Opposition Brief — Sokaogon Chippewa Community v. Exxon Corp.
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Supreme Court, U.S.
ss FILED
No. 93-1223
' ttie
IN THE -—.
Supreme Court of the Gnited States
OCTOBER TERM, 1993
SOKAOGON CHIPPEWA COMMUNITY,
Petitioner,
Vv
EXXON CORPORATION, a corporation
chartered in the State of New Jersey;
STATE OF WISCONSIN; FOREST COUNTY,
a political subdivision of the State of Wisconsin;
LANGLADE COUNTY, a political subdivision
of the State of Wisconsin; and ONEIDA COUNTY,
a political subdivision of the State of Wisconsin,
Respondents.
On Petition For A Writ Of Certiorari To The
United States Court of Appeals
For The Seventh Circuit
RESPONDENT EXXON CORPORATION’S
BRIEF IN OPPOSITION
*CHARLES G. CURTIS, JR.
FOLEY & LARDNER
One South Pinckney Street
Madison, Wisconsin 53701-1497
(608) 257-5035
DAVID E. BECKWITH
DAVID LUCEY
FOLEY & LARDNER
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
(414) 271-2400
*Counsel of Record
Attorneys for Respondent
Exxon Corporation
i
COUNTERSTATEMENT OF THE QUESTIONS PRESENTED
1. Were the Sokaogon Chippewa Community’s so-called
“rights of occupancy per se” in northeastern Wisconsin extin-
guished upon the creation of the reservations promised in the
Treaty with the Chippewa of September 30, 1854, 10 Stat. 1109,
a treaty to which the Sokaogon’s predecessors were parties?
2. Was summary judgment appropriately granted against the
Sokaogon given that the Sokaogon’s predecessors clearly were
parties to the 1854 treaty; that the Sokaogon’s claim cannot be
reconciled with the treaty’s plain language; that the claim 1s at
odds with the negotiating history, the surrounding circumstances,
and the parties’ subsequent construction; and that the claim is
grounded upon inadmissible hearsay, innuendo, and conjecture?
ll
LIST OF PARTIES AND
RULE 29.1 LIST
The names of all parties to the proceeding in the Court of
Appeals appear in the caption of this case. Exxon Corporation
has no parent. It holds an interest in numerous entities which are
not wholly owned subsidiaries; a complete list of those entities
appears on pages 17-30 in the supplemental appendix to this brief
in Opposition.
On September 13, 1993 (after the Court of Appeals had decided
this case), Exxon Corporation conveyed its property interests in-
volved in this litigation to a newly formed Wisconsin general
partnership, Crandon Mining Company [““CMC”’]. See page 1,
note 1 below. The following additional information may therefore
be pertinent: Crandon Mining Company has four partners—(1)
Rio Crandon Inc. and (2) Northwoods Resources Inc., both of
which are wholly owned subsidiaries of Rio Algom Limited; and
(3) Crandon Mining Company, Inc. and (4) Exxon Minerals De-
velopment Corporation, both of which are wholly owned subsidi-
aries of Exxon Corporation. CMC has no subsidiaries. The un-
dersigned counsel represent CMC as well as Exxon Corporation.
iil
TABLE OF CONTENTS
Page
COUNTERSTATEMENT OF THE QUESTIONS
ean wi ded bes 4 ¥ eye vd as 600 <60% « i
A. The Nature And Scope Of The Sokaogon’s
TE UG eis Swen ade se ob © £0 40-45 uo eons 2
B. The Sokaogon’s “Lost Reservation” Legend .... 5
Bee PUMOUONND TOMO 2... cc cc cccccccccccces 12
REASONS FOR DENYING THE WRIT............. 14
I. IT IS THE SOKAOGON’S CLAIM, NOT THE
COURT OF APPEALS’ OPINION, THAT IS IN
“PATENT CONFLICT” WITH LONG-
ESTABLISHED PRINCIPLES OF TREATY
IE co cave w'p's-0-d.d-0o0~wewcee ie ys 14
Il. THE COURTS BELOW CORRECTLY REJECTED
THE SOKAOGON’S CLAIM BECAUSE _IT
CANNOT BE RECONCILED WITH THE 1854
TREATY’S PLAIN LANGUAGE; IS AT ODDS
WITH THE NEGOTIATING HISTORY, THE
SURROUNDING CIRCUMSTANCES, AND THE
PARTIES’ SUBSEQUENT CONSTRUCTION:
AND IS GROUNDED UPON INADMISSIBLE
AND ERRONEOUS HEARSAY, RUMOR, AND
RSE A at eee nae 17
A. The 1854 Treaty Restricted The Lake Superior
Chippewas’ “Occupancy” Rights To The
Reservations Established Under That Treaty ... 17
iV
B. There is No Justification For Treating The
Sokaogon Differently From The Other Lake
PONT CE ogc sc ccccdendvcsecascesens
1. The Post Lake Bands’ Receipt Of 1854
Treaty Annuities Simply Reconfirms That
They Were Parties To, And Thus Bound By,
Bel Fee Pe a0 b von uveewaviecveseens
Nm
The Sokaogon’s Claim Is Barred By The
1854 Treaty’s Plain Terms, By The
Negotiating History, And By The
Surrounding Circumstances..............
(a) The plain language..................
(b) The historical record ................
3. The Post Lake Bands’ Refusal To Remove
To A_ Reservation, And The Federal
Government’s Decision Not To Use Force
Against Them, Did Not “Revive” Their
Previous “Occupancy Rights.” ...........
CE 6 04-tenaeendeedsv ebee~ eee babeeundnns
Page
27
30
30
Vv
TABLE OF AUTHORITIES
CASES:
In re Cassidy, 892 F.2d 637 (CA7), cert. denied, 498 US.
WORE baveccéecewdssetodecesc cea.
Choctaw Nation v. United States, 318 U.S. 423 tS
Confederated Bands of Ute Indians v. United States, 330
We PEE etdicictcnestdniedexivess ei
Confederated Salish & Kootenai Tribes y. United States, 185
Ct. Cl. 421, 401 F.2d 785 (1968), cert. denied, 393 US.
NE ata wah seed 6 teedd eben
DeCoteau v. District County Court for the Tenth Judicial
Saris, GID UE. GBS (IGTSD onc vc ccccncccccecccasvn
Dennison vy. Topeka Chambers Industrial Deveiopment
Corp., 527 F. Supp. 611 (D. Kan. 1981), aff'd, 724 F.2d
SOP CAO MD Kicesbondscvatecdiessteeeei
Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962), aff'd, 373
Cheb PERU Sb Sk do vdaoeécdesend el en
Lac Courte Oreilles Band of Lake Superior Chippewa Indi-
ans v. Voight, 700 F.2d 341 (CA7), cert. denied, 464 US.
GW GH ode tresverssscctsviivete.
Lac Courte Oreilles Band of Lake Superior Chippewa Indi-
ans v. Wisconsin, 760 F.2d 177 (CA7 1985) ...........
Lac Courte Oreilles Band of Lake Superior Chippewa Indi-
ans v. Wisconsin, 775 F. Supp. 321 (WD Wis. 1991) ....
Matsushita Electric Industrial Co., Ltd. y. Zenith Radio
Com, S75 GB, SIO CIGD nok ovbicc vc diacevecevickacs
Minnesota Chippewa Tribe v. United States, 14 Ind. Cl.
Commmn. 360 Ger. B, 1966) . oo ccc cccccccccuceccece
Minnesota Chippewa Tribe v. United States, 26 Ind. C1.
eg |, | pe rr en mer
Minnesota Chippewa Tribe y. United States, 41 Ind. Cl.
Comme, BOP Ge. FR, B9FD. inns Kadcavkcdctessetacs
Page
21
15, 23-24
29-30
30
24
28
29
passim
passim
16
20
20
vi
Page
Mole Lake Band vy. United States, 126 Ct. Cl. 596 (1953) 1]
Montana y. United States, 440 U.S. 147 (1979)...... 20-21
Navajo Tribe v. New Mexico, 809 F.2d 1455 (CA10 1987)... 30
Northwestern Bands of Shoshone Indians v: United States, 324
of 3.2), featees beneaeneen ve 24
Oregon Department of Fish and Wildlife v. Klamath Indian
Tribe, 473 U.S. 753 (1985). ......... EPO rr Err: 24
Russ v. Wilkins, 624 F.2d 914 (CA9), cert. denied, 451 U.S. 908
| Sr ee ae ca eee ache 28
Sokaogon Chippewa Community v. Wisconsin, 879 F.2d 300
< 98, er dig oe bene eee anaes 12
South Carolina y. Catawba Indian Tribe, Inc., 476 U.S. 498
CS ese keel OE eed skoda wie ekkwen semen 24
United States v. Bouchard, 464 F. Supp. 1316 (WD Wis. 1978),
rev'd on other grounds sub nom. Lac Courte Oreilles Band of
Lake Superior Chippewa Indians v. Voight, 700 F.2d 341
(CA7), cert. denied, 464 U.S. 805 (1983) ............ - 4
United States vy. Choctaw Nation, 179 U.S. 494 (1900)... . 15-16, 23-24
United States v. Creek Nation, 295 U.S. 103 (1935) . pty 30
United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339
CE tia Wes ose 6nd bid ss 80.0645 0beenea eres T 18
United States v. Southern Ute Tribe, 402 U.S. 159 (1971) . 29
United States v. Thomas, 151 U.S. 577 (1894)........ 18-19
Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926) 30
TREATIES, STATUTES, LEGISLATIVE HISTORY, AND
RULES:
Treaty with the Chippewa of October 4, 1842, 7 Stat. 591 passim
ireaty with the Chippewa of September 30, 1854, 10 Stat
5 eer eT TT Ty —T passim
Indian Reorganization Act of 1934, § 7, 25 U.S.C. § 467 .. 3
Act of August 30, 1935, 49 Stat. 1049 ... roe 1]
H.R. Rep. No. 1083, 74th Cong., Ist Sess. (1935) . 1]
S. Rep. No. 1208, 74th Cong., Ist Sess. (1935) .... 1]
Fed. R. Civ. P. 56(c).....
8 2 8 0 en ae o
MISCELLANEOUS:
Atlas of Great Lakes Indian History (H. Tanner ed. 1987) ..
D. Brown, Bury My Heart at Wounded Knee (1970) ....
J. Clifton, “Wisconsin Death March: Explaining the Extremes
in Old Northwest Indian Removal,” 75 Transactions of the
Wisconsin Academy of Sciences, Arts and Letters 1 (1987) ...
H. Hickerson, The Chippewa and Their Neighbors: A Study in
Ethnohistory (1970) ...............66..
G. Manypenny, Our indian Wards (1880, republished 1972). .
W. Warren, History of the Ojibwa People (1885, reprinted 1984) .
Page
RESPONDENT EXXON CORPORATION’S
BRIEF IN OPPOSITION
The respondent Exxon Corporation, by its undersigned coun-
sel, respectfully requests this Court to deny the petition for a writ
of certiorari to the United States Court of Appeals for the Seventh
Circuit for review of the judgment in Sokaogon Chippewa Com-
munity v. Exxon Corporation, 2 F.3d 219 (CA7 No. 92-3920,
Aug. 12, 1993, rehearing denied, Oct. 20, 1993).'
TREATY PROVISIONS INVOLVED
The full texts of the Treaty with the Chippewa of October 4,
1842, 7 Stat. 591, and the Treaty with the Chippewa of September
30, 1854, 10 Stat. 1109, are set forth on pages 5-8 and 9-16,
respectively, of the supplemental appendix to this brief in opposi-
tion.
COUNTERSTATEMENT OF THE CASE
The Sokaogon would have this Court believe that the courts
below ignored the relevant historical evidence. (Pet. 9-10.) Noth-
ing could be further from the truth. The District Court and the
Court of Appeals issued thoughtful, scholarly opinions that are
grounded upon a massive body of historical documentation. This
evidence includes thousands of pages drawn from relevant judi-
cial and Indian Claims Commission files; federal, State, and tribal
'As indicated in the Rule 29.1 List, Exxon has, since the Court of
Appeals decided this case, conveyed its property interests involved in
this litigation to a newly formed Wisconsin general partnership, Cran-
don Mining Company [““CMC”]. Exxon continues to have a stake in this
litigation because (a) it holds a 50% indirect ownership interest in
CMC, see Rule 29.1 list; and (b) the Sokaogon is seeking damages “for
the entire period of dispossession” from the mid-19th century to the
present, which would include the period of time that Exxon held title,
see Second Amd. Cpt., ad damnum, R. 36.
In light of the recency of this conveyance, the late stage of this litiga-
tion, and Exxon’s continued stake in the outcome, neither Exxon nor
CMC has thought it necessary to move for a substitution of parties
pursuant to this Court’s Rule 35. (The undersigned counsel also serve
as counsel for CMC.) All counsel of record were advised of this con-
veyance in September 1993.
archives; and a variety of published and unpublished primary and
secondary sources dating from the 1840s through to the present
day.* The lower courts’ opinions also rest on a comprehensive set
of 243 detailed, heavily annotated, uncontroverted proposed find-
ings of fact. (See R. 91, hereinafter cited without cross-reference
as “‘Findings.’’*) The Sokaogon’s claim cannot be reconciled with
this 150-year body of evidence.
A. The Nature And Scope Of The Sokaogon’s Claim.
At stake in this case are the rights to “occupy” and “inhabit”
144 square miles of land in northeastern Wisconsin. The location
of this so-called “subject territory” is shown in Illustration 1 in
the supplemental appendix to this brief; a legal description ap-
pears in Findings { 1.4 The United States granted these lands to
the State of Wisconsin and various private parties during the mid-
19th century; the lands now are held by hundreds of public,
corporate, and individual owners. (Findings {{ 2-12.)
?These materials include a wealth of relevant petitions, correspon-
dence, memoirs, affidavits, depositions, and federal investigative reports
from the 1840s through the 1970s. The evidence is reprinted in six
volumes appearing at R. 92-96 and 116, and is summarized at length in
Exxon’s proposed findings of fact (R. 91). The Sokaogon has conceded
the authenticity and admissibility of all of this evidence. (See App. 80-
81; Sokaogon Seventh Circuit Br. at 29.)
*The Sokaogon failed to take issue with these proposed findings of
fact. Instead, after having been given all of the additional time it had
requested to evaluate and respond to this evidence—much of it drawn
from the Sokaogon’s own archives—the Sokaogon ignored Exxon’s pro-
posed findings and submitted three pages of proposed findings of its
own, most of which were supported by few if any evidentiary citations.
(See R. 110.) The Sokaogon’s proposed findings did not attempt to join
issue with the overwhelming majority of Exxon’s proposed findings;
those that did were comprehensively addressed and refuted in R. 114.
The District Court cited several dozen of Exxon’s proposed findings (see
App. 21-22, 28, 31); both courts below clearly relied on these proposed
findings sub silentio throughout their opinions.
‘The Sokaogon and its predecessors have never defined the location,
size, or contours of the “subject territory” with any consistency. (See
(Footnote continued on following page)
3
The Sokaogon has a small reservation within the subject terri-
tory which was established for its benefit in 1939 by an executive
order issued pursuant to § 7 of the Indian Reorganization Act of
1934, 25 U.S.C. § 467. (Findings §{ 13, 241-243.) In addition, the
Sokaogon has a treaty-protected “privilege” to engage in off-res-
ervation “usufructuary” activities—hunting, fishing, gathering,
and the like—on certain public lands. See Article 2, Treaty with
the Chippewa of October 4, 1842, 7 Stat. 591;5 see also Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v. Voight [“LCO
I’’}, 700 F.2d 341, 362-365 (CA7), cert. denied, 464 U.S. 805
(1983); Lac Courte Oreilles Band of Lake Superior Chippewa In-
dians v. Wisconsin [“LCO II’), 760 F.2d 177, 178-183 (CA7
1985). The federal courts have held that these usufructuary privi-
leges may not be exercised on private property,° and that they
also must give way to mining development in cases of conflict.
