Appendix — Wisconsin v. United States

Supreme Court brief1956

Ask Donna

What actually matters in this document.

Text

PRA ACCLAIM RED OPEB he

RRA GARR ee

Bat tigress cae 2

TPPEN DIX A

dn the United States Court of Claims

No. 45162 (1)

(Decided April 3, 1956)

MOLE LAKE BAND, LAC DU FLAMBEAU BAND,

LAC COURTE OREILLES BAND, BAD RIVER,

OTHERWISE KNOWN AS THE LA POINTE BAND,

RED CLIFF BAND, ST. CROIX BAND, COMPRIS-

ING BANDS OF LAKE SUPERIOR CHIPPEWA IN-

DIANS OF WISCONSIN, PLAINTIFFS, AND THE

STATE OF WISCONSIN, INTERVENOR, v. THE

UNITED STATES, DEFENDANT, AND FOND DU

LAC BAND, GRAND PORTAGE BAND, AND NETT

LAKE BAND, OTHERWISE KNOWN AS BOIS

FORTE BAND, ALL BANDS OF LAKE SUPERIOR

CHIPPEWA INDIANS OF MINNESOTA, INTER-

VENORS

Mr. Jay H. Hoag for the plaintiffs. Messrs. Ward Win-

ton, Vern R. Edwards, G. Arthur Johnson, Clarence G.

Lindquist, and Messrs. Lathers, Hoag & Edwards were on

the brief.

Mr. Deputy Attorney General Stewart G. Honeck and

Mr. Assistant Attorney General Gordon Samuelsen, both of

the State of Wisconsin, for the intervenor. Mr. Attorney

General Vernon W. Thomson of the State of Wisconsin was

on the brief.

Mr. Clifford R. Stearns, with whom was Mr. Assistant

Attorney General Perry W. Morton, for the defendant.

OPINION

Mapven, Judge, delivered the opinion of the court:

This is a suit by the Lac du Flembeau, Lac Courte Oreilles

and Bad River Bands of Lake Superior Chippewa Indians

of Wisconsin. It relates to swamp lands lying within the

376182—56—1

EN OSIM FERED BI ASR LES PSI EEE Ds ED OT RRR EL DN

{

}

separate reservations of these three bands of Indians. The

complaint of the Indians is that the United States, when it

created their reservations, granted to them areas of land

which included land which it had, some years before, granted

to the State of Wisconsin, and that as a result of the con-

flicting grants the plaintiffs have been deprived of some of

the land within their reservations, and of the proceeds of

the timber which had been cut from these lands.

In an earlier stage in the proceedings in this case the

court concluded that, since the alleged conflicting rights of

the State of Wisconsin were an important element in the

plaintiffs’ case, the State should be notified of the proceeding,

and advised of its right to intervene, pursuant to the Act of

July 1, 1944, 58 Stat. 649, 663, 41 U. S.C. 114. The State

has filed a petition to intervene in which it asserts that it

is the owner of the swamp lands in question and is entitled

to the proceeds of timber cut from the lands. The case

went to a hearing before a commissioner of this court and

the plaintiff, the intervenor and the defendant presented

their evidence. We have made extensive findings, based

upon that evidence and our commissioner’s report of it. In

this opinion we will recite only such facts as seem necessary

to make the opinion intelligible.

The Chippewa Nation as a whole, including the three

plaintiff bands and many others, occupied a large area which

extended both east and west of the Mississippi River in the

northern parts of Wisconsin and Minnesota. By the Treaty

of July 29, 1837, 7 Stat. 536, the Chippewa Nation ceded to

the United States a strip of land approximately 100 miles

wide (from north to south) and nearly 200 miles long (from

east to west). All of jlis land lay east of the Mississippi

River. The consideration for the cession was certain pay-

ments to be made by the United States. The intent of the

treaty was that the Chippewas would withdraw to their

other lands which lay west of the Mississippi. Article 5 of

the treaty said:

The privilege of hunting, fishing, and gathering the

wild rice, upon the lands, the rivers and the lakes in-

cluded in the territory ceded is guaranteed to the In-

dians, during the pleasure of the President of the United

tates.

By the Treaty of October 4, 1842, 7 Stat. 591, another

large area of land east of the Mississippi River was ceded by

the Chippewa Nation to the United States, upon terms simi-

lar to those of the treaty of 1837.

The Chippewas were slow to move to their lands west of

the Mississippi. On February 6, 1850, President Zachary

Taylor issued an Executive Order revoking the privilege of

the Indians to occupy, and hunt and fish and gather wild

rice on, the lands ceded by the Chippewas to the United

States by the Treaties of 1837 and 1842. Intensive efforts

were made to effectuate the removal of the Indians. Some

2,000 of them were removed within a period of three years,

But by 1854 the Commissioner of Indian Affairs was recom-

mending exceptions to the policy of removal. And by the

Treaty of September 30, 1854, 10 Stat. 1109, it was provided,

among other things, that the United States would grant

reservations, on lands east of the Mississippi River which

had been ceded to the United States by the Chippewas, to

the three bands of Chippewas who are our present plaintiffs.

The boundaries of the reservation for the La Pointe (Bad

River) Band were defined in the treaty. The boundaries of

the Lac du Flambeau and Courte Oreilles Reservations were

to be later agreed upon or fixed by the President. Each of

the latter two reservations was to contain an area of three

townships.

We now go back to September 28, 1850, on which date the

Swamp Land Act, 9 Stat. 519, was approved. It provided

that, in order to enable the state to construct the necessary

levies and drains to reclaim the swamp and overflowed lands,

the whole of those swamp and overflowed lands, made

unfit thereby for cultivation, which shall remain unsold

at the passage of this act, shall be, and the same are

hereby, granted to the state.

Section 2 of the Swam, Jand Act provided that it should

be the duty of the Scezetary of the Interior, as soon as

practicable, to make out am accurate list and plats of the

swamp lands in the states, and transmit such lists to the

governors of the states, and, at the request of the governors,

cause patents to be issued to the states for the swamp lands.

Po te OES

We can now see the basis for the conflicting claims of the

Indians and the State of Wisconsin for such of the lands of

the Indians’ reservations as were swamp lands.

The Government urges that none of the lands of the reser-

vations passed to the State of Wisconsin by the Swamp Land

Act of 1850. ‘The Swamp Land Act of course only granted

to the states land which was owned by the United States.

The Government says that the land ceded by the Chippewa

Nation to the United States by the Treaties of 1837 and 1842

did not becorne the property of the United States until it

was vacated by the Indians; that the land included in the

reservations never was vacated by the Indians; that they

occupied it in 1850 when the Swamp Land Act was passed;

that the Treaty of 1854 granting their reservations was, in

effect, only a relinquishment of the power of the President,

reserved in the earlier treaties, to require them to vacate the

land and thus perfect the title of the United States.

We do not agree with the Government’s analysis. As our

findings show, the intention of the parties to the Treaties of

1837 and 1842 was that the United States was to have the

title to the land, and the Indians were to have only a revoca-

ble license to use the land until the President required them

to vacate it. We think the land was, in 1850, public land

of the United States to which the Swamp Lands Act applied.

Since the Treaty of 1854, granting to the Indians their

reservations, as, indeed, before that time, they have had com-

plete and exclusive use of the reservation land, subject to

the usual Government supervision of the cutting and market-

ing of timber. They have had the proceeds of the sale of

the timber, except that the sum of $119,450.50 plus accumu-

lated interest, proceeds of the sale of timber from the Lac du

Flambeau reservation, is being held by the Government on

interest, to await the determination of its ownership. What,

then, are the Indians suing for, except for this sum of

money? The theory of their suit seems to be that the Gov-

ernment sold them land in 1854 that it did not own, and

should pay them for what it sold them but did not deliver

tothem. But, as we have seen, they have, for more than 100

years, had the undisturbed possession of what the Govern-

ment purported to sell them in 1854, Their damages, at

least up to the present time, could be only such damages as

EN aa Ta hil Pt ile

resulted from a cloud upon their title, and no such damages

have been proved.

The story of the actions of the United States and the

State of Wisconsin with regard to the swamp lands both

within and outside these reservations is told in detail in our

findings. The State, during most of the 100 years since the

grant of the swamp lands, has insisted that it had rights in

the lands, but has not been willing to disturb its citizens to

whom the United States has granted such lands, outside the

reservation, nor the Indians, within the reservations, in

their possession of the lands. At times, the State, or im-

portant officials of the State, have expressed the opinion that

the State did not own the swamp lands.

The position of the United States has, likewise, not been

consistent. During part of the time it has denied that the

State had any rights in the swamp lands in the reservations.

Its officials have, at other times, sought to induce Congress

to pay the State for the swamp lands within the reservations.

As we have said, the State of Wisconsin was notified by

the court of the pendency of the suit of the Indians, and of

its right to intervene in the suit, should it desire to do so.

The reason for the notice was that it had become evident

to the court that the conflicting grants were an important

feature of the case. The State did file a petition, as an inter-

venor. In its petition the State denied the jurisdiction of

this court over either the subject matter of the litigation, i. e.,

the title to the lands, or the state itself, in its sovereign

capacity. However, because of the peril that it would run, if

it failed to intervene, i. e., that a judgment that it had no

rights in the land might be entered against it, it felt bound

to intervene, reserving its rights to challenge our jurisdiction.

It then asked for a judgment against the United States

decreeing the title to the swamp lands in the reservations

to be in the State of Wisconsin, and giving it a judgment

against the United States for the proceeds of the timber cut

and sold from those lands.

Since the State denies our jurisdiction, and only inter-

venes and asks relief because of the peril that it might be

mistaken as to the question of our jurisdiction, we will not,

of course, consider its petition or its prayer for relief unless

it is necessary to do so in order to decide the issues between

the plaintiffs and the United States. We do not find it

necessary to do so, for reasons hereinafter stated, and will

therefore dismiss the State’s petition. Its participation in

the trial has been helpful and instructive to the court.

When the United States granted the reservations to the

Indians in 1854, it became obligated to them to secure to

them the enjoyment of the lands and of the proceeds of the

lands. This was so, whether or not the United States then

had good title to the lands which it purported to grant. If

the title had failed and the Indians had lost the possession

of the lands, the United States would have been liable to

compensate them for their loss. If one with a better title

had taken the timber from the lands, the United States would

have had to compensate them for the timber. Whether or

not the State of Wisconsin ever has owned or does now own

the swamp lands in the reservations is immaterial to the

question of the obligation of the United States to the Indians,

under the Treaty of 1854.

As we have said, the Indians have had the possession and

enjoyment of the reservation lands, and have received the

proceeds of the timber cut from the lands, except that the

sum of $119,450.50, the proceeds of timber cut from the Lac

du Flambeau Reservation during a certain period, has been

held by the United States at interest to await a determona-

tion of the right to that money.

The Lac du Flambeau Band is entitled to recover the

proceeds of timber cut from their reservation, to the extent

that such proceeds have not already been paid over to them,

together with the interest which has accumulated upon such

unpaid proceeds.

The case is remanded to a commissioner of this court for

a determination of the amount to which the Lac du Flambeau

Band is entitled, in accordance with this opinion, and for a

determination of the amount of offsets, if any, to which the

United States may be entitled.

As to the Lac Courte Oreilles Band and the Bad River

or La Pointe Band, the petition is dismissed.

The intervening petition of the State of Wisconsin is

dismissed without prejudice.

Laramorr. Judge; Wurraker, Judge; Lrrtiteron, Judge;

and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of

Commissioner W. Ney Evans, and the briefs and arguments

of counsel, makes findings of fact as follows:

1. Under the authority of the Act of August 30, 1935,

49 Stat. 1049, a petition was filed, on April 1, 1940, by the

six bands of Lake Superic: hippewa Indians of Wisconsin

who are named as plaintiffs in the caption of this case. On

August 30, 1940, an intervenors’ petition was filed in the

original case, which had been numbered 45162, in behalf of

the three bands of Lake Superior Chippewa Indians of

Minnesota whose names are carried in the caption as inter-

venors.

On November 22, 1944, a separate, amended petition was

filed in behalf of the Lac du F lambeau, Lac Court Oreilles,

and Bad-River Bands to recover “damages for the value of

the land claimed by Wisconsin as swamp land and the timber

thereon * * *.” The amended petition carried the names of

all the parties listed in the title hereinabove, except the State

of Wisconsin. This case, presenting the claims of the three

bands above listed for the swamp lands lying within their

respective reservations, is numbered 45162 (I).

On February 21, 1945, another separate, amended peti-

tion was filed in behalf of the Lac du F lambeau, Bad River,

and Red Cliff Bands to recover for timber alleged to have

been wrongfully taken by third parties from so-called school

land sections. The amended petition carried the names of all

the parties listed in the title hereinabove, except the State

of Wisconsin. The case presenting the school land claims

of the three bands above listed was numbered 45162 (IT).

It was adjudicated by the court’s decision of February 7,

1949, 113 C. Cls. 16, wherein the petition was dismissed.

The petition in the original case (numbered 45162) was

also dismissed by the court’s decision of N ovember 3, 1953,

126 C. Cls. 596.

In the meantime, the present case (absent the State of

Wisconsin) was heard and reported by a commissioner of

‘These findings are concerned only with facts relating to the issue of

Hability. The severance of issues was ordered on May 28, 1952.

the court. The parties filed their exceptions and briefs, and

the case was argued and submitted. The findings and argu-

ment brought to the court’s attention the possible rights of

the State of Wisconsin, and the court, on October 12, 1948,

caused to be sent to the Governor and the Attorney General

of Wisconsin a notice of the pendency of the suit, and of the

right of the State to intervene. On February 28, 1949, the

State of Wisconsin filed its petition as intervenor.

Thereafter, defendant moved to dismiss the State’s peti-

tion on the ground that any claim Wisconsin might have to

the swamp lands within the Indian reservations or to the

proceeds of the timber cut from such lands was barred by the

statute of limitations. The motion to dismiss was denied on

July 11, 1949, 114 ©. Cls. 71, and Wisconsin was accorded

the status of a party in the case.

Therefore, the interested parties in this action, which pre-

sents the last of the claims pending here under the jurisdic-

tional act of 1935, are: (1) three bands of Lake Superior

Chippewa Indians of Wisconsin (the Lac du Flambeau, Lac

Court Oreilles, and Bad River Bands, who are sometimes

hereinafter referred to as the plaintiffs or as the plaintiff

bands) ; (2) the State of Wisconsin (sometimes referred to

as the intervenor); and (3) the United States (which, as

defendant, is sometimes referred to as the Government).

No other party listed in the caption has any interest in the

case.

2. The Jurisdictional Act of August 30, 1935, 49 Stat.

1049, provided :

* * * That all claims of whatsoever nature which the

Chippewa * * * Indians of Wisconsin may have

against the United States, which have not heretofore

been determined by the Court of Claims or the Supreme

Court of the United States, may be submitted to the

Court of Claims with the right of appeal * * *, for

determination of the amount, if any, due said Indians

from the United States under any treaties, agreements,

or laws of Congress, or for the misa propriation or

waste of any of the funds or lands of saic Indians * * *%,

or for the failure of the United States to pay, said

Indians any money or other property due; and juris-

diction is hereby conferred upon the Court of Claims

* * * to hear and determine all legal and equitable

Be Aue ay 12k ee di

claims, if any, of said Indians against the United States,

and to enter judgment thereon. * * * 2

* * * If any claim or claims be submitted to said

courts they shall settle the rights therein, both legal and

uitable, of each and all of the parties thereto, not-

withstanding lapse of time or statues of limitation

* * #3

3. The separate, amended petition of the plaintiff bands,

filed on November 22, 1944, asserted that “* * * this pro-

ceeding is brought to determine the rights and claims of

these petitioners to the swamp lands lying within their

respective reservations.” Separate allegations in behalf of

each of the three bands repeated the following (in sub-

stance): (a) that defendant, in violation of plaintiffs’

rights, caused to be transferred to the State of Wisconsin,

under the Swamp Land Act of 1850, certain lands within

the boundaries of plaintiffs’ reservations, and failed to pay

the value thereof, or to account for the proceeds therefrom;

(b) that, at the time the lands were acquired by Wisconsin,

timber was standing thereon; (c) that such timber has since

been cut; and (d) that defendant now holds the proceeds

derived from the sale of such timber. In their prayer for

relief, plaintiffs demand: (i) damages for the value of the

land claimed by Wisconsin as swamp land and the timber

thereon; (ii) such interest as the Court shall find due; and

(iii) such other and further relief as may be just.‘

4. (a) The intervenor’s petition, filed on February 28,

1949, quoted the first and fourth sentences of subsection (b),

*The swamp land claim of the Menominee Indians (decided December i,

1941, 95 C. Cls. 232) was presented under a jurisdictional act (49 Stat. 1085,

as amended by 52 Stat. 208), which provided that “* * © if it shall be deter-

mined * * * that the United States in violation of the * * * treaty * * ©

unlawfully failed to convey certain swamp lands to the Menominee * ¢ ¢

Indians the court shall render judgment * * * for a sum equal to (1) the

value of the timber removed therefrom since * * * [the date of the

treaty] * * * with interest * * ¢ and (2) the present acquisition costs of

such lands * * ®* with a proviso that the United States may in lieu of paying

the present acquisition costs * * * acquire and hold said lands in trust for

the * * * Menominee * * * Indians.”

