United States of America et al., Plaintiffs,

United States of America et al., Plaintiffs,

v.

State of Michigan et al., Defendants.

No. M26-73 C.A.

United States District Court, W.D. Michigan, N.D.

May 7, 1979.

James S. Brady, U.S. Atty., J. Terrance Dillon, Asst. U.S. Atty,. Dept. of Justice, Grand Rapids, Mich., Elmer T. Nitzschke, Dept. of

Interior, St. Paul, Minn,. Bruce R. Greene, Native American Rights fund, Boulder, Colo., Kathryn L. Tierney, Bay Mills Indian

Community, Brimley, Mich., William J. James, James Jannetta, Legal Services, and Daniel T. Green, Sault Ste. Marie Tribe Bay Mills

Indian Community, Sault Ste. Marie, Mich., for plaintiffs. Gregory T. Taylor, Asst. Atty. Gen., Lansing, Mich., for defendants

Opinion

Preface FOX, Chief Judge

"No one can deny that the constitution of the United States is the supreme law of the land; and consequently, no act of any state

legislature, or of congress, which is repugnant to it, can be of any validity. Now, if an act of a state legislature be repugnant to the

constitution of the state, the state court will declare it void; and if such act be repugnant to the constitution the Union, or a law

made under that constitution, which is declared to be the supreme law of the land, is it not equally void? And under such

circumstances, if this court should shrink, from a discharge of their duty, in giving effect to the supreme law of the land, would they

not violate their oath, prove traitors to the constitution, and forfeit all just claim to the public confidence?" Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 571-2, 8 L.Ed. 483 (1832)(McLean, J. concurring) (emphasis supplied).

When matters of great public and constitutional significance involving fundamental duties of the United States come here for

resolution, this court assumes an extra duty of care in explaining the reasons for its decision. As always, the court states the factual

basis and legal standards on which its conclusion rests so that the appellate court will know the lega grounds for this court's

decision. Equally important, however, this court assumes also an affirmative obligation to attempt to educate the public concerning

the basic principles underlying our constitutional democracy and the practical application of these principles in our public affairs.

See, Oliver v Kalamazoo Bd. of Education, 368 F.Supp. 143 (W.D. Mich. 1973).

Northwest Ordinance

The Northwest Territorial Government 1787

The Confederate Congress, July 13, 1787

An Ordinance For The Government Of The Territory

Of The United States Northwest Of The River Ohio

ARTICLE III

Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of

education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and

property shall never be taken from them without their consent; and in their property rights, and liberty they never shall be

invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall,

from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.

(Emphasis supplied.)

The above language, taken from the Northwest Ordinance, first enacted by the Confederated Congress in 1787 and reenacted by the

First Congress of the United States at its very first session in 1789, is the backdrop for this action. It will be discussed in detail in

the course of this opinion.

Also a backdrop of this case is the history of the American treatment of the Indians. In 1869 President Grant appointed a

commission (pursuant to Act of Congress of April 10, 1869) composed of "nine men, representing the influence and philanthropy

of six leading States, to visit the different Indian reservations, and to examine all matters appertaining to Indian affairs."' Their

report includes the following language:

While it cannot be denied that the government of the United States, in the general terms and tenor of its legislation, has evinced a

desire to deal generously with the Indians, it must be admitted that the actual treatment they have received has been unjust and

iniquitous beyond the power of words to express. Taught by the government that they had rights entitled to respect; when those

rights have been assailed by the rapacity of the white man, the arm which should have been raised to protect them has been ever

ready to sustain the aggressor. The history of the government connections with the Indians is a shameful record of broken treaties

and unfulfilled promises.

The history of the border white man's connection with the Indians is a sickening record of murder, outrage, robbery, and wrongs

committed by the former as the rule, and occasional savage outbreaks and unspeakably barbarous deeds of retaliation by the latter

as the exception.

The class of hardy men on the frontier who represent the highest type of the energy and enterprise of the American people, and are

just and honorable in their sense of moral obligation and their appreciations of the rights of others, have been powerless to prevent

these wrongs, and have been too often the innocent sufferers from the Indians' revenge.

That there are many good men on the border is a subject of congratulation, and the files of the Indian Bureau attest that among them

are found some of the most earnest remonstrants against the evils we are compelled so strongly to condemn. The testimony of some

of the highest military of officers of the United States is on record to the effect that, in our Indian wars, almost without exception,

the first aggressions have been made by the white man, and the assertion is supported by every civilian of reputation who has

studied the subject.

In addition to the class of robbers and outlaws who find impunity in their nefarious pursuits upon the frontiers, there is a large class

of professedly reputable men who use every means in their power to bring on Indian wars, for the sake of the profit to be realized

from the presence of troops and the expenditure of government funds in their midst. They proclaim death to the Indians at all times,

in words and publications, making no distinction between the innocent and the guilty. They incite the lowest class of men to the

perpetuation of the darkest deeds against their victims, and, as judges and jurymen, shield them from the justice due to their crimes.

Every crime committed by a white man against an Indian is concealed or palliated; every offense committed by one Indian against a

white man is borne on the wings of the post or the telegraph to the remotest comer of the land, clothed with all the horrors which the

reality or imagination can throw around it. Against such influences as these the people of the United States need to be warned. The

murders, robberies, drunken riots, and outrages perpetuated by Indians in time of peace taking into consideration the relative

population of the races on the frontier do not amount to a tithe of the number of like crimes committed by white men in the border

settlements and towns. Against the inhuman idea that the Indian is only fit to be exterminated, and the influence of the men who

propagate it, the military arm of the government cannot be too strongly guarded.

It is hardly to be wondered at that inexperienced officers, ambitious for distinction, when surrounded by such influences, have been

incited to attack Indian bands without adequate cause, and involve the nation in an unjust war. It should, at least, be understood

that in the future such blunders should cost the officer his commission, and that such destruction is an infamy. [Footnote to a 1978

Detroit Free Press article by Tom Opre documenting contemporary violence omitted.]

Report of Commission of Citizens (November 23, 1869), cited in Report of Commission of Indian Affairs, 47-48 (1869).

Senator Clay made similar points on the floor of the Senate in 1835. Speaking of the Cherokee Indians of Georgia, he said, as

reported in the Congressional Globe for February 4, 1835:

Mr. C. said he wished to turn the attention of the Senate to the nature of the wrongs this people had suffered to the present

condition of the Cherokees, whose lands had been guaranteed by the United Sates. He went into the examination with the utmost

feelings of sorrow and regret at the miserable state to which these tribes were reduced by the laws of the States. But he would

assure the honorable Senators from Georgia he was actuated by no hostile intentions to that State. Georgia was the first that

made these encroachments; she originated the plan of invading the Indian rights, and she had carried it far beyond all others. He

had not all these various laws before him. It was not necessary to go into details; it was sufficient to notice the results. By the first

act Georgia abolished the Government of the Cherokee nation. No nation (said Mr. C.) can exist without a Government of some

kind. These people had formed and established a Government in imitation of our own. But it was wholly immaterial what the

humble form of that Government might be. Georgia had abolished it. She next proceeded to divide their territories into counties,

and distribute them by lotteries among their citizens every head of a family being entitled to the land drawn against his number.

She did indeed reserve a small pittance of a few acres for those Indians who wished to remain within her limits, but under

circumstances that rendered them worthless. She gave them no rights, no franchise, no single privilege. They were denied the

power of testifying in courts of justice. No Indian could be a witness in favor of his fellows.

The present case is not a 14th Amendment case, as defendants advocate. It is an Indian treaty case in which the State asks the court to

abrogate the Indians' aboriginal rights which have survived for over 12,000 years and are valid to this day, and which were

guaranteed to the Indians by the Treaty of Ghent and the Treaties of 1836 and 1855. This case deals only with the jurisdiction of the

Federal government over the Indian and its authority to enter into treaties which bind the states. Const. Art. 6, cl. 2; Art. 1, 8.

Michigan would take the Indians' subsistence and livelihood, their right to fish, and divide it by a modern-day lottery, the Indians

being permitted to compete for licenses equally with those who have taken their rights from them.

I. Introduction

On April 9, 1973, the United States of America in its own behalf and in behalf of the Bay Mills Indian Community, initiated this

litigation in order to protect the tribe's rights to fish in certain waters of the Great Lakes vested in the tribe by virtue of aboriginal

occupation and use, the Treaty of Ghent of 1814, and the Treaty with the Ottawa and Chippewa Nation of 1836. In its complaint, the

United States asked that the State be enjoined from interfering with the Indians' treaty confirmed rights to fish in the Great Lakes.

The Bay Mills Indian Community intervened in the action on December 12, 1974, and added certain individual officials of the

Michigan Department of Natural Resources as defendants in its complaint. Bay Mills also expanded the scope of the complaint by

alleging that it possessed a reserved exclusive fishing right in Whitefish Bay of Lake Superior and a right to fish in the remaining

waters of Lake Superior free of state regulation. Accordingly, Bay Mills asked the court for declaratory and injunctive relief to

prohibit the State from interfering with these fishing rights, and an affirmative order that the State must exercise its police power to

regulate any non-Indian fishing which would be in derogation of these rights. Bay Mills amended its complaint on October 28,

1975, added the Michigan Department of Natural Resources as a defendant, and again expanded the scope of the complaint by

alleging a treaty protected, reserved right to fish in all of the area of the Great Lakes ceded to the United States in a treaty signed in

1836. This ceded area covered large portions of Lakes Michigan, Superior, and Huron.

The Sault Ste. Marie tribe of Chippewa Indians, a tribe organized in 1975 under the Indian Reorganization Act, 25 U..S.C. . sect; 476,

intervened in this action and filed a complaint against the above-named defendants on December 12, 1975. In its complaint, the

tribe alleged a treaty-protected, reserved right to fish in Lake Superior free from state regulation. On June 17, 1976, the Chippewa

tribe filed an amended complaint in which it alleged an exclusive right to fish in the waters reserved to the Indians in the Treaty of

1836, and a right to fish in the ceded waters of the Great Lakes free from state regulation.

The United States amended its complaint in June of 1976 to comply with the intervenors' complaints, with minor differences. The

United States did not allege that there existed "ceded waters" under the 1836 treaty, but instead alleged that the Indians had an

aboriginal right to fish in the waters adjacent to the lands ceded under the 1836 treaty and adjacent to the lands reserved in that

treaty. Also, the United States did not ask for a declaratory judgment that the tribes have exclusive fishing rights in all the waters

adjacent to land reservations contained in the 1836 treaty, but instead asked the court to determine that the State had no

jurisdiction to regulate anyone fishing within the Bay Mills Indian Community reservation, which it alleges included Whitefish

Bay. In effect, the United States' complaint excluded the Chippewa tribe's allegation that it has exclusive fishing rights in certain

waters of the Great Lakes adjacent to 1836 treaty reservation areas in addition to Whitefish Bay.

The plaintiffs' pleas for relief are grounded in the Supremacy Clause of the United States Constitution, Article 6, Clause 2.

The State of Michigan, in its answer, disputed the interpretation given the Treaty of 1836 by the plaintiffs, questioned the

continued existence of the tribes which were signatories to the Treaty, and alleged as defenses: ( I ) that the treaty was a removal

treaty, and therefore the Indians intended to relinquish any aboriginal fishing rights they may have held in 1836; (2) a subsequent

treaty in 1855 discharged all prior rights under the 1836 treaty; (3) this 1855 treaty was an accord and satisfaction extinguishing

all prior rights; (4) the Indians did not have any aboriginal rights over the Great Lakes; (5) Article 13th of the 1836 Treaty which

granted the Indians the right to use the fruits of the land until the land is required for settlement acted as a reservation upon a

condition subsequent, and that condition having occurred, the use is extinguished; (6) the land reservations made in the 1836

Treaty have expired by the terms of the Treaty; (7) even though there may be a treaty-protected right to fish, the State of Michigan

may still regulate this right in the interest of conservation or under other state police powers; (8) the expansion of the Sault Ste.