(The whole purpose of the 1842 treaty was to open northern
Wisconsin and the Upper Peninsula of Michigan up to mining
development; it was known as the “Miner’s Treaty”; the Chip-
pewa consistently acknowledged in the years thereafter that they
were required under the 1842 treaty “‘to give place to miners,”
(Footnote continued from previous page)
Findings {{ 137-147.) Indeed, as the District Court observed, the
Sokaogon offered two completely different definitions of the subject ter-
ritory during the course of this litigation alone—one of which (in the
original complaint) totally excluded Exxon’s property, the other of
which (in the Second Amended Complaint) was adjusted to include that
property in its entirety. (See App. 51; Findings { 146; see also Illustra-
tion 2 in the supplemental appendix.)
*That article provides in relevant part that “[t}he Indians stipulate for
the right of hunting on the ceded territory, with the other usual privi-
leges of occupancy, until required to remove by the President of the
United States... .”
"See LCO I, 700 F.2d at 365 n.14; LCO JI, 760 F.2d at 182-183. The
final, unappealed judgment in the LCO litigation—a judgment binding
on the Sokaogon under basic rules of res judicata and collateral estoppel
—holds that the Chippewas’ 1842 treaty rights “have been terminated
as to all portions of the ceded territory that are privately owned as of
the times of the contemplated or actual attempted exercise of those
rights.” 775 F. Supp. 321, 323 (WD Wis. 1991) (emphasis added).
4
“remove [to] one side” for mining development, and “not stand
in the way of the miners.’’’)
Neither the Sokaogon’s 1939 reservation rights nor its 1842
treaty usufructuary privileges are at issue in this case. Instead, the
Sokaogon here contend that—unlike any of the dozens of other
Chippewa bands that were parties to the Treaty with the Chip-
pewa of September 30, 1854, 10 Stat. 1109—it may ignore the
reservation system established by the 1854 treaty and instead
continue to exercise “rights of occupancy per se” anywhere within
its “aboriginal and historic home zone of habitation” —even on
private lands like Exxon s.* The Sokaogon defines these “rights
of occupancy per se” as “‘the sheer right to inhabit a place”’; it
demands “immediate possession of all portions of the subject land
occupied or claimed by any defendant,” along with damages “‘for
each portion of the subject territory held by any defendant to the
exclusion of the plaintiff.”
This claim to “occupy” and “inhabit’’ the “subject territory”
grows out of a century-old dispute between the Sokaogon and the
federal government involving the Sokaogon’s legend of a “lost
reservation,”’ to which we now turn. (Findings § 85.)
"Findings {{ 48, 52, 63; see generally id. §{ 38-54, 61-67. See also
United States v. Bouchard, 464 F. Supp. 1316, 1337 (WD Wis. 1978)
(the Chippewa understood through the 1842 treaty “that their occupa-
tion of certain parts of the territory would be ended to make way for
mining and logging operations”), rev'd on other grounds sub nom. LCO
J; and the District Court’s detailed analysis below at App. 19-20, 69-73.
’See App. 2, 9; Cpt. § 14, R. 1; R. 94, p. 23.
%See Second Amd. Cpt., ad damnum, R. 36; see also Sokaogon Sev-
enth Cir. Br. 9, 13. The dramatic scope and implications of this claimed
“right to inhabit” are extremely ill-defined, but according to the
Sokaogon it includes the right not to be “excluded by fence, published
or posted restriction” from enjoying “free movement” through the sub-
ject territory; “the right to camp for whole seasons”; “the right to erect
and maintain habitations’; and access to certain specific sites histori-
cally associated with tribal assemblies, ceremonies, and burials (none of
which are anywhere identified as being on Exxon’s lands). (See R. 116,
p. 11; R. 108, p. 9.)
5
B. The Sokaogon’s “Lost Reservation” Legend.
The Sokaogon’s predecessors belonged to a Chippewa (more
properly, “Anishinabe” or “‘Ojibwa’’) tribal division known as the
“Chippewas of Lake Superior,” which consisted in the mid-19th
century of several dozen “bands” scattered throughout the Upper
Peninsula of Michigan, northern Wisconsin, and northeastern
Minnesota. (Findings {{ 14, 158 n.77.) The principal Chippewa
“village-trading post clusters” in the vicinity at issue in this case
were located at Lac du Flambeau (about 75 miles to the north-
west) and L’Anse (in Michigan’s Upper Peninsula about 100
miles to the northeast).'° The Sokaogon’s predecessors consisted
of two bands that were offshoots of the much larger Lac du
Flambeau and L’Anse communities; they numbered only about
200 in population at the time of the 1854 treaty."
The Sokaogon’s predecessors were known variously through
the years as the “‘Post Lake bands,” the “Pelican Lake band,” the
“Rice Lake Chippewa,” the “Mole Lake band,” the “Lake
Bands,” and the “Lost Band.” (See App. 18.) They had their
principal villages in the mid-19th century along Post Lake, which
lies at the western end of the subject territory, and Pelican Lake,
which lies beyond the western_border of the territory now being
claimed. (Findings {{ 15, 17; see also Illustration 1 in the supple-
mental appendix to this brief.)
It is undisputed that the Sokaogon’s predecessors were par-
ties to the 1842 treaty under the “Lake Bands” designation. The
1842 treaty extinguished Native American title to lands legally
See, ¢.g., Atlas of Great Lakes Indian History, p. 146 and Map 27
(H. Tanner ed. 1987); R. 94, p. 659.
''See App. 3, 9. The leading contemporaneous account, written by a
Chippewa, reported in the early 1850s that various “families” had
“branched off’ from the Lac du Flambeau community and “had com-
menced to shoot forth new branches or communities.” One of these
offshoots was identified as “the Pelican Lake band”—the Sokaogon’s
predecessors. W. Warren, History of the Ojibwa People 192, 314-315
(1885, reprinted 1984) (R. 94, pp. 413, 422). Part of the Sokaogon also
originated in the Upper Peninsula of Michigan and emigrated to north-
eastern Wisconsin in the early 1840s. (See Findings {{ 16, 223, 233-235.)
6
known as “Royce Area 261” (see Illustrations 3 and 4 in the
supplemental appendix) and ceded the area to the United States,
subject to the provision in Article 2 that “[t]he Indians stipulate
for the right of hunting on the ceded territory, with the other
usual privileges of occupancy, until required to remove by the
President of the United States .. . ” (emphasis added). The vari-
ous Chippewa bands initially continued to live throughout the
ceded territory, but President Zachary Taylor revoked their
“privileges of occupancy” in 1850 and ordered them to remove
to Minnesota. Attempts to carry out the removal provoked an
outcry from the Chippewa and sympathetic whites; a delegation
of Chippewa chiefs traveled to Washington, D.C. in 1852 and
reportedly secured President Millard Fillmore’s promise to re-
voke his predecessor’s order. (See App. 22-24; Findings § 20.)
The solution to this unsettled state of affairs, as embodied in
the 1854 treaty, was to abandon the “removal” policy and instead
allow the scattered bands of Lake Superior Chippewa to remain
in the region while “colonizing,” “‘concentrating,”’ and “confin-
ing” them upon a series of small reservations where, it was hoped,
they would abandon their traditional lifestyles and adopt white
agricultural methods. (Findings {{ 21, 75-83, 148-161; see also
pages 17-19 and 24-25 below.) Several bands received reservations
of their own, while the others were assigned to larger residual
reserves. Three residual reserves were established in Wisconsin:
what is now known as the Bad River Reservation, created “‘[flor
the La Pointe band, and such other Indians as may see fit to settle
with them,” and the Lac du Flambeau [hereinafter ““LDF’’] and
Lac Courte Oreilles [hereinafter “‘LCO"’] reservations, set apart
“[flor the other Wisconsin bands.” (1854 Treaty, Art. 2 §§ 2-3,
emphasis added; see Illustration 4 in the supplemental appendix.)
It is undisputed that the Sokaogon’s predecessors, then known
as the “Post Lake’’ bands, were represented at the September
1854 treaty negotiations in La Pointe, Wisconsin, by Chiefs Me-
gee-see (“the Eagle”) and Ne-gig (‘‘the Otter’’). The treaty was
styled as a “contract’”’ between the “United States’’ and the sev-
7
eral dozen chiefs and headmen who signed on behalf of their
bands, and who agreed collectively to “hereafter be known as the
Chippewas of Lake Superior.” (Arts. 12-13.) Chiefs Me-gee-see
and Ne-gig were among the eleven signatories who placed their
sealed marks in the “Lac Du Flambeau” subgrouping of the
“Chippewas of Lake Superior.” As parties to the treaty, Me-gee-
see, Ne-gig, and their bands thereby became entitled to reside on
the reservation to be established at Lac du Flambeau (less than
75 miles northwest of Post Lake), or to live on the Bad River or
LCO reserves if they preferred. The treaty made no mention of a
separate reservation for the “Post Lake’ Chippewa, by that or
any other name.
The Post Lake Chippewa thereafter recognized that they had
rights on the LDF reservation. As the Court of Appeals summa-
rized the historical record:
“Some of the petitions acknowledge that under the treaty the
Post Lake bands were to be treated as part of the Lac du
Flambeau band and thus entitled to live on its reservation.
They say such things as ‘we have a share in the Flambeau
reservation’; ‘[the Post Lake bands] respectfully ask that
they may be united with the Bands of Chippewa Indians at
Lake du Flambeau . . . just as soon as their Great Father will
furnish them the necessary facilities to go to farming’; ‘we
do not want to move to the Lake Flambeau reservation to
which we were apportioned by the treaty of 1854.’ ” (App.
7; see also Findings { 24-26.)
The Post Lake bands also were initially counted in with the
LDF bands in receiving their annual treaty annuity payments at
La Pointe. According to an 1879 petition from them, however, in
the late 1850s they held “a council with the Flambeau indians, in
which they agreed to divide our payments, & let us draw our
share at L’Anse Lake Superior [in the Upper Peninsula of Michi-
gan], as this would be nearer to us” than La Pointe. (Findings
* 23; see Illustration 4 in the supplemental appendix.) Federal
Officials acquiesced in this division, and the Post Lake Chippewa
thereafter had virtually no contact with the La Pointe Indian
8
Agency, which was responsible for the Wisconsin Chippewa
bands, and instead were ranked within the jurisdiction of the
Mackinac Indian Agency, responsible for the Chippewa bands of
the Upper Peninsula. (Findings { 23.)
By about 1860, Chiefs Me-gee-see and Ne-gig had begun to
claim that they had “rec’d encouragement” from one or more
federal officials that they could have their own reservation “in the
vicinity of Post Lake.”’ Ud. § 28, 112.) Their claim continued to
be repeated in oral traditions recounted by “several of our old
members around Council fires” and “handed down from genera-
tion to generation.” (Jd. § 85.) According to these traditions, the
then-Commissioner of Indian Affairs, George W. Manypenny,
had taken Me-gee-see and Ne-gig aside during the 1854 negotia-
tions and told them “that we would have a reservation in the
vicinity of Post Lake, where we could fish, gather Rice & make
sugar’; Manypenny made this promise “in order to induce our
chiefs of our 2 Bands to sign the treaty,” and they had done so
on that understanding. (/d. §{ 91-92.) Thereafter, the traditions
continue, an unidentified federal official visited Me-gee-see
“sometime circa 1855-1870,” reconfirmed that the Post Lake
bands were entitled to their own reservation under the 1854 trea-
ty, and prepared two copies of a “map and other paper” describ-
ing the allegedly promised lands, one set of which was left with
Me-gee-see and the other taken by the agent “‘to be made out in
regular form and recorded” in Washington. (/d. {{ 86, 98.) The
agent and his set were lost, the traditions continue, in a shipwreck
on the Great Lakes; Me-gee-see’s set was stolen by an Indian
trader named Billie Johnston. (/d. {{ 86, 98-99.) According to the
Sokaogon, “‘[sleveral years afterwards Johnson [sic] was taken
seriously ill and being advised by his physicians that death was
inevitable recollection of this stolen paper came to mind. He then
sent word to a friend of his by [the] name of Strauss to whom he
entrusted the safekeeping of this treaty [sic] ... .”” Ud. § 99.)
What Mr. Strauss in turn ever did with the “stolen paper”’ is
unknown, because he supposedly “committed suicide on a train
between Antigo and Clintonville Wis.” in either “1896 or 97.”
9
(Id. § 106.) The Sokaogon subsequently accused its own lawyers
during the 1940s of having stolen the allegedly “lost map” and of
refusing to return it; the tribe’s counsel denied having any such
document, and nothing further ever came of the claim. (Jd.
€ 110.)
The full, fascinating, frequently conflicting details of the
Sokaogon’s “‘lost reservation” tradition are set forth in Findings
{{ 84-147. See also App. 5-7, 12, 27-28.'2 Three points are suffi-
cient for present purposes:
First. The “lost reservation” tradition rests upon a demonstra-
bly erroneous factual assertion—that Commissioner Manypenny
induced Chiefs Me-gee-see and Ne-gig to sign the 1854 treaty
through oral assurances that they would receive their own sepa-
rate reservation. The uncontroverted evidence shows that this
could not possibly have happened because Manypenny was not
even present for the September 1854 treaty negotiations in La
Pointe. (Findings {{ 91-93, 151-161.)
Second. During the 1860s and 1870s, local federal Indian
agents repeatedly characterized the Post Lake bands as falling
within the “other Wisconsin bands” provision in Article 2, § 3 of
'*We mean no disrespect toward what has obviously been an impor-
tant legend within the Sokaogon’s culture for a century or more, but it
must be noted that anthropologists and historians have emphasized that
“great caution must be exercised before placing trust” in the factual
content of Native American oral traditions—a caution that obviously
applies to the oral legends of frontier white culture as well. H.
Hickerson, The Chippewa and Their Neighbors: A Study in Ethnohistory
33 (1970) (reprinted in R. 94, p. 341); see also D. Brown, Bury My Heart
at Wounded Knee xi-xii (1970) (some Native American accounts retold
to whites were “tall tales and shaggy-dog stories,” and such accounts
“must therefore be read with skepticism, although some of them are
masterpieces of irony and others burn with outbursts of poetic fury”).
One historian who is extremely sympathetic to the Chippewa has noted
that claims to allegedly promised reservations were sometimes “an ex-
ample of Chippewa negotiating style.”’ J. Clifton, “Wisconsin Death
March: Explaining the Extremes in Old Northwest Indian Removal,”
reprinted in R. 95, pp. 1021, 1024 n.87. (The final version of this article
is published in 75 Transactions of the Wisconsin Academy of Sciences,
Arts and Letters 1-39 (1987).)
10
the 1854 treaty and as therefore having rights on the LDF or
LCO reserves, not in the subject territory. (See id. (§ 184, 188-
189, 191-195.) From Washington, the Office of Indian Affairs
unequivocally rejected the Post Lake bands’ requests for a sepa-
rate reservation, instructed them to move to the LDF reserve, and
held that “‘[t]his Department is bound to respect the [1854] treaty
as it finds it and can recognize no other reservation than that
specified.”” Id. € 200.)