* Wisconsin, of course, did not acquire its status as a party to the actioz

under the jurisdictional act.

‘Counsel for plaintiffs, in his opening statement at the trial, said that

“plaintiffs’ claims are: ( 1) value of the land and timber on said swamp lands

whether allotted to individual Indians or tribal land and the amount of

Proceeds from timber removed therefrom; [and] (2) the proceeds from said

swamp lands now held by defendant * ® ¢,”

section 14, Contract Settlement Act of 1944, 58 Stat. 649,

663 ; 41 U. S. C. 114, and then asserted:

* * * Intervenor denies that this court has jurisdiction

over either the subject matter of its claim, or of inter-

venor, in its sovereign capacity, asa party. * * *

* * * A justiciable controversy exists between plain-

tiffs and defendant, and between intervenor and defend-

ant, with respect to the title to all [swamp] lands located

within the three reservations * * *. A determination

of the * * * issue in the claim of * * * Wisconsin to

the title to * * * said lands * * * is a prerequisite

* * * to the final judgment of this court rene by

plaintiffs against defendant. * * *

Subject to the foregoing, the intervenor’s petition set forth

two causes of action, one based upon Wisconsin’s claim to the

swamp lands lying within plaintiffs’ reservation, and the

other upon the State’s claim to the proceeds of timber cut

from such swamp lands.

In its prayer for relief, made “subject to its reservation

of the right to challenge the jurisdiction of this court over

the subject matter of the suit and the ‘person’ of inter-

venor,” the State demanded judgment against defendant

“(1) * * * decreeing the fee simple title in * * * Wiscon-

sin to all swamp * * * lands located within the * * *

Reservations * * * [and] (2) adjudging * * * that the

intervenor * * * recover * * * the proceeds of sale of

timber cut from said lands * * *.”

(b) Following is a quotation from the opinion of the court

denying the Government’s motion to dismiss Wisconsin’s

petition, 114 C. Cls. 71, 74:

Wisconsin, by its petition to intervene, as modified by

statements made by counsel in argument and in a later

written communication to the Court, takes the position

that it is the owner of the swamp lands in question by

virtue of the Swamp Lands Act of * * * 1850, and

that a justiciable controversy exists between the plaintiff

Indians and the Government, and between Wisconsin

and the Government with respect to those lands, but that

this Court does not have jurisdiction to quiet title to

those lands in the State. It * * * asserts its right

to * * * proceeds [of timber cut from such lands],

with interest, as a claim founded upon a contract. with

the United States. It asks for such other and further

relief as may be justified. * * *

Cae

. wit Rascals a Bilas

Vink web vee

* * * If it acquired title to the swamp lands by the

Act of * * * 1850, whether it has since that time lost

that title by the running of the statute of limitations

will depend upon the facts which have occurred since,

and the applicable law. * * * Also, as to the proceeds

of the timber, * * * Whether there was such an agree-

ment as Wisconsin asserts, and what later events ma

have occurred to start the statute of limitations to run

against Wisconsin must be shown by evidence, * * *

ment of the attorney for intervenor at the beginning of the

trial:

The primary purpose of the state in presenting its evi-

dence is to support the proposition that the state is

entitled to recover the proceeds received by the United

States for the timber removed from the swamp lands

claimed by the state on the * * * reservations. * * *

* * * The state will prove that it is entitled to all of

the proceeds of timber cut from swamp lands which were

received by the United States from the three reserva-

tions, pursuant to the Act of May 18, 1916.

Further, the state will show that some timber had been

cut and removed from swamp lands * * * within sec-

tions 16 on * * * [two of the] reservations, and that

the United States * * * has not accounted to the state

for the proceeds * * *,

5. Among the Indians who inhabited North America when

European colonization of this continent was begun in the

16th century was a large group which has since come to be

knewn, because of linguistic features as Northern Algon-

quians. This linguistic group included such smaller and

better known groups as the Chippewas, Delawares, Illinois,

Miamis, Ottawas, Pottawatamies, and Shawanoes.

The Chippewas were in the area of the Great Lakes and

the Mississippi in the 17th and 18th centuries, and were

known as a distinct cultural group to the explorers, traders,

and settlers who pressed into that region during the latter

part of the 18th and early part of the 19th centuries.

® Defendant has requested a finding as follows: “The State * © *has de-

clared through counsel orally and by written statement that Wisconsin is not

claiming the fair market value of the swamplands, and that this Court does

hot have jurisdiction to quiet title to the swamplands * © * * # ® Wig.

consin * * * has requested only a money judgment for the damage done to

the swamplands by the cutting of timber and other trespasses thereon by the

United States or the plaintif® tribes, * ©

eh e aa

ae a Se

White men in the Northwest Territory found the Chippe-

was to be a nomadic people who lived by hunting and fishing.

While they shared a common cultural heritage, they lived

in small groups, usually composed of a chieftain or headman

and his brothers or other close relatives and their women and

children. When any group became too large for its support

to be readily drawn from the immediate hunting or fishing

grounds, part of the group would split off into a separate

village and oceupy other lands, usually nearby, In this man-

ner clusters of villages developed, and have come to be known

as bands, frequently named from the geographic area

occupied.

The areas occupied by the Chippewas south of Lake

Superior, in what are now the States of Wisconsin and

Minnesota, were characterized by large stands of pine timber

in which there was little or no underbrush, The portions of

rivers and streams traversing these stands of timber were

devoid of fish. The pine forests were therefore sterile, from

the standpoint of the Indians, since conifer supported neither

game nor fish. Interspersed among the pine forests were

stands of deciduous trees and open spaces where game was

plentiful and fish were abundant in the lakes and rivers.

There the Indians lived in small groups or villages, moving

from time to time from one hunting or fishing ground to

another.

Within the area above described the three bands of Chip-

pewa Indians who are plaintiffs in this case occupied lands

in the lake region, in which there were sizable patches: of

wild rice, which Indians had learned to harvest and on which

they relied as a staple of their food supply.

The lands here in controversy lie within the lake region

where the plaintiff bands have lived for centuries past.

6. When the first voyages of discovery of the New World

were made at the close of the 15th century, the principle of

extending sovereignty by discovery was known to and ob-

served by European monarchs.* Its use was continued

throughout the 16th and into the 17th centuries.

¢In 1496, John Cabot was commissioned by the King of England to under

take the discovery of lands unknown to Christian peoples and to take pos

session of them in the King’s name. Columbus likewise made his first voyage

under a royal commission, from the Crown of Spain.

Ne Se ea

— pees . a - nee en Ce et et SNS oe hel eee:

The colonization which followed discovery was also made

under royal dispensations. The English and French grants

were uniformly predicated on sovereign right over the terri-

tory granted, albeit the territory was occupied by Indians.

During the initial period of colonization the European

monarchs were primarily concerned with the competition

among themselves to establish living evidence of the dis-

coveries upon which their asserted extensions of sovereignty

were based. The Indians’ rights, if any, were of no concern

to them. The lands could be taken from the Indians by con-

quest, if necessary, and the royal suzerainty would thus be-

come de jure ona de facto foundation.

The colonists found conquest an uncertain and dangerous

adventure. They soon abandoned it in favor of amicable

adjustments as far as possible. Moreover, fairness demanded

recognition by them of moral, if not legal, rights inherent

in the initial occupancy by the Indians. Agreements be-

tween colonists and Indians, covering sizable areas of land

and affecting many persons, had to be made on a group basis.

The English colonists, following the patterns of law and gov-

ernment known to them, treated with the Indians for agree-

ments in the nature of treaties between their colonies on the

one hand and the Indian tribes or nations on the other. The

development of this technique was well under way when the

American colonies declared their independence of the British

Crown.

7. At the time of the American Revolution the Chippewa

Indians had spread over a wide area and were found, with

other tribes of Indians, in territory now included in the

States of Ohio, Michigan, Indiana, Illinois, Wisconsin, Min-

nesota, and the Dakotas.

8. Upon the commencement of hostilities with the British,

the Continental Congress assumed the full powers of sov-

ereignty needed by the central government to wage war.

On November 15, 1777, the Articles of Confederation were

adopted by the Continental Congress for submission to the

States. Three and a half years passed before the Articles

went into operation on March 1, 178i. The delay was pri-

marily due to the inability of the States to agree upon the

disposition to be made of the lands included in what later

became the Northwest Territory, a region ceded to the

United States by the British in the treaty of 1783, which

included the present State of Wisconsin.

The lands within the Northwest Territory were the sub-

ject of conflicting claims of ownership, based on grants from

the Crown and claims of conquest of Indian tribes, by the

States of New York, Virginia, Connecticut, and Massachu-

setts. The other States maintained that the entire region

should belong to the whole Union and should be administered

for the common good. The dispute was finally resolved on

that basis. The ordinance for the government of the terri-

tory northwest of the Ohio River was adopted by the Con-

tinental Congress on July 13, 1787, and confirmed by the

succeeding first Congress of the United States under the

Constitution (Act of August 7, 1789, 1 Stat. 50).

At that time large parts of the lands included in the North-

west Territory, including the lands here in controversy, were

occupied exclusively by Indians.*

9. Within 50 years after the adoption in 1787 of the North-

west Ordinance the United States made more than 200 agree-

ments with the Indians. A substantial portion of the total

was concerned with Indians living in the region which com-

prised or had comprised the Northwest Territory, and Chip-

pewa Indians were parties to 23 of them.

From the outset the parties to these treaties and conven-

tions undertook to draw lines of demarcation which would

delineate lands “ceded” to the United States by the Indians

from lands of which the Indians had made no relinquish-

ment. The technique of extinguishing Indian title by

treaty was recognized by Congress as early as 1793.8

Within another decade the technique of treating with the

Indians for the extinguishment of their title subject to con-

tinued temporary and permissive occupancy by them of ceded

*Whether (and if so, when and how) Indian title to the lands here in

controversy has been extinguished is one of the issues in this case.

*Cf., Act of March 1, 1793, 1 Stat. 329. Eleven years later an act of

Congress referred to “* * * the public lands of the United States to which

the Indian title has been or shall hereafter be extinguished * * *.” Act of

March 26, 1804, 2 Stat. 277. The extent to which the Congress adopted and

applied concepts, policies, and methods that had been evolved over the years

by the judicial and executive branches of the Government ts strikingly illus-

trated in a chronological review of the statutes at large relating to Indian

affairs and the putlie lands. The evolution is so apparent that reliance has

been made upon the statutes alone to carry portions of the ensuing narrative.

lands, had been developed,? and was soon thereafter (1804)

augmented by a long range policy for the eventual removal

of all Indians living east of the Mississippi to lands lying

west of that river.

10. (a) The Act of March 26, 1804, 2 Stat. 277, provided:

* * * the powers vested by law in the surveyor-general,

shall extend over all the public lands of ‘the United

States to which the Indian title has been or shall here-

after be extinguished, north of the river Ohio, and east

of the river Mississippi; ond it shall be the duty of the

said surveyor-general to cause the said lands to be sur-

veyed into townships, six miles square, * * *% % ee

also * * * to ascertain by astronomical observations

the positions of such places north of the river Ohio

and east of the river Mississippi, as may be deemed neces-

sary for the correctness of the surveys, and to be the

most important points of the geography of the country.

* * *

(b) For the purposes of this narrative the first and most

important line located by the surveyors was the fourth

principal meridian of longitude, which runs approximately

through the middle of Wisconsin, and appears on modern

maps as 90 degrees west of Greenwich.

** * the surveyor-general shall cause * * * those

lands * * * which * * * were subdivided,” by running

through the townships, parallel lines each way, at the

end of every two miles, and by marking a corner on each

of the said lines, at the end of every mile; to be sub-

divided into sections, by running straight lines from

the mile corners thus marked, to the opposite corre-

sponding corners, and by marking on each of the said

lines, intermediate corners as near y as possible equidis-

tant from the corners of the sections on the same, * * #1

(d) The Act of April 25, 1812, 2 Stat. 716, created the

General Land Office in the Dep tment of the Treasury, and

°Cf., Treaty of August 3, 1795, 7 Stat. 49: Treaty of October 2, 1798, 7

Stat. 62; Treaty of August 13, 1803, 7 Stat. 78: and Treaty of November 3,

1804, 7 Stat. 84. The Chippewas were parties to the Treaty of Greenville

(August 3, 1795). Similar provisions relating to hunting and fishing priv-

lleges were contained in subsequent treaties with the Chippewas. Treaty of

July 4, 1805, 7 Stat. 87: Treaty of November 17, 1807, 7 Stat. 105; Treaty

of November 25, 1808, 7 Stat. 112; and Treaty of August 24, 1816, 7 Stat. 146.

By the Act of March 26, 1804, 2 Stat. 277.

"The act further provided for lines marking quarter-quarter sections of

half sections that had been purchased prior to July 1, 1804.

made it the duty of th:commissioner “* * * to superintend,

execute and perform,,]] such acts and things, touching or

respecting the publiclands * * * as have heretofore been

* * * done * * *” bythe Departments of State, Treasury,

and War.

11. (a) The Northyest Territory became the Indiana

Territory in 1800, embracing all its original area except

Ohio."* Michigan Teritory was severed from the Indiana

Territory in 1805." Idiana became a separate territory, in

preparation for statelnod, in 1809, and the remainder of the

old Northwest Territwy became Illinois Territory. Illi-

nois was severed, in Peparation for statehood, in 1818, and

the remainder of the ld Northwest Territory was attached

to and made a part ofMichigan Territory.”

(b) Lewis Cass wis appointed territorial governor of

Michigan in 1816, anc began negotiations with the Indians

of that area in 1817. By the time Cass went to Michigan,

responsible officials 0’ the United States (including Cass)

realized that success n treating with the Indians required

councils with headm@ who could command the following

of all the Indians ocqpying the area concerned.

now embraced in theState of Wisconsin was divided into

two counties, using he Wisconsin River as the dividing

line. The area east ofthe river was placed in Brown County,

while the name Crawfrd was given to the county west of the

river.

(d) In 1820, HenryR. Schoolcraft joined the staff of Lewis

Cass as a geologist. In 1822, he began his work as Indian

agent at Sault Ste. Marie, Michigan (Territory). School-

craft spent 30 years ymong the Indians and came to know

them, particularly the Chippewas, as well as any man of his

time.

43 Act of May 7, 1800, 2 Sat. 58.

% Act of January 11, 189i, 2 Stat. 309.

% Act of February 3, 1809 2 Stat. 514.

% Act of April 18, 1818, 3 stat. 428.

% The Treaty of August 5, 1826, 7 Stat. 290, between the United States

(Lewis Cass was one of the commissioners) and “the Chippewa Tribe of

Indians” contained the following reference to another treaty concluded a year

earlier: “Whereas * * * oving to the remote and dispersed situation of the

Chippewas, full deputations of their different bands did not attend at Prairie

du Chien, which circumstance * * * would render the Treaty of doubtful

obligation, with respect to the bands not represented * * *,”

Early in his work Schoolcraft realized the importance of

being able to identify roving bands of Indians by tribes and

by the geographical areas in which they usually resided.

Shortly after the opening of the Indian Agency at Sault Ste.

Marie, he began the task, in which he persevered over the

years with unremitting care, of identifying and listing

Indians of the Michigan-Wisconsin-Minnesota area accord-

ing to tribes, bands, and customary habitat. This task was

rendered more important by the necessity for him, as admin-

istrative officer in charge of arrangements, to determine the

identity of individuals as well as bands who were proper and

legal recipients of the various annuities required by treaty

and provided by Congress.

12. (a) The Act of May 28, 1830, 4 Stat. 411, authorized

the President “* * * to cause so much of any territory be-

longing to the United States, west of the * * * Mississippi,

not included in any state or organized territory, and to which

the Indian title has been extinguished, as he may judge neces-

sary, to be divided into * * * districts, for the reception of

such tribes or nations of Indians as may choose to exchange

the lands where they now reside, and remove there * * #2738

(b) On June 30, 1834, a new act to regulate trade and inter-

course with the Indians became effective, 4 Stat. 729.2% Fol-

lowing are excerpts from the act:

* * * all that es of the United States west of the

Mississippi, and not within the states of Missouri and

Louisiana, or the territory of Arkansas, and, also, that

"On August 80, 1830, Schoolcraft wrote the Secretary of War: “There is

but a single annuity payable by existing treaties to the Chippewas of Lake

Superior. It is that of one thousand dollars, annually (during the pleasure

of Congress), provided by the Treaty of Fond du Lac. This annuity is pledged,

by the Chippewas, for the Support of a school, and is paid to the Treasurer

of the Baptist Society at Boston.”

The Treaty of Fond du Lac was the Treaty of August 5, 1826, wherein Lewis

Cass recognized “‘the remote and dispersed situation of the Chippewas.”

%*This act was the first statutory recognition of the policy of removal,

which had been in process of development for more than 25 years,

*Cf., Act of July 22, 1790, 1 Stat. 137, which referred to but did not

define “Indian country”; Act of March 1, 1793, 1 Stat. 329; Act of April 18,

1796, 1 Stat. 452; Act of May 19, 1796, 1 Stat. 469; Act of March 38, 1799,

1 Stat. 743; Act of March 30, 1802, 2 Stat. 139; Act of April 29, 1816, 8 Stat.

332; Act of May 6, 1822, 3 Stat. 682; and the Act of July 9, 1832, 4 Stat.