Marie Chippewa reservation may be done only with the consent of the state; (9) the Chippewa Tribe was dissolved by the 1855

Treaty, and the Chippewa tribe from Sault Ste. Marie is not in privity with the original signatories to the treaty.

The State of Michigan set forth a counterclaim in its answer in which it asked the court to declare that the Indians involved in this

action are not exempt from state regulation. The Court views this counterclaim as a repetition of the denials and defenses set forth

above, however.

The Michigan United Conservation Clubs (MUCC), a sportsman's group, petitioned tints court for permission to intervene in the

action. That petition was denied for reasons set forth in an earlier opinion of this court; MUCC has been permitted to act as an

amicus curiae, however.

After numerous pretrial motions were disposed of, trial began on February 27, 1978. The Court heard extensive historical evidence

and received voluminous documentation meant to provide a basis for interpreting the often ambiguous treaties in issue in this case.

Extensive briefs and arguments considered the issue of whether the State of Michigan or the United States alone has the right to

regulate fishing by the plaintiff tribes in the Upper Great Lakes.

[1] Before the filing of the complaint and continuously during the Course of these proceedings, the State of Michigan and certain

individually named state officials have acted in derogation of the vested aboriginal and federal rights of the plaintiff Indian tribes.

The conflict between the state and tribal fisherman is notorious; scarcely a day goes by without an article appearing in one or more

of the state's major newspapers concerning the controversy. That it is a passionate issue is exemplified by a recent wholly improper

attempt to influence this Court through the circulation of petitions amongst sports fishermen which urged that the court rule

against the Indians. The circulation of petitions is an action diametrically at odds with the methods of access to the courts mandated

by the Federal rules of Civil Procedure. This misguided action gave thousands of people the erroneous impression that

constitutional rights are a matter of popular contest. This was a corruption of the concept of the Federal Judicial system. In a

democracy, many times people violate Constitutional and Inalienable rights. The United States Courts exist to ensure guaranteed

constitutional rights against the TYRANNY OF POPULAR MAJORITIES. Federal Court Judges are, or ought to be, custodians of

secured constitutional right.

Before giving my specific findings of fact and conclusions of law, and in the effort to foster public understanding, I present the

following more exhaustive statement of the issues and law involved in this case.

The United States, guided by the Nixon administration and acting in its role as trustee for the Indians, filed this action against the

State of Michigan to secure Indian rights which it says were reaffirmed by an 1836 Treaty with the Ottawa and Chippewa Indians. In

so doing it was merely accepting obligations imposed by the Northwest Ordinance, supra. The Northwest Ordinance not only

provided for Michigan's first government but simultaneously set the standard by which the territorial government and the United

States would be obliged to deal with the Indians of the Territory.

By this enactment, the Founding Father declared a guardian-ward relationship between the United States and the Michigan Indians.

Trained as they were in denominational schools, where their routine assignments included translation of the bible from English to

Latin and from Latin to Greek, the Founding Fathers did not hesitate to found this relationship on moral and religious principles,

the principles which, generally, they transformed into political principles when they formulated our present government, including

them in the Declaration of Independence and the Preamble to the Constitution as well as here in interpreting the treaties and in

measuring the transactions between the United States and its wards, the Indians. To do otherwise would be in violation not only of

the laws of man but also of the laws of "nature and nature's God," which are, or ought to be the Supreme Law of this land.

Also, before Michigan's statehood, the United States entered into a treaty with Great Britain in which it offered its most solemn word

as a nation, in formal treaty, to honor all rights of the Michigan Indians.

ARTICLE THE NINTH

The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all

tribes of nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or

nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand

eight hundred and eleven, previous to such hostilities: Provided always, That such tribes or nations shall agree to desist from all

hostilities, against the United States of America, their citizens and subjects, upon the ratification of the present treaty being notified

to such tribes or nations, and shall so desist accordingly. And his Britannic majesty engages, on his part, to pu an end immediately

after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom he may be at war at the

time of such ratification, and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges,

which they may have enjoyed or been entitled to, in one thousand eight hundred and eleven, previous to such hostilities; Provided

always. That such tribes or nations shall agree to desist from all hostilities against his Britannic majesty, and his subjects, upon the

ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly.

This provision of the Treaty of Ghent, signed on December 24, 1814 (8 Stat. 218), was not mere rhetoric; it was a compromise

position secured from Britain, which threatened indefinite continuation of the War of 1812 unless the United States restored the

rights of Britain's Indian allies. Both nations pledged to restore to such tribes or nations all the possessions, rights and privileges

which they may have enjoyed or been entitled to in 1811, before such hostilities. Both nations assumed the guardianship of the

Indians and acknowledged all aboriginal Indian rights to use land, sea and air in the New World, excluding all whites from their

territory until and unless the United States had secured the lands from the Indians by valid, just, humane treaties. As guardian, the

United States was obliged to acquire the lands and other property not on the best terms it could get for itself, but on the best terms it

could get for the Indians. At all times it was required to protect the Indians' interests. In the Treaty of Ghent, Britain effected its duty

as guardian of the Indians of the lands it surrendered to the United States by securing a promise from the United States to assume a

guardian relationship toward those Indians. The United States agreed to treat these Indians not as a defeated enemy, but as a ward

fully possessed of all rights arising by virtue o original occupancy and use of the lands. The United States accepted this obligation

in exchange for an identical promise by Great Britain and in order to end the War of 1812. Indians of the Northwest Territory who

had allied with Great Britain were possessed of aboriginal rights, vested by virtue of original occupancy and use and International

treaty and protected by the obligations of their guardian, the United States.

[2, 3] In our constitutional system of government the states cannot enter into treaties with foreign governments only the federal

government can. When acting within its power to deal with foreign governments, the federal government can make treaties which

give it authority in areas which otherwise would belong solely to the states. In such cases the state no longer has authority in areas

governed by the treaty. Federal control of migratory waterfowl, for instance, derives from a treaty with Great Britain. In this case the

federal government has entered into a treaty with Indians, a matter which, like foreign affairs, is within its sole jurisdiction. One

question presented here is whether this treaty with the Indians deprives the state of all authority to regulate matters covered by the

treaty, specifically Indian fishing in certain waters of the Great Lakes.

From the earliest times the United States has been ambivalent about its assumed role as trustee for the Indians, expressing noble

sentiments executed by ignoble actions. During the 18th and 19th centuries the United States typically dealt with the Indians by

treaty, as co-sovereign nations. Typically also, the United States secured Indian lands on terms which were little short of conquest

and carried out the treaty in such fashion as to complete the vanquishment.

Michigan has staked most of its case on an 1830 Act of Congress called "An Act to provide for an exchange of lands with the

Indians residing in any of the states or territories, and for their removal west of the river Mississippi," (4 Stat. 411) and referred to as

the "Removal Act." Congress did nothing in this Act to lessen the obligation of the Executive toward the Indians. (American

Heritage Pictorial History of the Presidents, Vol. I, p. 224 [1968]) The principal authorization of the Act is to make it lawful for the

President to offer lands belonging to the United States west of the Mississippi to the Indians who chose to exchange their present

lands. Section 7 of the Act indicates that the Act does not contemplate any variation in Indian policy: "Provided, That nothing in

this act contained shad be construed as authorizing or directing the violation of any existing treaty between the United States and

any of the Indian tribes."

Of necessity, this court has had an opportunity to review the actions of almost every administration in the history of our country.

The removal policy in question began during the Presidency of Thomas Jefferson. Piecemeal removal began during Monroe's

administration but slowed down during the administration of John Quincy Adams, who had a humane and paternal attitude toward

the Indians. Andrew Jackson ran for office supporting the policy and received authorization from Congress to implement it. During

Jackson's term Henry Schoolcraft was appointed to secure from the Indian bands, whose progeny make up the plaintiff tribes, lands

which would become the State of Michigan. During Van Buren's presidency, pressure for removal of Indians to lands west of the

Mississippi waned. The Indians stayed in Michigan, but were deprived of their rights under the 1836 treaty, and many others,

almost as quickly as they were signed. By the time Pierce became President, even many of the eastern states wanted to keep Indians

on their ancestoral homes. A new treaty was signed with the Michigan Indians during his administration which gave the Indians

permanent reservations (most of which no longer exist) in exchange for releasing the United States from its unfulfilled financial and

personal property obligations under earlier treaties.

In an effort to provide a perspective on the Removal Policy of the United States, I quote the following accounts of noted historians

who the State's own expert testified are authoritative and reliable.(Tr. 1716.)

3. Removal of the Eastern Indians

An American journalist who had spent several years in India, and whose small children had come to love the Indians, came home in

1958. Shortly thereafter he found the boys crying as they watched a TV "Western" because, as one moaned, "They're killing Indians

!" Papa had to explain that these were not Indians of India but Red Indians, and that to kill them was part of the American Way of

Life.

The only extenuation of American policy toward the natives of North America is that it continued an old-world process of one race

or people pushing a weaker one out of an area that it wanted. Almost every European today is a descendant of Asiatic intruders into

Europe; almost every North African the descendant or Arab intruders. "The country is a land for cattle," said the children of Reuben

to Moses when they saw the land of Gilead, "and thy servants have cattle; wherefore, said they, if we have found grace in thy sight,

let this land be given unto thy servants for a possession." In the United States, as elsewhere in the nineteenth century, this process

of conquest and expansion took the form of a relatively highly developed civilization pushing out a backward people who could

not or would not be absorbed, and who were too few in number and weak in technique long to resist But some of the Indians put up a

very good fight.

The problem of United States-Indian relations, which for many years had involved international rivalries, became localized after the

Florida treaty was ratified in 1821. "Foreign interference" could no longer be used as an excuse for abusing the Indians. And there

was no more need to placate them to prevent their siding with the British, French, or Spanish.

Efforts to maintain Indian reservations within the Eastern states were generally unsuccessful, although a few small ones, such as that

of the Abnaki in Oldown, Maine, and the Tuscarora reservation near Niagara Falls, still endure, menaced or sliced away by the

bulldozer. Conditions for a reservation's lasting were a partial adoption by Indians of the American Way of Life, and a strong

government service to protect them from the white man's trickery and alcohol. But, for fifty years after American independence, the

Indians did not wish to conform, many federal agents were political hacks, government trading posts were unable to compete with

unauthorized private traders who supplied the Indians with liquor, and frontiersmen everywhere coveted the Indians' land.

Monroe's administration bowed to demands of the West by adopting a removal policy. Plans for concentrating the tribes west of the

Mississippi now began to take shape, and piecemeal removal began in the 1820s from the Old Northwest and the lower South, to

segments of what had been the domains of the Caddo, the Quapaw, and the Osage. Tribesmen with well-developed farms, especially

influential half-breeds, were given the choice of removal, or staying put and becoming American citizens. Those who preferred to

leave, exchanged their property for new lands in the West and were promised payment for travel expenses and the value of

improvements on their relinquished property. The assent of the Indians was often merely nominal; federal commissioners bribed

important chiefs, and, if necessary, got them drunk enough to sign anything. "Persuasion" often took the form of urging the Indians

to sell improvements for cash with which to pay off debts to white traders. This removal policy slowed down during the

administration of John Quincy Adams, whose attitude toward the Indians was humane and paternal, but picked up momentum and

was carried to a successful conclusion (from the white point of view) under Jackson. The President, having negotiated several

removal treaties during his military career, knew very well the hardship involved, but regarded this as the only possible way to save

the Indians from extinction. They were aced with the irresistible force of a white expansion which the Democrats had no intention of

checking.