Third. The federal government repeatedly sought during these
years to remove the Post Lake bands from the area and to resettle
them either on the LDF reservation or on the L’Anse (also known
as ‘“‘Keweenaw’’) reservation in Michigan’s Upper Peninsula. (See
generally id. §{ 162-200.)'3 These efforts were unsuccessful be-
cause the Post Lake Chippewa did not, in the words of one of
their petitions, ““want to move to the Lake Flambeau reservation
to which we were apportioned by the treaty of 1854.” Ud. ¢ 24,
199.) Although the government did not respond with force, these
Native Americans remained in the Post Lake vicinity, as the Of-
fice of Indian Affairs put it, “without authority” of the United
States. (Id. § 200.)'4
As noted on pages 7-8 above, in the late 1850s the Post Lake Chip-
pewa had been transferred at their own request to the jurisdiction of the
Mackinac Indian Agency, responsible for the L’Anse and other Upper
Peninsula Chippewa. Several Mackinac agents thereafter thought it
would be most expedient for the Post Lake Chippewa to settle on a
reservation within Mackinac’s jurisdiction. (See Findings {{ 189, 197-
198.) Even while offering the Post Lake bands the option of moving to
“Keweenaw bay” as a matter of administrative convenience, however,
the Mackinac Agency confirmed that “[b]y the terms of the treaty of
September 30, 1854, 3d clause, article 2d, lands were set apart for them,
and other bands, at Lac De Flambeau and Lac Court Oreilles.’’ (Find-
ings { 188.)
'*The federal government’s policy at this time—at least in relatively
unsettled areas—was ‘“‘to employ persuasion instead of military force to
bring nomadic Indians upon reservations”; forced relocations to reser-
vations were avoided “so long as they [did] not trouble the whites.”’
(“Foreward” to G. Manypenny, Our Indian Wards xiii (1880, repub-
lished 1972), reprinted in R. 94, p. 470; see generally Findings {{ 214-
220.)
1]
By the late 19th century the Post Lake Chippewa literally had
become, as they often were called, a “lost band” —“wanderers on
the face of the earth.” (See id. §§ 15, 32, 222; see generally id.
{{ 32-33, 221-243; App. 5-7, 29, 61.) Their status was by no
means unique. Because of the frontier character of northern Wis-
consin, 2 lack of sufficient government resources and employees,
and Native American resistance to abandoning traditional life-
styles, the Lake Superior Chippewa generally did not settle per-
manently upon their reservations until close to the turn of the
century. “Roaming” Menominee, Potawatomie, Winnebago, and
Chippewa bands were scattered throughout the unsettled por-
tions of northern Wisconsin in the late 19th century and in some
instances even as late as the 1930s. (Findings {§ 216-218.)
The federal government considered using force to remove the
Post Lake bands but ruled that option “out of the question,” and
instead began at the turn of the century to consider purchasing
lands for a small separate reservation for them. (/d. 9 31, 35,
214-220, 227-228.) These efforts culminated in 1939 with the cre-
ation by executive order of the reservation now held by the
Sokaogon. (Jd. { 35; see generally id. ¢§ 221-243.)
The following year, the Sokaogon (sub nom. “Mole Lake
Band”) sued the United States in the Court of Claims for dam-
ages under a special jurisdictional act, contending that it had been
“entitled to have set apart to it for the use and benefit of its
members” a separate reservation pursuant to the unwritten “in-
tent” of the 1854 treaty; this claim was abandoned in 1953 as
having “no support whatever by evidence.” The Sokaogon re-
covered additional compensation from the United States for other
claims under the 1854 treaty in litigation before the Indian
Claims Commission during the 1960s and 1970s (see page 20 and
note 21 below), but did not attempt to resurrect its “lost
~ 1SSee Findings { 132; see also Mole Lake Band vy. United States, 126
Ct. Cl. 596, 601 & n.7 (1953); Act of August 30, 1935, 49 Stat. 1049:
H.R. Rep. No. 1083 and S. Rep. No. 1208, 74th Cong., Ist Sess. 1-2
(1935).
12
reservation” claim in those proceedings. See Sokaogon Chippewa
Community v. Wisconsin, 879 F.2d 300, 301-303 (CA7 1989).
C. The Proceedings Below.
The United States was the principal defendant in the initial
stages of this litigation (commenced in 1986). The Sokaogon con-
tended that the federal government had either intentionally or
negligently violated the unwritten intent of the 1854 treaty by
failing to establish a separate Post Lake reservation during the
19th century; it sought either an injunction requiring the United
States to “deliver possession of the promised reservation” or, in
the alternative, money damages for the federal “taking” of these
alleged reservation rights. (See R. 1.) The Court of Appeals held
in 1989 that all of the Sokaogon’s claims against the United States
are barred on jurisdictional and statute-of-limitations grounds,
but it allowed the claims against the other defendants to proceed.
See 879 F.2d at 302-305. The Sokaogon has not challenged the
United States’ dismissal from this litigation.
On remand against the remaining defendants, the Sokaogon
shifted to an entirely different theory and argued that the United
States had in fact established a separate reservation for the Post
Lake Chippewa in the early years following the 1854 treaty—a
reservation that, while subsequently “lost” to them, had created
a “beneficial interest akin to fee title’’ which had never lawfully
been extinguished. (See Second Amd. Cpt. €{ 21-25, R. 36; see
also R. 94, pp. 23, 74.) Exxon demonstrated that no such reser-
vation had ever been intended, promised, or established. (See
generally Findings €€ 148-243.) As the Court of Appeals put it,
the “‘lost reservation” claim “is at best embroidered (too many
ransoms, shipwrecks, lost and stolen maps, and deathbed revela-
tions to be plausible) and at worst fictitious.” (App. 6.) The
Sokaogon conceded that Exxon had refuted the “‘lost reservation”
claim “in conclusive fashion,” and the District Court entered a
summary judgment holding that “the Treaty of 1854 did not
provide the Sokaogon with a reservation of their own, nor was it
intended to do so.” (R. 112, pp. 3, 29; App. 47; see generally App.
13
47-52.) The Sokaogon does not challenge this portion of the judg-
ment. (Pet. 8-9.)
Having abandoned its “lost reservation” claim, the Sokaogon
shifted its focus once again—this time to the 1842 treaty’s “privi-
leges of occupancy” clause. The Sokaogon continued to rely upon
its “lost reservation” legend in insisting that the unrealized intent
of the 1854 treaty was to give the Post Lake bands their own
Separate reservation. Since that never occurred, the Sokaogon
now claim, its 1842 treaty “rights of occupancy per se’’ were
never technically extinguished and thus remain in force through-
out the subject territory. (/d. at 9, 11, 15-16.)
The District Court held that Exxon is entitled to summary
judgment on this remaining claim for any one of three distinct
reasons:
First. Because the Sokaogon’s predecessors were parties to the
1854 treaty, their 1842 treaty “rights of occupancy per se”’ in the
subject territory were extinguished upon the creation of the Wis-
consin Chippewa reservations promised in the latter treaty. (App.
59-60.) The Sokaogon’s predecessors were among “the other Wis-
consin bands” provided for in Article 2, §§ 2 and 3 of the 1854
treaty, and their refusal to remove to the 1854 treaty reservations
in the following decades could not have operated to keep their
1842 treaty “occuparicy” rights alive. (See App. 55-64.) As for the
Sokaogon’s 1854 “treaty understanding” argument, the District
Court observed that
[t]he Sokaogon were not able to refute Exxon’s claim that
the United States never established, or intended to establish,
a separate reservation for them. Yet, by relying on this
[treaty understanding] argument, they are asking this court
to take as true allegations Exxon already has shown to be
speculative at the most. . . . To accept Sokaogon’s argument
would be to acknowledge that they should have the occu-
pancy rights reserved by the 1842 Treaty until a reservation
is established for them, even though they are not entitled to
a [separate] reservation.” (App. 61-62.)
Second. With two minor exceptions, all of the lands in which
- Exxon holds interests are privately owned. The Sokaogon’s at-
14
tempted exercise of any of its remaining 1842 treaty “privileges
of occupancy” upon these lands would therefore squarely be
barred by LCO’s private lands rule. (App. 64-69.)
Third. Exxon acquired its property interests in dispute for the
purpose of building an underground zinc-copper mine.'® Because
the uncontroverted evidence demonstrates that mining was in-
tended to take priority over the Native American privileges of
occupancy reserved in the 1842 treaty, “the Sokaogon are re-
quired to vacate any off-reservation land they have occupied
whenever mining commences.” (App. 69-73.)!’
The Court of Appeals affirmed. It reasoned that the Sokaogon’s
remaining claim boils down to the propositions “that either they
were not parties to the 1854 treaty and therefore can continue to
assert their rights under the 1842 treaty or that, if they were
parties, the treaty does not mean what it says.” (App. 5.) The
Court of Appeals found that neither of these propositions can be
reconciled with the 1854 treaty’s language, its negotiating history,
the surrounding circumstances, or the parties’ subsequent con-
struction. (App. 5-14.)
REASONS FOR DENYING THE WRIT
I. IT IS THE SOKAOGON’S CLAIM, NOT THE
COURT OF APPEALS’ OPINION, THAT IS IN
“PATENT CONFLICT” WITH LONG-
ESTABLISHED PRINCIPLES OF TREATY
CONSTRUCTION.
The Sokaogon asserts that the Court of Appeals’ decision “is
in patent conflict with century-old principles of treaty interpreta-
'SExxon’s successor-in-title, Crandon Mining Company, is presently
engaged in the process of obtaining the necessary permits and approvals
for this proposed mine.
"The District Court emphasized that, “[i]f the Sokaogon were to
prevent Exxon from mining on the subject territory, it would be in
contravention of the very considerations prompting” the 1842 treaty;
that treaty “demand[s] that mineral development should take prece-
dence” over the Chippewas’ reserved “privileges of occupancy.” (App.
70.)
15
tion.” (Pet. 11.) It argues that the court engaged in a “skewed
interpretation” which is “at patent variance with the express
terms of the 1854 treaty,” “does violence” to this Court's prece-
dents, and “open{s] a significant wound to the structure of the law
governing Indian treaty interpretation.” (/d. at 14-16, 19.)
This is completely inaccurate. Both the District Court and the
Court of Appeals gave extensive, thoughtful consideration to the
canons of Native American treaty construction, emphasizing that
“[a]mbiguities and mistakes alike are to be resolved in favor of
the Indians,” that “Indian treaties are to be interpreted as the
Indians themselves would have done,” and that the historical
record must be treated with caution given the language and cul-
tural barriers between the Chippewa and white people. (See, e.g.,
App. 7, 10-11; see also id. at 36-37.)
It is the Sokaogon’s own claim, not the Court of Appeals’
decision, that is in conflict with established principles of treaty
construction. As the Court of Appeals observed, the Sokaogon’s
claim rests at bottom on the proposition that “the treaty does not
mean what it says’’—either because the Post Lake bands were not
parties entitled to live on the residual “catch-all” reservations
(notwithstanding their chiefs’ signatures and the treaty’s plain
terms), or because the treaty contained a promise “to create a
separate reservation” for those bands (notwithstanding that nei-
ther the treaty nor any other government document “so much as
hints at any such promise”). (App. 5-6.) To get around the treaty
language, the Sokaogon has attempted to invoke an array of con-
jecture, surmise, hearsay, rumor, and innuendo which is flatly
contradicted by the uncontroverted historical record; internally
contradictory and implausible; and cannot be reconciled with the
1854 treaty language itself. Although reasonable doubts are to be
resolved in favor of Native Americans, “even Indian treaties can-
not be rewritten or expanded beyond their clear terms to remedy
a claimed injustice or to achieve the asserted understanding of the
parties."’ Choctaw Nation v. United States, 318 U.S. 423, 432
(1943). See also United States v. Choctaw Nation, 179 U.S. 494,
16
538, 541 (1900) (a court may not “disregard the obvious import
of the words employed” or “givie] to an Indian treaty a meaning
not justified by its words”’).
The Sokaogon’s claim also conflicts with established summary
judgment standards. Although the petition protests “the injustice
of denying these people a trial on their grievance” (Pet. 20), the
Sokaogon failed below to demonstrate that there was anything to
try. The Sokaogon did not attempt to controvert Exxon’s detailed
findings of historical fact; it relied instead upon inadmissible hear-
say, conjecture, and surmise; and it failed to come forward with
any expert testimony in support of its claims. As the Court of
Appeals emphasized, Exxon, on the other hand, “presented an
interpretation of the treaty that was sensible, consistent with and
indeed implied by its language, . . . consistent with all reasonably
substantiated facts concerning the circumstances in which the
treaty had been negotiated and signed,” and consistent with
“(t]he treaty’s purpose, as could be gathered from its words and
logic and structure and the background circumstances, and for
that matter the subsequent history up to the creation of the
Sokaogon’s own reservation in the 1930s.” (App. 11.)
A party resisting summary judgment “must set forth specific
facts showing that there is a genuine issue for trial.” Fed. R. Civ.
P. 56(e) (emphasis added). Both of the courts below carefully
reviewed the massive historical record and found that, “even
when taken in the light most favorable” to the Sokaogon, that
record does not contradict, but instead strongly reinforces, the
1854 treaty’s clear terms. (App. 61; see also id. at 12-14, 34-35.)
Thus, even if it were proper to go beyond the treaty’s plain lan-
guage, the historical record “‘taken as a whole”’ demonstrates that
there are no “genuine” issues as to any “material” facts requiring
a trial on the Sokaogon’s “treaty understanding” claim. Matsu-
shita Electric Industrial Co., Ltd. vy. Zenith Radio Corp. , 475 U.S.
574, 587 (1986); Fed. R. Civ. P. 56(c).
17
Il. THE COURTS BELOW CORRECTLY REJECTED
THE SOKAOGON’S CLAIM BECAUSE IT
CANNOT BE RECONCILED WITH THE 1854
TREATY’S PLAIN LANGUAGE; IS AT ODDS
WITH THE NEGOTIATING HISTORY, THE
SURROUNDING CIRCUMSTANCES, AND THE
PARTIES’ SUBSEQUENT CONSTRUCTION;
AND IS GROUNDED UPON INADMISSIBLE
AND ERRONEOUS HEARSAY, RUMOR, AND
CONJECTURE.
The Sokaogon’s claim requires consideration of two issues:
whether as a general matter the creation of the 1854 treaty reser-
vations extinguished the Lake Superior Chippewas’ territorial-
wide 1842 treaty “occupancy” rights; and, if so, whether there is
any justification to treat the Sokaogon differently from the dozens
of other Lake Superior Chippewa bands that were parties to the
treaty.
A. The 1854 Treaty Restricted The Lake Superior Chippewas’
“Occupancy” Rights To The Reservations Established
Under That Treaty.
The whole tenor of the Sokaogon’s petition is that the creation
of the 1854 reservation system gave rise af most simply to an
“implication” or “inference” that the Chippewas’ 1842 treaty
“rights of occupancy per se” throughout northern Wisconsin
were thereafter restricted to the reservations themselves. (Pet. i,
11, 15, 17.) This conclusion does not simply follow by “implica-
tion” or “inference,” however—it is inescapable.
The 1854 treaty was plain on its face: the United States
“agree[d] to set apart and withhold from sale” several designated
tracts of land that would thereafter serve as “the homes” and as
the “points . . . for the residence” of “the Chippewas of Lake
Superior,” and it further promised that “the Indians shall not be
required to remove from the homes hereby set apart for them.”
