? Mr. Rice. I expect to bring some one. Whatever busi- ness we do will be put down on paper. KAY-KE-NOW-AUS-E-KUNG. I want to know if you are going to bring more papers to sign. Mr. Rice. No. The papers for the land will be signed by us. KAY-KE-NOW-AUS-E-KUNG. I want to know if the signing is stopped when you leave here. If I should not sign at all would you give me anything? Mr. Rice. Just the same. The only difference would be that you would be eating of a deer that you did not help to kill. KAY-KE-NOW-AUS-E-KUNG. If I should not sign, would I be allowed to go to Washington? Mr. Rice. That is a question that I could not answer. Indians are not, however, allowed to go to Washington. I suppose you mean a delegation. The reason is, that Indians have gone there and sold their land, making agree- ments of which their people knew nothing. KAY-KE-NOW-AUS-E-KUNG. That is the truth. Mr. Rice. Your Great Father is determined that no transaction with a band of Indians shall take place here- after without all of them knowing of it. KAY-KE-NOW-AUS-E-KUNG. That is right. Mr. Rice. A great deal of trouble arose from ans 3 5 8 = — Cc 7 en x 2 5 Z a — = = . = 2 132a to forget to ask all the questions, as it will assist in a mutual understanding to have them all answered. Council was then adjourned until 9 o’clock, Monday, August 19, 1889. TENTH COUNCIL AT LEECH LAKE. AucGustT 19, 1889. Mr. Rice. We have the papers promised you on Satur- day, and have brought two just alike. The interpreter will make their contents known to you. (The interpreter read the paper containing a statement of the claims of the Pillager Indians of Leech Lake, after which one copy was given to Ruth Flatmouth, and an- other to William Bonga, who is designated secretary of the band, and who is told by the Indians present to remem- ber that the paper is not his private property, but must be shown whenever they wish to see it. Ruth Flatmouth then “touched the pen” to signify that she wished her name appended to the agreement offered by the commissioners, and stated that she wished to say a few words.) RUTH FLATMOUTH. I wish to say a few words on behalf of my people. I wish to have it understood that you will use your influence so that no spirituous liquors shall come upon this reservation. It is the ruin of a great many of our people. During payments here it takes away the subsistence intended for the children. The money is thrown away for liquor. Not only that, when a man is in debt who has been furnished supplies, he pledges his word that he will pay at the time of the annuity payments, but the debt remains unpaid because of the appetite for liquor. It is my wish also that I should be buried where my ancestors are buried. 133a SHING-QWON-A-QUOT. I wish to say, as I sign, that I want my bones to remain on this reservation. O-GE-MAH (signing). The whole thing has been under- stood thoroughly to my satisfaction, so that I have nothing to say. But I think the chiefs here should all sign first. Mr. Rice. We did not understand your arrangement, and you did not speak of it. Let all the chiefs sign first. (The chiefs then signed in order of rank, the other Indians following them. ) KAY-KE-NOW-AUS-E-KUNG. I wish that there should be a spot selected so that we can make a town of our own, like Brainard, where a town can be laid out for us, not only when payments are made, but to be a central point in winter. This big point on the other side is the place we would like to reserve, because there is lots of hay there, and it is not very large, either. Maybe the time will come when there will be no common for the cattle, and that will make a good one. It will be beenficial to all. This is an im- portant matter. Mr. Rice. In regard to the town site, it is supposed that that will be fixed by the agent after deciding where the best place is. Is that satisfactory? KAY-KE-NOW-AUS-E-KUNG. Ves, sir. Mr. Rice. That point over there is open to you all. A number of you can take it in allotments. KAY-KE-NOW-AUS-E-KUNG. It will make good farming land. There is a place there where we can get good pine for ourselves, right opposite this place. It is called Pine Point. Mr. Rice. Is that the wish of you all? (The Indians said yes.