Soon after Jackson's inauguration, Georgia, Alabama, and Mississippi asserted jurisdiction over Indian reservations, in

contemptuous disregard of federal treaties, and even set up county governments to be put in operation as soon as the rightful

owners of the soil were expelled. Congress then passed an Indian Removal Act (1830), appropriating half a million dollars for the

purpose. The President was authorized to grant lands in the unorganized part of the Louisiana Purchase in exchange for those

relinquished in the East, to protect the Indians in their new reservations, to pay expenses of removal and one year's subsistence, and

compensate them for improvements on the relinquished land.

The liquidation of Indian reservations in the Old Northwest was largely accomplished between 1829 and 1843. Mixed bands of

Shawnee, Delaware, Wyandot, and others were persuaded to accept new reservations west of Missouri. Their numbers were drastically

reduced by disease on the journey. Theft by federal officials of what was due to the Indians, and funeral rites for those who died en

route, exhausted their resources long before this "trial of tears," [sic] as it was aptly called by later writers sympathetic to the

Indians, came to an end. Many groups were unable to make the journey in one season and suffered intensely at improvised winter

quarters. A cholera epidemic broke out in 1832; measles took hundreds of lives. Further trials awaited the survivors, especially

those who hoped to till the soil; the cost of equipment reduced them to penury or debt long before they could raise a crop or draw

upon tribal annuities. Money from the sale of improvements at the old village ordinarily went into the expenses of travel, if it did

not stick in the pockets of federal agents.

At one point during these removals, hostilities broke out. Black Hawk, chief of the Sauk and Fox, who had fought on the British

side in 1812, tried to retain his ancient tribal seat at the mouth of Rock. river, Illinois, opposite Davenport, Iowa. White squatters

encroached on the village and enclosed the Indians' cornfields. After the governor of Illinois had threatened him, Black Hawk agreed

that after crossing the Mississippi for his annual winter hunt, he would never return. But his people, threatened by hostile Sioux,

ran out of food. Hoping to find a vacant prairie in which to plant a corn crop, Black Hawk recrossed the Mississippi in the spring of [

1832] with about 1000 members of his tribe. The governor of Illinois, assuming this to be a hostile expedition, called out the

militia (Abraham Lincoln commanding a company) and pursued the starving Indians up the Rock river into the Wisconsin

wilderness. It was a disgraceful frontier frolic, stained by wanton massacre of Indians, including women and children. The only

redeeming feature was the chivalrous consideration of Black Hawk by Lieutenant Jefferson Davis of the regular army, when the

captured chief was placed in his charge; forty years later, Davis referred to Black Hawk's rear-guard action at Wisconsin Heights as

the most gallant fight he had ever witnessed. Black Hawk subsequently visited the "Great White Father" in Washington and was

presented with a sword and a medal by President Jackson. But he lost his tribal lands.

The four great Indian nations of the Old Southwest, the Chickasaw, Creek, Choctaw, and Cherokee, were Jackson's particular

problem. In 1830 the Choctaw of Mississippi signed a treaty providing for their removal within three years. As with others, this

migration brought death, suffering, and poverty. In 1832 a treaty was signed with the Creek nation to wind up their large reservation

in Alabama. Some members kept individual allotments and faced the cunning of new white neighbors who poured into their

reservation before they could leave. Many died on the journey. By 1860 the Creek nation had lost about 40 per cent of its

population. The rest settled in the Indian Territory, near the Choctaw. The Chickasaw of Mississippi, a fairly small group, fared

better and obtained fairly good prices for their improvements, since their land was desirable for cotton plantations.

These three nations were agricultural and sedentary; some even held Negro slaves. The Cherokee, whose nation spread over

northwest Georgia into Alabama and around Chickamauga, Tennessee, were even more advanced, by European standards. It had

always been a white grievance against the Indians that they rejected "civilization." The Cherokee, unfortunately for themselves,

took the pale-faces at their word. George Gist, a halfbreed whose Indian name was anglicized as Sequoyah, provided the necessary

spark. Convinced that literacy was the key to Indian survival, Sequoyah invented a simple form of writing and printing the

Cherokee language; Bibles, other books and even a weekly newspaper The Cherokee Phoenix were printed. These Indians welcomed

Christian missionaries, built roads, houses, and churches, adopted a constitution for the Cherokee nation and elected a legislature.

They became more civilized than the Georgia "crackers" and "hill-billies" who coveted their lands. Nor, for that matter, do the

inhabitants of Faulkner's Yoknapatawoha [sic] County appear to be an improvement over the Chickasaw whom they replaced.

The independence of the Cherokee nation had been guaranteed by the United States in a treaty of 1791, but the State of Georgia had

been chopping away at their lands for over thirty years, and regarded the treaty as obsolete. Discovery of gold in the Cherokee

country in 1828 brought this controversy to a head, and a rough class of whites to the spot. Here was a case of federal supremacy

against the state rights, as clear at [sic] that of South Carolina; but President Jackson let Georgia have her own way. His secretary of

war, Peggy Eaton's husband, informed the Cherokee that they were mere tenants at will. The federal troops sent by President Adams

to protect the Indians were withdrawn, and Major Ethan Allen Hitchcock, sent by the war department to investigate frauds against

them, made so devastating a report that the department suppressed. Chief Justice Marshall decided, in a test case brought by a

missionary (the Reverend Samuel C. Worcester of Vermont), that the laws of Georgia rightly had no force within Cherokee territory.

Jackson commented, "John Marshall has made his decision. Now let him enforce it." As Georgia held a lottery to dispose of their

lands, and no friends in power appeared to help them, the Cherokee were forced to accept removal. Agents of the Indian

administration negotiated a treaty with a small minority of the chiefs in 1835, but most of them refused to attend the negotiations,

and few departed within the three-year limit set by the treaty. A protest to President Van Buren, signed by 15,665 Indians, was

blandly ignored. So, in 1838, regular troops under General Winfield Scott rounded up the Cherokee and started them on the long

trial [sic] to Indian Territory. This journey cost them one-quarter of their number, but the remainder reorganized their national

government, prospered, and have retained their language and alphabet to the present day. Several hundred diehards in the Great

Smokies, who resisted removal, were eventually given the Qualla reservation in North Carolina.

A similar controversy with the Seminole of Florida ended in war. A tricky treaty of removal, negotiated in 1832 with a few chiefs,

was repudiated by the greater portion of the tribe, led by a brave chieftain named Osceola. Secure in the fastness of the Everglades,

Osceola baffled the United States army for years, and was only captured by treachery at a truce conference. Many Seminoles were

rounded up and sent west, but others kept up the fight until 1842. By that time they had cost the United States some $20 million

and 1500 lives. A few thousand remained in the Everglades. Their descendants, known as the Miccosukee Seminoles, are the only

occupants of some 200,000 acres of swampland north of the Tamiami trail. They live, like their ancestors, by hunting, fishing, and a

little agriculture. Never having made peace with the United States, they are currently threatened by drainage and development

projects, and a "progress" which they do not want.

The only Western statesman to denounce these shabby and dishonorable proceedings was Henry Clay. His speech in the Senate on

14 February 1835 is the more praiseworthy because the Indians had no votes, and because his Kentucky constituents cared nothing

for them. He quoted the long list of treaties guaranteeing to the Cherokee their lands, and the still longer list of acts of the State of

Georgia which violated not only these treaties, but the most elementary principles of justice and decency. He drew tears from the

eyes of the senators, but they did nothing for the Cherokee except to expedite their removal.

President Jackson seems to have kept a good conscience about all this, and several friends of the Indians, such as Lewis Cass and

Thomas L. McKenney, head of the war department's bureau of Indian affairs, supported removal as the only alternative to

extermination. Jackson's rationale of Indian removal appears in his Farewell Address of March 1837: "The states which had so long

been retarded in their improvement by the Indian tribes residing in the midst of them are at length relieved from the evil, and this

unhappy race the original dwellers in our land are now placed in a situation where we may well hope that they will share in the

blessings of civilization." Lewis Cass went the General one better, piously invoking the theory that God intended the earth to be

cultivated. Cherokee cultivation evidently did not count.

By the end of Van Buren's presidential term, it was assumed, at least by the Democrats, that the Indian question had been solved. All

important Eastern tribes those who, in Jackson's phrase, had "retarded improvement" (i.e. resisted white land grabbers)-had been

provided for behind a barrier that ran from Lake Superior through Wisconsin and Iowa Territories, thence along the western

boundaries of Missouri and Arkansas to the Red river on the Texas border. Behind this line the tribes were guaranteed possession

"as long as grass grows and water runs"; and thence most of them were eventually ousted, when the tide of white settlement lapped

around them and slaughtered their game. But, in a sense, the removal policy was justified by the later history of the "five civilized

Indian Nations" Creek, Cherokee, Choctaw, Chickasaw, and Seminole in Oklahoma. Removal gave them the necessary respite to

recover their morale, and until the Civil War they succeeded in keeping white men out.

Looking backward it is now evident that, in view of the irresistible push of the westward movement, Indian removal was the lesser

evil. It had to be, but, the process was carried out with unnecessary hardship to the victims.

In many instances missionaries and other individuals managed to protect the Indians. The Ojibway or Chippewa had a reservation

along the Bad river of Wisconsin, which was taken under the protection of the Reverend L. H. Wheeler, a Protestant missionary at La

Pointe. When, in 1850, white pioneers began lobbying Congress to remove these Indians west of the Mississippi and acquire their

lands, Wheeler visited the proposed site of the resettlement and reported that it would be a deed of mercy to shoot every Ojibway

rather than send them there. Congress reconsidered, and in 1854 guaranteed these Indians three small reservations on the south

shore of Lake Superior, which they still hold in 1964. Other tribes were not so fortunate. Between 1853 and 1856 the United States

negotiated no fewer than fifty-two treaties, mostly with nations in the Mississippi valley or west of the great river, by virtue of

which it added 174 million more acres to the public domain.

Remnants of the Six Nations who had been guaranteed possession or reservations in New York State, by treaties concluded as far

back as 1784, have been fighting a losing battle. Chief Red Jacket of the Seneca long managed to preserve the integrity of his

people in their reservation, which is now covered by the City of Buffalo. After his death in 1830, a group of New York speculators

known as the Ogden Land Company began an intensive drive to get possession of the Seneca reservation. By bribing greedy

individuals to act as "chiefs" and sign away land, this company managed to rob the tribe of almost their entire heritage. President

Van Buren, to his credit, denounced the subsequent "treaty" as a steal, but it passed the Senate, by the casting vote of Vice President

Johnson, the reputed slayer of Tecumseh.

Samuel Eliot Morison, The Oxford History of the American People (1965) at 445-52.

Similarly, the American Heritage Pictorial History of the Presidents (1968). Vol. 1, states:

TRAIL OF TEARS

Although the Indian Removal Act of 1830 simply authorized the President to negotiate for land, Andrew Jackson's "requests" were

in fact orders. Resigned to their fate, the Choctaw and Chickasaw began the long journey from the Southeast to Arkansas and

Oklahoma. But the Creek, who had disastrously encountered Jackson in 1813 and 1817, knew better than to believe his promise of

guaranteed territory west of the Mississippi. Standing their ground in 1832, they extracted a treaty that said "they shall be free to go

or stay, as they please." Four years later, their chiefs in chains and guns at their backs, the Creek joined the exodus. In 1832, the

Sauk were driven from their Illinois villages and across the Mississippi, leaving possessions and food stores behind. When Chief

Black Hawk sent his braves to negotiate with the military, their white flags were ignored. After several skirmishes, the desperate

leader tried to lead his starving people back home, but they were stopped at the river. That pathetic series of events, known as the

Black Hawk War, cost hundreds of Indian lives. In Georgia, the peaceful Cherokee sought and won from the Supreme Court a

favorable decision, to which neither the state officials nor President Jackson paid any attention. Like the other Indian tribes, the

Cherokee embarked on a long journey to the West, along a "trail of tears."