(Arts. 2, 5, 7, 11.) That the Chippewa would have their future
“homes” on certain lands and not on others (which would be put
18
up for “‘sale’’ to white people) was thus clear on the face of the
treaty itself, thereby serving to abrogate the territorial-wide oc-
cupancy rights reserved in the earlier 1842 treaty. As the District
Court observed below, the 1854 treaty can only be read as having
“specifically directed the Chippewa to live” on the reservations
set apart for them. (App. 59.) Otherwise, the whole point of
establishing reservations would have been “illusory indeed.”
United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 358
(1941) (creation of Walapai Indian Reservation extinguished
tribal occupancy rights on other lands).
Moreover, the treaty negotiating history and surrounding cir-
cumstances underscore the parties’ shared understanding that the
Chippewas’ future occupancy of the ceded territory would be
restricted to their new reservation “homes.” (See App. 3-4, 7-8,
23-26, 58-59.) As described by the Office of Indian Affairs, the
underlying policy of the 1854 treaty toward the Lake Superior
Chippewa was “to circumscribe their limits, and to concentrate
them upon permanent locations” on a few “small reservations,”’
so that “the efforts made for their improvement will be rendered
more effectual.” (Findings { 159, emphasis added.) The 1854
treaty was intended to “concentrate,” “confine,” and “‘coloniz[e]”’
the Chippewa “from their scattered localities upon ample reser- ~~
vations.” (/d. { 158; see generally id. §§ 21, 151-161.) The Chip-
pewa themselves recognized that, as a condition of being allowed
to remain in the area, their future rights of occupancy would be
restricted to their new reservations. (See id. {{ 76-79, 151-155.)
This construction also follows inescapably from this Court’s
interpretation of the 1842 and 1854 treaties in United States v.
Thomas, 151 U.S. 577 (1894).'8 It is further dictated by the logic
'8At issue in Thomas was a parcel of land that had been included
within the 1842 cession and within the boundaries of a reservation
established under the 1854 treaty. This Court held that the Chippewas’
1842 occupancy rights had not been extinguished, and that “no change
has taken place in their occupancy of the lands, except as provided by
the treaty of September 30, 1854.”" 151 U.S. at 582 (emphasis added).
Because the 1854 treaty “included the section in question” within a
(footnote continued on next page)
19
of the federal courts’ decisions in the LCO litigation concerning
the continued survival of the Chippewas’ usufructuary (but not
occupancy) rights on certain public lands.'9
The Sokaogon now concedes the general proposition “that es-
tablishment of a reservation home for a Chippewa Band under
the 1854 treaty” did indeed serve to “extinguish[ ] the Band’s
right of occupancy per se” under the 1842 treaty. (Pet. 9.) Indeed,
the Sokaogon admitted below that this result is “eminently rea-
sonable” and comports with “common sense”—but only as ap-
plied to the various Chippewa bands other than the Sokaogon.
(Sok. Seventh Cir. Br. 20.)
B. There is No Justification For Treating The Sokaogon
Differently From The Other Lake Superior Chippewa.
1. The Post Lake Bands’ Receipt Of 1854 Treaty
Annuities Simply Reconfirms That They Were Parties
To, And Thus Bound By, The 1854 Treaty.
The Sokaogon contended below that, unlike the other Lake
Superior Chippewa bands, its predecessors “never . . . assented”
to the terms of the 1854 treaty, and that it was “not clear”
whether they even were “in mind as Signatories to the treaty.”
(id. at 13, 17.) The Sokaogon’s petition continues to question
whether the Post Lake Chippewa really were “signatories” to the
1854 treaty. (Pet. 6, 9, 15-16.)
reservation, it “did not operate to defeat the prior right of occupancy to
that particular section, but . . . continued it in force.” Id. at 584. The
strong negative inference is that the “prior right of occupancy” was
“defeated” and was not “continued in force” on off-reservation lands.
See also App. 60.
''The Seventh Circuit emphasized in LCO / that usufructuary rights
are not “inextricably linked” or “dependent” upon rights of actual oc-
cupancy, and thus that there is no inherent conflict between restricting
Chippewa “occupancy” to the reservations themselves while allowing
Chippewa “usufructuary” activities to occur on public property outside
of reservation boundaries. 700 F.2d at 352, 363. As the courts reasoned
below, the same obviously cannot be said of the rights to “occupy” and
“inhabit” the lands that are claimed here. See App. 9-12, 55-60; see also
700 F.2d at 362 n.12.
20
It is undisputed, however, that the two principal Post Lake
chiefs, Me-gee-see and Ne-gig, were in fact signatories to the
treaty. Me-gee-see and Ne-gig themselves acknowledged in 1869
that they had participated in the 1854 negotiations and had exe-
cuted the treaty; Me-gee-see’s son Quing Guish swore in an 1879
affidavit that he too had been present and affirmed that “my
father Megesee and Negik the chiefs signed the treaty.” (Findings
{| 91-92.) Moreover, the Sokaogon has admitted in its discovery
responses that Me-gee-see and Ne-gig entered into the treaty on
behalf of their bands. (See R. 94, pp. 70-71.)
In addition, Article 4 of the 1854 treaty provided that the Lake
Superior Chippewa would receive annuities “for the term of
twenty years,” and it is undisputed that the Post Lake Chippewa
participated in these annuity distributions as “contracting par-
ties” (see Art. 13) to the treaty.2° The Sokaogon also recovered
additional money in the 1970s through Indian Claims Commis-
sion litigation against the United States on the precise premise
that, as a party to the 1854 treaty, it was entitled to further
compensation along with the other Lake Superior Chippewa be-
cause the original treaty consideration had been “unconsciona-
ble” within the meaning of the Indian Claims Commission Act.?!
The Sokaogon is therefore both collaterally and judicially es-
topped from denying that its predecessors were “signatories” to
the treaty who thereby bound themselves to its terms. See, e.g.,
Montana y. United States, 440 U.S. 147, 153 (1979) (collateral
20See Findings { 23, 26, 136 & n.62; R. 95, pp. 1501-1505, 1508-1511,
1516.
2IThe Indian Claims Commission originally did not include the Red
Cliff, St. Croix, or Sokaogon (then known as “Mole Lake’”’) bands as
plaintiffs in the 1854 treaty litigation. See Minnesota Chippewa Tribe v.
United States, 14 Ind. Cl. Comm. 360, 360-361 (Dec. 8, 1964). In re-
sponse to a motion from those bands, however, the Commission there-
after amended its earlier findings and found “that these three bands did
constitute a part of the Lake Superior Chippewa Tribe” and had claims
under the 1854 treaty. See 26 Ind. Cl. Comm. 137 (Aug. 11, 1971). The
Commission thereafter awarded additional compensation to the collec-
tive treaty claimants. See 41 Ind. Cl. Comm. 249, 293-294 (Mar. 30,
1978).
21
estoppel); In re Cassidy, 892 F.2d 637, 641 (CA7) (judicial
estoppel), cert. denied, 498 U.S. 812 ( 1990).
The Sokaogon now seizes upon the Court of Appeals’ refer-
ences to the Article 4 annuity payments, noting that those pay-
ments were expressly made “[iJn consideration of and payment
for” a communal land cession in northeastern Minnesota de-
scribed in Article 1 of the 1854 treaty. (Pet. 13-15.) The Sokaogon
asserts that the court held that simply “by accepting annuity
payments under Article 4,” the Post Lake bands surrendered
their 1842 treaty “occupancy” rights—an interpretation “at pa-
tent variance with the express terms of the 1854 treaty.” (Jd. at
14-15.)
The Court of Appeals said no such thing. Instead, the court
emphasized throughout its opinion that the Post Lake bands sur-
rendered their impermanent 1842 treaty occupancy rights as a
quid pro quo for receiving new rights of permanent occupancy in -
the 1854 treaty reservations:
“The reservations created a place for the Chippewas to enjoy
occupancy rights because they would no longer have such
rights off the reservations... The treaty’s purpose, as could
be gathered from its words and logic and structure and the
background circumstances, ... was to extinguish the Chip-
pewa Indians’ occupancy rights throughout the ceded (in-
cluding previously ceded) areas in exchange ... for occu-
pancy rights in reservations that would be established by the
federal government. . . . [O]nce the reservations in which the
Sokaogon had rights of occupancy were created, their rights
of occupancy under the 1842 treaty ... ceased.” (App. 10-
11, 14.)22
~The 1842 treaty’s occupancy rights were “impermanent” because
“[t]he ceded territories were ceded for the purpose of eventual settle-
ment” by whites and thus the Chippewas’ 1842 treaty rights “were
subject to and limited by the demands of settlers” and “subject to ex-
tinction if the lands were needed for settlement.” LCO IJ, 760 F.2d at
182-183. The 1854 treaty, on the other hand, guaranteed that the desig-
nated reservations would be “set apart and withh[eJld from sale” and
that “the Indians shall not be required to remove from the homes hereby
set apart for them.” (1854 treaty, Arts. 2 and 11.)
22
The Article 4 annuity issue is relevant not because the annuities
were the contractual ‘“‘consideration”’ for the surrender of 1842
treaty occupancy rights, but because the annuities were paid only
to those Chippewa bands that were “parties’’ to the 1854 treaty.
The Article 1 land cession, the Article 2 reservation system, and
the Article 4 annuity payments all pertained to the contracting
chiefs and headmen of the “Chippewas of Lake Superior.’”’ The
Sokaogon has yet to explain its curious rationale that the Post
Lake bands could have been participating “parties” for purposes
of Articles 1 and 4, but not for purposes of Article 2. The Court
of Appeals committed no error—-it was manifestly correct—in
concluding that a treaty signatory cannot pick and choose among
the treaty’s “benefits” and “burdens” that it wishes to accept.
(App. 12-13.)
2. The Sokaogon’s Claim Is Barred By The 1854
Treaty’s Plain Terms, By The Negotiating History,
And By The Surrounding Circumstances.
(a) The plain language. As signatories to the 1854 treaty, Chiefs
Me-gee-see and Ne-gig and their bands acquired the right to live
on three different Wisconsin Chippewa reservations. They could
move to what is now known as the Bad River Reservation, cre-
ated “[flor the La Pointe band, and such other Indians as may
see fit to settle with them,” or they could live on the LDF or LCO
reservations, to be set apart “/fJor the other Wisconsin bands.”
(Art. 2 §§ 2-3, emphasis added.)
The Sokaogon attempts to get around the language under-
scored above by arguing that these words might not actually have
meant what they said; perhaps the Bad River, LDF, and LCO
reservations were restricted to the bands that actually were living
on those designated tracts as of 1854, and excluded all of “the
other Wisconsin bands.” (Pet. 15-16.) But the 1854 treaty said
just the opposite. When a reservation promised in the treaty was
intended to be restricted to one or more particular Chippewa
bands, the treaty plainly and unambiguously said so: there were
separate reservations expressly set aside “[flor the L’Anse and
nace
23
Vieux De Sert bands” (Art. 2 § 1), “[flor the Fond du Lac bands”
(Art. 2 § 4), “[flor the Grand Portage band” (Art. 2 § 5), for
“(t]he Ontonagon band” (Art. 2 § 6), for “that subdivision of the
La Pointe band of which Buffalo is chief” (ibid.), and for “the
Bois Forte Indians” (Art. 12). The Bad River, LDF, and LCO
reservations were the on/y reservations that were not restricted to
specified Chippewa bands; they would be open to “such other
Indians as may see fit to settle” there and “flor the other Wis-
consin bands.” (Art. 2 §§ 2-3, emphasis added.)
A court “must take care, when using its power to ascertain the
intention of the parties, not to disregard the obvious import of the
words employed” or to “giv[e] to an Indian treaty a meaning not
justified by its words.” United States v. Choctaw Nation, 179 U.S.
494, 538, 541 (1900). Yet as the Court of Appeals emphasized
below, that is the whole premise of the Sokaogon’s case—that
“the treaty does not mean what it says.” (App. 5.) The Post Lake
bands clearly were “other Indians” and “other Wisconsin bands”
that were not assigned to their own separate reservation. The
Sokaogon’s argument that its predecessors were somehow exempt
from the treaty because the treaty did not “expressly” assign
them to a particular reservation cannot be squared with the
treaty’s express “catch-all provisions.” (See generally App. 8-9,
11-12, 48-49, 62.) Quite simply, as the District Court concluded,
“[t]here are no ambiguities in the treaty’s language that could be
construed in favor of the Sokaogon.” (App. 48-49.)
The reservations specified above were the only reserves prom-
ised in the 1854 treaty as executed by the Chippewa, approved
by the President, and ratified by the United States Senate. There
is not even a hint of a separate “Post Lake Reservation” by that
or any other name. The Sokaogon’s claims that its predecessors
were either somehow exempt from the treaty’s provisions or were
orally promised an additional reservation of their own are accord-
ingly barred. Although ambiguities in treaty language generally
are construed in the Native Americans’ favor, this Court repeat-
edly has emphasized that “even Indian treaties cannot be rewrit-
ten or expanded beyond their clear terms to remedy a claimed
24
injustice or to achieve the asserted understanding of the parties.”
Choctaw Nation vy. United States, 318 U.S. 423, 432 (1943).#
(b) The historical record. The negotiating history and surround-
ing circumstances further refute the Sokaogon’s theory that the
1854 treaty can somehow be read as providing that “[eJach’’ of
the Wisconsin Chippewa bands would be given its own reserva-
tion “on its home ground, or drawn to its selection, and would
not be required to remove from its home precincts.” (Pet. 16.)
This argument completely mischaracterizes history and ignores
the treaty’s underlying purposes. Twenty-three separate bands of
Lake Superior Chippewa were present for the treaty negotiations
—bands that were scattered throughout northern Michigan, Wis-
consin, and Minnesota, including on the headwaters of the Wis-
consin, Chippewa, St. Croix, and Wolf Rivers. (See Findings
" 158 n.77; see also page 5 and notes 10-11 above.)4
Thus, contrary to the Sokaogon’s claims, many other Lake
Superior Chippewa were required to “‘relocate’’ to the reserva-
tions specified in the treaty. As shown above, that was the whole
point of the compromise struck in the treaty: the Chippewa would
be allowed to remain in the area, but the United States would
“circumscribe their limits,” “concentrate them upon permanent
23See also South Carolina v. Catawba Indian Tribe, Inc. 476 U.S. 498,
506 (1986) (“The canon of construction regarding the resolution of
ambiguities in favor of Indians . . . does not permit reliance on ambigui-
ties that do not exist . . .””); Oregon Department of Fish and Wildlife v.
Klamath Indian Tribe, 473 U.S. 753, 774 (1985) (“courts cennot ignore
plain language that, viewed in historical context and given a ‘fair ap-
praisal,’ . . . clearly runs counter to a tribe’s later claims’’); DeCoteau v.
District County Court for the Tenth Judicial District, 420 U.S. 425, 447
(1975) (“A canon of construction is not a license to disregard clear
expressions of tribal and congressional intent’’); Northwestern Bands of
Shoshone Indians v. United States, 324 U.S. 335, 353 (1945) (in constru-
ing a treaty, “[w]e stop short of varying its terms to meet alleged injus-
tices”); United States v. Choctaw Nation, 179 U.S. at 535-536, 538, 541.
24See also Atlas of Great Lakes Indian History, p. 146 (H. Tanner ed.
1987) (“In northern Wisconsin and western Upper Peninsula Michigan”
in the mid-19th century, “Ojibwa numbering about 3,800 were distrib-
uted among . . . 35 principal locations in the subject area”).