564, which authorized the appointment of “* * * 9 commissioner of Indian

affairs, who shall, under the direction of the Secretary of War, and agreeably

to such regulations as the President may * * ¢ prescribe, have the direction

and management of all Indian affairs * * 7”

376182—56——2

part of the United States east of the Mississippi river,

and not within any state to which the Indian title has

not been proces ay for the purposes of this act, be

taken and deemed to be the Indian country.

* * * if any person shall sell, exchange, or give, barter,

or dispose of, any spirituous liquor or wine to an Indian

(in the Indian country), such person shall forfeit and

pay the sum of five hundred dollars naling

trade and intercourse act, the management of Indian affairs

was reorganized (by the Act of June 30, 1834, 4 Stat. 735).

This act provided, in part, as follows:

* * * the duties of the governor of the territory of

Michigan, as superintendent of Indian affairs, shall

cease from and after the establishment of a new terri-

tory, embracing the country west of Lake Michigan,

should such a territory be established. And while the

governor of the said territory of Michigan continues to

act as superintendent of Indian affairs, he shall re-

ceive * * * compensation for services in said capacity.

(d) The Act of April 20, 1836, 5 Stat. 10, organized the

Territory of Wisconsin “from and after the third day of

July next” to include lands within the boundaries of the

present States of Wisconsin, Minnesota, and Iowa, and parts

of Michigan? and the Dakotas. The act provided that the

territorial governor “shall perform the duties and receive

the emoluments of superintendent of Indian a7 **

Henry Dodge became the territorial governor, and, ez

officio, Superintendent of Indian Affairs.

(e) One of the first acts of the newly formed territorial

government of Wisconsin was the creation in 1836 of 15 new

counties in the southeastern part of Brown County.’ The tier

of new counties extended from the mouth of the Wisconsin

River (where it joins the Mississippi) northeastwardly, al-

most to the present site of Green Bay. White settlements in

Cf, Act of March 30, 1802, 2 Stat. 139, 146, authorizing the President

“to take such measures * * * as to him may appear expedient to prevent or

restrain the vending or distributing of spirituous liquors among eo ¢ the

¢ * © Indian tribes * * *;” and the Act of July 9, 1832, 4 Stat. 564, pro-

viding that “* * * no ardent spirits shall be hereafter introduced, under any

pretence, into the Indian country.”

1 Michigan (minus the upper peninsula) was admitted to the Union by the

Act of January 26, 1837, 5 Stat. 144.

2 The territorial government of Michigan had set up Iowa County (around

Mineral Point) in 1829, and Milwaukee County in 1834.

"OEP:

ak ea

the region so organized were then populous enough to require

the greater extent of local government. Crawford County,

which included the lands subsequently set aside as reserva-

tions for the plaintiff bands, was unaffected by these

measures.

13. (a) The Act of March 3, 1837, 5 Stat. 158, making

appropriations for the Indian Department, carried an item

of $10,000 “for holding treaties with the various tribes of

Indians east of the Mississippi river, for the cession of lands

held by them * * * and for their removal west of the

Mississippi * * *,”

(b) On May 13, 1837, the Office of Indian Affairs ad-

dressed to the two commissioners (of whom Governor Dodge

was one) who had been appointed by the President “* * * to

hold a treaty with the Chippewa Indians of the Mississippi,

** *” a memorandum “* * * to communicate to [them]

the particular objects of the Government, and its views as to

the mede in which they may be accomplished.” The memo-

randum continued :

The tract which it is considered desirable to procure

from these Indians, is that part of their country which

lies east of the Mississippi river, and south of the 46th

meridian of longitude.’ It is understood, that this

tract is valuable for the pine woods which cover it, but

is unfit for cultivation. Its acquisition by the U. S.

will be beneficial to both parties. To the United States,

by opening to its citizens an extensive wood land, im-

portant especially from the rapidity with which settle-

ments are multiplying: to the Indians by giving them

an ample consideration in money * * * and other means

of improvement. If the Indians retain this land, —

rience has shewn that they will part with the most valu-

able of the timber to individuals, for at best very in-

adequate remuneration. * * *

for the treaty with the Chippewas, to negotiate for the pur-

chase of the Indian lands, in the sense of extinguishment of

their title, to the end that such lands could be opened to white

settlement at such time as the Government might deem it

desirable to do so.

(nenaaeeecemenemnesins

* Latitude is presumed to have been intended.

14. (a) On June 5, 1837, Governor Dodge forwarded

written instructions to the subagent for the Chippewa In-

dians to send messengers to the Chippewas in specified local-

ities “to notify them of the time [July 20] and place [Fort

Snelling] of the treaty * * *.” The instructions said:

* * * Tt is a subject of great importance that the dif-

ferent bands of the Chippewas should be represented to

prevent discontent among those who may not attend.

It will satisfy these Indians that the Government is

disposed to do justice to all. * * *

(b) The council was held as scheduled, “near Fort

Snelling, at the confluence of the St. Peters and Mississippi

rivers,” commencing on July 20 and extending through July

29,1837. The treaty was signed by Governor Dodge and the

Indians on the last day of the council.

Indians attending the council, as evidenced by the signa-

tures to the treaty, included chiefs from 13 localities; and

among them were chiefs from Lac du Flambeau, “Lake

Courteoville,” and La Pointe.

According to the Journal of the Proceedings of the Coun-

cil, Governor Dodge told the Indians in his opening state-

ment that he had been sent by the President to propose to

them the purchase of some of their lands east of the Missis-

sippi; and the Indians understood that the proposition before

them related to the sale of certain areas of their land. In

the course of negotiations the Governor specifically requested

the chiefs from Lac du Flambeau and Lac “Coutereille” to

come forward and examine the map with him. Before the

- treaty was signed Governor Dodge had it read to the Indians.

: 45. The Treaty of July 29, 1837, 7 Stat. 536, between the

- United States and “the Chippewa nation of Indians * alias

contained the following provisions: ¢

Article 1. The said Chippewa nation cede to the

United States all that tract of country included within

the following boundaries: * * *

4 Additional portions of the text of the treaty are set forth in finding 143,

{n conformity with an agreement with counsel during the trial to include in

these findings all or such parts of the text as the attorney for any of the

parties might request

Article 2. In consideration of the cession aforesaid,

the United States agree to make the Chippewa nation

* * * the following payments. * oT ie

Article 5. The privilege of hunting, fishing, and gath-

ering the wild rice, upon the lands, the rivers and the

lakes included in the territory ceded, is guaranteed [sic]

to the Indians, during the pleasure of the President of

the United States. * * *

16. In negotiating and signing the Treaty of July 29,

1837, the United States commissioner intended to buy and the

Indians intended to sell the Indians’ original right of

occupancy of the lands.

17. (a) The northern boundary of the Wisconsin land so

ceded was south of the Canadian border (by distances vary-

ing from 20 to 40 miles). The ceded strip was approxi-

mately 100 miles wide (north and south) and nearly 200

miles long (east and west). It included the area which was

subsequently set aside as the Lac Court Oreilles Reservation,

which, in turn, included some of the lands here in controversy.

(b) If any surveys had been made in the ceded area at

the time of the treaty of cession, they were general in nature.

Four or five years after the 1837 treaty, the surveys of town-

ships in Crawford County had been extended only three

tiers north of the Wisconsin River on the fourth principal

meridian. The numbering of townships, north, had been

started at the southern boundary of the territory (the line

between Wisconsin and Illinois), which is approximately

halfway between the parallels of latitude marking 42 and 43

degrees north of the equator. Ranges were numbered east

in sequence from the fourth principal meridian, and also

West from that line. The basic pattern of survey thus estab-

lished was continued, so that ultimately there were 51 town-

ships north (306 miles), 28 ranges east, and 32 ranges west

(making 360 miles across the State).

18. (a) The Chippewa Indians who remained on the lands

ceded by the Treaty of July 29, 1837, insisted upon the ex-

clusion of other Indians (including related bands of Chip-

pewas) living north and east of the ceded area from the

benefits (payments and services) provided by the treaty.

(b) As white men pressed into and through the ceded

lands, the supplying of intoxicants to the Indians in and

around the area became a source of irritation and concern to

white settlers and officials.’

cerned over the necessity for and the nature of provisions for

the removal and resettlement of the bands living in the

ceded area. In that year (1840) a new county (St. Croix)

was carved out of the western part of Crawford County, and

a year later still another county (Chippewa) was taken from

the center of Crawford, while a third new county (Portage)

took the eastern edge of Crawford and the western edge of

Brown County to encompass the Wisconsin River along the

first 140 miles of its course. Within another two years La

Pointe County had taken over the northern section of St.

Croix and Chippewa Counties, making a total of seven

counties * within the area originally assigned to Crawford

County, five of which reflected the influx of white settlers into

what had recently been Indian country.

19. (a) The Act of March 3, 1841, 5 Stat. 417, appro-

priated $5,000 “* * * to defray the expenses of holding treaties

with the Indian tribes for the extinguishment of their titles

to their lands within the limits of the State of Michigan.”

(b) On August 1, 1842, the Office of Indian Affairs wrote

to the Acting Superintendent of Indian Affairs for

Michigan:

The Congress * * * having * * * appropriated $5,000

to defray the expenses of holding treaties with the In-

dian tribes for the extinguishment of the titles to their

lands within the limits of the State of Michigan it is

deemed the duty of the Department to enter upon the

negotiation.

There are valuable minerals on the land that the Chip-

pewas are possessed of (and they are the only Indians

that hold any land in Michigan) which extend west-

ward, however, of that State and cover, out of its limits,

5In 1841, the Office of Indian Affairs, replying to an inquiry addressed to

the Secretary of War by the American Fur Company, expressed the opinion

that “the provisions of the Intercourse Law of 1834, in respect to the intro-

duction of ardent spirits into the Indian Country, or other particulars” were

not “in force in the territory ceded to the United States by the Treaty * * *,”

stating that “The Intercourse Law is in force only in ‘that part of the United

States * * * East of the Mississippi river, and not within any state, to which

Indian title has not been extinguished’.”

*Two counties (Sauk, 1840, and Richland, 1842) were in the southern part,

bordering on the Wisconsin River. Excluding these two counties, the white

population of the other five counties in 1850 was 5,446.

halen de

mines of copper etc. The law making the appropriation

refers only to Michigan but taking care to o the

direction of the Act there can be no objection that I

reeive to extending the purchase beyond the State.

ft is important, it strikes me, that we should have the

uninterrupted control of the whole Southern Shore of

Lake Superior for commercial and other purposes, as

well as for mining.

* * * it is contemplated to extend the purchase West

of the State of Michigan, and I think as far as the station

of the American Fur Company * * * South West of

Fond-du-Lac, and thence * * * to the cession made by

see of the Mississippi on the 29 July

—"*

pose of the Government in making the treaty was to extin-

guish Indian title to the lands described in the treaty.

20. The Treaty of October 4, 1842, 7 Stat. 591, was made

at La Pointe, “between Robert Stuart,’ commissioner on the

part of the United States, and the Chippewa Indians of the

Mississippi, and Lake Superior * * *.” It provided, in

part, as follows: *®

The Chippewa Indians of the Mississippi and Lake

Superior, cede to the United States all the country

within the following bounderies [sic]: * * * it being

the intention of the parties to this treaty, to include in

this cession, all the Chippewa lands eastwardly of the

** * line * * * from the * * * trading post on the

Fond du Lac river to the intersection of the line of the

treaty made with the Chippewas of the Mississippi July

29th 1837. * * *

The Indians stipulate for the right of hunting on the

ceded territory, with the other usual privileges of occu-

pancy, until required to remove by the President of

the United States, and that the laws of the United States

shall be continued in force, in respect to their trade and

intercourse with the whites, until otherwise ordered by

Congress.

* * * whenever the Indians shall be required to re-

move from the ceded district, all the unceded lands be-

longing to the Indians of Fond du Lac, Sandy Lake, and

Mississippi bands, shall be the common property and

home of all the Indians, party to this treaty.

* Acting Superintendent of Indian Affairs for Michigan.

* Additional portions of the text of the treaty are set forth in finding 144.

In consideration of the foregoing cession, the United

States, engage to pay to the hippewa Indians of the

Mississippi, and Lake Superior, annually, for twenty-

five years * * *.

Whereas the whole country between Lake Superior

and the Mississippi, has always been understood as be-

longing in common to the Chippewas, party to_this

treaty; and whereas the bands bordering on Lake

Superior, have not been allowed to bag oge in the

annuity pyre of the treaty made with the Chip-

pewas of the Mississippi * * * July 29th 1837, and

whereas all the unceded lands belonging to the afore-

said Indians, are hereafter to be held in common, there-

fore, to remove all occasion for jealousy and discon-

tent, 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 Mississippi and Lake Superior, party to this treaty,

so that every person shall receive an equal share.

The Indians residing on the Mineral district, shall be

subject to removal therefrom at the pleasure of the

President of the United States. * * *

21. (a) The Indian bands who were parties to the fore-

going treaty, as indicated by the signatures thereto, came

from 18 localities, including ten (identifiable) locations

represented by signatories of the Treaty of July 29, 1837.

Among the ten localities represented at both councils were

Lac du Flambeau, Lac Court Oreilles, and La Pointe.

(b) In negotiating and signing the Treaty of October 4,

1842, the United States commissioner intended to buy and

the Indians intended to sell the Indians’ original right of

occupancy of the lands.

trade and intercourse laws of the United States in the

ceded area was a matter of expediency resulting from the

disruptive influence of the sale of liquor to the Indians ® and

* Clauses retaining the provisions of Federal trade and intercourse laws

relating to spirituous liquors in areas ceded by Indians were later inserted

in other treaties. The inconsistency of treating ceded lands as Indian country

for some purposes but not all was debated but never resolved, Cf., Treaty of

July 23, 1851, 10 Stat. 949; Treaty of August 5, 1851, 10 Stat. 954; Treaty

of February 22, 1855, 10 Stat. 11:5; Treaty of February 27, 1855, 10 Stat.

1172; and Treaty of October 2, 1863, 13 Stat. 667. Also see Act of June 27,

1934, 48 Stat. 1245, 25 U. S. C. 254, limiting the application of ‘‘the special

Indian liquor laws" to Indian reservations.

_—

the ineffectiveness of territorial laws in coping with the

situation."®

(d) The Wisconsin lands so ceded were north and (in part)

east of the cession of 1837, and comprised all the remaining

lands occupied by the Chippewas in Wisconsin, except for

a small strip omitted by reason of the inability of the parties

te give a precise location to the American Fur Company’s

trading post on the Wisconsin-Minnesota boundary.

This cession included the lands subsequently set aside as

the Lac du Flambeau and Bad River Reservations, which, in

turn, included some of the lands here in controversy.

22. (a) The Act of August 6, 1846, 9 Stat. 56, authorized

the people of the Territory of Wisconsin to form a consti-

tution and State government, for the purpose of being

admitted into the Union. The act further provided that:

* * * section numbered sixteen, in every township of

the public lands in said State, and, where such section

has = sold or otherwise disposed of, other lands equiv-

alent thereto, and as contiguous as may be, shall be

granted to said State for the use of schools, * * *

(b) The Act of March 3, 1847, 9 Stat. 179, provided, in

part, as follows:

* * * all that portion of the public lands lying within

the Territory of Wisconsin, :.orth and west of the fol-

lowing boundary, to wit: commencing at the Mississippi

River on the line between townships twenty-two and

twenty-three north, running thence east along said line

to the fourth principal meridian, thence north along

said meridian line to the line dividing townships twenty-

nine and thirty, thence east along said township line to

the Wisconsin River, thence up the main channel of said

river to the boundary line between the State of Michigan

and the Territory ‘of Wisconsin, shall form a land

district, to be called the Chippewa Land District; and,

for the sale of the lands in said district, a land office

shall be established * * *,

* * * a geological examination and survey of the

lands * * * in said district [shall] be made * * *,

** * such of said lands as may contain copper, lead,

or other valuable ores, [shall] be exposed to sale * * *,

—_—_—_—....

* Territorial laws of Wisconsin forbade the sale of liquor to Indians, as

did the territorial laws of Iowa and Michigan. Experience had proved them

ineffectual.

4 The act retvrned to Michigan its present northern peninsula.

Speeteas Bates nivtnd ein MR aliae

eee |

And all the lands * * * in said district, not reported as

aforesaid, shall be sold in the same manner as other

lands under the laws now in force for the sale of the

public lands, excepting and reserving from such sales

section sixteen in each township for the use of schools,

and such reservations as the President shall deem neces-

sary for public uses. * * *

the three plaintiff bands were within the Chippewa Land

District as above defined.”

(d) The Act of May 29, 1848, 9 Stat. 233, formally ad-

mitted the State of Wisconsin into the Union.“

23. (a) The Act of March 3, 1849, 9 Stat. 403, estab-

lished the Territory of Minnesota.

(b) Meanwhile, the Office of Indian Affairs had obtained

from the Chippewas of the Mississippi and Lake Superior ex-

tensive cessions of land in Minnesota east of the Mississippi

River.*

assembly of the new territory of Minnesota was a resolution

urging the removal of the Chippewas living on ceded lands

east of the Mississippi to unceded lands west of the river.