During the 20th century these Indians attempted to secure rights previously denied them. During Theodore Roosevelt's presidency,

Congress passed a law which permitted them to appear before the Court of Claims to settle the ownership of monies held in trust by

the United States at the time of the 1855 Treaty. The Ottawas and Chippewas filed suit, and, in 1907, were able to show that the

United States still owed them monies which were to have been paid twenty years after the signing of the original treaty. Ottawa and

Chippewa Indians v. United States, 42 Ct.Cl. 240 (1907). In 1946, during the Truman administration, Congress established the

Indian Claims Commission. The Bay Mills Indians filed suit and proved that their land had been worth approximately seven times

what they were paid in the 1836 treaty. Bay Mills Indians v. United States, 26 I.C.C. 538 (1971), Indian Claims Commission Docket

# 18E and 58.

The present action marks the first time during the long history of these Indian peoples that the United States has not been the

opposing party in their effort to secure rights granted to them by solemn treaties. The action was initiated by the United States

during the Nixon administration, was pressed during the Ford administration, and carried forward during the Carter administration.

As the case presently stands, the United States and the plaintiff Indian tribes, the parties to the two treaties here in question, have

come to this court agreeing that their treaties reserved Indian fishing rights in the Upper Great Lakes.

That there are persons within the state whose rights to fish derive from federal (as opposed to state) law has been totally

unacceptable to the state and its Department of Natural Resources. The state's position on this fundamental concept was stated by its

course in his opening argument:

There is no question but that the State now and always has stood ready to provide fishing privileges to all our citizens, commercial

fishing privileges to all our citizens on an equal basis, including Indians or others of whatever race or ethnic background.

(Tr. 1210.) The state obdurately adheres to this position despite the fact that the Supreme Court of the United States long ago

rejected the identical contention. In United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Supreme Court

reviewed a lower court decision which held, in effect, that the Indians were to be treated just like any other citizen of the State of

Washington, notwithstanding their treaty reserved the right to fish at their usual and accustomed sites. The Court first stated the

lower court's ruling and then articulated unambiguously its disapproval:

In other words, it was decided [by the lower court] that the Indians acquired no rights but what any inhabitant of the territory or

state would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome

to negotiations and a convention which seemed to promise more, and give the word of the nation for more.

Id. at 380, 25 S.Ct. at 644. See also Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).

Although the United States before 1836 exercised dominion over the area which was later to become the State of Michigan, it had

not as of that time taken steps to extinguish aboriginal title in the Ottawas and Chippewas. The southern portion of the Michigan

territory was becoming settled in the early 1800s and there could be no assurance of cloudless title in non-Indian settlers so long as

the Indians' aboriginal title to the land remained unextinguished. While the United States had several options available to it in

order to accomplish an extinction of Indian title, it chose the most common method of that time and negotiated a treaty of cession

with the Ottawa and Chippewa living in the northwestern portion of the lower peninsula and eastern half of the Upper Peninsula of

what is now the State of Michigan.

[4,5] Central to the plaintiffs' contentions and rooted in United States v. Winans, supra, is the concept that under the treaty the

Indians were the grantors of a significant land cession and the United States was the grantee. As in any land transaction (not just

those involving the Indians), the grant extends only to those interests and rights specifically conveyed and to none others. When

the Indians granted to the United States their ownership in the land and waters of the Great Lakes described in Article First of the

1836 treaty, they retained all those rights not specifically conveyed. Among the retained rights was their aboriginal right to

continue to fish in the ceded waters of the Great Lakes.

[6, 7] A misunderstanding quickly arises if the transaction between the United States and the Indians is thought of as the ordinary

land transaction where the seller conveys all of his rights in the property he sees. Under this interpretation, it would be necessary for

the Indians to be able to show that the United States granted them the right to fish. The transaction is better understood if the focus

is upon the concept of "reservation." The Indians gave up some rights, reserving all those not specifically conveyed. In a

Washington treaty, for instance, the Indians explicitly reserved a right to fish at "all usual and accustomed places." They then

conveyed their land, without conveying to the United States the right to exclude the Indians from the land adjoining the places

where they fished. The owners who purchased the land adjoining these fishing places did not have the right to exclude Indians from

the land because the Indians implicitly reserved a right to cross it, there being no other way to exercise their fishing right. The white

owners only had the right to exclude non-Indian trespassers. Likewise, certain Western Indian tribes explicitly reserved land for

agricultural purposes, the treaty not specifically conveying all the water of adjacent rivers to the United States. The tribes reserved

whatever water they needed to make use of their land. White settlers with similarly arid lands were not provided for by the treaties,

and were not entitled to any water used by the Indians. The reservation was implied from the fact that the Indians could not

otherwise use their lands for agriculture. The Michigan Indians here claim that they never granted their right to fish to the United

States, but reserved it so that they could continue to exercise their way of life while living in Michigan, a right they reserved under

the treaty. They are not obliged to show that the United States granted them the right to fish, but only that they reserved it. They

need not show that they explicitly reserved it.

[8, 9] Of course, not every treaty of cession leaves the Indian grantors with reserved fishing rights. In order for the right to exist in

the first instance, it must be shown that the Indians were in fact using the resource, i.e., that they exercised this right, subsumed

within their larger, aboriginal right to their land and water. Thus, the factual predicate for the reserved fishing right is the

documented historic, ethno-historic, anthropologic and archaeologic evidence proving that commercial and subsistence fishing

was of significance to the Indians during treaty times. Plaintiffs' testimony at trial overwhelmingly established this factual

predicate. Having established these facts, the reserved right to fish arises by implication. Thus, the Indians impliedly reserved the

right to subsistence and commercial fishing because of this resource's importance to the Indian community at and before the time

they entered into the treaty.

[10] In addition to the implied right to fish, plaintiffs also rely on explicit language in the treaty in support of their claims. Article

XIII provides that:

The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is

required for settlement.

7 Stat. 495. This language constitutes an explicit reservation of a right broad enough to include the taking of fish from the Great

Lakes for subsistence and commercial purposes.

Because the language of the treaties is general, vague and ambiguous, the issues before this court involve not only the treaties

themselves but also the history of their negotiation and the entire history of the Michigan Indians. This is the way the case has been

tried by the parties. The plaintiffs submitted evidence that, in this northern region of the present United States, where agriculture

has always been difficult but fish have been in abundance, Indians have relied upon fishing as basic to their livelihood since

10,000 years before Christ. They submitted evidence that the Indians adopted gin nets from their eastern cousins shortly after the

bird of Christ, and used them productively for centuries, even though, as defendants said, white men could not get a catch from such

nets unless made of much finer materials. The plaintiffs presented experts who testified that the Michigan Indians grew to depend

upon the fisheries to secure European goods and that their earliest participation in the European market economy rested upon their

expertise at fishing. It is this sort of evidence which this court had to evaluate in order to determine whether the Ottawas and

Chippewas so depended upon subsistence and commercial fishing at the time they signed the treaty of 1836 that they could not

have knowingly signed away their right to fish.

The lands ceded by the treaty of 1836 were less explored than many regions of the far west. More desirable lands in Michigan had

been secured by prior treaties.*

[*The Treaty of Saginaw of 1819, 7 Stat. 203 (1819), secured the area around the thumb of the lower peninsula. The negotiation

of that treaty is not only typical of treaty negotiations, but also reveals how General Lewis Cass, Secretary of War in 1836, dealt

with the Indians in 1819, when he was a commissioner. When General Cass was leaving for the negotiations in which he planned

to "procure a cession of that valuable territory, " he realized he had a very difficult assignment because the Indians had not

received the annuity they had been promised in an 1807 Treaty. Treaty of Nov. 17, 1807 (7 Stat. 105.) Accordingly, he secured a

personal bank loan for the amount of the "annuity" (which was in fact a grant) so that he might have silver to place before the

Indians during the negotiation. As Cass put it, he got the money so that he would "be able to comply with past engagements before

I call upon the Indians lo perform others. " F. Dustin, The Saginaw Treaty of 1819, 8 (1919). He displayed the silver during the

negotiations and gave it to the Indians only after they signed the new treaty. Thus, the consideration from the first treaty served to

secure not only the first treaty, but the second also.

Although Cass had made extensive preparations to ensure that the Indians would be there when he arrived, few Indians had come.

He sent out runners to gather missing chiefs and tribal leaders, but did not wait for them to arrive. He began negotiations at once.

S. Gross. Indians, Jack and Pines, 1962, at p. 17 Cass' actions were an aggressive pursuit of his objective of acquiring "that

valuable land. " The Indians were primitive and uncivilized, but they knew what they wanted, and they did not want to move out of

Michigan beyond the Mississippi. They wanted to stay on d their hunting grounds.

The Chief. O-Ge-maw-ke-to. addressed Cass' proposal of cession as follows: "You do not know our wishes. Our people wonder

what has brought you so far from your homes. Your young men have invited us to come and light the council fire. We are hereto

smoke the pipe of peace, but not to sell our lands. Our American Father Wants them. Our English Father treats us better. He has

never asked for them Your people trespass upon our hunting grounds. You flock to our shores. Our waters grow warm; our land

melts like a cake of ice. Our possessions grow smaller and smaller. The warm wave of the white man rolls in upon us and melts us

away Our women reproach us. Our children want homes.

Shall we sell from under them the spot where they spread their blankets? We have not called you here. We smoke with you the pipe

of peace. "' History of Saginaw County, 151 (1881).

The account of Cass' speech reads as follows: "To this the Commissioner replied with earnestness, reproving the speaker for

arrogant assumption, that their Great Father at Washington had just closed a war in which he had whipped their Father, the

English king, and the Indians too; that their lands were forfeited in fact by the rules of war, but that he did not purpose to take

them without rendering back an equivalent, notwithstanding their late acts of hostility; that their women and children should

have secured to them ample tribal reserves on which they could live, unmolested by their white neighbors, where they could spread

their blankets and be aided and instructed in agriculture. " History of Saginaw County, 151 (1881).

This humiliation was in fact contrary to the provisions of the Treaty of Ghent with Great Britain ending the War of 1812. Under

that treaty the Indians regained in full the rights which Cass, impelled by the zest of his heroism, declares do not exist. After this

initial session, negotiations continued in the presence of Cass' soldiers and 60 other whites, until a treaty was signed in

ceremony for which Cass supplied 5 barrels of whiskey. Saginaw Treaty of 1819, 17 (1919).

To meet the resistance brought about by the Indians' desire to retain their hunting grounds, Cass assured them they could

continue to hunt in the forests. S. Gross, supra, at 17. By this deception and by granting them the silver vested under the earlier

treaty, Cass induced the Indians to believe, mistakenly, that they had won a victory and could retain their lands and their earlier

treaty rights.

It is reported that in other negotiations Cass told Ohio Indians he would take a cession of their lands from Michigan Indians if

the Ohio Indians did not sell. He brought the Michigan Indians to Ohio for the negotiations. (Tr. 493.)]

The lands of Upper Michigan were bypassed by settlers who sought agricultural lands further west. Only a few thousand Indians,

organized into bands, inhabited the entire area along with a few traders and military men. These Indians used the land and water,

seasonally migrating over the land to secure the resources of the area.

In the 1830s some of the Indians wanted to acquire annuities like their Potawatomie brothers and realized that the United States

would give such payments in exchange for land. One group indicated that it would cede Drummond Island in Lake Huron; chiefs of

questionable authority offered to cede lands belonging to other Indians in order to get an annuity. Even these groups had so little

understanding of American property law that they expected to continue using the land as before even after a cession.

