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.

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