This resolution received the favorable consideration and

ultimate endorsement c" he Territorial Governor (who was

ex officio Superintendent of Indian Affairs for Minnesota),

the Commissioner of Indian Affairs, and the Secretary of the

Interior.

24, On February 6, 1850, the President (Zachary Taylor)

issued the following Executive order:

The privileges granted temporarily to the Chippewa

Indians of the Mississippi, by the fifth article bf the

treaty made with them on the 29th of July 1837, “of

ora. fishing and gathering the wild rice, upon the

lands, the rivers and the lakes included in the territory

ceded” by that treaty to the United States; and the right

granted to the Chippewa Indians of the Mississippi and

42For further refinements of the land districts encompassing the areas con-

taining the lands subsequently set aside as reservations for the plaintiff bands,

see: the Act of March 2, 1849, 9 Stat. 351; the Act of July 30, 1852, 10 Stat.

25; also, the Act of February 24, 1855, 10 Stat. 615; and the Act of March 3,

1857, 11 Stat. 185.

™Cf., Act of March 8, 1847, 9 Stat. 178.

“Treaty of August 2, 1847, 9 Stat. 904; and Treaty of August 21, 1847,

9 Stat. 908.

— oc

a a

resident of the United States,” are hereby revoked ;

and all of the said Indians remaining on the lands

ed as aforesaid, are required to remove to their

unceded lands.

25. The issuance of the foregoing Executive order pre-

cipitated a public discussion in Which expression was given

to many differences of opinion concerning the removal.

Opposition to removal was widespread among the Chip-

pewa Indians living on the ceded land. Their reasons were

many and varied, with a common denominator based on

reluctance to leave the Vicinity of the white settlements.

Separation from the whites was, on the other hand, the

central theme of the advocacy of removal by Indian agents

and subagents. These officials had observed that the intru-

sions of the white men had resulted in depletion of the supply

of game and fish, had made it possible for the Indians to

obtain intoxicants readily, had introduced communicable

diseases among the Indians, and seemed generally to precipi-

tate a retrogression of Indian economy, health, and char-

acter. Therefore, the agents reasoned, send the Indians west,

away from the white settlements, to new and better hunting

grounds, and let them regain their former way of life. Fre-

quent recommendaticns had been made by the agents for the

payment of annuities in the western, unceded lands, as a

means of inducing the Indians to remove to those lands.

Removal was opposed by many of the missionaries and

teachers and other well-meaning people. Their argument

was that the white man had never given the Indian a real

chance to adopt the white man’s way of life, and that, in-

stead of banishing the req man to the western lands, he

should be given a chance to own and cultivate the soil where

he had always lived, Some of these persons apparently real-

ized that the western lands were not unlimited, and that pro-

vision for the Indians to continue a nomadic life over vast

areas would ultimately prove impossible.

<npcannithtasianitiontis

* Opposition to removal was algo prevalent among many unprincipled white

men who were engaged in exploiting the Indians through the sale of liquor

and other means,

As so often happens in such matters of divided opinion on

public affairs, the Government temporized and then com-

promised. Within the next decade, both policies were

adopted and given expression in substantial form. Neither

succeeded as its advocates had hoped.

26. The Swamp Land Act (of September 28, 1850, 9 Stat.

519) provided as follows: *

* * * to enable the State of Arkansas to construct the

necessary levees and drains to reclaim the swamp and

overflowed lands therein, the whole of those swamp and

overflowed lands, made unfit thereby for cultivation,

which shall remain unsold at the passage of this act,

shall be, and the same are hereby, granted to said State.

Sec, 2. * * * it shall be the duty of the Secretary of

the Interior, as soon as may be practicable after the pas-

sage of this act, to make out an accurate list and plats

of the lands described as aforesaid, and transmit the

same to the governor of the State of Arkansas, and, at

the request of said governor, cause a patent to be issued

to the State therefor; and on that patent, the fee simple

to said lands shall vest in the said State of Arkansas,

subject to the disposal of the legislature thereof: Pro-

vided, however, That the proceeds of said lands, whether

from sale or by direct appropriation in kind, shall be

applied, exclusively, as far as necessary, to the purpos>

of reclaiming said lands by means of the levees and

drains aforesaid.

Sec. 3. * * * in making out a list and plats of the

land aforesaid, all legal subdivisions, the greater part

of which is “wet and unfit for cultivation,” shall be

included in said list and plats; but when the greater part

of a subdivision is not of that character, the whole of it

shall be excluded therefrom.

Sec. 4. * * * the provisions of this act be extended

to, and their benefits be conferred upon, each of the

other States of the Union in which such swamp and

overflowed lands, known and designated as aforesaid,

may be situated. * * *

27. (a) The Act of September 30, 1850, 9 Stat. 544 (mak-

ing appropriations for the Indian Department), appropri-

ated $25,000 “for expenses of removal and subsistence of the

Chippewas of Lake Superior and Mississippi from the lands

ceded under the treaty of” October 4, 1842.

Cf, The Act of March 2, 1849, 9 Stat. 352, “* * * to aid the State of

Louisiana in draining the Swamp Lands therein.”

irae

eet! OTL BAO ARIA MES te VSM clit gE Pi Aa ANG a

(b) The Act of February 27, 1851, 9 Stat. 570 (supplying

deficiencies in appropriations), appropriated $25,000 “for

expenses of removal and subsistence of the Chippewas of

Lake Superior and the Mississippi from the lands ceded

under the treaties of” July 29, 1837, and October 4, 1842, “in

addition to the appropriation of” September 30, 1850. The

Same act appropriated $3,000 “for expenses of the removal

of the subagency for the Chippewas of Lake Superior and

the Mississippi from the old site at Lapointe, to the new

one * * +»

Superintendent of Indian Affairs for the territory) was

placed in charge of the removal. He made an intensive

effort to effect the removal of all the Chippewas from ceded

lands in Wisconsin, and succeeded in removing some 2,000 of

them over a period of three years. Some of the obstacles he

encountered proved insurmountable, however, as to some of

the bands, and by 1854 the Commissioner of Indian Affairs

was recommending exceptions to the policy of removal.

28. On November 21, 1850, rules for the administration

of the Swamp Land Act were initiated by the Commissioner

of the General Land Office in a letter to the surveyor general

of each of the States affected." Among the instructions

were the following:

(1) That all lands which, though dry part of the year, are

subject to inundation at the planting, growing, or harvesting

Season, so as to be unfit for cultivation taking the average of

the seasons over a reasonable number of years, should be

considered swamplands.

(2) That a list should be made, from the field notes of

surveys then on file, of the lands so granted to the State,

designating those which had been sold or otherwise disposed

of since the passage of the law and the price paid for them

when purchased. If the State should be willing to adopt

such lists, the General Land Office would regard them as

controlling. Otherwise the office would accept satisfactory

evidence furnished by the State of lands embraced by the

grant.

* Wisconsin and Iowa were served by the surveyor general's office at

Dubuque, Iowa.

(3) That in making, up the lists on the basis of the sur-

veyors’ field notes, intersections of survey lines with swamp

or overflow should be connected by straight lines, and all

legal subdivisions the greater part of which were thus shown

to be swamp or overflow should be so certified to the State.

(4) That if the State preferred to have surveys made, only

the boundaries of the swamp or overflowed lands should be

surveyed, and connectiions taken with the nearest section or

township corner; or

(5) That lakes andl streams should be meandered and

ordinates surveyed at :suitable intervals from the borders of

the lake or stream to tthe margin of bordering swamp land.

Connection of the emds of the ordinates would give the

boundaries of the swamp land with sufficient accuracy.

(6) That determinations of swamp lands should be made

in terms of quarter-quiarter (40-acre) sections.

The surveyor gener‘al was further instructed to make out

lists of the swamp lainds as early as practicable and, after

the selections were apyproved by the Secretary of the Interior,

to have the register emter all the lands so selected as granted

to the State.

29. (a) The surveyor general did not transmit to the Gov-

ernor of Wisconsin liists of the swamp lands shown by the

field notes, as he had_ been instructed to do in keeping with

tie mandate of the AAct to the Secretary of the Interior.

No such lists have yet been transmitted to the Governor of

Wisconsin by the Seccretary of the Interior.”

(b) When the regrulations for the administration of the

Swamp Land Act weere issued by the General Land Office,

extensive portions of Wisconsin had not been surveyed,” and

18 From the evidence as 28 Whole it is inferred that the surveyor general's

failure to transmit the listts in timely manner was due to lack of funds for

staff requisite for the work. -

1% Formal demand for thee lists was first made upon the Secretary of the

Interior by the Governor of ' Wisconsin on October 1, 1852. Ten years after the

passage of the Swamp Larnd Act the Governor of Wisconsin was repeating

demands theretofore made tby his predecessors in office that such lists be fur-

nished. As late as 1931, <8 Wisconsin official wrote to the Commissioner of

Indian Affairs: “* * * If, after being directed to make © © * determination

as soon as practicable, with eighty years * * * now passed, one is led to

wonder when the practicablde time will come.”

Cf, the Act of July 221, 1852, 10 Stat. 15, appropriating $20,000 “For

* * * the survey of the Lvake Superior region, Wisconsin * * *” (which lay

within the area ceded by tthe Treaty of October 4, 1842), and $33,000 “For

the completion of the towngship lines, and the subdivisions of such of the town-

many of the plats and field notes of surveys that had been

completed (and some of those made thereafter) were rough

and inexact in their designations of swamp and overflowed

lands.

30. (a) On March 15, 1851, the Wisconsin legislature

authorized the Governor “* * * to appoint * * * persons

* * * to act under his direction, in selecting ‘swamp lands’

*** [and] * * * toobtain fromthe * * * surveyor gen-

eral, copies of all the township plats of this State on file at

that office. * * *”

(b) On June 3, 1851, the Governor of Wisconsin (Nelson

Dewey) wrote to the surveyor general:

* * * As the decision of your Office, under these instruc-

tions, is, that the State * * * must adopt one or the

other of * * * two bases * * * and cannot rel upon

both combined, I have to advise you that this State is

willing to adopt the field notes of the Surveys on file in

your ollice as the basis * * *,

and “required” the Governor (Leonard J, Farwell) “* * *

to employ * * * surveyors * * * to make an actual * * *

survey and report of all overflowed lands granted to this

State by act of Congress * * *; [and] * * * to ascertain

the amount of swamp * * * Jandsgranted * * * which may

* * * have been or hereafter may be disposed of by the

United States since the passage of said act, and to draw

*** such * * * money as may be * * * due * * * on ac.

count of the disposal * * *. [and] * * * to ascertain and

select al] * * * swamp * * * lands granted * * * sur-

veyed * * * or [to be] surveyed * * * and cause entries to be

made * * * and to cause to be recorded therein descriptive

lists * * 2

ships as bear valuable pine timber, west of the fourth principal meridian,

and between the third and fourth connection parallels ¢ © (an area lying

within the cession made by the Treaty of July 29, 1837).

*On August 12, 1930, in a letter to the Chief Clerk of the Commissioners

of the Public Lands of Wisconsin, the Commissioner of Indian Affairs

Said: “* © © We feel, and you admit, that the old Surveys and classification

are quite erroneous * ¢ os ha

*In 1859, Governor Alex. W. Randall caused considerable work to be done

under the authority of this statute to determine the Swamp lands to which the

by the field notes as controlling.

—

bes *

(d) Governor Alex. W. Randall, of Wisconsin, in 1860,

protested the insistence by the Secretary of the Interior that

the State was bound by Governor Dewey’s election, saying

that “Gov. Dewey never had any authority to make any

such arrangement * * * [and] the Secretary of the Interior

had no authority * * * to * * * conclude any of the rights

of the state * * *.” Other Governors of Wisconsin made

similar protests over the years. The Secretary of the In-

terior nevertheless recorded Wisconsin as late as 1896 as being

one of four states that had elected to be bound by the field

notes of survey.

(e) The Wisconsin legislature has never authorized,

recognized, or ratified the action of Governor Dewey in

making the election to be bound by the field notes of survey.

On the contrary, it has consistently authorized and directed

the determination of swamp lands by examination of the

ground. The Secretary of the Interior has never recognized

officially the will of the Wisconsin legislature in this matter,

although he has, by regulations issued in 1931, and by ad-

ministrative procedures obtaining as early as 1897, permitted

a showing by third parties that lands indicated as swamp

by the field notes were not swampy in physical fact.

31. The Treaty of September 30, 1854, 10 Stat. 1109, was

made at La Pointe with “the Chippewa Indians of Lake

Superior and the Mississippi.” By its terms (1) the Indians

ceded land in Minnesota which had been owned in common

by the Chippewas of Lake Superior and the Chippewas of

the Mississippi, and (2) adjustments were made in the an-

nuities to cover the severance of the comon property. In ad-

dition the treaty provided :

* * * The United States agree to set apart and with-

hold from sale * * * the following described tracts of

nee * *

* * * For the La Pointe band, and such other Indians

as may see fit to settle with them, a tract of land bounded

3““The following States elected to make the field notes of survey the basis

for determining what lands passed to them under the grant, viz: Louisiana,

Michigan, and Wisconsin. Later the State of Minnesota adopted this method

of settlement. * * *” From a General Land Office Circular dated March 17,

1896. The same circular asserted that Alabama, Arkansas, Florida, Tllinois,

Indiana, Iowa. Mississippi, Missouri, Ohio, and later Oregon, elected to make

their selections by their own agents and present proof that the lands selected

were of the character contemplated by the swamp grant.

as follows: Beginning on the south shore of Lake Su-

perior, a few miles west of Montreal River, at the mouth

of a creek called by the Indians Ke-che-se-be-we-she, run-

ning thence south to a line drawn east and west through

the center 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 ex-

tremity of Madeline Island, for a fishing ground.

* * * 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 President. * * *

* * * 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 diseretion, 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 make such

changes in the boundaries of such reserved tracts or

otherwise, as shall be necessary to prevent interference

with any vested rights. * * *

* * * the Indians shall not be required to remove

from the homes hereby set apart for them. * * *

32. (a) The La Pointe (Bad River) Reservation, as finally

surveyed,‘ comprised 124,333 acres in nine townships, as

follows: ;

All of township 46 north, range 2 west.

All of township 46 north, range 3 west.

That part of township 47 north, range 1 west, contained in

fractional sections 4, 5, and 6, and in all of sections 7, 8, 9, 16,

17, and 18.

‘\vhile the township and at least some of the section lines had been run

prior to the Treaty of September 30, 1854, and were used therein to define

the reservation, the detailed surveys of at least some of the subdivisions of

sections and possibly of some of the sections were made on various dates

from 1855 to 1872

376182—56——3

LAA) TSR RSA ART Sep ke i ae ea ae

All of township 47 north, range 2 west.

All of township 47 north, range 3 west.

All of fractional township 48 north, range 1 west.

All of fractional township 48 north, range 2 west.

All of fractional township 48 north, range 3 west.

That part of township 48 north, range 4 west, contained in

fractional section 24, and in all of sections 25 and 36.

(b) On September 28, 1850, when the Swamp Land Act was

approved, there were, within the lands described in the pre-

ceding subparagraph, some “swamp and overflowed lands,

made unfit thereby for cultivation, which * * * remain[ed]

wee? ><"

paragraph (a), above, in existence when the governing reg-

ulations were issued by the General Land Office on November

21, 1850, and some field notes thereafter made, indicated that

in some legal subdivisions (as small as quarter-quarter sec-

tions) the greater part was wet and unfit for cultivation

within the terms of the statute and the regulations.

(d) Some legal subdivisions, within the lands described

in subparagraph (a), above, which were indicated on the

field notes as swamp, as described in subparagraph (c), above,

were not, in physical fact, on September 28, 1850, wet and

unfit for cultivation over the greater part, within the mean-

ing of the statute and the regulations.

(e) Some legal subdivisions, within the lands described in

subparagraph (a), above, which were not indicated on the

field notes as wet and unfit for cultivation over the greater

part within the meaning of the statute and the regulations,

were, in physical fact, on September 28, 1850, so wet and

unfit.

(f) The Bad River Reservation contained six sections 16.

One or more of these sections 16 contained lands falling

within each of the categories described in subparagraphs (b),

(c), (d), and (e), above.

33. (a) The Lac du Flambeau Reservation, as finally sur-

veyed ° and set apart,® contained 69,824 acres in seven town-

ships, as follows:

*The surveys of the Lac du Flambeau Reservation were made on various

dates from 1860 to 1865. Township lines had not been run in the vicinity of

Lac du Flambeau when the reservation was promised by the Treaty of

September 30, 1854.

*The reservation was set apart in 1866.

DRG A Dt WIRE SA,

In township 39 north, range 6 east, sections 5 and 6,

In township 40 north, range 4 east, sections 1-3, 10-15,

22-27, and 34-36.

All of township 40 north, range 5 east.

In township 40 north, range 6 east, sections 5-8, 17-20, and

29-32.

In township 41 north, range 4 east, sections 1-4, 10-16,

21-28, and 33-36.

All of township 41 north, range 5 east.

In township 41 north, range 6 east, sections 5-8, 17-20, and

29-32.

(b) Subject only to modification in respect to dates of sur-

vey, the statements contained in subparagraphs (b), (ce),

(d), and (e) of finding 32, relating to the Bad River Reserva-

tion are applicable to the lands contained in the Lac du

Flambeau Reservation, including the three sections 16 which

were incorporated therein.