Lewis Cass, Secretary of War, and Henry Schoolcraft, Indian Agent in Michigan, were not interested in such proposals. They ordered

representatives of all area Indian bands to Washington, escorted by traders chosen because of their known influence over the

Indians and who were rewarded by the terms of the subsequent treaty. Away from their forest homes for over four months, many for

the first time in their lives, unable to engage in their ordinary pursuits, housed in buildings and transported over streets, the

Indians signed a treaty written by white traders, explained to them by white interpreters and fostered by men who had supplied them

with firewater for years. They were then permitted to return to their homes.*

[*Similar coercion was effected in different fashion in treaty negotiations with the Osages: On the 8th of November, 1808, Peter

Chouteau, the United States' agent for the Osages, arrived at Fort Clark. On the 10th he assembled the Chiefs and warriors of the

Great and Little Osages in council and proceeded to state to them the substance of a treaty, which, he said, Governor Lewis had

deputed him to offer the Osages, and to execute with them. Having briefly explained to them the purport of the treaty, he addressed

the to this effect, in my hearing, and very nearly in the following words: "You have heard this treaty explained to you. Those who

now come forward and sign it, shall be considered friends of the United States and treated accordingly. Those who refuse to come

forward and sign it shall be considered enemies of the United States, and treated accordingly. " The Osages replied in substance,

"that if their great American father wanted a part of their land he must have it, that he was strong and powerful, they were poor

and pitiful, what could they do? He had demanded their land and thought proper to offer them something in return for It. They

had no choice, they must either sign the treaty or be declared enemies of the United States. " George C. Silbey, factor at Fon Osage,

cited in Schmeckebier, the Office of Indian Affairs, Its History, Activities, and Organization (1927), pp. 59-60.]

Before and during its negotiation and by the language of the treaty, they were assured that they could continue to use the land when

they resumed to their homes, as before. Had they felt anxious about their fishing grounds before the negotiations, those fears were

allayed: areas sought by whites were granted exclusively to the Indians, and no mention was made that the treaty might take any

other fishing rights away.

By the terms of the treaty monies granted to the Indians for their land were assigned to traders to pay for Indian debts, and Henry

Schoolcraft negotiated over $50,000 for his relatives. The Indians got their annuities, certain services, reservations at their

traditional fishing grounds and a promise of land in the West.

But, the white men were not through with the Indians. The Senate ratified the treaty with an amendment limiting the terms of the

reservations to five years or longer, as the United States might permit. This put the Indians on notice that things had not gone as

they had understood them. But, Schoolcraft allayed their fears by assuring them they could continue to use all of their lands as

before, leading them to understand that this use would go on without limit. Satisfied, the Indians signed the pact.

The United States did not pay all of the annuities promised; took the most important of the fishing grounds to build a canal and

permitted settlers to come into the territory to such an extent that the Indians feared they would lose their reservations and there

would be no land left for them. The United States wanted to secure clear title over Indian lands so that they could be sold to settlers

and to concentrate the Indians in fewer locations on less land. These motivations led to a new treaty in 1855. In that treaty, signed in

Detroit, the United States granted the Indians reservations and assumed specific obligations to provide services and benefits in

exchange for a release from the prior treaty financial and personal property obligations it had not fulfilled. The reservations were

again placed near traditional fishing grounds. In a separate treaty, the United States offered compensation for the fishing grounds

granted in perpetuity and which it had destroyed at Sault Ste. Marie.

After the 1855 treaty, the United States dealt with the treaty Indians on a local basis, no longer pretending that there was an Ottawa

and Chippewa Nation. More recently, it recognized the Bay Mills tribe under the Indian Reorganization Act as an Indian tribe

entitled to the benefits of prior Indian treaties. Most recently, it did the same for the Sault Ste. Marie band of Chippewa Indians.

[11] When a court is called upon to construe an Indian treaty, the Supreme Court has mandated that it employ the following

principles which flow from the guardian-ward relationship of the United States to the Indians: The treaty must be construed as the

Indians would have understood it; doubtful expressions must be resolved in favor of the Indians, and treaties must be construed

liberally in favor of the Indians. Generally, these principles are laid down so that Indian tribes, usually numbering little more than a

few thousand, are not wholly disadvantaged y the strength and resources of the United States. In this case every justification ever

given in support of these principles is satisfied. The treaty was imposed by subtle, invidious and incidious [sic] negotiators who

sought only signatures without regard for whether they were a product of free consent; the treaties binding the Indians were written

in English, although the Indians knew no English and their language arose out of a hunting and fishing tradition without a concept

of property; interpreters could only describe general outlines of the agreement; details were left to the good faith of the drafters; the

final version of the treaty was drafted behind closed doors by Henry Schoolcraft and the traders who escorted the Indians to

Washington; these men had conflicts of interest and each was rewarded handsomely by the treaty, altogether receiving over a quarter

of a million dollars.

[12] From the history of the negotiations of the 1836 and 1855 treaties, evidence of the sort of use the Indians made of the Great

Lakes fisheries at the time of the 1836 Treaty, and bound as I am to construe the treaties as they would have been understood by the

Indians, I am compelled to conclude that the Ottawa and Chippewa Indians, and the plaintiff tribes as their successors, reserved an

aboriginal right to fish in the waters of the Great Lakes ceded by the Treaty of 1836, which right they may exercise without

regulation by the State of Michigan.

Specific findings of fact and conclusions of law are contained in a following section of this opinion.

Insofar as any motion has been of significance, it has been ruled upon at the appropriate time. Certain insubstantial motions remain

and will be dealt with summarily.

[13] The State has before the court a motion to require the joinder of all necessary and indispensable parties. It argued that this order

was necessary to bring into the action all Indians claiming fishing rights as descendants of the signatories to the 1836 Treaty. The

court recognizes the position that the State finds itself in is difficult. However, a substantially similar argument was advanced by

the State in support of its second motion for partial summary judgment. In that motion, the State asked that the court bring into the

action all individuals who may possess any individual fishing rights as a result of the dissolution of the tribal organizations by the

Treaty of 1855. The court denied that motion, and indicated that the present parties were sufficient to enable the court to pass on

Phase I issues before it.

[14] The individual defendants have petitioned this court for the right to a jury trial. Because this action involves prospective

injunctive relief sought by plaintiffs, and because plaintiffs have not presented any evidence of tortious conduct by any of the

named individual defendants, there is no basis for requiring a jury trial, and defendants' motion is denied.

[15] The State's motion for a three-judge court is likewise easily disposed of.*

[*Because this action commenced before the repeal of 28 U.S.C. sect; 2281 on August 12, 1976, that statute and interpretative case

law applies to this motion. See, Pub.L. 94-381, 7.]

The sole basis upon which plaintiffs have prosecuted this action is that the Indians possess an aboriginal fishing right which has

been confirmed by treaty with the United States. Under the United States Constitution, Article VI, clause 2, a treaty made under the

authority of the United States becomes the supreme law of the land. Consequently, because a treaty provision maintains the same

status as a federal statute, the State cannot regulate what federal law preempts. This is the foundation of plaintiffs' allegation that the

State of Michigan may not regulate federally protected fishing rights. Obviously, the plaintiffs are relying upon the Supremacy

Clause of the Constitution to support their claim. The Supreme Court of the United States has indicated that a three-judge court is

not necessary where the action is based on the Supremacy Clause.*

[*Swift v. Wickham, 382 U.S. 111, 122, 124-2, 86 S.Ct. 258, 15 LEd.2d 194 (1965); see also, Moe v. Confederated Salish and

Kootenia Tribes, 425 U.S. 463, 481 n. 17, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976).]

Further, any relief plaintiffs request is also premised on that constitutional ground. For these reasons, the State's motion is denied.

The State has indicated that several motions to compel discovery have not been ruled upon. To the contrary, the court ruled in an

Order of July 30, 1976 that these motions were moot and need not be decided.

I have not considered plaintiffs' Exhibits P- 1, P-2 or P-3 in my deliberations in this matter or in this opinion.

II. Jurisdiction, Issues and Parties

(1) Jurisdiction is vested in this Court by virtue of: (a) 28 U.S.C. sect; 1345, in that the United States brings this action on its own

behalf and on behalf of the Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians, federally recognized

Indian tribes, in connection with its administration of Indian affairs and in fulfillment of its fiduciary duties; (b) 28 U.S.C. sect;

1331, in that the matter in controversy involves the fishing rights of the plaintiff tribes, which in both instances have a value in

excess of $10,000, exclusive of interests and costs, which are claimed to exist and to be secured under the Constitution, laws and

treaties of the United States; and (c) 28 U.S.C. sect; 1362, in that this action is brought by Indian tribes with governing bodies duly

recognized by the Secretary of the Interior alleging violations of their rights under the Constitution, laws and treaties of the United

States.

(2) Each of the plaintiffs has standing to maintain the claims asserted in this action.

(3) An actual controversy exists between each of the plaintiffs on the one hand and the defendants on the other, as to the meaning of

the treaties at issue herein and the existence of any tribal right to fish in the Michigan waters of the Great Lakes under those treaties.

(4) A declaratory judgment is properly sought pursuant to 28 U.S.C. sect; 2201 nd 2202, and this court may grant such relief.

(5) Venue is properly laid in this court under 28 U.S.C. sect; 1391(b) in that all defendants reside within the Western District of

Michigan.

(6) This trial has been limited to the issues identified for separate trial by this Court in its Order of July 30, 1976, which are: (a)

Whether the Indians reserved or retained fishing rights in the Great Lakes waters purportedly ceded by them under the Treaty of

1836 (7 Stat. 491); (b) If the Indians reserved rights to fish in those waters, were those rights abrogated in whole or in part by the

Treaty of 1855 (11 Stat. 621); and (c) Assuming those reserved fishing rights were not abrogated, does the State possess any

jurisdiction to regulate the exercise of those rights by treaty tribe members?

The United States of America is a party plaintiff which brought this suit in its own behalf and in behalf of plaintiff-intervenor Bay

Mills Indian Community and Sault Ste. Marie Tribe of Chippewa Indians pursuant to its federal trust responsibility toward those

tribes.

The Sault Ste. Marie Tribe of Chippewa Indians is a present-day tribal entity which, with respect to the matters which are the subject

of this litigation, is a political successor in interest to the Indians who were party to the Treaty of 1836. It is recognized by the

United States as a currently functioning Indian tribe maintaining a tribal government. This tribe is organized pursuant to Section 16

of the Indian Reorganization Act, 25 U.S.C. 476. Its membership is determined in accordance with its Constitution and By Laws, and

the membership criteria require proof that the member is an Indian of the treaty area. (Tr. 1127-29; Ex. P-120.)

The Bay Mills Indian Community is a present-day tribal entity which, with respect to the matters that are the subject of this

litigation, is a political successor in interest to the Indians who were party to the Treaty of 1836. It is recognized by the United

States as a currently functioning Indian tribe maintaining a tribal government on the Bay Mills Reservation. This tribe is organized

pursuant to the Indian Reorganization Act, 25 U.S.C. 476. Its membership is determined in accordance with its Constitution and ByLaws and the membership criteria require proof that the member is an Indian of the treaty area. (Tr. 1059-62; Ex. P-119.)

Defendants in this cause are the State of Michigan, its Natural Resources Commission, and certain officials of the Michigan

Department of Natural Resources. The State of Michigan exercises regulatory power over the Great Lakes fishery within its borders.

This power is exercised by and through defendant Natural Resources Commission, which is the state administrative agency with

responsibility for regulating the Great Lakes fishery.