“) 134a (Mr. Rice then added a clause to the statement or list of claims, in regard to the land on Pine Point.) KAY-KE-NOW-AUS-E-KUNG. I want it understood that I am not talking for the Indians who do not wish to comply with the wishes of the Government, but I am talking for those who are signing now. (Now-we-ge-shig, saying that he does not wish what he says to go into the record, stated that he did not quite know what position he would assume. He called for the chiefs who will sign or have signed, to rise, whereupon eleven chiefs stood up.) Now-WE-GE-SHIG. In shaking hands with the Bishop, I shake hands with you all. My friend [Mr. Rice] instead of its being buried in oblivion, we wish you to work for remuneration for the border land—the Leaf River. My friend, we know that when you have anything to do or a point to carry, you are strong and determined in your efforts. My friend, take all these fragments that are troubling us so much, and use your influence to gather them together, so that when you come to see us again, you can open your arms and we can see what your success has been. My friends, if that should not transpire—if you should fail to carry out the object, we should all be very much ashamed—all of us. Mr. Rice. So shall we be. NOW-WE-GE-SHIG. My friend, when you return have pity on those who do not sign, instead of being against them. O-GE-MAH. A great many who were present at the time of which I speak are dead, but it seems to me as if it were transpiring this very day, it has been so strongly impressed upon my mind. There were the whites on one side and the Indians on the other. I felt for both, as I was in the center when there was danger in the situation. At that time the Mississippi Indians were all together to came very near leading me astray, but made was their own doing, not mine. I saw how the matters were going I took hold and de a stir. The President thanked me that there was no blood spilled there, and it was all owing to my efforts in raid. My friends, the great chiefs told me that whenever I had a request to make, to make it. You NOW-WE-GE-SHIG. That is the reason that I beg of you, if any of the chiefs do not sign, do not go from here with a bad heart. So far as I am concerned I do not promise that I will sign, but towards the last I will make up my mind what I will do. My friend, I will say again that we have the utmost confidence in the commissioners. We wish you to work for us so that whenever you come again to visit us you will be able to open your hands and show us the proceeds of your work. Mr. Rice. We have listened to your words and know that they are correct. I know of the promises made by (Mr. Rice then read the addition made to the list of claims. ) KAY-KE-NOW-AUS-E-KUNG. I am addressing the Pilla- gers. I signed for the Northwest Commission, and it did not amount to anything. I am now about to sign again, and if this don’t amount to anything I would rather be taken and strangled by the neck with a rope. Now what am going to sign, I hope what I have been told shall + I hope you will get the two-thirds majority. 136a Now-wE-GE-SHIG. My friend, a great many of my band told me that they would not sign, and I do not own them. You can not imagine how pleased I am with the assurances you have given. I now shake hands with you and sign. Wos-on-a-quay. I wish to say a few words before signing. I have never joined in anything before that the Pillagers have done, but I am now for you. I have con- sidered the matter thoroughly, and you can depend upon my word. I have a thick skull, but a stout heart, and | do not wish to lie in anything I say. I now sign and shake hands with all the commissioners. Mr. Rice. We are very glad you have considered this so long. If you had jumped to a conclusion we might have thought you were wrong, but we know now that you are right. That is the way wise men should always do. Adjourned. ELEVENTH COUNCIL AT LEECH LAKE. AuGustT 20, i389. NO-DIN-AH-QUAH-UM. There is one thing which has been omitted, but which is essential for the success of the people here in their agricultural pursuits, and that is a boat, a steamer to take cattle or anything else, as other- wise we can not reach those places. Bishop Marty. I suppose all those who are here this me ning have already signed the document. They have sorrow that there were some who had not done so, and the wish that we should not be angry with those who had not signed, but only pity them. This shows a very good disposition, and we hope it is that of the whole band. KAY-ME-WUN-OUSH. After the allotments are made, when an Indian wishes to go anywhere on American soil, will he be allowed to do so? 137a Mr. Rice. He will be allowed to go anywhere, subject to the same laws as the white man. _ Kay-ME-wun-ousH. I speak for every man who has for the sugar bush. It is a very hard time every year, so we wish that another dish full should be given us then. Mr. Rice. After we got through our work at White Earth