34. (a) The Lac Court Oreilles Reservation, as finally sur-

veyed * and set apart,® contained 69,136 acres in eight town-

ships, as follows:

In township 38 north, range 8 west. All of sections 4-8;

in section 9, S14, NEY, E“4NW)\,, and SWYNWY,; and all

of sections 17 and 18,

In township 38 north, range 9 west. All of sections 1, 12,

and 13,

In township 39 north, range 7 west. All of sections 1 and

2; in section 3, NY,NEY, S%SEY, and NESEY; all of

sections 4 and 5; in section 6, E%, EY%YSW, and NWY%

(Lots 2 and 3) ; all of section 7; in section 8, Wh,

SWY4SE\, and Lots 1, 2, and 3; in section 9, NEYNEY,

SEYSEY, and Lots 1-6; in section 10, S%, NEY,

SYNWY, and N EYNW4,; all of sections 11-15; in section

li, W144, SEY, WINEY, and SEYNE,; all of sections

18-21, 28 and 29; in section 30, N%4, NEYSW1, NYSEY,

and SEY4SEY,; in section 31, E%, SWy4, WYNW 4, and

SEYNWY,; and all of sections 32 and 33.

In township 39 north, range 8 west. All of sections 1-15,

and 17; in section 18, NWY%, NYSWYy, N Y%SEY, and

ye weeps SERA EN RRND

SEYSE; in section 19, S44, NEY, SEYZNW%, and

WNW; all of sections 20-30; in section 31, 5144, NWY,

SYNE, and NWY,NE; and all of sections 32-36.

In township 39 ont: range 9 west. In section 1, Lot 2;

and all of sections 24, 25, and 36.

In tow nship 40 north, range 6 west. In section 3, SE,

and NEJ,,; in section 8, E144SE%,; in section 9, NW144SW4,

SYUNEW, SYNW,; in section 10, NW and NWYNEM;

in section 17, E144NE4, E1Y%4SEY,, SEYSW', (or Lot 1); in

section 18, SEY; i in section 19, NE; all of section 20; in

section 21, NW1,NW1,; in section 27, Lot 1; in section ‘98,

Lots 2 and 3, SW1Y4SE™\ (Lot 5), and SW (Lots 1, 6, and

7) ; all of section 29; in section 30, S14; all of uation 31; in

section 32, NW, (Lots 1, 2, and 3) and N14NE;; all of sec-

tions 33 and 34; in section 35, SW14SW14 (Lots 1 and 2).

In township 40 north, range 7 west. In section 26, S14

(Lots 1-5) ; in section 27, SE14 (Lots 1 and 2) ; in section 34,

E14; all of section 35; in section 36, part of SEY, (Lots 2

and 3),and SEY%SWY, (Lot 4).

In township 40 north, range 8 west. All of sections 1-15

and 17-23; in section 24, S14, NW14, SYNE, and

NW14,NE\,; and all of sections 25-36.

(b) On September 28, 1850 (when the Swamp Land Act

was approved), there were, within the lands described in the

preceding subparagraph, some “swamp and overflowed

lands, made unfit thereby for cultivation, which * * * re

main[ed] unsold * * *.”

set apart (1873), the Office of Indian Affairs and the Gen-

eral Land Office had been made aware of the complications —

arising from the claims of Wisconsin to the school and swamp

lands within the Indian reservations. All school lands were

eliminated from the Lac Court Oreilles Reservation.® There

is evidence to indicate that efforts were also made to eliminate

the swamp lands. The plat of the Lac Court Oreilles Reser-

vation reveals unmistakable checkerboarding of swamp and

reservation lands.

(d) The effort to eliminate swamp lands from the Lac

Court Oreilles Reservation was not wholly successful. There

remained within it some legal subdivisions, as small as quar-

®° There were (and are) no sections 16 in the Lac Court Oreilles Reservation.

tt ek

+ BASEN ND AER LERIE Sw corte CRRA AIRES gra ODP Ses oe

peak s-0F .

ter-quarter sections, the greater part of which were, on Sep-

tember 28, 1850, wet and unfit for cultivation, in physical

fact, within the meaning of the statute and the regulations.

Some such legal subdivisions were not indicated as swamp

lands on the field notes of survey.

At least one 40-acre tract which the field notes indicated

as swamp land was included in the reservation. Whether or

not this tract was, in physical fact, on September 28, 1850,

wet and unfit for cultivation within the meaning of the

statute and the regulations, has been questioned by defend-

ant. Ultimately, other legal subdivisions within the Lac

Court Oreilles Reservation containing 1,200 acres, more or

less, were indicated as swamp by the field notes of survey.

(e) The contradictions in the evidence concerning the

existence or non-existence within the Lac Court Oreilles

Reservation of lands having the physical attributes defined

by the Swamp Land Act of 1850" demonstrate this fact:

that before this century-old controversy between the State

of Wisconsin and the Department of the Interior had reached

the halfway mark in time, the term “swamp lands” had

ceased to have definitive meaning ” and was useful only asa

generic term.*®

35. (a) During the years intervening between the Execu-

tive Order of February 6, 1850 (finding 24), and the Treaty

of September 30, 1854, the policy of removal of the Indians

* From the Commissioner of Indian Affairs on December 31, 1923: “* © ©

attention * * * is called to one error on the map * * *: The SE\% of SE%

of Sec. 30, Twp. 39 North, Range 8 West, is indicated as swamp land, whereas

it is in fact non-swamp. * * *”

“From the Secretary of the Interior to the Governor of Wisconsin on

May 26, 1923: “* © @ » very large proportion of the swamp * * * Jands

Within the Lac Court Oreille Reservation have * * * been patented to * * *

Wisconsin, and * * © lists for the * * * remainder * * * are on file. © © o”

From the Commissioner of Indian Affairs to the Secretary of the Interior on

August 2, 1923: “* © © The records of the General Land Office show that

a considerable portion of the swamp lands of the [Lac Court Oreilles] reserva-

tion were patented to the State between May, 1861, and October, 1895. * © #

From the Commissioner of Indian Affairs to the Special Supervisor in Charge

of the Hayward School {Lac Court Oreilles Reservation] on December 31,

1923: “* © « swamp lands were not selected for * * * [this] reserva-

tion. * *

Department of the Interior, referred in their correspor. tence, more often than

not, to “so-called” swamp lands or to “swamp lands.” This was due to the

impasse between the State and the Department over the method of selection.

As hereinafter used in these findings the term is intended in its generic

Sense of so-called swamp lands unless qualified to give it specific meaning.

SSeS ye

to unceded lands had been implemented and carried out in

a substantial degree (finding 27). The payment of annuities

was transferred to new locations in the western land as one

of the inducements. The Chippewas who remained in Wis-

consin at the time of the 1854 treaty represented a minority

of the Chippewa population of Wisconsin in 1850.

(b) The Act of December 19, 1854, 10 Stat. 598, authorized

the President—

* * * to cause negotiations to be entered into with the

Chippewa Indians, for the extinguishment of their title

to alt the lands owned and claimed by them in the

Territory of Minnesota and State of Wisconsin * * *24

The act directed that the treaties should contain provisions

(1) “Granting to each head of a family, in fee simple, a

reservation of eighty acres of land, to be selected in the

territory ceded, so soon as surveys shall be completed * * *

which * * * shall be patented * * *;” (2) for the equal

distribution of annuities, to be paid at their villages

“* * * within the limits of the ceded territory * * *;” (3)

for the exiension of all benefits to the mixed bloods

“* * * who * * * reside on the ceded lands * * *” and (4)

for the lifting of the trade and intercourse laws from the

ceded territory, “except the twentieth section, which pro-

hibits the introduction and sale of spirituous liquors to

Indians.”

“the Mississippi bands of Chippewa Indians,” provided:

* * * The Mississippi, Pillager, and Lake Winnibi-

goshish bands of Chippewa Indians hereby cede, sell, and

convey to the United States all their right, title, and

interest in, and to, the lands now owned and claimed by

them, in the Territory of Minnesota, and included within

the following boundaries, viz: * * *. And the said

Indians do further fully and entirely relinquish and

convey to the United States, any and all right, title, and

interest, of whatsoever nature the same may be, which

they may now have in, and to any other lands in the

Territory of Minnesota or elsewhere. * * *

(d) The statute cited in subparagraph (b). above, and

the treaty cited in the preceding subparagraph, together

“Cf., finding 21 (d). Also, 834 Congressional Globe 1032, wherein the man-

ager of the bill in the House of Representatives stated that it related to “a

small portion” of land in Wisconsin.

with the Treaty of September 30, 1854 (finding 31), sum-

marize the evolution during this period of the policy relat-

ing to the resettlement of the Chippewa Indians in Wisconsin

and Minnesota.

(e) Indians belonging to the three bands who are plain-

tiffs in this case did not leave Wisconsin in substantial

pumbers. Although the Executive order of February 6, Pa

1850 (finding 24), was never revoked, and although no

formal extensions were issued with respect to them (as was

done for the Menominees), these three bands were among

the Indians who were permitted to remain in Wisconsin and

for whom permanent homes in that State were ultimately

provided.

36. (a) At the time of the Treaty of September 30, 1854,

the La Pointe Band was well concentrated in the area set

aside for it by the treaty. It has continued to live there

since that time. Inasmuch as the treaty described the bound-

aries of the Bad River (La Pointe) Reservation, the only

formalities remaining with respect to it after the ratification

of the treaty on January 10, 1855, were (1) the withdrawal

of the lands from entry or sale, which was ordered by the

President on March 7, 1855, and (2) the completion of the

detailed survey, which was accomplished in 1873.

(b) At the time of the Treaty of September 30, 1854, the

Lac du Flambeau and the Lac Court Oreilles Bands were

roaming over more extensive areas than were promised them

as reservations. They continued their nomadic life for 15

years or more after the treaty, becoming at times almost

forgotten.

surveying the reservations,”* orders were issued for the with-

irawal from entry or sale of the reserved tracts," surveys

CE, the Act of March 3, 1850, 11 Stat. 431, appropriating $10,000 to the

Var Department “* * * For the removal of the Court Oreille band * * * on

he Red Cedar and Menominee rivers, in Wisconsin, and providing a permanent

iome for them among the Chippewas of Lake Superior or the Upper Missis-

ippi.” When this act was passed, the lands around Lac Court Oreilles had

een subdivided and were to be offered for public sale on May 1, 1859. Similar

lans were made for the lands around Lac du Flambeau in 1866.

nen the Act of March 3, 1855, 10 Stat. 686, $3,000; the Act of August 18,

$56, 11 Stat. 65, $5,000; and the Act of March 3, 1857, 11 Stat 169, $7,000.

f., the Act of March 3, 1859, 11 Stat. 431, appropriating $75,000 “For

ontinuing the survey of the northern and northwestern lakes, including Lake

uperior.”

“By the President, March 7, 1855; and by the Secretary of the Interior,

ovember 22, 1859, April 4, 1865, and June 26, 1866.

Bem. NE RIS Beer TURNS Me KIRN Katia et YO PEST. NORE Ay tO AS A SIRO Ort rots S80 Bers NRRLeMiey

were made,"* conferences were held with the Indians, and

selections finally made and confirmed, on Lac du Flambeau

in 1866, and on Lac Court Oreilles in 1873. When bound-

aries were finally fixed, lands not included therein which

had been theretofore withdrawn pending selection of the

reserves were returned to the market as public lands.

37. The century-old controversy between Wisconsin and

the Department of the Interior over the administration of

the Swamp Land Act of 1850, as related to swamp lands

in general and swamp lands lying within Indian reserva-

tions in particular, divides naturally into four periods: (1) 31

years, being from 1850 through 1881; (2) 41 years, 1882

through 1922; (3) 13 years, 1923 through 1935; and (4) 15

years, 1936 through 1950.

Misunderstanding arose shortly after the Swamp Land

Act was passed on September 28, 1850. In 1881, Wisconsin

and the Department of the Interior accepted the report of

a joint commission which both parties believed at the time

would end their differences. The narrative of these years

is set forth in findings 38 through 56.

After it became evident that the controversy had not been

ended, each party again saved its rights until the decision

of the Supreme Court in Wisconsin v. Lane, 245 U. S. 437, in

1918 settled the issue of the school lands within the Indian

reservations adversely to the State’s contentions. For a time

it appeared that Wisconsin would accept the school lands

decision as determinative of its rights to the swamp lands

in the reservations. After many gestures and some commit-

ments in this direction, Wisconsin reconsidered its position

and withdrew from the concessions previously made. By

1923, the show was back on the road. The narrative of

this period is contained in findings 57 through 92.

In 1926, the Supreme Court decided the issue of the swamp

lands within the Indian reservations in the States’ favor, in

United States v. Minnesota, 273 U.S. 769. The Department

of the Interior admitted it had lost a battle, but refused to

concede the war. In 1935, the Secretary of the Interior and

the Governor of Wisconsin agreed upon terms of settlement

of the long standing dispute. The settlement failed to gain

the approval of the President and was not implemented by

% From 1855 to 18738.

Pane ty oe

Congress. The narrative of this period is contained in

findings 93 through 1113.

Wisconsin bided her time after it became apparent that

Congress would not implement the settlement agreement by

an appropriation of ‘funds. The opportunity afforded the

State to intervene in this case was the beginning of the current

denouement of the comtroversy. The narrative of these final

years is set forth in fimdings 114 through 117.

38. (a) The Act off March 2, 1855, 10 Stat. 634, directed

the President to cause patents to be issued, as soon as practi-

cable, to purchasers who had made entries of public lands

claimed as swamp lanids prior to the issue of patents to the

State; and provided tthat where the State had sold such a

tract of land prior to the entry, no patent should be issued by

the President until the State had released its claim. Each

State was to return to the General Land Office, within 90

days from the passage of the Act, a list of the lands so sold:

otherwise, patents were to issue from the United States, and

the purchase money was to be paid to the State upon due

proof by it that the lands purchased were swamp lands.

(b) On March 9, 1855, the Commissioner of the General

Land Office wrote to the Governor of Wisconsin directing his

attention to the Act of March 2, 1855, above, and requesting

the Governor to “* * * cause to be prepared * * * a state-

ment of all the lands selected or enuring to the State under

the Swamp land law, which have been sold by the State * * *.”

warded to the Commissioner of the General Land Office

a request for “* * * permission * * * to select from the

unsold Jands of the Government * * * [a] quantity equal

* * *” to 40,000 acres of swamp lands believed to have been

sold by the United States.

(d) On August 26, 1856, the Acting Commissioner of the

General Land Office wrote to the Governor of Wisconsin :

* * * The quantity, to which the State will be entitled

under the provisions of the act of 2nd March, 1855, for

the relief of purchasers and locators of swamp * * *

—_—_—_—_—.__.

* As indicated in footnote 3, finding 80 (d), nine of the 12 states to which

the Swamp Land Act of 1850 originally applied elected to make their own

determinations, instead of accepting the showing on the field notes. The terms

and wording of this Statute are some reflection of the generally accepted

Procedure. Cf., the Act of March 3, 1857, 11 Stat. 251.

— soo

TRESS SOT Reena

Sa eee SF a ae a > é toe . * 4 .

lands in lieu of the quantity of swamp land estimated to

have been located * * * after the passage of the [Swamp

Land Act] * * * is 35,683.46 acres, as corrected to this

date. * * * 20

(e) Thereafter, and from time to time, the Governor of |

Wisconsin executed releases to the United States of tracts

which had been (1) reported as swamp lands by the sur-

veyor general; (2) sold to individuals by the United States

Land Office after the passage of the Swamp Land Act; (3)

certified, after such sale, to the State of Wisconsin as swamp

land inuring to the State; and (4) patented to the State

after the certification.’

39. (a) On November 21, 1857, Wisconsin selected as

swamp lands the following tracts, all of which lie within the

boundaries of the Lac Court Oreilles Reservation as set forth

in finding 34 (a):

In township 38 north, range 8 west. In section 8,

NEYNE\.

In township 39 north, range 8 west. In section 12, NEW [

NE; in section 17, NW14NW; and in section 30, |

SEYSE\.

These four tracts contained 160 acres. None wasapproved [

as a swamp land selection at the time of the submission.

(b) It is not established by the evidence that any tract

described in the preceding subparagraph was patented to

Wisconsin by the United States prior to 1895, when a patent

issued for the SE144SE, section 30, township 39 north,

range 8 west.

40. On November 10, 1858, the Attorney General of the

United States forwarded to the Secretary of the Interior an

opinion relating to the effect of the Swamp Land Act in rela-

tion to lands in Arkansas. An excerpt from the opinion

follows:

*** 4 grant by Congress does of itself propire

vigore pass to the grantee all the estate which the United

States had in the subject matter of the grant, except

® Meanwhile, the Commissioner of the General Land Office had rejected &

list of swamp land selections submitted by the Wisconsin Governor on the

ground that the tracts had been sold by the United States prior to the passage

of the Act.

1In one instance the Governor refused to execute the release because

individuals had pre-empted the tracts under the laws of Wisconsin and had

made improvements on them.