Defendant Howard Tanner is the Director of the Department of Natural Resources. As such he is the chief executive officer of the

Department, with overall responsibility for administering the state's fisheries program and enforcing state fishing laws and

regulations. John Scott is the Chief of the Fisheries Division of the Department, and as such is responsible for the administration of

the state's fisheries program. Louis Gray is the Acting Chief of the Law Enforcement Division of the Department, and as such is

responsible for the enforcement of state fishing laws and regulations.*

[*The Department of Natural Resources officers were sued in their official capacities. Names of the current holders of the

positions have been substituted for those named in the Amended Complaint. See Fed R. Civ. P. 25(d)(1).]

Together those officials are responsible for administering and enforcing the statutes, regulations, orders and policies governing the

Great Lakes fishery which are challenged by plaintiffs in this case.

III. Witnesses

Plaintiffs' expert witness Helen Hornbeck Tanner is an ethnohistorian who has studied American Indian tribes for approximately

thirty years, and who has concentrated for the last sixteen years on the study of Indian tribes of the Upper Great Lakes. She has

testified a an expert witness in other cases involving issues of Indian culture and history. Her training and experience have been

concentrated in analyzing and interpreting the history, culture and lifestyle of Upper Great Lakes Indian tribes. (Tr. 53-56, 66-74;

Ex. P- 130.)

Plaintiffs' expert witness Charles E. Cleland is an anthropologist specializing in archaeology and ethnozoology. he has spent the

majority of his professional career in personally investigating and analyzing Upper Great Lakes Indian tribes and their relationship

to the animal species found in that area in historical and prehistoric times. (Tr. 658-92; Ex. P- 141.)

Plaintiffs' expert witness James A. Clifton is an anthropologist and ethnohistorian who has specialized in the study of Indian tribes'

responses to changes in their aboriginal culture brought about by European contact and dominance. He has spent more than half of

his professional career in the particular study of Indian tribes of the Upper Great Lakes and the Ohio valley, including the removal

policy and its implementation in that area. Further, he has extensive experience in the analysis of Algonquian personal names as

written by Europeans and Americans in order to determine the pronunciation and identity of the named persons. The testimony

showed that from his early training at the University of Chicago he did not follow the traditional subject matter breakdowns of

American higher education but prepared to engage in the broad, reliable cultural investigations which were especially helpful to

this court. The defendants' effort to impeach him for lack of compartmentalized academic certifications was comparable to an effort

to disqualify Thomas Edison as an expert on electricity. (Tr. 2058-2109; Ex. P-177.)

Defendants' expert witness Phillip P. Mason is an historian and archivist whose academic training and research have concentrated

on American social and economic history. The witness is not, by either training or experience, thoroughly familiar with the culture

of the Upper Great Lakes Indians. His familiarity with the facts in this case rests primarily upon his work in editing the papers of

Henry Schoolcraft and upon examination of documents since being retained by defendants. The limited perspective of his

experience and his academic discipline, limited as they are to written accounts of the matters in issue here, prevented him from

enlightening the court as to the total circumstances of the treaties. (Tr. 1214-25, 1237-47, 1252-55, D. Ex. 291.)

Defendants' witness Asa T. Wright is a fisheries biologist who has been employed by defendants in that capacity for most of his

professional career. He has no educational background or experience in either history or anthropology, nor has he been trained in

the research or analysis of historic documents. This lack of training, background and familiarity permitted him to offer opinions

from his field of expertise which are at odds with the facts. (Tr. 1844-53, 1859-63, D. Ex. 313.)

The oral testimony of the tribal witnesses educated in the history and customs of their people by tribal elders is found to be

reasonable and credible factual data regarding certain relevant aspects of Indian life at and after treaty times. (Tr. 130-32, 776-77,

1066-70, 1095-98, 1105-06, 1113-15, 1129-33.)

IV. Findings of Fact

A. THE INDIANS OF THE TREATY AREA.

While the term "Ottawa and Chippewa Nations" is used in the treaty and by this court in its opinion, the term is a non-Indian term

used to describe Indian peoples of a similar culture, and was not used by the Indians themselves in describing their political

organization. The primary unit of political and economic organization was the band, which was frequently associated with a village.

Political authority was weak; decisions were usually reached by consensus, and persons became "chiefs" for ad hoc purposes based

upon skill. From both a political and Indian cultural perspective, there was no such thing as an Ottawa-Chippewa tribe or nation. (Tr.

100-02, 596, 772-76, 779-81.)

Four different but related tribes of Indian have been associated with the area later included within the State of Michigan the Ottawa,

Chippewa (or Ojibway), Potawatomi and Wyandot (or Huron). (Tr. 93.) The Ottawa, Chippewa and Potawatomi had an early tradition

of closeness and referred to themselves as the Three Fires. (Tr.93.) The Ottawa and Chippewa share a common language. According to

Chippewa tradition, they were located originally in the valley of the St. Lawrence River and migrated westward to the northern

peninsula of Michigan somewhere near the year 1500. Some Chippewa bands moved farther west to Wisconsin. (Tr. 93) The Ottawas,

which means "traders," were historically identified with Manitoulin Island in Lake Huron, which is a part of Canada. (Tr.94.) The

Ottawas too advanced westward and settled in the lower peninsula of Michigan with concentrations near the Straits of Mackinac. (Tr.

94.) The Wyandots lived in the area of present day Detroit since at least the early 1700s. The Potawatomis of Michigan have been

identified with the southern portion of the state.

Of the four tribes discussed, only the Ottawa and Chippewa were signatories of the Treaty of 1836. (Tr. 96.) The names of the bands

and their locations are as follows: In the Upper Peninsula, there was a band on Lake Superior opposite Grand Island which bore that

name (Tr. 97); the eastern end of Whitefish Bay was the home of the Tahquamenon Bay band (Tr. 97); closer to Sault Ste. Marie, but

still in Whitefish Bay, was the Waishkee Bay band (Tr.123); the Sault Ste. Marie band was located in and around the city of the same

name (Tr. 97); there was a Garden River band whose members spent much time in Canada and on Sugar Island located in the St.

Mary's River (Tr. 98). Also near the St. Mary's River in Lake Huron was the Drummond Island band. (7 Stat. 495.) On the northern

shore of Lake Michigan there was a band at the Les Cheneaux Islands (Tr. 98); there were bands at Big and Little Bay de Noc (Tr. 98);

at the Beaver Islands (Tr. 98); at Little and Grand Traverse Bays (Tr. 98); and on Lake Huron there were bands at St. Ignace, Thunder

Bay and Cheboygan. (Tr. 98.) The southern portion of the ceded area was the home of the grand River bands (Tr. 98). Included among

these bands were beneficiaries of the Treaty of Ghent, which ended the War of 1812. (Tr. 1060-61, 1064, 1128, 1179.)

The bands located within the area of cession were Ottawa, Chippewa and a mixture of both. (Tr. 98.) Henry Schoolcraft described the

Indians of the Treaty area as "intercalated," a mineralogical [sic] term to describe stratified layers of rock. (Tr. 99.) In other words,

there were some distinct Ottawa groups, some distinct Chippewa groups and some groups consisting of both. (Tr.99.) It was not

possible before 1836 to draw a precise line on a map showing distinct areas occupied exclusively by either Ottawa or Chippewa. (Tr.

100.) The Ottawa and Chippewa lived at peace together in their intercalated relationship. (Tr.94-100, 177, Ex. P-17.)

The first significant American contact with the Indians of the treaty area probably began in 1820 with the Cass expedition. (Tr. 105.)

Lewis Cass led an expedition into the northern portion of the Lower Peninsula and the Upper Peninsula of Michigan at a time before

its exploration by any other Americans. (Tr. 105.) Before the Americans, the Indians of the treaty area had contact with the French,

beginning in the middle seventeenth century, followed by the British. (Tr. 106.)

The life style of the Ottawa and Chippewa during the period leading up to the 1836 Treaty was cyclical in nature. Springtime

activity was devoted to the making of maple sugar. Sometimes the sugar was their only source of food during the harsh months of

February and March. (Tr. 111.) In early May, the spring fishing season started and some agricultural activities were conducted,

depending upon the location of a band. (Tr. 111.) The 140-day growing season line extends across Michigan at a point south of

Traverse City. Thus, Indians north of that line were engaged in very limited agricultural pursuits. (Tr. 111.)

Canoe making was another springtime activity because this was the best time of the year for removing the bark from birch trees. (Tr.

111.) In the summer, food gathering occurred. In August, those crops available were harvested and shortly thereafter were gathered.

(Tr. 112.)

In the fall, there was another significant fishing season and substantial time was devoted to this activity. (Tr. 112) Before departing

for winter hunting stations, supplies were procured from traders which were often advanced against the furs the Indians expected to

trap. (Tr. 112.) The Indians dealt with traders on the basis of barter. (Tr. 112.) They traded furs and fish for supplies the traders

carried. (Tr. 112- 13.) It was not until after the 1836 Treaty with its provisions for annuities that the Indians had cash available to

use for obtaining supplies. (Tr. 113.)

Indians were traders, of course, even before European contact. (Tr. 106.) As previously stated, the word "Ottawa" means "trader." One

of the principal trade centers in the treaty area was at the Straits of Mackinac. (Tr. 106.) Early trade routes extended from Montreal

down to the Gulf of Mexico and were dependent upon the Great Lakes and the Mississippi River for transportation. (Tr. 107.) After

European contact, trading by the Indians continued and expanded because the Indians were then able to obtain manufactured goods

like iron kettles, hooks, axes, hatchets, needles, awls and firearms. (Tr. 109.)

B. ROLE OF FISHING IN THE LIFESTYLE OF THE INDIANS OF THE TREATY AREA.

The prehistoric and historic record of the Upper Great Lakes shows a long evolutionary sequence extending back at least 12,000

years during which fishing in the Great Lakes has been of increasing importance to the Indian people of the treaty area. The nature of

the fishery resource has helped to shape the Indian culture of this area. Ecologically, the Upper Great Lakes area is a transitional area

between the pine forest to the north and the hardwood forest to the south. It was low in many natural resources including mammals.

(Tr. 697-98.) The Great Lakes contained a productive fishery, however, which was characterized by Rostlund in his authoritative

monograph on the aboriginal fisheries of North America as the "Inland Shore Fishing Complex." This fishery (shown on the map,

Ex. P- 143) lies generally north at a line demarcating 140 frost-free days. As prehistoric Indian culture evolved after the retreat of the

glaciers, the Indians south of that line turned increasingly to agriculture as the main subsistence activity, while those north of the

line turned increasingly to fishing. Though fish did not occur in the Great Lakes in the abundance that characterized other

aboriginal fisheries, the fish did concentrate in relatively small areas in the spring and fall, primarily to spawn. This bi-modal cycle

with its periods of concentration allowed the Indians to utilize the fishery resource. (Tr. 699-703.)

The earliest Indians of northern Michigan were big game hunters. The first evidence of Indian fishing in the Upper Great Lakes

occurs in Late Archaic Period with archaeological sites dated between 2000 and 1000 B.C. Although the Indians of this period were

primarily hunters, they began coming to the shores of the Great Lakes in the spring, when spring spawners such as sturgeon were

gathered, and took fish by hook, gorge and spear. (Tr. 728-30.)

Even before this time, however, a new fishing technology was being developed and applied on the Atlantic coast which would

eventually alter drastically the subsistence and lifestyle of the Indians of the Upper Great Lakes. Fishing nets originated on the

Atlantic coast around 6000 B.C. and began spreading slowly westward through the process of cultural diffusion. By 2500 B.C. nets

were in use on the Lower Great Lakes. From there they spread to the Upper Great Lakes, where they appeared during the Middle

Woodland Period at around the time of the birth of Christ. (Tr. 744-45.) As with the earlier fishing techniques, which remained in

use, nets were first applied to the spring fishery. However, during the Late Woodland Period (which immediately preceded European

contact), the primary fishery shifted the spring to the fall, when species such as lake trout and whitefish were taken. With this major

change the fishery continued to become more important and more productive. (Tr. 739-40)

The introduction of nets and the shift of the fall fishery led to the development of the Late Woodland Period settlement pattern

which was encountered by the first Europeans to enter the Upper Great Lakes. In the spring the Indians would gather in large fishing

villages of around 200 persons, where they would remain until the onset of winter. In winter the village would break up into small

family groups which would disperse inland to hunt. When spring came the cycle would be renewed. The warm weather fishing

villages were located on the shores of the Upper Great Lakes throughout the treaty area in locations with convenient access to

productive fishing grounds. (Tr. 121-23, 236-38, 733-43, 760-63, 825-30.)