Se
25
locations,” and “‘coloniz[e] them from their scattered localities”
onto the designated reservations. (See pages 6-7 and 17-19 above.)
It is the Sokaogon that is seeking to be treated unlike other treaty
signatories—not the other way around. See also the Court of
Appeals’ analysis of the negotiating history at App. 8.25
The Sokaogon’s “treaty understanding” and “‘lost reservation”
arguments cannot prevail in the face of the plain treaty language
and the massive historical record “taken as a whole.” Matsushita,
475 U.S. at 587. To begin with, the whole foundation of these
arguments is the contention—first advanced by Chiefs Me-gee-see
and Ne-gig in 1869—that Commissioner Manypenny had in-
duced them to sign the 1854 treaty through oral assurances that
they would receive their own reservation “in the vicinity of Post
Lake.” (Findings §{ 91-93, 156.) This could not possibly have
happened because, as an examination of the negotiating records
and Manypenny’s office files reveals, Manypenny was not even
present at La Pointe for the treaty talks. (/d. § 157; see also App.
6, 49.)6
*5The Sokaogon thinks it significant that the Post Lake bands were
not separately designated as such in the 1854 treaty, as they had been in
the 1842 treaty (sub nom. “Lake Bands’’), but instead were grouped
with others under the “Lac Du Flambeau Band” sub-heading. (Pet. 6,
9, 15-16.) The same thing can be said of many other Chippewa bands
separately identified in the 1842 treaty but grouped together with other
bands in the 1854 treaty, including the “Wisconsin River,” “St. Croix,”
“Chippewa River,” “Snake River,” “Mille Lac,” “Po ke gom maw,”
“Red Ceder Lake,” “Gull Lake,” “Sandy Lake,” and “Crow-wing Riv-
er” bands. Under the Sokaogon’s logic, these bands also would be ex-
empt from the 1854 treaty’s extinguishment of the Chippewas’ “rights
of occupancy per se.” The much more natural construction is to read
the 1854 treaty as having grouped the various bands together according
to the reservations upon which they were expected to live in the future.
**Manypenny and Me-gee-see did meet after the treaty had been rati-
fied, during the 1855 annuity distribution in La Pointe. According to an
observer, Me-gee-see complained “that his band were unprovided for,
and without any right of location upon any of the reservations”: in
response, Manypenny “directed him to come to his office after council:
what was done we did not learn.” (Findings { 173, emphasis added.) The
(Footnote continued on following page)
|
a ie
26
Moreover, although the Post Lake bands sometimes claimed to
have the “understanding” that they were entitled to their own
reservation, at other times they clearly expressed the “under-
standing” that they did have rights on the residual “‘catch-all”’
reserves. See page 7 above; App. 7, 26-27, 62. One petition, for
example—signed by 17 of the bands’ elders and written after they
had heard that the LDF reservation might be sold—unambigu-
ously asserted:
“We do not want to move to the Lake Flambeau reservation
to which we were apportioned by the treaty of 1854.... At
the same time, we do not want to give up our interests in the
Lake Flambeau reservation, if it should be sold, as by that
treaty of 1854 we are numbered in with the Lake Flambeau
Indians.”” (R. 95, pp. 1455-1456; see also Findings {{ 24,
199.)
As the Court of Appeals emphasized, “(t]he oral tradition of a
promised reservation is not evidence, that is, evidence admissible
in a court of law, which is what Fed. R. Civ. P. 56 explicitly
requires in order to create a triable issue.” (App. 12, emphasis in
original.) The treaty is not simply another piece of evidence to be
balanced on a scale against oral legends and speculative infer-
ences. It is the controlling law. To be sure, admissible evidence
may be used in construing ambiguities in treaty language, and
(Footnote continued from previous page)
Sokaogon argued below that the fact that Manypenny decided to discuss
the matter in “private discussion” with Me-gee-see rather than debate it
in front of the other chiefs shows that Me-gee-see’s remark must have
had “‘serious” merit. (Sok. Seventh Cir. Br. 18 n.7.)
This is nothing more than rank speculation and conjecture. The same
observer wrote that Me-gee-see “was not well spoken of by his neigh-
bors” and that Ne-gig “was considered a great rascal”; perhaps
Manypenny simply did not want to spend time during his meeting with
the entire council discussing these particular chiefs’ alleged grievances.
(Findings § 173.) There is certainly no plausible basis to speculate that
Manypenny might have told Me-gee-see in “private discussion” that the
treaty Me-gee-see had signed just the previous year did not mean what
it said. (See id. {{ 174-179.) And even if he had, Me-gee-see obviously
could not have signed the treaty in 1854 in reliance on a “private dis-
cussion” with Manypenny that had not yet taken place.
27
uncertainties should be resolved in the Native Americans’ favor
——“‘within the bounds of reason of course.” (App. 10.) But as the
Court of Appeals concluded, here the relevant treaty terms are
“unambiguous” and provide “no textual handle” for the
Sokaogon’s claims. (App. 7, 9.)
3. The Post Lake Bands’ Refusal To Remove To A
Reservation, And The Federal Government’s Decision
Not To Use Force Against Them, Did Not “Revive”
Their Previous “Occupancy Rights.”
The Sokaogon asserts that the Court of Appeals concluded
that, even if the Post Lake bands received no reservation rights
anywhere under the 1854 treaty, they still lost their 1842 treaty
occupancy rights because they neglected over the years to make
“explicit statements” of belief that their 1842 rights remained in
effect. (Pet. 17; see generally id. at 16-19.) The court below did
no such thing. Although it made the accurate factual observation
that the Sokaogon’s post-1854 petitions and claims did not invoke
the 1842 treaty, see App. 13-14, nowhere in its decision did it ever
suggest that this was a controlling consideration.
Nor did the court anywhere hold that the Sokaogon’s 1842
treaty occupancy rights were extinguished even if “the Post Lake
Band was not provided with a reservation under the 1854 treaty.”
(Pet. 17.) To the contrary, the court made clear at the outset that
it was assuming, solely for the sake of decision, that the 1842
treaty Occupancy rights survive intact to this day unless those
rights were “surrendered” through the 1854 treaty. (App. 2-3.)
The rest of the decision was devoted to demonstrating that this
was precisely what had happened. The very paragraph containing
the “explicit statement” language that the Sokaogon now criti-
cizes concludes that the 1842 treaty occupancy rights were extin-
guished, not because of the Sokaogon’s failure to make “explicit
Statements,”” but because “reservations in which the Sokaogon
had rights of occupancy were created” under the 1854 treaty.
(App. 14.)
28
The Sokaogon also finds significance in the fact that the Post Lake
bands remained in the area in the decades! following the 1854
treaty, and asserts that “the United States did not seek to remove
them” during this time. (Pet. 19 n.4.) The latter contention is
false. Federal Indian agents repeatedly characterized these bands
during the 1860s and 1870s as falling within the “other Wisconsin
bands” provision in Article 2, § 3 of the 1854 treaty, and as there-
fore having rights on the LDF or LCO reserves, not in the subject
territory. (See especially the field reports quoted in Findings
"{ 184, 188, 193, 195.) The Mackinac Indian Agency sometimes
sought as a matter of convenience to remove the Post Lake Chip-
pewa to the L’Anse Reservation since they had been transferred
at their own request to that agency’s jurisdiction, but that agency
likewise emphasized that they had no right to remain where they
were and that they properly fell within “the terms of the treaty of
September 30, 1854 3d clause, article 2d.” (/d. 4 188; see also page
10 and note 13 above.) The Post Lake Chippewa were consistently
viewed as “a strageling [sic] portion of the Tribe that ha[d] wan-
dered off’ and “refuse[d] to leave their old homes.” (Findings
"{ 188, 198.)
This also was the view of the Office of Indian Affairs, which
twice rejected the Post Lake Chippewas’ requests for their own
separate reservation—once in 1864 and again in 1880. (/d. "{ 89,
190, 199-200.) That agency unambiguously held that they fell
within the “other Wisconsin bands” provision in Article 2, § 3;
that they belonged on the LDF reservation but “have without
authority, seen proper to isolate themselves from their brethren’”’;
that they were required under the treaty to “betake themselves to
the reservation provided for them”’; and that “[t]his Department
is bound to respect the treaty as it finds it and can recognize no
other reservation than that specified.” (Findings § 200, emphasis
added.) This construction of the 1854 treaty by the executive
department charged with its implementation is entitled to “great
weight.” Dennison v. Topeka Chambers Industrial Development
Corp., 527 F. Supp. 611, 622 (D. Kan. 1981), aff'd, 724 F.2d 869
(CA10 1984); see also Russ v. Wilkins, 624 F.2d 914, 922-923
(CA9), cert. denied, 451 U.S. 908 (1981).
29
Subsequent official investigations during the early 20th century
simply reconfirmed, in the words of the Office of Indian Affairs,
that “[t]he so-called lost band of Chippewa Indians of Wisconsin”’
had “refused to remove to the Lac du Flambeau Reservation”’;
they had “not received allotments [of land] because of their re-
fusal to remove to the reservation set apart for their band.” (Find-
ings {| 240.) The Solicitor of the Department of the Interior like-
wise concluded from his investigation that these Native Ameri-
cans were landless because they had “persisted in their refusal to
be located upon the reservations of other Chippewa in Wiscon-
sin.” Ud. 4 243.)
The federal government’s decision for practical and humanitar-
ian reasons not to inflict a forced removal creates no inference
whatsoever that the Post Lake bands had continuing 1842 treaty
occupancy rights in the disputed area. As the Court of Appeals
emphasized, while
“the government decided not to use force against the Post
Lake bands . . . it never acknowledged their right either to
remain where they were living or to have a reservation cre-
ated specially for them. It took the position that they were
bound by the 1854 treaty, that the government had per-
formed its treaty obligations to them by creating reservations
that they had a right to occupy, and that they were merely
squatters on the land on which they continued to live.” (App.
6-7.)
See Healing v. Jones, 210 F. Supp. 125, 147-148 (D. Ariz. 1962),
aff'd, 373 U.S. 758 (1963); see also id. at 174 (“Actual use and
occupancy of land, without more, has no connotation of rightful
possession. A trespasser may have actual use and occupancy of
land”’). See generally United States v. Southern Ute Tribe, 402 U.S.
159, 169, 171 (1971) (re interpretation of bilateral agreement in-
corporated into statute) (“We do not doubt that the Southern
Utes regarded the lands they occupied as ‘our reservation,’ but we
fail to see how this nullifies . . . [the] cogent evidence that the
United States totally rejected the Indians’ claim that the strip was
‘our reservation’ ”’); Confederated Bands of Ute Indians vy. United
States, 330 U.S. 169, 180 (1947) (“We cannot, under any accept-
30
able rule of interpretation, hold that the Indians owned the lands
merely because they thought so’’).?’
CONCLUSION
For all of the foregoing reasons, the respondent Exxon Corpo-
ration respectfully submits that the petition for a writ of certiorari
should be denied.
Dated this 22nd day of February, 1994.
Respectfully submitted,
*CHARLES G. CURTIS, JR.
FoLey & LARDNER
One South Pinckney Street
Madison, Wisconsin 53701-1497
(608) 257-5035
DAVID E. BECKWITH
DAVID LUCEY
FOLEY & LARDNER
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
(414) 271-2400
*Counsel of Record
Attorneys for Respondent
Exxon Corporation
27The 140-year-old “lost reservation” dispute has fundamentally been
between the United States and the Sokaogon, not innocent third parties
like Exxon. The federal government has consistently rejected the
Sokaogon’s claim through the generations, and it granted the subject
territory to white settlers as “‘vacant and unappropriated lands” that had
been found “to be free from conflict.” (Findings { 208; see generally id.
{{ 162-243.) Thus, even if the government broke an unwritten promise
to the Sokaogon, the remedy at this late date would be for damages
against the United States, not for the seizure of lands held by innocent
third parties. See United States v. Creek Nation, 295 U.S. 103, 110-111
(1935); Yankton Sioux Tribe v. United States, 272 U.S. 351, 357, 359
(1926); Navajo Tribe v. New Mexico, 809 F.2d 1455, 1467 (CA10 1987);
Confederated Salish & Kootenai Tribes v. United States, 185 Ct. Cl. 421,
401 F.2d 785, 786 (1968), cert. denied, 393 U.S. 1055 (1969).
No. 93-1223
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1993
SOKAOGON CHIPPEWA COMMUNITY,
Petitioner,
Vv.
EXXON CORPORATION, a corporation
chartered in the State of New Jersey;
STATE OF WISCONSIN; FOREST COUNTY,
a political subdivision of the State of Wisconsin;
LANGLADE COUNTY, a political subdivision
of the State of Wisconsin; and ONEIDA COUNTY,
a political subdivision of the State of Wisconsin,
Respondents.
On Petition For A Writ Of Certiorari To The
United States Court of Appeals
For The Seventh Circuit
SUPPLEMENTAL APPENDIX TO
RESPONDENT EXXON CORPORATION’S
BRIEF IN OPPOSITION
i
SUPPLEMENTAL APPENDIX
TABLE OF CONTENTS
Document Page
Illustration 1: Location of “Subject Territory.” (Source:
adapted from Figure 1-1 of Wisconsin Department of
Natural Resources, Final Environmental Impact State-
ment, Exxon Coal and Minerals Co. Zinc-Copper Mine,
Crandon, Wisconsin (November 1986).............. A-l
Illustration 2: The Two “Lost Reservations” Claimed In
This Litigation. (Source: Full description in caption of
Tee cbs eceseseecovereecoccces A-2
Illustration 3: Wisconsin Indian Cessions To United
States. (Source: Eighteenth Annual Report of the Bu-
reau of American Ethnology to the Secretary of the
Smithsonian Institution, 1896-97, J.W. Powell, Direc-
tor, Part 2, reprinted as H.R. Doc. 736, 56th Cong., Ist
CCC eh Cee ceceseverececccccccecs A-3
Illustration 4: Reservations Created Pursuant To 1854
Treaty. (Source: Full citation in caption of illustra-
PPT UCE Eee et eUdSeaeeecoereseoccceeccccces A-4
Treaty with the Chippewa of October 4, 1842, 7Stat.591. A-5
Treaty with the Chippewa of September 30, 1854, 10 Stat.
iii ee CPPCC EES eebensceceecscccccces A-9
LOCATION OF "SUBJECT TERRITORY"
AREA CLAIMED BY SOKAOGON SHOWN
IN HEAVY RED LINE
SOURCE: Adapted from Wisconsin DNR,
Figure 1-1 (1986).
(Pull cite and record source
in the Table of Contents to
this Supplemental Appendix. )
WISCONSIN
THE TWO *LOST
“-“<=——>
‘ed
—~ *
-
alt ©
‘
=
jt
t
4
Me
“%
- =<
aa
—_—
ILLUSTRATION 2
RESERVATIONS" CLAIMED IN THIS LITIGATION
The black-and-white portion of this Illustration is a copy
f the map attached to the Sokaogon'’s original June * 1986
meplaint See FR. i The reservation claimed in that
complaint is shaded in yellow The reservation claimed in
the Second Amended Complaint is shaded in blue, corresponding
to the map produced by the Sokaogon in 198 See FP 94, pr
is The location of Exxon's orebody is shown by the red
star (Record source in the Table of ntents ¢t this
Supp iepenta)
Appendix
a eee om oe
WISCONSIN INDIAN CESSIONS TO UNITED STATES
SOURCE Bureau of American Ethnology, i896-9
(Pull cite and record source in the Table
of Contents to this
Supplementa) Appendix
LL... = i
YY MN
oct
ILLUSTRATION 4
RESERVATIONS CREATED PURSUANT TO 1854 TREATY
SOURCE E. Danziger, “They Would Not Be Moved
The Chippewa Treaty of 1854," 4)
175-185 (1973)
(Record source in the Table of Contents
to thie Supplemental Appendix.)