PNT Rl OT aL WOR

what is expressly excepted * * * It is not necessary

that the patent should issue before the title vests in the

State under the Act of 1850. This Act of Congress was

of itself a present grant, wanting nothing but a defini-

tion of boundaries to make it perfect, and to attain that

object, the Secretary of the Interior was directed to

make out an accurate list and plat of the lands, and cause

a patent to be issued therefor. But when a party is au-

thorized to demand a patent for land, his title is vested

as much as if he had the patent itself, which is but evi-

dence of his title. * * *2

41. (a) On April 30, 1860, the Commissioner of the Gen-

eral Land Office wrote to the Governor of Wisconsin (Alex.

W. Randall) acknowledging receipt of certain lists of lands

claimed to be swamp:

* * * It appears from * * * these papers that the

State * * * has made selection of these lands from an

examination and survey in the field, and that * * * the

* * * Surveyor General * * * has declined [to certify

them to the General Land Office] * * *,

***The point * * * jg * * * Whether the State

* * * will be permitted to introduce proof that any

lands other than those shown by the field notes of the

* * * surveys are swamp within the meaning of the

Act. * * * A careful consideration * * * [has] re-

sulted in the transmission * * * tothe * * * Secretary

of the Interior * * * [of] an opinion adverse to a

change in the mode of selection adopted and agreed upon

between the Governor [Dewey] and the Department.

The Secretary * * * concurred in the views of this

office. * * *

* * * the lists presented by you cannot be regarded

as selections made in accordance with the arrangement

entered into in 1851, and which has been the basis of all

our official action so far as your State is concerned.

100: “* © * By the * © © act * * * it was made the duty of the Secre-

land, though clearly swamp land, because that officer has neglected to do this?

The right of the State did not depend on his action, but on the act of Con-

(b) In the meant!?®s the Act of March 12, 1860, 12 Stat. 3,

had extended the grt of the Swamp Land Act to Minnesota

and Oregon, and povided:

* * * the selecion to be made from lands already sur-

veyed in eachof the States including Minnesota and

Oregon * * *shall be made within two years from

the adjournmet of the legislature of each State at its

next session ater the date of this act; and, as to all

lands hereafte to be surveyed, within two years from

such adjournne”t, at the next session, after notice by

the Secretary ¢ the Interior to the governor of the State,

that the surves have been completed and confirmed.

Land Office forwaxrled to the Governor of Wisconsin a copy

of the foregoing A’t, called his attention to the time limita-

tion contained therin, and said:

* * * As the selections in your State are made by the

* * * Survey’ General from the field notes of the

surveys accordng to the terms agreed upon by Governor

Dewey * * *,that officer has * * * been advised of the

limitation and directed to proceed with the completion

of the selectims in accordance with the requirements

of the Act.

* * * inform me when the next session of the Legisla-

ture * * * will commence; and * * * advise me of the

day of adjournment.

(d) On June 14, 1860, the Governor of Wisconsin (Mr.

Randall) replied to the foregoing letter:

* * * Your instructions to the Surveyor Gen

places the State in a very awkward predicament.

Goy. Dewey never had any authority to make any such

arrangement as that suggested in your letter. * * *

The Secretary of the Interior had no authority * * *

to make any such arrangement as would conclude any

of the rights of the State, and the Secretary * * *

even up to the present time, has neglected to “make out

an accurate list and plats of the lands * * * and trans-

mit the same” to the Gov. of this State, as required by

law. * * * this State * * * has just cause of com-

plant * * °.

(e) In the subsequent course of dealings between Wisconsin

and the Department of the Interior, the latter’s application

of the limitation provisions of the Act of March 12, 1860

(subparagraph (b), above), was never more than sporadic.

2s?

* * *®

ala TE ee BARES tee Da a ae hen BE Ee AR TS Uae AAD ie Sa alle AR ads Natasa re Maas

Within a few years it became desultory, and after the

report of the joint commission in 1881, no further reference

was made to the statute.

42. (a) On November 13, 1865, the United States issued

to Wisconsin a swamp land patent (No. 8, Menasha Series)

covering 16,249 acres * in the Menominee Indian Reservation

in Wisconsin.*

(b) On April 15, 1866, the Commissioner of the General

Land Office informed the Secretary of the Interior that the

patent had been inadvertently issued, as far as concerned

lands in the reservation. A call was thereafter made by the

Department of the Interior upon the Governor of Wisconsin

to surrender the patent for cancellation. The Governor re-

fused to do so, on advice from the State’s Attorney General

that the lands properly inured to the State under the swamp

land grant.®

43. On August 2, 1866, the surveyor general’s office at

Dubuque delivered to an agent of the State of Wisconsin the

original field notes and plats of the public surveys of that

State.®

*The report of the joint commission in 1881 listed as swamp approximately

4,800 acres additional in the Menominee Reservation. Their selection as such

by the State was not approved, and no patent for them was issued by the

United States.

*The sequence of treaties between the United States and the Menominee

Indians, including the position of the Swamp Land Act of 1850 therein, is

set forth in the court's findings 2 through 9, in Menominee Tribe of Indians

v. United States, 95 C. Cls. 232, 234-237. When the Swamp Land Act of

1850 was adopted, the Menominees were living on lands on which, by the

terms of the Treaty of October 18, 1848, 9 Stat. 952, they were to be per-

mitted to remain until the President should notify them that the lands were

wanted. After steps had been taken during the early 1850’s to terminate

this permission, and to arrange for the removal of the Menominees to the

western lands, the time for their removal was extended by successive orders

of the President. The intervenor lays stress upon this fact as distinguishing

the Menominees’ “right of occupancy” from that of the plaintiff bands.

‘The lands covered by this patent, and other swamp lands lying within the

Menominee Reservation, were in issue in the Menominee case, 95 C. Cis, 232.

None of the parties to the instant case has cited any fact (1) from the evidence

herein or (2) from the course of dealings between the United States and the

Menominees as reflected in treaties (of which judicial notice may be taken),

to support a distinction between the passage of title to Wisconsin under the

1850 act of the swamp lands in the Menominee Reservation and the similar

Passage of title to the swamp lands within the reservations of the plaintiff

bands.

*The surveyor general's office at Dubuque was then in the process of being

closed, in accordance with the Act of June 12, 1840, 5 Stat. 384, which directed

that “* * * whenever the surveys * * * of any * * * State shall be com-

Pleted, the surveyor general thereof shall * * * deliver over to the * * ©

State * * * all the field notes, maps, records, and other papers, appertaining

aADS

44, On August 21, 1866, the General Land Office authorized

the further selection of swamp lands by Wisconsin in two

Jand districts. The method of selection was specified by the

General Land Office as follows:

* * * The Governor can appoint two agents to examine

the plats and field notes * * * who shall * ** hist ** * all

tracts shown thereby to be swamp lands.

* * * the Agents must append their certificate under

oath, that * * * the tracts * * * are * * * shown to be

swamp in the smallest legal subdivision.

* * * The selections must be confined to townships

wherein swamp selections have not been heretofore made,

as * * * the returns [by the surveyor general] of swamp

selections in a given township * * * [are] regarded as

concluding the selection in any such township.

* * * the selections must embrace no lands to which

adverse rights may have attached * * *.”

45. (a) On October 22, 1866, two commissioners ap-

pointed by the Governor of Wisconsin made affidavit that

they had examined the field notes and plats and had found

therefrom that the tracts listed by them, containing 524,545

acres, were swamp and overflowed lands. The lists were

duly submitted to the General Land Office as swamp land

selections in List No. 3, Stevens Point Series.

(b) Included in the selections described in the preceding

subparagraph were the tracts listed below containing more

than 20,000 acres which were within the boundaries of the

Lac du Flambeau Reservation as set forth in finding 33 (a):

In township 40 north, range 4 east. In section 3,

SWY,SW,; in section 10, NWY4NW%4; in section 11,

SEYNE\W, and SE; and in section 12, SWYNW,

NEYSW\, WY%SW, and Lots 1, 2, 3, 5, and 6.

In township 40 north, range 5 east. In section 24,

SY%SEY,:; in section 25, NEY, EYNWY, NYSEM,

SWY,SEY,, SEY,SW, and Lot 2; and in section 31, Lot 1.

to land titles, within the same; and the office of surveyor general * * *

shall thereafter * * * be discontinued.” Cf., the Act of January 22, 1853,

10 Stat. 152, which required “* * * the allowance of free access to the * * ©

[field notes and records] by the authorities of the United States * iis ‘i

The foregoing specification was actually written on June 29, 1870, when

the Commissioner of the General Land Office advised the Governor of Wis-

consin that again he would “* * * permit the State to make selections

{of swamp lands, in two specified districts] in the manner pursued in 1866,

ware 5 oO

In township 40 north, range 6 east. In section 17,

ENE and EY%SE\,;; in section 29, SNE, SUNWY,

SW, and W14SE¥Y,; in section 30, NEYSEY, and

SY%SE\; in section 31, NEY, NWYNWY, SYNWY,

NYSE, SEYSEY, and EY%SW),; and in section 32

NW, and NWYSWwy.

In township 41 north, range 4 east. In section 1, NE\4,

EYNW, and S\; in section 2, N14, N14SEY, and

SWY4SWY,; all of section 3; in section 4, NEY, EYNWY,

SE, and EY%SWY,; in section 10, NYNE,; in section 11,

N44; in section 12, N14, EY%SW, and SE\; in section 13,

NY4NW,; in section 15, WILNEY, NWY, NWSE,

SY4SEY and SW; all of section 21; in section 22,

NWYNWY, and SWY,SW\,;; in section 23, NEYSEY, and

S%SE¥,; in section 24, SWYNWY, NYSEY, SW, and

Lots 3 and 4; in section 25, NY and SEW; in section 26,

NINE; in section 27, NY, NWYSEU, SW, and

SESE; in section 28, NEY, NYNWy, SEYNWY,

Wi%SW, and NEYSE\,; in section 33, S%, NYNEY,

SEYNEY, NYNWY, and SWYNW\,; in section 34,

SYNEY, NEYNWY, SYNWY, NEYSEY, WSEY,

SW, and Lot 1; in section 35, E44, SEYZNWY,, N YNW,

NY%SW, and Lot 1; and in section 36, NEY, NEYNW,

SYNWY, SEY, N YwSW, and SEYSW.

In township 41 north, range 5 east. In section 1, NW,

S¥4, and Lot 2; all of section 2; in section 3, Lots 1-4; all of

section 4; all of section 5; all of section 6; in section 7, NY,

WiuSWY, N EYSW, and N YSEY,; in section 8, NA,

NYSWY, SEY, and Lot 2; in section 9, NYNEY,

SWYNEY, Wy, and NW',SEY, ; in section 10, WNEY,

SEYNEY, NYUNW, SEYNWY, NEYSW, and Lots

1-3; all of section 11; all of section 12; in section 13, Lot 1;

in section 14, NYNEY, and Lot 1; in section 17, ENE;

in section 29, NWYNE\ and Lot 1; in section 30,

SWYSWY, and Lot 4; and in section 31, NWYNWY,

SWYSWy, SEYNEY, and EWSEY,.

In township 41 north, range 6 east. All of section 7; in

section 8, W1%4SWY,; in section 17, NWYNWY, SYNWY,

NYSWY, SEYSW1,, and SWY4SEY; in section 18,

EWNEY, NEYWSEY, and Lots 1-4; in section 20, NEY,

ey Suet Para -

eit A el Git 2 BRE ARE SP

nih Aare,

iS gee CREE AR a FI AA AL a In

snack UR AAAS She eA CARS CERI LIOR RD RN NS

NEYNW%, SYNW, SEY, NEYSW, and SY%SWi;

and in section 29, Lot 8.

46. (a) On May 6, 1867, the Commissioner of the General

Land Office wrote to the Governor (Mr. Fairchild) of

Wisconsin : *

oo? te preliminary work of comparing * * * selec-

tions [in the Stevens Point and Menasha districts] with

the field notes, to test the swampy character of the tracts

selected * * * has been completed, and * * * all tracts

shown to be swamp and not otherwise interfered with

will be * * * certified to the State. * * *

(b) None of the tracts listed in finding 45 (b) was cer-

tified to the State.

47. On May 11, 1867, patents were issued by the United

States to Indian allottees on the Bad River Reservation for

several tracts containing more than 2,800 acres, some of which

were later (1870: see finding 49) selected by Wisconsin as

swamp lands. The issuance of patents was given as the

reason for the rejection (in 1876) of these selections.

48. (a) On April 22, 1869, the Commissioner of the Gen-

eral Land Office wrote to the Governor of Wisconsin review-

ing lists which the Governor had filed for approval as swamp

lands. The letter contained the following:

* * * List No. 6. Embraces lands selected as swamp

but reserved for Indian purposes in accordance with the

stipulations of a treaty approved Sept. 30, 1854. These

tracts were withdrawn from market June 27, 1866, prior

to the selection as swamp, and are now under control o

the Indian Bureau. * * *

(b) Except for the State’s refusal in 1866 to surrender

the Menasha patent (finding 42 (b)), selections by Wisconsin

of swamp lands lying within areas set aside for Indian reser-

vations (Menominee, Stockbridge, Munsee, and Chippewa)

first entered the discussion as such in 1869, as indicated in the

preceding subparagraph. The initial claim of Wisconsin to

such lands was on a modified basis. A part of one of the

——

8 Meanwhile, on September 18, 1866, the Commissioner of the General Land

Office had rejected a request for the approval of a list of swamp lands in

Wisconsin, saying: “* * * these lands have never been reported to this office

as swamp. The act of 12th March 1860 * * * fixes a time to the period

within which such selections are to be made. That period, with regard to

these tracts, has expired, and consequently they are no longer subject to such

selections or any other actions under the swamp grant.” Cf., finding 41 (e).

STR Gale —

reservations had been withdrawn from use as a reservation.®

Wisconsin made claim to the swamp lands within the part

so withdrawn, on the ground that the end of Indian occu-

pancy meant the end of the only impediment to final transfer

under the grant.”

49, (a) On July 30, 1870, Wisconsin selected as swamp

the following tracts containing approximately 1,300 acres,

which were within the boundaries of the Bad River Reserva-

tion as described in finding 32 (a) :

In township 48 north, range 3 west. All of section 9; in

section 17, Lots 1 and 2; in section 22, N14, NSE,

SEYSEY, NEYSWY, and S1%4SW,; in section 23, Lots

2-9; and in section 30, NI4NE\.

The foregoing selections were not approved.

(b) On April 24, 1871, the General Land Office approved

selections by Wisconsin of the tracts listed below, containing

10,000 acres more or less, which had been submitted as being

swamp and which are within the boundaries of the Bad

River Reservation as set forth in finding 32 (a) :

In township 47 north, range 3 west. In section 7,

SWfr.4SW; in section 22, SW14SW,; in section 30,

SWfr.44SwW; and in section 31, W14NE\ and Wfr.14.

In township 48 north, range 2 west. In section 7, Lots 1-3;

all of sections 17-21; in section 27, Lots 3-5; in section 28,

NWYNEY, NYANWY, and Lot 1; in section 29, NANE\,

SWYNW, and NNW; and in section 80, NYANEY

and NWY4NW,.

In township 48 north, range 3 west. In section 1, Lots 1

and 2; in section 2, SW144SW14 and Lots 1 and 7; in section

*The Act of February 6, 1871, 16 Stat. 404, authorized the sale cf town-

ships set apart for the Stockbridge and Munsee Indians, and originally formiug

a part of the lands of the Menominees.

In 1823, the Supreme Court observed, in Johnson v. McIntosh, 8 Wheat.

543, that the right of the United States to dispose of the fee of lands occupied

by Indians had been recognized by the court from the foundation of the Gov-

ernment. In United States v. Cook, 19 Wall. 591 (1873), the court held

that the Indians had a right of occupancy, although the fee was in the United

States. In addition, the court said: “* * * the right of the Indians to their

occupancy is as sacred as that of the United States to the fee, but it is only

a right of occupancy. The possession, when abandoned by the Indians, at-

taches itself to the fee without further grant.” (italic supplied.) The

Cook case was concerned with the tribal lands of the Menominee Reservation.

The above quotation from that decision was cited with approval in Beecher

Vv. Wetherby, 95 U. S. 517 (1877) where the court was concerned with school

lands in the Menominee Reservation.

376182—56——4

One

—a

<" GATS Bah ome LR HG

EN RR RRL de: »

8, S144SW14, SUSE, and Lot 1; all of fractional sections

4 and 5; in section 8, Lot 1; all of fractional sections 10-12;

all of section 13; all of fractional sections 14 and 15; in sec-

tion 18, Lot 1; in section 20, NEY and NWSE; in section

21, N14; in section 23, NEY, SWYNW, WiSWh, and

SEYSW,; in section 24, NZNW, EYSE\, and Lots 4,

5, 6, 8, and 9; in section 25, NEYNE\,; in section 26,

NY%NW;,; in section 27, NWYNW'4; and in section 29,

NWYNW,.

States covering any of the tracts described in the preceding

subparagraph on the basis of the approval of the selections

as swamp lands.

50. (a) On July 14, 1871, the Attorney General of Wis-

consin wrote to the Governo-:

* * * There are * * * certain reservations to Indian

tribes in the State, some of which have lately been ex-

tinguished, and the lands * * * are being * * *

brought into market. * * *

* * * T claim that the State is entitled under the

[Swamp Land Act] to the * * * agerage * * * lands

therein as soon as the Indian title or claim is extin-

guished * * *.