By the time of first European contact around 1650 A.D. fishing had come to be of enormous importance to the Upper Great Lakes

Indians. All traditional fishing methods were still in use, but the most productive was gill netting from canoes. The Indians caught

both spring-and fall-spawning species, including sturgeon, suckers, pike, whitefish and lake trout. (Tr. 130, 758-60.) Fish was a

very crucial item in the Indian diet, comprising about 65% of the usable meat consumed in the warm months. (Tr. 768-71.) British

and French settlements in the same area show significantly less dependence upon fish in the European diet. (Tr. 769-71.) At first

contact, as in earlier and later times, fishing was the key to understanding the subsistence and settlement patterns of the Upper Great

Lakes Indians.

A written record of the Indians of the treaty area began with the arrival of Europeans, though of course this record was not kept by

the Indians, but by the newcomers encountering a strange culture. Nevertheless, these European and later, American observers amply

documented the continued extreme importance of fishing to the Indians. Throughout the period from first contact to the 1830s,

missionaries, explorers, traders, and military and governmental officials wrote of the Indian gill net fishery in the Great Lakes and of

its importance to the Indian inhabitants. For example, the Frenchman Joutel wrote this detailed description of Indian gill netting at

the Straits of Mackinac in 1687 (Tr. 784-85):

They are very skillful at fishing and the fishing is very good in those parts. There are fish of various kinds which they catch with

nets, made with a very good mesh; and although they only make them of ordinary sewing thread, they will nevertheless stop fish

weighing over ten pounds. They go as far as a league out into the lake to spread their nets, and to enable them to find them again,

they leave marks, namely, certain pieces of cedar wood which they call "aquantiquants," which serve the same purpose as buoys or

anchors. They have nets as long as 200 fathoms and about 2 feet deep. At the lower part of those nets they fasten stones to make

them go to the bottom, and on the upper pan they put pieces of cedar wood which the French people who were then at this place

called floats. Such nets are spread in the water, like snares among crops, the fish being caught as they pass, like partridge and quails

in snares. The nets are sometimes spread in a depth of more than 30 fathoms, and when bad weather comes, they are in danger of

being lost.

Cadillac in 1695 described the same fishery as a "daily manna, which never fails." (Tr. 785.) Many similar accounts were placed on

the record. (Tr. 105-08, 154, 113-20, 782-89, 791-94.) These historic and ethnographic materials were summarized by Rostlund in

his authoritative work in this fashion (Tr. 796):

[A] gill net fishery par excellence in native North America was found in this region of great interior lakes inhabited by the whitefish

family; and it may be added that this great food resource could not have been adequately exploited had the gill net been unknown. *

* * [A]s fisherman those people . . . were second to none in the aboriginal North America.

Long before European contact, the Indians of the Upper Great Lakes had participated in a far-flung trade and exchange network

which extended at least as far south as the Gulf of Mexico. (Tr. 106-07; Ex. P-142) This was not, however, a proper commercial

network, because commercial activity requires a market economy based upon a system of exchange using understood equivalents,

and such a market economy was absent from the Upper Great Lakes in aboriginal times. The Europeans brought with them their

market economy, and with it an opportunity for the Indians to participate in an entirely new aspect of the fishery a commercial

fishery. (Tr. 797-99.) From that time onward, the commercial fishery as well as the subsistence fishery was important to the Indians.

As is also indicated by the Indians' adoption of nets, the Indians' participation in commercial fishing as soon as this opportunity

presented itself, reveals that the Indians' participation in the Great Lakes fishery was never static, but evolved as new opportunities

became available.

As early as the middle of the 18th century Indians were participating in a commercial fishery by trading fish to the French at

Michilimackinac. (Ex. P-8, 9.) Before the 19th century, however, the main Indian commercial activity was in the fur trade. The fur

trade was on the wane in the early 19th century. By that time the Indians had become dependent upon manufactured trade goods and

needed to continue their participation in the market economy. The naturally turned to fish as a commodity which could produce a

surplus for trade. (Tr. 124, 799-801) In the 1830s the fur companies began to turn to fish as well. Foremost among them was the

American Fur Co., which operated a fishing enterprise on Lake Superior from 1835 through the early 1840s. Its principal fishing

operations were west of the treaty area, but it did operate fishing stations at Whitefish Point and Grand Island. (State Ex. 309) The

American Fur Co. and its rivals developed a market for Upper Great Lakes fish and provided a ready outlet for the purchase of Indian

fish and employment of Indian fishermen. (Tr. 153-55, 437-43, 801-07.) The fishermen for the American Fur Co. were largely

Indians, who were the major producers of fish in Northern Lake Michigan, Northern Lake Huron, and Lake Superior for the entire first

half of the nineteenth century. (Tr. 281, 803-05, 807-09, 970, 973, 1559.) Indian names do not appear in the employee roles of the

American Fur Co., however, probably because Indians fished as subcontractors. (Tr. 1781-82.)

The evidence firmly establishes that the Indians of the treaty area were heavily engaged in commercial fishing at the time of the

Treaty of 1836, both as employees and as independent fishermen. The Blois Gazeteer of 1840s described one type of Indian

participation in the commercial fishery (Tr. 804):

At Mackinac, St. Mary's Strait, and Lake Superior, the fishermen are composed of French, Indians, and Mestizoes or halfbreeds. They

are generally employed by capitalists and in Lake Superior by the American Fur Company, furnished with necessary outfits, and

paid in such goods as their necessities may require.

Grace Lee Nute, in her article on the American Fur Co., which was relied on by the experts on both sides, also indicates that the

American Fur Co. engaged Indian fishermen (State Ex. 309, P. 489), and a contract between an Indian fisherman and the company for

fishing at Whitefish Point in 1837 was also introduced. (State Ex. 226.) Indians also barrelled their own fish and sold them to

traders (State Ex. 50), and traders contracted with intermediaries like Charles Butterfield to purchase fish from Indians. (Ex. P-176.)

Indian commercial fishing is evidenced in the treaty itself as well; under the sixth provision of Article Fourth, the Indians were to

receive 100 barrels of salt and 500 fish barrels annually for twenty years.

Subsistence fishing continued to be tremendously important to the Indians of the treaty area in the 1830s. The introduction of the

market economy, the fur trade and the dependence of the Indians on trade goods did not alter the subsistence dependence of the

Indians on the fishery; to the contrary, as Fitting reported in his "Patterns of Acculturation at the Straits of Mackinac," those factors

actually increased and amplified the importance of fishing. (Tr. 766- 67.) Fish remained the staple of the Indian diet. This factor was

stressed by Lewis Cass, who in 1820 wrote that for the Indians of the treaty area fish "constitute a considerable part of the food of all

the Indians upon this extensive frontier. Deprived of this means of support, they must absolutely perish." (Tr. P-20 and 20A.)

In 1836 the settlement pattern of the Indians was the same as it had been for centuries, since the introduction of nets: in the warm

months the Indians were concentrated in large fishing villages, and in the winter the villages broke up into family groups who went

inland to hunt and trap. The Indians were living on the shores of the Great Lakes throughout the treaty area adjacent to the

productive fishing grounds. (Tr. 97-100, 121-23, 236-38, 760 760-68, 825-30.) This settlement pattern is shown in the Treaty of

1836 itself in the location of the reservations and of the chiefs listed in the schedule supplemental to Article Tenth. It is also shown

in Henry Schoolcraft's 1837 map and census (Ex. P- 125; State Ex. 311) and in similar exhibits. (State Ex. 63, 284.)

Despite this settlement pattern and the concentration of fishing in the areas of settlement, Indian fishing was not confined to these

areas. Indians of the treaty area, before and during treaty times, traveled extensively, and to the most remote areas of the Great Lakes.

(Tr. 127-29, 753-54). They had various sizes of canoes, adapted to different purposes, and used these in their travels. (Tr. 469-71.)

In sum, in 1836, fishing in the waters of the Great Lakes for both subsistence and commercial purposes was extremely important to

the Indians of the treaty area. (Tr. 559, 807,1762-3, 1773, 1785, 1788-89, 1792-99, 1801, 1886.) Dr. Cleland described the Indian

fishery in 1836 as a "vitally important resource for the survival of those people, and upon the advent of a commercial system, a

means by which they made their principal living during a very difficult era" and as "the primary cornerstone of their cultural being."

(Tr. 831.)

Fishing remained enormously important to the Indians of the treaty area up to the Treaty of 1855. This is amply documented by a

variety of sources, from the Momlan leader Strang of Beaver Island to the official reports by Indian agents. (Tr. 120-21, 156-63, 16575, 808-09.) Store ledgers of local traders and merchants indicate that Indians were obtaining cash credits for barrels of fish on both

a large and small scale. (Ex.P-166, 167, 168, 169, 170, 171, 172, 173, 174, 175.) A particularly fertile source for such evidence is the

annual reports of the Commissioner of Indian Affairs to Congress, which include reports of local agents, subagents and the like. In

the report for 1842, for instance, the Indian school at St. Ignace complains of poor attendance "caused by frequent absence of

families from home, pursuing their calling as fishermen." (State Ex. 269, No. 36.) The report for 1844 states that an increased

demand for fish has improved the economic position of Indian fishermen. (Ex. P-66.) In 1848 the Indians of the subagency at Sault

Ste. Marie sold at least 1200 barrels of fish. (Ex. P-72.) In 1852 Rev. Pitezel reported to the Commissioner (Ex. P-75):

One means of their subsistence must be, from the nature of things, fishing. Lake Superior abounds with the finest fish. As long as

they reside about the lake, this occupation must be to them what the farm is to the farmer, or the trade to the mechanic.

Similar statements occur in other reports of the period. (Ex. P-67, 69,70, 71,73, 77, 79.) In 1855 fishing in the Great Lakes remained

the primary Indian subsistence activity and was perhaps an even more important commercial activity than at earlier times. (Tr. 16970, 824-25, 831-32.)

Fishing remained an important activity of the Indians of the treaty area throughout the remainder of the 19th century. The Mackinac

Agency reported to the Commissioner of Indian Affairs in 1861: "Those bands residing near the Great Lakes still depend, to a great

extent, on fishing for a livelihood." (Ex. P-98, p. 5) In 1860 the first year in which Indians were counted the census for northern

Michigan showed that Indians and half-breeds dominated the commercial fishery. (Tr. 809-14; Ex. P-156.) Indian participation

remained high and actually increased slightly by the 1880 census. (Tr. 815-18; Ex. P-157, 158.) Smith and Snell's survey of

commercial fishing in the Great Lakes in 1885 also showed heavy Indian participation in the fishery of the northern Upper Great

Lakes. (Tr. 818-23; Ex. P-4.)

Indian involvement in the Great Lakes fishery has continued through this century to the present day. The Bay Mills Indian

Community is a fishing community whose members have always fished for subsistence and commercial purposes. As one member,

Don Parish, put it: "[F]ishing was our way of life, it was our livelihood, and fishing is our living, so we just had to fish." (Tr. 1116.)