A-5
TREATY WITH THE CHIPPEWA OF OCTOBER 4, 1842
7 STAT, 591
Articles of a treaty made and concluded at La Pointe of Lake
Superior, in the Territory of Wiscensin, between Robert Stuart
commissioner on the part of the United States, and the Chippewa
Indians of the Mississippi, and Lake Superior, by their chiefs
and headmen.
ARTICLE I.
THE Chippewa Indians of the Mississippi and Lake Superior,
cede to the United States all the country within the following
bounderies; viz: beginning at the mouth of Chocolate river of
Lake Superior; thence northwardly across said lake to intersect
the boundery line between the United States and the Province of
Canada; thence up said Lake Superior, to the mouth of the St.
Louis, or Fond du Lac river (including all the islands in said
lake); thence up said river to the American Fur Company’s trad-
ing post, at the southwardly bend thereof, about 22 miles from
its mouth; thence south to intersect the line of the treaty of 29th
July 1837, with the Chippewas of the Mississippi; thence along
said line to its southeastwardly extremity, near the Plover portage
on the Wisconsin river; thence northeastwardly, along the
boundery line, between the Chippewas and Menomonees, to its
eastern termination, (established by the treaty held with the Chip-
pewas, Menomonees, and Winnebagoes, at Butte des Morts, Au-
gust llth 1827) on the Skonawby river of Green Bay; thence
northwardly to the source of Chocolate river: thence down said
river to its mouth, the place of beginning; it being the intention
of the parties to this treaty, to include in this cession, all the
Chippewa lands eastwardly of the aforesaid line running from the
American Fur Company's trading post on the Fond du Lac river
to the intersection of the line of the treaty made with the Chippe-
was of the Mississippi July 29th 1837.
A-6
ARTICLE IL.
The Indians stipulate for the mght of hunting on the ceded
territory, with the other usual privileges of occupancy, until re-
quired to remove by the President of the United States, and that
the laws of the United States shall be continued in force, in re-
spect to their trade and inter course with the whites, until other-
wise ordered by Congress.
ArTicLe TL.
It is agreed by the parties to this treaty, that whenever the
Indians shall be required to remove from the ceded district, all
the unceded lands belonging to the Indians of Fond du Lac,
Sandy Lake, and Mississippi bands, shall be the common prop-
erty and home of all the Indians, party to this treaty.
ARTICLE IV.
In consideration of the foregoing cession, the United States,
engage to pay to the Chippewa Indians of the Mississippi, and
Lake Superior, annually, for twenty-five years, twelve thousand
five hundred (12,500) dollars, in specie, ten thousand five hun-
dred (10,500) dollars in goods, two thousand (2,000) dollars in
provisions and tobacco, two thousand (2,000) dollars for the sup-
port of two blacksmiths shops, (including pay of smiths and as-
sistants, and iron steel &c.) one thousand (1,000% dollars for pay
of two farmers, twelve hundred (1,200) for pay of two carpenters,
and two thousand (2,000) dollars for the support of schools for
the Indians party to this treaty; and further the United States
engage to pay the sum of five thousand (5,000) dollars as an
agricultural fund, to be expended under the direction of the Sec-
retary of War. And also the sum of seventy-five thousand (75,000)
dollars, shall be allowed for the full satisfaction of their debts
within the ceded district, which shall be examined by the com-
missioner to this treaty, and the amount to be allowed decided
upon by him, which shall appear in a schedule hereunto annexed.
The United States shall pay the amount so allowed within three
vears.
A-7
Whereas the Indians have expressed a strong desire to have
some provision made for their half breed relatives, therefore it is
agreed, that fifteen thousand (15,000) dollars shall be paid to said
Indians, next year, as a present, to be disposed of, as they, to-
gether with their agent, shall determine in council.
ARTICLE V.
Whereas the whole country between Lake Superior and the
Mississippi, has always been understood as belonging in common
to the Chippewas, party to this treaty; and whereas the bands
bordering on Lake Superior, have not been allowed to participate
in the annuity payments of the treaty made with the Chippewas
of the Mississippi, at St. Peters July 29th 1837, and whereas all
the unceded lands belonging to the aforesaid Indians, are hereaf-
ter to be held in common, therefore, to remove all occasion for
jealousy and discontent, it is agreed that all the annuity due by
the said treaty, as also the annuity due by the present treaty, shall
henceforth be equally divided among the Chippewas of the Mis-
sissippi and Lake Superior, party to this treaty, so that every
person shall receive an equal share.
ARTICLE VI.
The Indians residing on the Mineral district, shall be subject
to removal therefrom at the pleasure of the President of the
United States.
ARTICLE VII.
This treaty shall be obligatory upon the contracting parties
when ratified by the President and Senate of the United States.
In testimony whereof the said Robert Stuart commissioner, on
the part of the United States, and the chiefs and headmen of the
Chippewa Indians of the Mississippi and Lake Superior, have
hereunto set their hands, at La Pointe of Lake Superior, Wiscon-
sin Territory this fourth day of October in the year of our Lord
one thousand eight hundred and forty-two.
Robert Stuart, Commissioner.
Jno. Hulbert, Secretary
A-%
Crow wing River, Po go ne gi shik, Ist chief
Do Son go com ick, 2d do
Sandy Lake, Ka non do ur uin 70, Ist do
Do Na tum e gaw bon, 2d do
Ciull Lake, Ua bo jig, Ist do
Do Pay pe si gon de bay, 2d do
Red Ceder Lake, Kui ut sen shis, Ist do
Do Ott taw wance, 2d do
Po ke gom maw, Bai te jig, Ist do
- Do Show ne aw, 2d do
Wisconsin River, Ki ven 71, Ist do
Do Wi aw bis ke kut te way, 2d do
Lac de Flambeau, A ptsh ka go gi, Ist do
Do May tock cus e quay, 2d do
Do She maw gon e. 2d do
Lake Bands, Ki ji ua be she shi, Ist do
Do Ke kon © tum, 2d do
Fon du Lac, Shin goob, Ist do
Do Na gan nab, 2d do
Do Mong © zet, 2d do
La Pointe, Cntchi watsky, Ist do
Do Mi “1, 2d do
Do Ta qua gone e, 2d do
Onlonagan, O kon di kan, Ist do
Do Kis ke taw wac, 2d do
Ance, Pe na shi, Ist do
Do Giuck we san sish, 2d do
Vieux Desert, Ka she osh e, Ist do
Do Medge waw gwaw wot, 2d do
Mille Lac, Ne qua ne be, Ist do
Do Ua shash ko kum, 2d do
Do No din, 2d do
St. Croix, Be zhi ki, Ist do
Do Ka bi na be, 2d do
Do Ai aw bens, 2d do
Snake River, Sha go bi, Ist do
Chippewa River, Ua be she shi, Ist do
~~ Que way zhan sis, 2d do
F Lac Courtulle, Ne na nang eb, Ist do
Do Be bo kon uen, 2d do
Do Ki uen Zi, 2d do
In presence of—
Henry Blanchford, interpreter Z. Platt
C. H. Beauheau
L. T. Jamison
James P. Scott
Cyrus Mendenhall
L. M. Warren
Samuel Ashmun, interpreter
Justin Rice.
Charles H. Oakes
William A. Artkin
William Brewster
Charles M. Borup
(To the Indian names are subjoined marks. }
A-9
TREATY WITH THE CHIPPEWA OF
SEPTEMBER 30, 1854
10 STAT. 1109
Articles of a treaty made and concluded at La Pointe, in the State
of Wisconsin, between Henry C. Gilbert and David B. Herriman,
commissioners on the part of the United States, and the Chip-
pewa Indians of Lake Superior and the Mississippi, by their
chiefs and head-men.
ARTICLE 1. The Chippewas of Lake Superior hereby cede to
the United States all the lands heretofore owned by them in com-
mon with the Chippewas of the Mississippi, lying east of the
following boundary-line, to wit: Beginning at a point, where the
east branch of Snake River crosses the southern boundary-line of
the Chippewa country, running thence up the said branch to its
source, thence nearly north, in a straight line, to the mouth of
East Savannah River, thence up the St. Louis River to the mouth
of East Swan River, thence up the East Swan River to its source,
thence in a straight line to the most westerly bend of Vermillion
River, and thence down the Vermillion River to its mouth.
The Chippewas of the Mississippi hereby assent and agree to
the foregoing cession, and consent that the whole amount of the
consideration money for the country ceded above, shall be paid
to the Chippewas of Lake Superior, and in consideration thereof
the Chippewas of Lake Superior hereby relinquish to the Chippe-
was of the Mississippi, all their interest in and claim to the lands
heretofore owned by them in common, lying west of the above
boundry-line.
ARTICLE 2. The United States agree to set apart and withhold
from sale, for the use of the Chippewas of Lake Superior, the
following-described tracts of land, viz:
Ist. For the L’Anse and Vieux De Sert bands, all the unsold
lands in the following townships in the State of Michigan: Town-
ship fifty-one north range thirty-three west; township fifty-one
A-10
north range thirty-two west; the east half of township fifty north
range thirty-three west; the west half of township fifty north
range thirty-two west, and all of township fifty-one north range
thirty-one west, lying west of Huron Bay.
2d. For the La Pointe band, and such other Indians as may see
fit to settle with them, a tract of land bounded as follows: Begin-
ning on the south shore of Lake Superior, a few miles west of
Montreal River, at the mouth of a creek called by the Indians Ke-
che-se-be-we-she, running thence south to a line drawn east and
west through the centre of township forty-seven north, thence
west to the west line of said township, thence south to the south-
east corner of township forty-six north, range thirty-two west,
thence west the width of two townships, thence north the width
of two townships, thence west one mile, thence north to the lake
shore, and thence along the lake shore, crossing Shag-waw-me-
quon Point, to the place of beginning. Also two hundred acres on
the northern extremity of Madeline Island, for a fishing ground.
3d. For the other Wisconsin bands, a tract of land lying about
Lac De Flambeau, and another tract on Lac Court Orielles, each
equal in extent to three townships, the boundaries of which shall
be hereafter agreed upon or fixed under the direction of the Pres-
ident.
4th. For the Fond Du Lac bands, a tract of land bounded as
follows: Beginning at an island in the St. Louis River, above Knife
Portage, called by the Indians Paw-paw-sco-me-me-tig, running
thence west to the boundary-line heretofore described, thence
north along said boundary-line to the mouth of Savannah River,
thence down the St. Louis River to the place of beginning. And if
said tract shall contain less than one hundred thousand acres, a
strip of land shall be added on the south side thereof, large
enough to equal such deficiency.
5th. For the Grand Portage band, a tract of land bounded as
follows: Beginning at a rock a little east of the eastern extremity
Me tA aac
a ere ee ae Eee eee Be Bee
A-11
of Grand Portage Bay, running thence along the lake shore to the
mouth of a small stream called by the Indians Maw-ske-gwaw-
caw-maw-se-be, or Cranberry Marsh River, thence up said
stream, across the point to Pigeon River, thence down Pigeon
River to a point opposite the starting-point, and thence across to
the place of beginning. .
6th. The Ontonagon band and that subdivision of the La Pointe
band of which Buffalo 1s chief, may each select, on or near the
lake shore, four sections of land, under the direction of the Presi-
dent, the boundaries of which shall be defined hereafter. And
being desirous to provide for some of his connections who have
rendered his people important services, it is agreed that the chief
Buffalo may select one section of land, at such place in the ceded
territory as he may see fit, which shall be reserved for that pur-
pose, and conveyed by the United States to such person or per-
sons as he may direct.
7th. Each head of a family, or single person over twenty-one
years of age at the present time of the mixed bloods, belonging to
the Chippewas of Lake Superior, shall be entitled to eighty acres
of land, to be selected by them under the direction of the Presi-
dent, and which shall be secured to them by patent in the usual
form.
ARTICLE 3. The United States will define the boundaries of the
reserved tracts, whenever it may be necessary, by actual survey,
and the President may, from time to time, at his discretion, cause
the whole to be surveyed, and may assign to each head of a family
or single person over twenty-one years of age, eighty acres of land
for his or their separate use; and he may, at his discretion, as fast
as the occupants become capable of transacting their own affairs,
issue patents therefor to such occupants, with such restrictions of
the power of alienation as he may see fit to impose. And he may
also, at his discretion, make rules and regulations, respecting the
disposition of the lands in case of the death of the head of a
A-12
family, or single person occupying the same, or in case of its
abandonment by them. And he may also assign other lands in
exchange for mineral lands, if any such are found in the tracts
herein set apart. And he may also make such changes in the
boundaries of such reserved tracts or otherwise, as shall be neces-
sary to prevent interference with any vested rights. All necessary
roads, highways, and railroads, the lines of which may run
through any of the reserved tracts, shall have the right of way
through the same, compensation being made therefor as in other
Cases.
ARTICLE 4. In consideration of and payment for the country
hereby ceded, the United States agree to pay to the Chippewas of
Lake Superior, annually, for the term of twenty years, the follow-
ing sums to wit: five thousands dollars in coin; eight thousand
dollars in goods, household furniture and cooking utensils; three
thousand dollars in agricultural implements and cattle, carpen-
ter’s and other tools and building materials, and three thousand
dollars for moral and educational purposes, of which last sum,
three hundred dollars per annum shall be paid to the Grand
Portage band, to enable them to maintain a school at their village.
The United States will also pay the further sum of ninety thou-
sand dollars, as the chiefs in open council may direct, to enable
them to meet their present just engagements. Also the further
sum of six thousand dollars, in agricultural implements, house-
hold furniture, and cooking utensils, to be distributed at the next
annuity payment, among the mixed bloods of said nation. The
United States will also furnish two hundred guns, one hundred
rifles, five hundred beaver-traps, three hundred dollars’ worth of
ammunition, and one thousand dollars’ worth of ready-made
clothing, to be distributed among the young men of the nation, at
the next annuity payment. |
ARTICLE 5. The United States will also furnish a blacksmith
and assistant, with the usual amount of stock, during the contin-
uance of the annuity payments, and as much longer as the Presi-
oe nb eT Aes
A-13
dent may think proper, at each of the points herein set apart for
the residence of the Indians, the same to be in lieu of all the
employees to which the Chippewas of Lake Superior may be -
entitled under previous existing treaties.
ARTICLE 6. The annuities of the Indians shall not be taken to
pay the debts of individuals, but satisfaction for depredations
committed by them shall be made by them in such manner as the
President may direct.
ARTICLE 7. No spirituous liquors shall be made, sold, or used
on any of the lands herein set apart for the residence of the
Indians, and the sale of the same shall be prohibited in the Terri-
tory hereby ceded, until otherwise ordered by the President.
ARTICLE 8. It is agreed, between the Chippewas of Lake Supe-
rior and the Chippewas of the Mississippi, that the former shall
be entitled to two-thirds, and the latter to one-third, of all benefits
to be derived from former treaties existing prior to the year 1847.
ARTICLE 9. The United States agree that an examination shall
be made, and all sums that may be found equitably due to the
Indians, for arrearages of annuity or other thing, under the pro-
visions of former treaties, shall be paid as the chiefs may direct.