so fa , the agent, at the request of the In- dians, wrote to the Great Father to know if he would not allow him to purchase some provisions to enable them to get through the harvest. The Great Father did not wait to word over the wires to your agent to purchase the provisions necessary to enable the White wish to say a few words. It pleases to address the commission. I here to listen to the few words 1 110 Beli f f | 2 2 14 a f 2 a 138a of Life to create this continent that lies between oceans and which we now inhabit, and it has pleased the Master of Life to send these persons here as a commission to point out to us the right way and how we should live. of Life; and this is the result of ignorance. You know very well that the presence of Almighty God is every- where. He is here, before those commissioners, who are paying us a visit. This we are led to believe and do believe. Under those circumstances what have we to fear? We have nothing to fear, because we are guided by the words of the Master of Life, and everything is safe on our side, and the only thing that remains is to have confi- dence in Him and we shall succeed. Any person here who has not stretched his arm and touched the pen should know that the reason we accept this proposition is because I had heard that you were a people of dash and cour- age, with full convictions of what you should do. You are a band which has a history wide as the country. I said that had I followed my own inclinations I should have come to you earlier, but I yielded to the superior wisdom as your benefactor. Whether as a member of the Great Council or as a citizen of the country, he friend always. In every book of treaties his name appears as you turn them over, you find that he was never silent when a word for you could be spoken. So now, when he comes to you to make this last arrangement with you, can you doubt him? I know you can not. I come to you a stranger, but it is my highest honor to follow the way that he leads in your behalf. In one of our councils I noticed a young man bearing upon his bosom a medal which had on it the face of the Great Father of 1854. I knew the face of the Father very well, and it brought back to my mind a scene that transpired many years ago in the Great Father's house. Your great chief at that time found that you were in trouble and danger, and he went to Washington to inter- view the Commissioner at the head of Indian Affairs. He appealed to the Commissioner in vain. This friend of yours [Mr. Rice], who was in the Great Council, heard of it, and he took charge of the matter himself and brought it into the Council. In an almost all-night session the bill was finally passed and ready for the Great Father’s 140a make my way back to my people. Count the risings and the settings of the sun, and you think I am there, look into the heavens, and when you shall see the a borealis with its gentle light, think that it bears to the gratitude of the Pillagers for your kindness to them.” During some of the sessions of the councils we have held with you, this scene at the Great Father’s house has come back to me with painful clearness, and I have asked myself, “What of this great emblem that your great chief chose to carry the gratitude of your people to your Great Father?” I said, “Shall this gentle light that has been the emblem of the Pillagers, that the President recognizes as the message from the Pillagers, shall it be changed into a flaming tongue of the fire, carrying back to the President only your fierce wrath—this hot flame, that would scorch a: blind to your wants and your necessities?” If so, what shall his answer be, and how it be sent to you? Shall it come to you in the black cloud, laden with thunder? Shall it come to you in the fierce storm that sweeps everything before it? I confess to you when I saw the darkness that for a time surrounded us, I was afraid, and I asked the Great Spirit to show us and you the right way. But your action has answered all these questions—has swept away the clouds and let in the sunlight of gladness to us all. And so hereafter, as in the beautiful emblem will continue to carry to Father only kindness. And his 2 i j S 2 8 | Ee ey 71771 And so I wish to say to you that we are hopeful best. Your prospects for a higher advancement 8 2 8 2 8 23 2 sez 5 ay i i 2 z Spirit and said that we mean every word that we had spoken to you. And I raise my hand again and renew the pledge, that no effort on my part shall be withheld for your best --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0111%3A15. Public record. Not legal advice.