* * * The necessity for immediate action is* * * con-

fined to * * * the ‘Menominee and Stockbridge re-

>> *

(b) On July 21, 1871, the Governor of Wisconsin (Lucius

Fairchild) wrote to the Commissioner of the General Land

Office demanding for the State the swamp lands in such parts

of former Indian reservations as were returned to the market

as public lands.

General of Wisconsin that the Commissioner of the General

Land Office took the position that the treaties providing for

the reservation (from which the lands had been withdrawn)

did not extinguish Indian title, wherefore the lands had

never become public lands.”

**R

1 Defendant contends in this case (1) that Indian title to the lands here in

controversy has never been extinguished (from which it would follow that

the lands never became public lands; as to which see findings 5 through 25);

and (2) that, in any event, the Indians’ rights of occupancy were never

terminated, wherefore the lands in controversy never became public lands.

Cf., footnotes 4 and 5, finding 42.

(d) On January 16, 1873, the Office of the Governor of

Wisconsin forwarded to the General Land Office the claim of

the State to lands shown to be swamp by the field notes,

though presently within the limits of Indian reservations,

and asked for the issuance of patents to the State upon the

extinguishment of the Indian title. The letter continued:

* * * We ask for authority * * * to select * * * all

swamp * * * Jands * * * shown to be.such by the maps

and field notes * * * not heretofore selected * * *,

We ask * * * for indemnity, either in money or other

lands, for all lands sold by the United States, which

enured to the State under the * * * [Swamp Land Act

and the School Land Act]. * * *

(e) On May 20, 1874, the Acting Commissioner of the Gen-

eral Land Office advised a member of the House of Repre-

sentatives that he felt obliged, because of (1) previous actions

by the Commissioner of Indian Affairs (who, he said, re-

garded the treaty stipulations for Indian reservations as

withdrawals of the lands from the swamp grant) and (2)

the tacit approval thereof by the Secretary of the Interior,

to “decline to issue patents for any swamp lands which may

be selected in any of the townships withdrawn under the

treaty” of September 30, 1854.

(f) On April 28, i875, the Acting Secretary of the Interior

wrote the Commissioner of the General Land Office:

I have examined the appeal of the State of Wisconsin

from your decision * * * refusing * * * the claim of the

State to the swamp lands included in the Indian reserva-

tions created by the * * * Treaty of September 30,

in, © * 9

** * the lands included in said reservations were the

property in fee simple of the United States, on * * *

the date of the swamp land grant. * * *

The grant * * * was a present grant, and the State

* * * acquired title to all the swamp lands in said

tracts at that date. * * * that title could not be and

was not divested by subsequent treaty of 1854.

I reverse your decision * * *,

(g) On August 11, 1875, the Governor of Wisconsin (W. R.

Taylor) wrote to the State’s School Land Commissioners

citing the decision of the Secretary of the Interior recog-

nizing the claim of the State to swamp lands within the

Fe La Fs Se

oS ORT eM DS BARRENS EE rt EN

Indian reservations created by the Treaty of September 30,

1854. He quoted the reply he had received from the Secre-

tary of the Interior to his inquiry as to the application of the

Act of March 12, 1860, to such selections, wherein the Secre-

tary had said (1) that no new selections could be made of

lands which were surveyed before March 12, 1860, and (2)

that lands surveyed since that date in townships wherein

selections had not already been made, could be selected by

persons appointed by the Governor for that purpose. The

Governor's letter to the Commissioners added:

* * * Tam not aware that the State has ever made any

selections from townships within the Indian reserva-

im °**

* * * the Interior Department, prior to the decision

* * * has constantly held that the State was not entitled

to make selections within the Indian reservations. * * *

(h) On October 13, 1875, the Acting Commissioner of In-

dian Affairs wrote to the Secretary of the Interior acknowl-

edging receipt of the decision by the Acting Secretary recog-

nizing the validity of Wisconsin’s claim to swamp lands

within the Indian reservations. The letter continued :

* * *

* ** The treaty * * * makes provision for

* * *

allotment * * * in severalty to * * * Indians

An allotment has already been made to members of the

La Pointe band * * *.

** * in some * * * cases * * * such allotments

are composed of * * * lands designated as Swamp

lands * * *.

These lands comprise the very choicest tracts upon the

reservation * * *, The Indians gather the major part

of their wild rice and cranberries from a portion of same

and have their gardens upon the remainder. * *

houses and * * * other improvements are located upon

im **?*

I * * * recommend that the Commissioner of the

General Land Office be directed * * * not. to certify

to * * * Wisconsin as Swamp lands any of the tracts

* * * within * * * any of the reservations * * * and

that legislation be asked * * * giving * * * the State

* * * Jands in lieu * * *.

The foregoing recommendation was approved by the See-

retary of the Interior. Legislation to support it was

proposed in 1879 or 1880, but failed of adoption.

(i) On May 4, 1876, the Governor of Wisconsin (Harri-

son Ludington) transmitted to the Commissioner of the Gen-

eral Land Office for approval as swamp lands two lists, one

containing tracts which the General Land Office had previ-

ously “omitted” from approval in a previous submission

because the tracts were in the Lac du'Flambeau Reservation.

(j) On July 11, 1876, the Commissioner of the General

Land Office wrote the Governor of Wisconsin relative to the

general list submitted with the Governor's letter of May 4

for approval and patent as swamp lands:

** * all [were] selected as swamp July 30th,

wa Ses

A number of tracts have been sold or located * * *

and patented to the purchasers and locators * * *,

* * * tracts in T 48. N. R. 3. W. * * * have been

selected by Indians under the * * * treaty ** * of

September 30, 1854. And with the exception of * * *

two * * * were patented May 11,1867 * * *,

* * * An examination of the field notes * * * shows

that the following tracts * * * are not Swamp * * *,

and the claim of the State thereto is rejected. * * *

The tracts in township 48 north, range 3 west, were in the

Bad River Reservation.

The tracts rejected because shown by the field notes not to

be swamp contained approximately 5,500 acres. They were

not within the reservations of plaintiff bands. Concerning

the rejection, the Comn:'ssioner’s letter noted that the State

might appeal the ruling within 60 days.

(k) On August 24, 1876, the Commissioner of the General

Land Office wrote to the Commissioner of Indian Affairs:

** * The Governor of Wisconsin has * * * made * * *

application for the approval and patenting of the

swamp * * * Jands within the Reservations made under

diet Fhe treaty of September 30, 1854] * * * and * * *

this Office will * * * submit to the Secretary of the In-

terior * * * a list embracing 19,778.33 acres of such

lands within the * * * Lac de Flambeau Reservation,

_ a recommendation that the same be approved to the

State.

Should said list be * * * approved, similar lists of

lands in other reservations under the treaty * * * will

be submitted, and such as have * * * been approved will

be carried into patent,

PES NY OS UNAM et OS Eat

EL TEL Te

ete!

oN eds

oN Ve IRR SC Ree

(1) On May 15, 1878, the Commissioner of Indian Affairs

wrote the Secretary of the Interior:

* * * By [the Swamp Land Act] Wisconsin was granted

dale Swamp * * * lands * * * unsold at date of the

Act. The * * * Indian reservations were made subse-

quent to the Swamp grant * * *, and hence it is appar-

ent that all the swamp lands within * * * these reserva-

tions belong to the State; * * * the State should in some

way be reimbursed for the lands * * *. (Italics supplied.)

(m) On November 23, 1878, the Commissioner of Indian |

Affairs wrote the Secretary of the Interior: :

* * * T * * * cubmit * * * a list of lands, allotted in

severalty, to 44 * * * Chippewas, on Bad River reser-

vation * * * aggregating 2,995.29 acres.

* * * patents issued for [these] lands * * * May 1I,

my? **.

* * * No allottments * * * have been made * * *

on the Lac de Flambeau reservation. * * * allott-

ments * * * have * * * been made * * * on the Lac

Court Orielle reservation, none of which have been ap- [-

proved * * *. :

* * * Special Agent * * * Brooks * * * has made |

allottments on the * * * Lac Court Orielle and Bad |

River reservations, which have not * * * been prepared [

for submission to the Department. i

The lands allotted by Mr. Brooks * * * do not con- [

flict with lands * * * claimed by the State of Wiscon- i

sin as “Swamp * * * lands” * * *.

The larger proportion of the lands claimed by the

State, within these reservations, are wild rice fields,

which are of great value to the Indians * * *.

51. (a) During the years 1850 through 1880, no patents

covering swamp lands within any of the reservations of

plaintiff bands were issued to Wisconsin by the United States.

Following the discovery in 1866 of the situation resulting

from the issuance of the Menasha patent covering swamp

lands in the Menominee Reservation, the Department of In-

terior deliberately withheld the issuance of similar patents. >

The withholding was done for the protection of the Indians.

(b) By the end of 1880 Wisconsin had expanded its claim

for swamp lands within the reservations to include all such

lands because of their swampy character and without regard

2 ae

to the earlier qualification that selections be approved only

in areas where Indian claims had been extinguished. The

Governor of Wisconsin was nevertheless aware of “* * * the

difficulties which might arise from permitting the sale and

occupancy of these lands * * *” and had therefore not

pressed the State’s claims. To this extent, Wisconsin ac-

quiesced in the withholding policy of Interior.

ment of the Interior consistently maintained its position *

that the swampy nature of any lands for selection by Wiscon-

sin under the grant should be determined from the field notes

of survey."®

(d) Wisconsin’s acquiescence in this method of selection

was more apparent than real. After the rebuff admin-

istered to it in 1860 (finding 41), the State did not again,

prior to 1880, make an issue with Interior of the method of

selection. It did have on hand, however, the results of the

examination made by its own agents at its own expense in

1859; and the nature of some of the selection lists thereafter

submitted by Wisconsin compels the inference that some of

such lists included not only lands indicated as swamp by the

™ By a letter dated August 1, 1859, the Secretary of the Interior vigorously

defended the department's position in this matter, on the ground that a change

Swamp * * * lands—surveyed and then remaining unsold,—may be pre-

wherefore it was the very tracts so shown which Congress intended to grant.

48 Wisconsin, meanwhile, found indications that the application of the rule

—s proof simply that the land applied for, was in reality not Swamp

nd. °° ee

“In the letter cited in the preceding footnote, the Governor, after referring

to the field-note plan election by Governor Dewey, said: “This plan having

been adopted, and assented to by both parties, would Seem to have deter-

mined the rights affected thereby.” The remainder of his letter was an adroit

“tion of the subjunctive into an outright negative.

LT ET rae:

VER

AP LG OEP habe T te

EPTEMEL ONO E

Ser

Pere

field notes of survey, but other lands as well, presumably

tracts found to be swampy by physical examination.*

52. (a) Logging operations in Wisconsin had reached the

areas of the plaintiffs’ reservations by 1870, but the cutting

of timber on the reservations soon ran into complications

which were not overcome for several years.”

(b) In 1872, the Indian Agent in charge entered into a

contract with a local lumberman whereby the contractor was

licensed to cut some of the pine on the unallotted lands of

the Lac Court Oreilles Reservation in return for stipulated

annual payments. The contractor made two of the annual

payments, and cut some timber. The license was revoked in

1874, after the decision by the Supreme Court in the case of

Inited States v. Cook. The headnotes of the report” of

that decision follow:

1. Timber standing on lands occupied by the Indians

cannot be cut by them for the purposes of sale alone;

though when it is in their possession having been cut for

the purpose of improving the land—that is to say, better

adapting it to convenient occupation—in other words,

when the timber has been cut incidentally to the improve-

ment, and not cut for the purpose of getting and

selling it—there is no restriction on the sale of it.

2. The Indians having only a right of occupancy in the

lands, the presumption is against their authority to cut

and sell the timber. Every purchaser from them is

charged with notice of this presumption. To maintain

his title it is incumbent on him to > co that the timber

was rightfully severed from the land.

3. The United States may maintain an action for unlaw-

ose | cutting and carrying away timber from the public

ands.

The Cook decision put an end to the efforts of the Office

of Indian Affairs to obtain general revenue for the benefit

of the plaintiff bands (and all other Indians living on tribal

lands in Wisconsin) through the sale of green timber growing

on tribal lands."*

* Cf., finding 30 (c), footnote 2; and findings 50 (j), and 56.

%# Details of these developments are set forth in the findings of fact in the

decision of case numbered 45162, 126 C. Cls. 596 (findings 38 to 58, pp.

614 to 625).

2719 Wallace 591 (1873).

22 When Congress later authorized the sale of mature living timber on ub

allotted lands of Indian reservations, by the Act of June 25, 1910, 36 Stat.

855, the States of Minnesota and Wisconsin were excepted.

After the Cook decision, the cutting of live timber on the

unallotted lands of the reservations of the plaintiff bands was

regarded as a trespass, and the trespasser was required to

respond accordingly.”

on the Bad River Reservation at an early date, and patents

were issued to some of the allottees as early as 1867. Ten

years later some allotments had been made (but no patents

had been issued therefor) on the Lac Court Oreilles Reserva-

tion. No allotments were made on the Lac du Flambeau

Reservation until some time later.

(d) The question as to whether or not the Indian owner

of an allotment (which had been patented to him) could sell

the timber thereon was first raised in 1876, with respect to

lands in the Bad River Reservation. The Secretary of the

Interior ruled that the Indian owner could sell the timber,

but proceeded immediately to hedge the ruling with so many

qualifications (all of which were intended to protect and

benefit the Indians) that no appreciable volume of allottees’

timber was cut for several years. During this evolutionary

process, the doctrine of trespass was applied to the cutting of

timber on lands in the course of being patented to an allottee.

Details of the story belong to and are reported in the next

time period of the swamp lands controversy. At the close

of the first period (1881), the complications thereafter to

arise over the proceeds of timber cut from the disputed lands

were barely discernible.

53. (a) In May 1880, the Governor of Wisconsin and the

Secretary of the Interior composed their differences over the

method of selection of swamp lands in general. Commis-

sioners were appointed to examine the plats and field notes

of survey to determine what lands were swamp for which

patents had not been but should be issued to the State.

(b) On October 10, 1880, the Commissioners of the Public

Lands of Wisconsin reported (in their third Annual Report)

to the Governor:

—_—_—_—_—_—

*Cf., the Act of March 3, 1883, 22 Stat. 582, which provided (p. 590):

be covered into the Treasury for the benefit of such tribe under such regula-

tions as the Secretary of the Interior shall prescribe * * ¢

oe ae ee

Soyer |

yates — 57000 acres of the selections under the

swamp land grat,¢ * * * Jie within Indian reservations.

While it is conceded that the title to the lands was

vested in the Stite by the acts of Congress granting

them, it is yet hej 4 that such title is subject to the occu-

pancy of the land. py the Indians in such reservations as

peg arama § prior to the admission of the State into

. 0

* * * in our las, << isbeedd tad

aration * * * ofa report, es referred to the prep-

hy the State und statement of all the lands received

together with * ler * * * [tho Swamp Land Act] * * *

under the system, * the claim of the State for such lands

tained. * * * in! of selections which had previously ob-

would be entitle April last, it — that the State

addition to the pd to more than half a million acres in

* ke lands already received under this grant

* * * the Gove

Department of yernor * * * was able to obtain from the

thee haste for fhe Interior conditions which were made

lone deferred anal adjudication and settlement of this

the United St atetd vexed difference between the state and

* * *

Fey us seat commissioners reported on August 13,

Tehivies oak the Gi was accepted by the Secretary of the

U=m~egeaul: of Wisconsin without formal

"(b) The report o f »ment thereof by either official?

(as being 20 in dicate: the joint commissioners listed as swamp

described below, cont’ on the field notes of survey) the tracts

ues: wtthia Cis bountt2ining approximately 1,720 acres, which

set forth in finding oidaries of the Bad River Reservation as

32 (a):

Int hi

NEY, een n MC orth, range 2 west. In section 25, NEY

? ’

SW\,; and in sectio SEYNW%) NEWYSW\, and SW%

In township 46 ne® 36, SEY.

SW, and SEY,SW", range 3 west. In section 14, W%

in section 19, NEI) 43 in section 15, NEYSW% and SEX;

section 23, N14NW ASEM ; in section 20, NWY4SW4; in

4; in section 28, NY4NW1%4, SWYNW%,

*Cf., footnote 2, findin;

42 (b) ; footnote 10, finding 40; footnote 4, finding 42 (a) ; footnote 5, finding

1On September 30, 18Sling 48 (b) ; and footnote 11, finding 50 (c).

consin reported (in theirSS81, the Commissioners of the Public Lands of Wis-

basis of settlement betwdr fourth annual report) to the Governor: ~ 2:55

tween * * * the governaween the state and the United States, agreed to be

was faithfully applied * *nor * * * and * * * the secretary of the interior,

ee,

and NWY%4SW\,; in section 29, S4NE\, NY%4SE\, and

SEYSEY, ; in section 32, SEYNE\,; in section 33, SW,

NW and NWYSW\;; and in section 34, EYNEY,.

In township 47 north, range 3 west. In section 18, NE,

NW; in section 19, NWYNW,.

In township 48 north, range 2 west. In section 31, NW VA

sw.

In township 48 north, range 3 west. In section 2, SEY,

SW1,; in section 8, Lot 2; in section 23, Lot 10; and in sec-

tion 28, SWY4SWY,.

paragraph was included in the lists of Bad River selections

(i) submitted on July 30, 1870, but not approved or (ii)

approved April 24, 1871.2

(d) As of August 1881, Wisconsin had submitted swamp

land selections in the Bad River Reservation (including the

acreage listed in the report of the joint commissioners)

totaling approximately 13,020 acres.’