ARTICLE 10. All missionaries, and teachers, and other persons
of full age, residing in the territory hereby ceded, or upon any of
the reservations hereby made by authority of law, shall be allowed
to enter the land occupied by them at the minimum price when-
ever the surveys shall be completed to the amount of one quarter-
section each.
ARTICLE 11. All annuity payments to the Chippewas of Lake
Superior, shall hereafter be made at L’Anse, La Pointe, Grand
Portage, and on the St. Louis River; and the Indians shall not be
required to remove from the homes hereby set apart for them.
And such of them as reside in the terntory hereby ceded, shall
A-14
have the nght to hunt and fish therein, until otherwise ordered
by the President.
ARTICLE 12. In consideration of the poverty of the Bois Forte
Indians who are parties to this treaty, they having never received
any annuity payments, and of the great extent of that part of the
ceded country owned exclusively by them, the following addi-
tional stipulations are made for their benefit. The United States
will pay the sum of ten thousand dollars, as their chiefs in open
council may direct, to enable them to meet their present just
engagements. Also the further sum of ten thousand dollars, in five
equal annual payments, in blankets, cloth, nets, guns, ammuni-
tion, and such other articles of necessity as they may require.
They shall have the right to select their reservation at any time
hereafter, under the direction of the President; and the same may
be equal in extent, in proportion to their numbers, to those al-
lowed the other bands, and be subject to the same provisions.
They shall be allowed a blacksmith, and the usual smithshop
supplies, and also two persons to instruct them in farming, when-
ever in the opinion of the President it shall be proper, and for
such length of time as he shall direct.
It is understood that all Indians who are parties to this treaty,
except the Chippewas of the Mississippi, shall hereafter be known
as the Chippewas of Lake Superior. Provided, That the stipulation
by which the Chippewas of Lake Superior relinquishing their
right to land west of the boundary-line shall not apply to the Bois
Forte band who are parties to this treaty.
ARTICLE 13. This treaty shall be obligatory on the contracting
parties, as soon as the same shall be ratified by the President and
Senate of the United States.
In testimony whereof, the said Henry C. Gilbert, and the said
David B. Herriman, commissioners as aforesaid, and the under-
ore ek ae |
a arn Seer eT eT
A-15
signed chiefs and headmen of the Chippewas of Lake Superior
and the Mississippi, have hereunto set their hands and seals, at
the place aforesaid, this thirtieth day of September, one thousand
eight hundred and fifty-four.
Richard M. Smith, Secretary.
La Pointe Band
Ke-che-waish-ke, or the Buffalo, Ist
chief, his x mark {i. s.}
Chay-che-que-oh, 2d chief, his x
mark fi. s]
A-daw-we-ge-zhick, or Each Side of
the sky, 2d chief, his x mark. [i. SJ
O-ske-naw-way, or the Youth, 2d
chief, his x mark {ir. s.J
Maw-caw-day-pe-nay-se, or the
Black Bird, 2d chief, his x mark. [1. s.}
Naw-waw-naw-quot, headman, his x
mark {i s.J
Ke-wain-zeence, headman, his x
mark fi. $.J
Waw-baw-ne-me-ke, or the White
Thunder, 2d chief, his x mark. [1. $.]
Pay-baw-me-say, or the Soarer, 2d
chief, his x mark. fi. s.J
Naw-waw-ge-waw-nose, or the Little
Current, 2d chief, his x mark. [1. $]
Maw-caw-day-waw-quot, or the
Black Cloud, 2d chief, his x
mark {i. s.]
Me-she-naw-way, or the Disciple, 2d
chief, his x mark {i. s.]
Key-me-waw-naw-um, headman, his
x mark Ls]
She-gog headman, his x mark. Ls]
Ontonagon Band:
O-cun-de-cun, or the Buoy, Ist chief,
his x mark {i. s.]
Waw-say-ge-zhick, or the Clear Sky,
2d chief, his x mark {i. s.J
Keesh-ke-taw-wug, headman, his x
mark (i. s]
L'Anse Band
David King, Ist chief, his x mark. [L. s.]
John Southwind, headman, his x
mark {r. s.]
Peter Marksman, headman, his x
mark. {t. s.]
Naw-taw-me-ge-zhick, or the First
Sky, 2d chief, his x mark. 3 |
Aw-se-neece, headman, his x mark. |L. S.
Vieux De Sert Band
May-dway-aw-she, Ist chief, his x
mark. {L. s.]
Henry C. Gilbert,
David B. Herriman,
Commissioners.
Posh-quay-gin, or the Leather, 2d
chief, his x mark {1
Grand Portage Band
Shaw-gaw-naw-sheence, or the Little
Englishman, Ist chief, his x
mark {i
May-mosh-caw-wosh, headman, his
x mark {i
Aw-de-konse, or the Little Reindeer,
2d chief, his x mark {ir
Way-we-ge-wam, headman, his «x
mark {i
Fond Du Lac Band
Shing-goope, or the Balsom, Ist
chief, his x mark {i
Mawn-go-sit, or the Loon’s Foot, 2d
chief, his x mark. {i
May-quaw-me-we-ge-zhick, head-
man, his x mark. 1
Keesh-kawk, headman, his x mark. [i
Caw-taw-waw-be-day, headman, his
x mark.
O-saw-gee, headman, his x mark
Ke-che-aw-ke-wain-ze, headman, his
x mark. {1
Naw-gaw-nub, or the Foremost Sit-
ter, 2d chief, his x mark {I
Ain-ne-maw-sung, 2d chief, his x
mark. {i
Naw-aw-bun-way, headman, his x
mark. {i
Wain-ge-maw-tub, headman, his x
mark. {i
Aw-ke-wain-zeence, headman, his x
mark. {L.
Shay-way-be-nay-se, headman, his x
mark. }
Paw-pe-oh, headman, his x mark I
Lac Court Oreille Band es
Aw-ke-wain-ze, or the Old Man, Ist
chief, his x mark. {L.
Key-no-zhance, or the Little Jack
Fish, ist chief, his x mark. {1
Key-che-pe-nay-se, or the Big Bird,
2d chief, his x mark. {1
Ke-che-waw-be-shay-she, or the Big
Martin, 2d chief, his x mark. [I
A-16
Waw-be-shay-sheence, headman, his
x mark fis]
Quay-quay-cub, headman, his
mark {i s.]
Shaw-waw-no-me-tay, headman, his
x mark fi. 8]
Nay-naw-ong-gay-be, or the Dress-
ing Bird, Ist chief, his x mark [1.8]
O-zhaw-waw-sco-ge-zhick, or the
Blue Sky, 2d chief, his x mark [1.8]
I-yaw-banse, or the Little Buck, 2d
chief, his x mark fi. sj
Ke-che-e-nin-ne, headman, his x
mark {t. s]
Haw-daw-gaw-me, headman, his x
mark {i.s]
Way-me-te-go-she, headman, his x
mark fi. 8]
Pay-me-ge-wung, headman, his 4
mark {i 8]
Lac Du Flambeau Band
Aw-mo-se, or the Wasp, Ist chief, his
x mark 1.5
Ke-nish-te-no, 2d chief, his x mark. [1. §
Me-gee-see, or the Eagle, 2d chief,
his x mark {t. $s]
Kay-kay-co-gwaw-nay-aw-she, head-
man, his x mark ! s
O-che-chog, headman, his x mark. [L$
Nay-she-kay-gwaw-nay-be, head-
man, his x mark {u. s.]
O-scaw-bay-wis, or the Waiter, Ist
chief, his x mark {u. s.]
Que-we-zance, or the White Fish, 2d
chief, his x mark. {i. s.]
Ne-gig, or the Otter, 2d chief, his x
mark. [i. s.]
Nay-waw-che-ge-ghick-may-be,
headman, his x mark {i. s.]
Quay-quay-ke-cah, headman, his x
mark. {i. s.]
Bois Forte Band:
Kay-baish-caw-daw-way, or Clear
Round the Prairie, Ist chief, his
x mark. {u. s.]
Way-zaw-we-ge-zhick-way-sking,
headman, his x mark {..s]
Executed in the presence of —
Henry M. Rice,
J. W. Lynde,
G. D. Wilhams,
B. H. Connor,
E. W. Muldough,
Richard Godfroy,
O-saw-we-pe-nay-she, headman, his
x mark {1
The Mississipp: Bands
Que-we-san-se, or Hole in the Day,
head chief, his x mark {i
Caw-nawn-daw-waw-win-zo, or the
Berry Hunter, Ist chief, his x
matk {i
Waw-bow jeg, or the White Fisher,
20 chief, his x mark I
Ot-taw-waw, 2d chief, his x mark 1
Que-we-zhan-cis, or the Bad Boy, 2d
chief, his x mark {i
Bye-a-jick, or the Lone Man, 2d
chief, his x mark {i
l-yaw-shaw-way-ge-zhick, or the
Crossing Sky, 2d chief, his x
mark [i
Maw-caw-day, or the Bear's Heart,
2d chief, his x mark fi
Ke-way-de-no-go-nay-be, or the
Northern Feather, 2d chief, his
x mark {1
Me-squaw-dace, headman, his «x
mark. {1
Naw-gaw-ne-gaw-bo, headman, his x
mark {i
Wawm-be-de-yea, headman, his «x
mark L.s
Waiush-key, headman, his « mark .
Caw-way-caw-me-ge-skung, _head-
man, his x mark {i
My-yaw-ge-way-we-dunk, or the
One who carries the Voice, 2d
chief, his x mark {1
John F. Godfroy,
Geo. Johnston,
S. A. Marvin, |
Louis Codot,
Paul H. Beaulieu,
Henry Blatchford,
Peter Floy,
Interpreters
D. S. Cash,
H. H. McCullough,
E. Smith Lee,
Wm. E. Vantassel,
L. H. Wheeler
A-17
ADDENDUM TO RULE 29.1 LIST
EXXON CORPORATION
Affiliates and Subsidiaries—Not Wholly Owned
(February 1994)
151742 Canada Inc.
165550 Canada Limited
172965 Canada Limited
177003 Canada Inc.
2849518 Canada Limited
571269 Alberta Limited
571270 Alberta Limited
AGA Progas a.s
AT&S Exploration Ltd.
Abu Dhabi Petroleum Company Limited
Ace Polymer Co., Ltd.
Acquifund Resources Limited
Aditivos Orinoco, C.A.
Adria-Wien Pipeline Gesellschaft mit beschrankter Haftung
Advanced Elastomer Systems Do Brasil Ltda.
Advanced Elastomer Systems Japan Limited
Advanced Elastomer Systems Limited
Advanced Elastomer Systems Marketing Pte. Ltd.
Advanced Elastomer Systems NV/SA
Advanced Elastomer Systems Singapore Pte. Ltd.
Advanced Elastomer Systems, Canada, Inc.
Advanced Elastomer Systems, Inc.
Advanced Elastomer Systems, L.P.
Air Tankdienst Koeln GbR
Aircraft Fuel Supply B. V.
Al-Jubail Petrochemical Company
Alberta Products Pipe Line Ltd.
Alyeska Pipeline Service Company
oil —_
A-18
AquaAir Environmental, Inc.
Aramco Services Company
Asakawa Sekiyu K.K.
Awayi Gas Nenryo Kabushiki Kaisha
Azuma Sekiyu K.K.
B.W.O.C., Inc.
BEB Erdgas und Erdoel GmbH, Hannover
BRIGITTA Erdgas und Erdoel GmbH, Hannover
Bangkok Aviation Fuel Services Limited
Banshu Ekika Gas K.K.
Bayerische Erdoelleitung G.m.b.H.
Beaverhill Resources Limited
Brickwood Holdings Pty. Ltd.
Bryan Austin Chalk Operating Committee, Inc.
Bryan Woodbine Gathering, Inc.
Canadian Reserve Oil & Gas Ltd.
Cascade Fertilizers (1990) Limited
Castle Peak Power Company Limited
Changi Airport Fuel Hydrant Installation Pte. Ltd.
Changi Into-Plane Services (Pte) Ltd.
Chuo Sekiyu Hanbai K.K.
Clermont Coal Mines Limited
Comcor Chemicals Limited
Compagnie Industrielle des Polyethylenes de Normandie, GiE
Compania Minera Disputada de Las Condes S.A.
Comptoir Auxiliare du Petrole
Comptoir Oyonnaxien des Combustibles (C.O.C.)
Computer Centrum Groningen B.V.
Copim St. Lawrence Ltd.
Crandon Mining Company, a Wisconsin partnership
Cynthia Gas Gathering Company Limited
DFTG Deutsche Fluessigerdgas Terminal GmbH
Daihatsu Sekiyu K.K.
Daito Gas K.K.
Depot Petrolier du Gresivaudan
H
j
A-19
Depots Petroliers de la Corse
Depots de Petrole Cotiers
Deudan-Holding GmbH
Deutsche Advanced Elastomer Systems GmbH
Deutsche Erdgas Transport G.m.b.H.
Deutsche Transalpine Oelleitung G.m.b.H.
Devon Estates Limited
Dexco Polymers (General Partnership)
Disma S.r.1.
Dixie Pipeline Company
Dunbar Oil Ltd.
E S F Limited
ESSO OIL Tankstellen Gesellschaft m.b.H.
ETD Tankdienst Gesellschaft Duesseldorf GbR
Eagle Kenso K.K.
Eagle Reinsurance Co. Ltd.
East Texas Salt Water Disposal Company
Eiko Sekiyu K.K.
Elwerath Erdgas und Erdoel GmbH, Hannove,
Elwerath Erdoel und Erdgas AG
Emirates National Chemicals Company Ltd.
Emori Sekiyu K.K.
Emsland-Erdoelleitung G.m.b.H.
Emulsions de Feyzin
Emulsions du Dauphine
Energie Marketing Service GmbH
Enterprise Housing Partners 1992 Limited Partnership
Entrepot Petrolier de Mulhouse (E.P.M.)
Entrepot Petrolier de l’ Aveyron (E.P.A.)
Erdgas-Verkaufs-Gesellschaft m.b.H.
Erdoel-Raffinerie Deurag-Nerag GmbH
Esso (Overseas) Pension Trust Limited
Esso Energie G.I.E.
Esso Exploration and Production Angola Inc.
Esso Exploration and Production Ireland Limited
Esso Lub’ Services
a
A-20
Esso Malaysia Berhad
Esso Raffinage S.A.F.
Esso Resources Properties Inc.
Esso Societe Anonyme Francaise
Esso Standard Thailand Ltd.
Esso Standard Tunisie S. A.
Esso Technologies et Services (E.T.S.)
Etablissements Cloarec
Exxon Asset Funding Company
Exxon Asset Management Company
Exxon Chemical Asset Management Partnership
Exxon Chemical France
Exxon Chemical Paraffins Limited
Exxon Chemical Polymeres SNC
Exxon Mobile Bay Partnership
Exxon de Colombia S.A.
F.T. Giken Kabushiki Kaisha
Federated Pipe Lines Ltd.
Ferngas Nordbayern G.m.b.H.
Ferngas Salzgitter GmbH
Fernkaelte Geschaeftsstadt Nord G.b.R.
Flughafen Schwechat Hydranten-Gesellschaft
Fuji Kogyo K.K.
Full Cycle Plastics Pty. Ltd.
G16a (Groep) B.V.
Gasunie Engineering B.V.
Gasunie Warmte/Kracht Emmen B.V.
General Bussan K.K.
General Highway K.K.
General Petrochemical Industries Limited
General Sekiyu K.K.
General Sekiyu Okinawa Hanbai K.K.
General Sekiyu Overseas, Ltd.
General Shipping Co. Ltd.
General Unyu Kabushiki Kaisha
Geobutane - Lavera
Gewerkschaft Brassert Erdoel und Erdgas GmbH
Gewerkschaft Gute Hoffnung Erdgas und Erdoel GmbH
Gewerkschaft Kuechenberg Erdgas und Erdoel GmbH
Glen Park Gas Pipe Line Company Limited
Grande Ecaille Land Company, Inc.
Groupement Immobilier Petrolier
Groupement Petrolier Aviation
Groupement Petrolier de Nantes (G.P.N.)
Groupement Petrolier de Saint-Pierre des Corps (G.P.S.P.C.)
Groupement Petrolier de la Cote d’Azur
Groupement Petrolier du Finistere G.I.E.
Groupement Petrolier du Val-de-Marne (G.P.V.M.)
Groupement d’Exploitation du Depot de Reception de Chennevie
Guangzhou Esso Petroleum Service Company
Hambrecht & Quist Environmental Technology
Hamburger Gaswerke GmbH
Hannoversche Erdoelleitungs-G.m.b.H.
Hanshin K yowa Sekiyu K.K.
Heinrich Schneider Spedition GmbH
Hiroshima General Gas Juten Kabushiki Kaisha
Hoei Sekiyu K.K.
Hokkai Sanshi Co., Ltd. (Chemical)
Hokushin Bussan K.K.
Hokuyu Sekiyu K.K.
Hong Kong Pumped Storage Development Company, Limited
Houston Regional Monitoring Corporation
Hydrant Refuelling System, S.A.
Hydranten-Betriebs-Gesellschaft, G.b.R.
Hydrierwerke Poelitz Aktiengesellschaft
Imperial Oil (an Ontario Partnership)
Imperial Oil Limited/
Imperial Oil Resources Limited
Imperial Oil Resources N.W.T. Limited
Imperial Oil Resources Ventures Limited
A-22
Imiperial Oil Resources an Alberta limited partnership
Imperial Pipe Line Company, Limited, The
Inada Ekka Gas Kabushiki Kaisha
industria Acqua Siracusana S.p.A.
Industry Promotion Enterprises Limited
Intoplane Services Company Limited
Iranian Oil Participants Limited (Iranian Consortium)
Iranian Oil Services (Holdings) Limited
Iranian Oil Services Limited
Iraq Petzoleum Company, Limited
Iraq Petroleum Pensions, Limited
Japan Butyl Company Limited
Japan Coal Liquefaction Development Company, Ltd.
Jaymo SNC
Jersey Nuclear-Avco Isotopes, Inc.
K. K. Momose Shiojiri Stand
K. K. Toresen
K.K. Aizu General
K.K. Auto
K.K. Daimaru
K.K. Easterns Gas Terminal
K.K. General Sekiyu Hanbaisho
K.K. Genet
K.K. Genetech
K.K. Heian Sekiyu
K.K. Kyoei Shosha
K.K. Marugo Izumasa Shoten
K.K. Marutaka Sekiyu
K.K. Momose Sekiyu
K.K. Saidaiji Gas
K.K. Standard Sekiyu Osaka Hatsubaisho
K.K. Toko
K.K. Uwano Sekiyu Shokai
K/S Statfjord Transport A/S & Co.
KX Industries, L.P.
A-23
Kabushiki Kaisha Sankyo Plastics
Kabushiki Kaisha Serubisu
Kai Tak Refuellers Company Limited
Kansai Chuo S«kiyu K.K.
Kanto Kygnus &.K.
Karlsruhe-Stuttgart Rohrleiiung Gesellschaft mbH
Kawasaki Kygnus Sekiyu Hambai Kabushiki Kaisha
Keiyo Sekiyu Hanbai K.K.
Kemcor Australia Pty. Ltd.
Kemcor Elastomers Ltd.
Kemcor Olefins Ltd.
Kemcor Plastics Pty. Ltd.
Kenya Petroleum Refineries Limited
Kibo Sekiyu Hanbai K.K.
Kimura Sekiyu Kabushiki Kaisha
Kinwa Sekiyu K.K.
Kobe Standard Sekiyu K. K.
Korea Perchem Company Limited
Kosxon Chemical Company Limited
Kowa Sekiyu K.K.
Kowloon Electricity Supply Company Limited
Kumho E.P. Rubber Co., Ltd.
Kygnus Ekika Gas Kabushiki Kaisha
Kygnus Kosan Kabushiki Kaisha
Kygnus Marketing Service K.K.
K ygnus Sekiyu K. K.
K ygnus Sekiyu Seisei Kabushiki Kaisha
Kygnus Trading Kabushiki Kaisha
Kyushu Eagle K.K.
L-Net East K.K.
L-Net West K.K.
L12A (Groep) B.V.
L12B/L15B (Groep) B.V.
L14 (Groep) B.V.
L15A (Groep) B.V.
A-24
L2 (Groep) B.V.
L5a (Groep) B.V.
LEAG Aktiengesellschaft fuer luzernisches Erdoel
Les Docks des Petroles d’ Ambes
Liants Routiers de la Vallee de la Loire (LRVL)
Liants Routiers du Gard (L.R.G.)
Lilac Sekiyu Kabushiki Kaisha
Lily Sekiyu K.K.
Lithcon Petroleum International (Bahamas) Inc.
Lithcon Petroleum Taiwan Inc.
Long Beach Oil Development Company
MEGAL FINCO
MEGAL GmbH
MESBIC Financial Corporation of Houston
Maasvlakte Olie Terminal N.V.
Magota Sekiyu K.K.
Mainline Pipelines Limited
Malaysian Energy Chemical & Services Sdn Bhd
Manchester Airport Storage and Hydrant Company Limited
McCann Plastics Inc. (Chemical)
McColl-Frontenac Inc.
McColl-Frontenac Petroleum Inc./Petroliere McColl-Frontenac
Meiji Sekiyu K.K.
Metro Fuel Co. Ltd.
Mikawa Bussa.. (.K..
Mitake Un: > *..K.
Mittelrheinische Erdgas Transport Gesellschaft mit beschrank
Mode Wheel Property Limited
Montreal Pipe Line Limited/Les Pipe-Lines Montreal Limitee
Mount Thorley Coal Loading Limited
Mr. Lube Canada Inc.
Multi Tank Card B.V.
Mytex Polymers (General Partnership)
N. V. Nederlandse Gasunie
a
NAM - K 14 B.V.
NAM - K 15 B.V.
NAM -K7B.V.
NAM - K17 B.V.
NAM/CLOMS - K 8/K 11 8.V.
NAM/CLOMS - L 13 B.V.
NAM/MOBIL M9a B.V.
NPC Services, Inc.
Nakabayashi Sekiyu K.K.
Nansei Oil Terminal K.K.
Nansei Sekiyu Kabushiki Kaisha
Nanseki Kaihatsu K.K.
Native Venture Capital Co. Ltd.
Near East Development Corporation
Nederlandse Aardolie Maatschappij B. V.
Neptune Bulk Terminals (Canada) Ltd.
New Cure, Inc.
Newcastle Coal Shippers Pty. Limited
Nichiei Kogyo Kabushiki Kaisha
Nichimo Oil (Bermuda) Co., Ltd.
Nikko Sangyo K.K.
Nippon Unicar K.K.
Nisku Products Pipe Line Company Limited
Nissei Sekiyu Kabushiki Kaisha
Nogat B.V.
Norddeutsche Erdgas-Aufbereitungs G.m.b.H.
Norddeutsche Mineraloelwerke Stettin G.m.b.H.
Norddeutsche Erdgas Transport Gesellschaft mit beschrankte
Noroxo
Northward Developments Ltd.
OSLO Alberta Limited
Office Prive d’Assurances et de Courtages
Oil Field Chemicals Company (Saudi Arabia) Ltd.
Oil Service Company of Iran (Private Company)
A-26
Oil Spill Response Limited
Oldenburgische Erdoel Gesellschaft m.b.H.
Oleoducto de Colombia S.A.
Oleoductos Canarios, S.A.
Osaka General Gas K.K.
Osaka Kygnus K.K.
P. T. Stanvac Indonesia
P.A.C. S.A.R.L. (Pinson-Allegret-Causse)
PIMEC Inc.
Pacesetter Enterprises Limited
Pars Investment Corporation
Paxon Polymer Company, L.P.
Peninsula Electric Power Company Limited
Petroleum Services (Middle East) Limited
Petrosvibri S.A.
Pier Atlantic Limited
Pipe Line Services, Inc.
Plantation Pipe Line Company
Port-Jerome Gaz (P.J. Gaz)
Portland Pipe Line Corporation
Primaeroel GmbH
Prince William Sound Oil Spill Response Corporation
Progas Limited
Projectbureau W/K B.V.
Quadrant Gas Limited
Raffinerie du Midi S.A.R.L.
Rainbow Pipe Line Company, Ltd.
Redwater Water Disposal Company Limited
Refineria Petrolera Acajutla, S. A.
Regulus Holding (Singapore) Pte. Ltd.
Rheingas Erdgasleitungs-Gesellschaft m.b.H.
Rotterdam Antwerpen Pijpleiding (Belgie) N.V.
Rotterdam-Antwerpen Pijpleiding (Nederland) N.V.
Rubiatec Sendirian Berhad
Ruhrgas Aktiengesellschaft
A-27
S.A. du Pipeline a Produits Petroliers sur Territoire Geneve
SEAG Aktiengesellschaft fuer schweizerisches Erdoel
SERAM S.p.A.
SOVEXOIL Oil Field
Saitama Sekiyu Hanbai K.K.
Sanyo Sekiyu K.K.
Saraco S. A.
Saudi Arabian Lube Additives Company Limited
Schubert KG
Seismic Industries A/S
Senboku Oil Kikoh K.K.
Senpoku Oil Service K.K.
Servacar Ltd.
Shehtah Drilling Limited
Shimoyama Sekiyu K.K.
Shin-Nihon Yukagaku Kogyo K. K.
Shinohara Oil K.K.
Sigel Corporation
Smiley Gas Conservation Limited
Sociedad Nacional de Oleoductos Ltda.
Sociedad de Inversiones de Aviacion
Societa Italiana per |’Oleodotto Transalpino S.p.A.
Societa per Azioni Raffineria Padana Olii Minerali-SARPOM
Societe ““Geomines-Caen”’
Societe Anonyme “Produits Lubrifiants de Madagascar’’—
PROLU
Societe Anonyme de Gestion de Stocks de Securite (SAGESS)}
Societe Anonyme de la Raffinerie des Antilles
Societe Anonyme des Hydrocarbures
Societe Civile de Mustapha Algerie
Societe Civile de Participation pour la Destruction des Dech
Societe Esso de Recherches et d’Exploitation Petrolieres Ess
Societe Francaise EXXON CHEMICAL
Societe Havraise de Manutention de Produits Petroliers
Societe Ivoirienne d’Operations Petroliers S.A.
A-28
Societe Malgache de Raffinage
Societe Paris-Manche
Societe Paris-Niel
Societe Reunionnaise d’Entreposage
Societe d’Etude et d’Exploitation de la Raffinerie du Tchad
Societe d’Exploitation & de Developpement d’Operations Comme
Societe d’Exploitation des Garages Les Stations Tour Eiffel
Societe de Manutention de Carburants Aviation (S.M.C.A.)
Societe de Promotion et de Financement Touristique
(CARTHAGO)
Societe de la Raffinerie d’Alger
Societe des Pipe-Lines de Strasbourg
Societe des Transports Petroliers par Pipe Line
Societe du Caoutchouc Butyl (SOCABU)
Societe du Pipe Line de la Raffinerie de Lorraine
Societe du Pipe-Line Mediterranee-Rhone
Societe du Pipeline Sud-Europeen
Socony-Standard-Vacuum Oil Company (Petroleum
Maatschappi))
Southern Natural Gas Development Pty. Ltd.
Spintek Systems, L.P.
Standard Kaihatsu K.K.
Standard Kosan Kabushiki Kaisha
Standard Service K.K.
Stansted Fuelling Company Limited
Statfjord Transport A/S
Stockage Geologique de Gaz de Lavera
Sueddeutsche Erdgas Transport Gesellschaft mit beschrankter
Sun East (Dublin) Company, Ltd.
Sun East Company Ltd.
Superior Disk Corporation
Syncrude Canada Ltd.
Synergistics Industries (NJ) Inc.
Synergistics Industries (TX) Inc.
Synergistics Industries Limited
A-29
TAR-Tankanlage Ruemlang AG
TBN Tanklager-Betriebsgesellschaft Nuernberg mbH
TCA Plastics Inc.
TFS Turbo Fuel Services GmbH, Hamburg
TGF Tankdienst Gesellschaft Frankfurt G.b.R.
TGM Tankdienst-Gesellschaft Muenchen GbR
TIBA Speditions GmbH
TLS Tanklager Stuttgart GmbH
Taihei Bussan K.K.
Taisei Kogyo Sekiyu Hanbai K.K.
Taketsuru Yugyo K.K.
Tankanlage A.G., Mellingen
Tanklager Altishausen A.G.
Tanklager Taegerschen AG
Tanklager-Geselischaft Tegel G.b.R.
Tanklagergesellschaft, Koeln-Bonn G.b.R.
Tecnica Quimica Petrolera, S.A. de C.V.
Terminal Petrolier de Bordeaux (T.P.B.)
Thai Aliphatics Company Limited
Thai C-Center Company Limited
Thai Petroleum Pipeline Co., Ltd.
Thyssengas G.m.b.H.
Tohpren Co., Ltd. (Chemical)
Tojo Gas K.K.
Toko Sekiyu K.K.
Tonen Chemical Nasu Co., Ltd.
Tonen Energy International Corp.
Tonen Energy and Marine (Singapore) Pte. Ltd.
Tonen Filare Co. Ltd.
Tonen Film Company Limited
Tonen Kabushiki Kaisha
Tonen Kagaku K.K.
Tonen Properties Inc.
Tonen Sogo Service Co., Ltd.
Tonen System Plaza Kabushiki Kaisha
A-30
Tonen System Service Kabushiki Kaisha
Tonen Tanker Kabushiki Kaisha
Tonen Tapyrus Company Limited
Tonen Technology K. K.
Tonex Company Limited
Towa Compounding Co., Ltd.
Towa Sekiyu K.K.
Toyo Gas K.K.
Toyoshina Film Company, Ltd.
Trans-Northern Pipelines Inc.
Transalpine Oelleitung in Oesterreich Gesellschaft m.b.H.
Transgaz Lavera
Tsurumaru Unyu K.K.
Turkish Petroleum Company, Limited
UBAG - Unterflurbetankungsanlage Flughafen Zurich
Ulan Coal Mines Limited
United Industry Development Co., Ltd.
Van Salt Water Disposal Company
Verbundnetz Gas AG
Wako Jushi Kabushiki Kaisha
Warmtepomp Nederland B.V.
Westdeutsche Erdoelleitungs-G.m.b.H.
Westgas G.m.b.H.
Winnipeg Pipe Line Company Limited
Woodbine Marketing Co., Inc.
Worex S.N.C.
Yasaka Sekiyu K.K.
Yellowstone Pipe Line Company
Yoshimi Gas Kabushiki Kaisha
Yuai Sekiyu K.K.
Zenon Environmental Systems Inc. (ZESI)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.