(e) The report of the joint commissioners listed as swamp

(as being so indicated on the field notes of survey) the tracts

described below, containing approximately 960 acres, which

are within the boundaries of the Lac du Flambeau Reserva-

tion as set forth in finding 33 (a) :

In township 40 north, range 4 east. In section 1, Lot 6;

in section 3, EMNWY, and SEYSWY,; in section 11, Lot 5;

in section 12, SEYSW4,; and in section 27, NWYNW,.

In township 40 north, range 5 east. In section 24, NEY

SE.

In township 41 north, range 4 east. In section 10, Ey%

NW; in section 13, NWY,NE\, SEYNW, and SWY%

\W14; in section 14, SEYNE\,; in section 22, NEYNWY

and SEY%SWY, ; and in section 23, SEYNEY, NWY4SEY,

and SEY4SWy,.

In township 41 north, range 5 east. In section 35, NE,

SE; and in section 36, NWY4SWy,.

In township 41 north, range 6 east. In section 8,

SWY,NWY,; in section 31, NWY4NW\;; and in section 32,

NWYNEY,.

* Findings 49 (a) and (b).

*Cf, findings 49 (a) and (b), and subparagraph (b), above, of finding 54,

Pls aan

OLE EOL NEEDS OPIS INA 8 Se

VEST POU SY, PTI PEE ERIELS | Y

Breer nes

(f) None of the tracts described in the preceding sub-

paragraph was included in the list of Lac du Flambeau se-

lections submitted on October 22, 1866 (finding 45).

(g) As of August 1881, Wisconsin had submitted swamp

land selections in the Lac du Flambeau Reservation (includ-

ing the acreage listed in the report of the joint commis-

sioners) totaling approximately 20,960 acres.*

(h) The report of the joint commissioners listed as swamp

(as being so indicated on the field notes of survey) the tracts

described below, containing approximately 1,160 acres, which

(except for the SW1,SE% 30-39-7) are within the bound-

aries of the Lac Court Oreilles Reservation as set forth in

finding 34 (a):

In township 38 north, range 8 west. In section 8, NE

NE.

In township 39 north, range 7 west. In section 6,

E%SW,; in section 1%, WYNWi, NWYNEM, and

SEY,NE,; in section 30, S1%4SE%4; and in section 31,

WiULNW.

In township 39 north, range 8 west. In section 8,

SWY,SW,; in section 12, NEYNEY,; in section 13,

NEY,NE; in section 17, W14NW,; and section 36,

NWY4NWk,.

In township 40 north, range 6 west. In section 29, Lot 11;

and in section 33, Lot 2.

In township 40 north, range 7 west. In section 26, Lot 1.

In township 40 north, range 8 west. In section 1l,

WSW);; in section 13, SW%4SE%4; in section 15,

SEY,SW; in section 22, NWY,NW4; in section 23,

SEY,SW,; in section 24, NW1,NE\ and SWY4SE%; and

in section 36, NW14NW.

(i) None of the tracts described in the preceding subpara-

graph was included in the list of Lac Court Oreilles selec-

tions submitted on November 21, 1857 (finding 39), except

the NE1,NE of section 8, township 38 north, range 8 west.

(j) As of August 1881, Wisconsin had submitted swamp

land selections in the Lac Court Oreilles Reservation (i0-

4Cf., finding 45 (b), and subparagraph (e), above, of finding 54.

cluding the acreage listed in the report of the joint com-

missioners) totaling approximately 1,240 acres.®

(k) The combined total of acreage approximated in sub-

paragraphs (d), (g), and (j), above, is 35,140, representing

the swamp land submissions by Wisconsin, as of August 1881,

for selections within the reservations of the three plaintiff

bands.

55. (a) On October 13, 1881, the Governor of Wisconsin

requested that patent be issued to the State by the United

States covering certain selections of lands indicated as swamp

by the field notes of survey.

(b) On November 14, 1881, in response to the foregoing

request, the United States issued to Wisconsin a patent cov-

ering 31,059.56 acres of such lands, located in 12 townships

spread over five ranges.

ship 48 north, range 4 west, containing 40 acres, and lying

within the boundaries of the Bad River Reservation. This

township was the only one of the 12 which contained lands

in any of the reservations of plaintiff bands. Only three

sections (24, 25, and 36) of this township were in the Bad

River Reservation. The 40-acre tract herein described was

the only one patented in 36-48-4. It had not been included

in any of the lists hercinabove described.*

(d) On November 21, 1881, the United States paid Wis-

consin cash indemnity as required by the Act of March 3,

1855,’ for the prior sale (1856) of Lot 10, section 23, town-

ship 48 north, range 3 west. This lot was in the Bad River

Reservation. It had been listed in the report of the joint

commission.

56. On December 31, 1881, the Governor of Wisconsin

(William E. Smith) reported (in his Annual Message) to

the Assembly :

* * * Progress has been made in the adjustment of

the claims of the state for additional swamp lands * * *,

* * * A careful revision of former selections of swamp

lands showed the state entitled to 536,000 acres more

than had been received. * * *

inecieiastinnintinins

*Cf.. finding 39 (a), and subparagraph (h), above, of finding 54.

*Cf., findings 49 (a) and (b), and 54 (b).

‘Finding 38 (a).

aaee

baa ws

HPAL NPI TELA

OY ERIN ET

ie “s

one

* * * In making the revision, it was found that the

United States had sold since March 3, 1857,° 435,081.33

acres * * * now determined to be swamp, and also that

of the lands previously patented to the state as swamp

319,900 were not of that character * * * [mak-

Eagles a difference in favor of the state of 115,181.33

om. 7 *>*

There is no existing law under which the state can be

indemnified for this * * * item, but its claim being

established * * *, there can be no doubt of obtaining

the congressional | islation necessary to provide * *

indemnification. *

* * * Authority having been received to select gov-

ernment lands in lieu of those sold prior to March 34,

1857, such selections may be made by an examination of

the field notes and plats, or by an agent who shall per-

sonally examine the om, <7 >>

* * * Tf the present policy of selling school and

swamp lands at $1.25 per acre’? be continued, the ex-

penditure incident to a selection by personal examina-

tion would not be expedient, but if it should be deemed

advisable to have the lands appraised and sold at their

value, it probably would be. * * *™

* * * The right of the state to school and swamp

lands in Indian reservations, for many years denied at

the department of the interior, is now admitted ; but the

difficulties which might arise from permittin the sale

and occupancy of these lands are considered to be so

great that a formal approval of them is withheld.

When Wisconsin’s claim to these lands was pre

sented * * * in 1879, the Secretary of the Interior and

the Commissioner of Indian affairs proposed to seek

legislation * * * authorizing the selection of lands

————

* The Act of March 8, 1857, 11 Stat. 251, confirmed the selections thereto-

fore made under the Swamp Land Act of 1850, subject to stated qualifications.

In 1866, the Attorney General ruled that the indemnities authorized by the

Act of March 2, 1855 (finding 38) should be limited to entries on locations

made prior to March 8, 1857.

® Manifestly, the acreage figures used by the Governor were based on the

showing in the field notes, since they were drawn from a tabulation of the

report of the joint commissioners.

1 The evidence is silent as to the basis of this assertion. It is to be noted

that it relates only to lieu lands.

ucf,, the Act of July 2, 1864, 18 Stat. 374, authorizing the Commissioner

of the General Land Office to fix @ minimum price of not less than $1.25 per

into market under existing laws * * a

12Some years later the Commissioners of the Public Lands of Wisconsin

recommended the establishment of a minimum price of $2.50 per acre for

ewamp lands.

* * * in lieu * * * and addressed a communication to

congress on the subject.

A bill * * * was introduced * * * but failed to be-

come a law, although favorably reported * * *,

* * * Within the Indian’ reservations there are

5,153.94 acres of school lands and about 55,000 acres of

swamp lands, * * *

* * * this work * * * has proved to be an under-

taking of far greater magnitude than was anticipated,

involving as it did a revision of all swamp selections in

the state. This required the careful reading of the field

notes of survey and an examination of the plats in

regard to each forty-acre tract.

It * * * [was] understood that the revision should be

a final adjustment of the claim of the state * * *,

57. (a) On October 10, 1882, the Commissioners of the

Public Lands of Wisconsin, in their fifth annual report to

the Governor (J. M. Rusk), again reviewed the State’s prob-

lem in obtaining patents covering swamp lands under the

1850 grant. With respect to swamp lands in general (i. e.,

swamp lands not within Indian reservations), the report

said :

* * * The delay in selecting and patenting to the state

gave time and invitation to individuals to locate and

enter large tracts of swamp and overflowed lands which

otherwise would incontestibly [sic] have become the

property of the state under the grant."

As this delay was through no fault of the state, * * *

the state should not suffer for the delay or neglect of

the general government. _

** * this * * * is admitted by the general land

office, * * * but there exists no law authorizing indem-

nity for the lands * * * lost * * *, and additional

legislation is necessary that justice may be done the

ma, °° 8

No indemnity was made to Wisconsin for the swamp

lands “* * * Jost through no fault of her own * * *,”

The controversy between the State and the Department of

the Interior slowly revived.

(b) Upward of 40 years passed before the limited phase

of the controversy which is at issue in this case (relating to

"The 55,000 acres of swamp lands were divided on the approximate basis

of 20,000 acres in the Menominee Reservation and 35,000 acres in the

reservations of plaintiff bands.

*Cf., footnote 8, finding 56. The delay had occurred, and title complica-

tions had developed as a result of it.

TRA SEV IS es

aaa ——

gece

swamp lands lying within the reservations of plaintiff bands)

again appeared to be near resolution.

Three facets of the course of dealings during this 40-year

period warrant consideration : (1) transactions, rulings, and

policies concerned with land; (2) t ansactions, rulings, and

licies concerned with timber and the proceeds of timber;

and (3) the impact of court decisions on the controversy,

and the actions of Wisconsin and Interior flowing therefrom.

Matters relating to land are set forth in findings 58 through

vered in findings 67 through 84;

66; the timber matter is co

and the litigation phase 18 described in findings 85 through

92.

58, A Wisconsin statute, approved on March 29, 1882,

authorized five named individuals to construct a canal and

booms in Ashland County and ue * * to use or acquire

certain [swamp] lands of the State * * * necessary there-

for.’ On July 20, 1882, the Commissioners of the Public

Lands of Wisconsin sold to the individuals named in th

statuce all of the State’s right, title, and interest 1n and t

certain swamp lands in townships 48 north, ranges 2 an

3 west. Included were parcels aggregating 3,080 acres i

the Bad River Reservation. These parcels have never bee

included in any patent sssued to Wisconsin by the Unite

States. It does not appear that the Commissioners, in mal

ing this sale, were specifically apprised that some of the lan

sold were within an Indian reservation.

1 9, 1894, the General Land Office a)

59. (a) On Marcel

proved a schedule of swamp land selections submitted |

Wisconsin. The schedule is not in evidence.

(b) On April 17, 1894, the General Land Office “held f

rejection” (meaning the rejection Was subject to appeal) t

claim of Wisconsin under the swamp land grant to ei

tracts (comprising approximately 360 acres) in the Lac

Flambeau Reservation. On September 1, 1994, the Assists

Commissioner of the General Land Office advised the Wau

having been filed, the rejection of the claim was final.”®

——

Excepting the Secretary's decision of April 28, 1875 (finding 50

ation in the evidence of the application by

this is the first specific cit

General Land Office of its appeals procedure to claims by the State. ]

subsequent instances of such application are in evidence.

Sialic, ctl. ie ste gloy MSMR LD VELA Na Pas GL I mT

September 12, 1894, the Commissioner of Indian Affairs was

advised by the General Land Office that “ * * * Said selec-

tions were for lands, allotted to * * * Indians * * * on the Lac

du Flambeau reservation * * * and embraced in schedule

approved on March 9, 1894.” On October 31, 1894, the Com-

missioner of Indian Affairs advised the Indian Agent of the

rejection,

wrote to the Commissioner of the General Land Office “rela-

tive to certain selections made by the State of Wisconsin un-

der the swamp land grant * * * of lands within the Lac du

Flambeau * * * Reservation.” Reference was made “ * * * to :

a schedule of 101 selections made by members of the * * * :

band * * * which was approved by the President, except where

they were in conflict with selections * * * claimed by * * *

Wisconsin under the swamp land grant * * *.” The letter i

continued : :

** * The grant of swamp lands to the State having

been made * * * four years prior to the treaty, and being

a grant in presenti, the question arises: Did the State ‘

get title to the swamp lands falling within the Indian ;

reservation ¢ 2

* * * the Indians prior to the treaty of 1854 had the i

right of occupancy to the land in the reservation, to- y

gether with the country surrounding it. By the treaty §

* * * the Indians stipulated for the right of occupancy f

of the lands ceded, until required by the President to is

remove. é

* * * the title to the lands * * * was in the United z

States * * * in 1850. Ittherefore passed by said grant, 3

but subject to the right of Indian occupation * * *. The

* * * State could take only the naked fee, and could not

disturb the occupancy of the Indians. That occupancy

could only be * * * determined by the United States.

Beecher v. Wetherby, 95 U.S. 517 (525).

in United States v. Thomas, 151 U.S. 577 (583), the

Supreme Court * * * said that the right of Indian occu-

— | of school lands] “gave them the enjoyment of the

and until they were required to surrender it by the

President * * *, which requirement was never made. So

** * the title never vested in the State, except as

subordinate to that right of occupation of the Indians.”

* * * the reasoning of those cases applies to * * *

[swamp lands]. * * * by the grant of 1850 the State

376182—56——5

ree:

TED D SATO RIAR OEE Eo BE HE IES 0 LY WE I nt ae * : wea

: ws sta DAL Gavia ‘ ote

* * * acquired the title to the swamp lands in the Lac de

Flambeau reservation, subject to the right of Indian

occupation—the mere naked fee, without the right to

ocrupy until the Indian right shall have been extin-

guished. * * *

* * * so long as the Indian reservation remains intact,

patent should not issue to the State for the swamp lands

within said reservation. * * *

60. On October 8, 1895, the United States issued to Wis-

consin a patent covering swamp lands to the extent of 397.57

acres, described in two half-quarter and six quarter-quarter

tracts. One of the 40-acre tracts was the SESE, of see-

tion 30, township 39 north, range 8 west, which was within

the boundaries of the Lac Court Oreilles Reservation as set

forth in finding 34(a). A plat of the patent shows that, with

the exception of this one 40-acre tract, all of the lands cov-

ered by it were in legal subdivisions which had been checker-

boarded out of the reservation.”*

61. (a) In December 1895, and in December 1896, Wis-

consin released to the United States tracts containing 400

acres (not in any of the reservations of plaintiff bands)

which had theretofore been claimed as swamp. The releases

were made because of the existence of prior patents or because

the selections had been rejected “as not being swamp by the

report of * * * 1881.”

(b) On March 17, 1896, the General Land Office issued a

circular containing the swamp land laws and regulations.

The circular is not in evidence. Reference to it is contained

in a note following “Part 271—Swamp Land Grants” in the

Code of Federal Regulations, 1949 edition, titie 43, page 605.

This note summarizes the office circular of November 21,

1850, and contains th- following:

* * * A State having elected to take swamp land by

field notes and plats of survey is bound by them, as is

also the Government. See Secretary’s deezions, Octo-

ber 4, 1855 (1 Lester’s L. L. 553), Augu i, 1859 (id.

571), December 4, 1877 (4 Copp’s L. O. 149), and Sep-

tember 19, 1879. * * *

1°'The evidence of exclusion is so graphically illustrated by the plat as to

compel the inference that the inclusion of the one 40-acre tract inside the

reservation was an oversight. The inference is supported by the Secretary’?

ruling of December 19, 1894, quoted in finding 59 (c).

_——— Ne RE Ra) RE TEE RE Nes AE SRT SERRE SN Mat NI a Se ea Ha

ical examination of lands to determine their swampy char-

acter. The examination was completed in due course, and

reports showing the results thereof were filed with the State

land office. Six years after the adoption of the statute, the

results of the examination had not been tabulated.

(d) On April 19, 1898, the Chief Clerk of the Commis-

sioners of the Public Lands requested the Governor of Wis-

consin (Edward Scofield) to relinquish the claim of the

State to a tract of 80 acres, theretofore claimed as swamp, on

the ground that physical examination of the land revealed

it as non-swamp.

(e) On August 30, 1898, the Secretary of the Interior, at

the instance of the Commissioner of Indian Affairs, directed

the Commissioner of the General Land Office to send a

special agent into the field to make a physical examination of

certain lands in the Lac du Flambeau Reservation which were

indicated as swamp on the field notes, and to determine by

such examination whether the lands were or were not swamp.

The examination was begun in September. Wisconsin ob-

jected to the making of the examination, and it was suspended

on orders from the General Land Office.

(f) On June 8, 1899, the Governor of Wisconsin (Edward

Scofield), in a letter to the Commissioners of the Public

Lends, expressed the opinion that “* * * the State should

not waive its right to any alleged swamp lands heretofore

selected, until it has been determined by an examination in

the

This text is long and has been trimmed here. Open the source document for the complete record.

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.