Other tribal witnesses expressed similar sentiments. (Tr. 1064-66, 1075-79, 1094-1102, 1129-37,1160-64, 1184-86.) Indian

fishermen still live in the same areas and fish on the same fishing grounds as did their ancestors for centuries past. (Tr. 1064-66,

1070-74, 1075-79, 1094-1102, 1113-16, 1138-39, 1161-62, 1171-73; Ex.P129E, 135, 135A, 136, 136A, 136B, 136C, 136D.) Indian

fishing of today is remarkably like Indian fishing in 1836, and not much different from Indian fishing two millennia before that.

C. NEGOTIATION OF THE TREATY OF 1836.

When the United States negotiated treaties with the Indians of the Territory of Michigan, it was bound by certain responsibilities

imposed by previous Treaties and Laws. The first of these is the Northwest Ordinance, discussed above. Additionally, the United

States undertook certain obligations towards the Indians, and restored all aboriginal rights, through the treaty which ended the War

of 1812 with Great Britain, the Treaty of Ghent, signed on December 24, 1814 (8 Stat. 218). This Treaty was referred to by Henry

Clay, Senator from Kentucky, in a speech before the Senate on a Resolution concerning Cherokee Indians in Georgia:

He alluded to the negotiations between Great Britain and the United States, for the termination of the late war. The hinge on which

the negotiation turned, he had a distinct recollection, was the claim brought forward by the British negotiators on behalf of the

Indians, and which they held as a sine qua non to the conclusion of a treaty of peace that the Indians, her allies, should have a

permanent boundary assigned them, and that neither party should be at liberty to purchase the lands they set apart. But the

American commissioners would not listen to the proposition so much as to refer it to their Government, informing the British

commissioners that, if they did so, they were sure it would meet with the most prompt rejection. They stated that the Indians lived

under their own customs, and not the laws of the United States, and that they were placed under the protection of the United States

alone, whether they were subjects or otherwise. The correspondence finally terminated in a proposition to which the American

commissioners assented, that the United States should do their best endeavors to restore peace with the Indians with which they

were at war, and restore to them all the rights and privileges they enjoyed prior to the commencement of hostilities. And he declared

it to be his belief that, if the Indian rights bad not been thus declared, there would have been a prolongation of the war.

The Congressional Globe, February 3, 1835, at 195. It should be noted that Henry Clay was a negotiator and signatory of the Treaty

of Ghent for the United States.*

[*The above comment on the negotiations on the Treaty of Ghent was placed in historical perspective by Samuel Eliot Morison in

The Oxford History of the American People (1965) at 397-98:

To the astonishment and distress of the American peace commissioners...their opposite numbers were instructed to admit neither

impressment nor neutral rights as even subjects of discussion. The United States must abandon all claims to the Newfoundland

fisheries, the northeastern boundary must be revised to provide a direct British road between St. John, N.B., and Quebec; and the

northwest boundary must also be rectified to give Canada access to the Upper Mississippi. Finally, the old project of an Indian

satellite state north of the Ohio river was revived. Adams, an experienced diplomat, expected the negotiations to terminate on this

point, and prepared to go home. Henry Clay, untrained in diplomacy but an expert poker player, was confident the British would

recede, as they did . On 16 September, the British commissioners were instructed to drop the Indian project.]

A treaty can be analogized to a special kind of contract and, like all contracts, the motivations of the parties can, and often do, differ

substantially. There were two principal parties to the treaty the United States and the Indians but each party represented a collection

of individual interests. (Tr. 132.)

Some Indians in the treaty area were interested in obtaining annuities like their neighbors the Potawatomis. (Tr. 133.) Others wanted

to protect their special, customary fishing grounds from non-Indian fishermen. (Tr. 133.) Still others, in particular the Indians in the

Upper Peninsula wanted to secure blacksmith services to make and repair metal equipment, especially implements used for fishing.

(Tr. 133)

Representatives of the United States also had differing motivations for treating with the Indians. Henry Schoolcraft, principal

negotiator for the United States, was concerned about national security and wanted to secure the Upper Peninsula against British

encroachment. (Tr. 134, 163-65.) As a mineralogist, Schoolcraft believed there were valuable mineral deposits in the area, such as

salt and coal, and he wanted to be sure there would be no impediments to the government's exploitation of these minerals if rumors

of their existence later proved accurate. (Tr. 134.) Traders, who played a major role in the treaty process, were owed large sums by the

Indians and a treaty was the best way to be certain these debts were paid. (Tr. 136.) There was also significant pressure for statehood

in the early 1830s. Early Michigan leaders, like Lewis Cass and Senator Lucius Lyons, wanted to attract settlers to the area and in

order that there be available land, the Indians' title had to be extinguished. (Tr. 135, 1305.) Michigan territory in the early 1830s

was not experiencing the same settlement rate as in Ohio, Indiana and Illinois. (Tr. 1294.) Reasons included the large Indian

population in Michigan and settlers' fears of confrontation with them; a lack of roads to allow settlement of the interior; harsh

weather conditions, and the like. (Tr. 1294.)

The dominant motive appears to have been to cheat the Indians out of their lands and reduce their holdings to the reservations.

Thereby the Indians would be deprived of their natural habit of roaming the range of the lands on their summer and winter

migrations. Thereby the Indians would be deprived of their lands before they realized their eventual value. The figure received for

the land 12 1/2-13 cents per acre indicates that the Indians were cheated out of their land. (Tr. 210, 227, 275, 2134-36, 2380-84.)

By 1836, much of the Indians' aboriginal title to Michigan land had already been extinguished through various treaties. In 1807 the

United States obtained the land around Detroit under the Treaty of Detroit. (Tr. 1295.) The United States acquired land in

southwestern Michigan (below the Grand River) under the 1822 Treaty of Chicago. Under the Treaty with the Saginaw Chippewas in

1819, the United States acquired land in the eastern side of the Lower Peninsula up to Thunder Bay on Lake Huron. (Tr. 1295-96.)

In the fall of 1835, a small group of Indians (primarily Ottawas) made their way to Washington, D.C., to talk to government officials

about a treaty. (Tr. 136.) The arrival of this group of chiefs with limited authority provided Schoolcraft with occasion to emulate

Cass in the negotiation of the Treaty of Saginaw. Having found out about this group, Schoolcraft hastily departed for Washington,

D.C., as well. (Tr. 139.) The United States seized upon these events as an opportunity to purchase lands from all the Indians of the

area, and quickly expanded the scope of the purchase to include all of the area of Michigan eventually ceded in the Treaty of 1836.

(Tr. 135-36, 606-07, 1315-26). Schoolcraft aggressively sought other chiefs in order to seize another tract of "that very valuable

land." In early 1836, a larger delegation of Indians was escorted to Washington, D.C. in order to negotiate a treaty. (Tr. 139.) Most of

the escorts were traders from throughout the area of cession. (Tr. 139.) The escorts were arranged for, in most instances, by

Schoolcraft and other government officials. (Tr. 139.) Documents support the notion that the presence of traders was essential if the

United States was to accomplish a cession of Indian lands. (Tr. 140; Ex. P-46 and 46A.) Some traders, such as Robert Stuart, John

Drew and Edward Biddle, were associated with the American Fur Co. (Tr. 141-42.)

Dr. Helen Hornbeck Tanner, plaintiffs' principal ethnohistoric witness, testified that:

Fur traders were widely used as mediators in effecting Indian treaties and were usually present, and in some cases, beneficiaries of

the Treaty. Their personal contacts with the Indian people were important, in one way, and their influence over them appears to have

been considerable. (Tr. 142.)*

[*Defendants' Exhibit 3/2 contains a detailed list of the claims traders submitted for payment under the treaty. For example,

Edward Biddle received more than $45,000 (Ex. 312, Claim No. 63, Tr. 1621. Rix Robinson, Robert Stuart, John Holiday, John

Hulbert and Henry Levake received, in toto, approximately $57,000 as claimants under the treaty. (Ex. 312, Tr. 1625-33.)

Altogether, claimants or creditors received $220,954.57 under the treaty. (Ex P-321, Tr. 1633.) All these persons played a major

role in the treaty process, including accompanying various bands to Washington, D.C. Most of these persons were listed at the end

of the treaty signifying their attendance and participation in the negotiation process. Perhaps the most prominent figure in the

treaty process was Henry Schoolcraft. His family members received approximately $53,000 under the treaty as creditors to the

Indians. (Ex. P-132; Tr. 1636-42)]

In the spring of 1836, the process of selecting Indian representatives and transporting them to Washington began. The selection of

the traders who accompanied the Indian was initiated and controlled largely by the United States, acting through Henry Schoolcraft

and his agents. Schoolcraft sent for his relatives, Waishkee and his son Waw-be-geeg, to represent some of the Upper Peninsula

bands. (Tr. 142.) At this same time, a power of sale was being circulated amongst the Indians for their signatures (marks) to be

affixed. This power of safe (Ex. P-47 and 47A) was sent to Washington and arrived while the treaty negotiations were taking place.

(Tr. 143.) Indian delegates came from Muskegon, Grand River, Michilimackinac, Sault Ste. Marie, L'Arbre Croche and Grand

Traverse. One group from Grand River did not come under trader escort and a trader was summoned to attend the negotiations. While

in Washington the Indian delegates were placed in charge of Rix Robinson, Robert Stuart, John Drew, H. A. Lavake, William Lasley,

George Moran, Lewis Moran, Augustus Hamelin, and Leonard Slater. All were traders except Hamelin, an educated half-breed, and

Slater, a missionary. (Tr. 96, 13948, 14547, 177-79, 1326-30, 133447; Ex. P-15, 46, 47.) The United States paid all of the expenses

incurred by the Indians in order to transport them to Washington (Tr. 147), including providing them with clothes and other gifts..

Once in Washington, the Indians were housed and fed at the expense of the government.

Lewis Cass was the Secretary of War in President Jackson's administration, and, being a military man, he knew full well that "Andrew

Jackson's 'requests' were in fact orders," when it came to Indian matters. (American Heritage Pictorial History of the Presidents, Vol.

1, p. 224 [1968]). This attitude was in turn conveyed to Henry Schoolcraft in a letter authorizing him to treat with the Indians. (Ex.

P-53.) Cass' instructions directed Schoolcraft to obtain a cession of Indian land, in part to facilitate the advancement of non-Indian

settlers. He was told not to allow individual reservations but if reservations were provided for, the Indians should hold them in

common until later ceded to the United States. (Tr. 149.) Other instructions required him to determine that the Indian representatives

were genuine and authorized to cede land and to obtain as large a cession as possible. No claims for debts were to be settled in the

treaty itself unless the Indians insisted upon it. Annuities of twenty years duration were to be provided. (Tr. 148-50, 134549; Ex. P53, D. Ex. 16.)

Schoolcraft made an opening statement to the assembled group in which he explained why the treaty was to be negotiated with both

the Ottawa and Chippewa rather than negotiating two separate treaties. Schoolcraft stated the President of the United States believed

the Ottawa and Chippewa to be "brother tribes." Article First of the treaty refers to "the Ottawa and Chippewa nations of Indians."

However, the Indians did not think of themselves as "nations" nor were they organized politically at the tribal level. (Tr. 773.) The

term "nation" was coined by non-Indians to facilitate treating with the Indians. (Tr. 101.) Treaties, after all, were used to memorialize

agreements between foreign countries. The analogue was applied to agreements between the United States and Indian until 1871

when it was outlawed by Congress. (25 U.S.C. 71) The Indians usually referred to themselves as "the People." (Tr. 101.)

The treaty minutes also reflect that some Ottawa bands from the Lower Peninsula did not want to sell their land while the Indians in

the Upper Peninsula were more willing to sell. (Tr. 178.) The treaty commissioners tried to use the Chippewa's willingness to sell to

shame the Ottawas into agreeing to a cession. (Tr. 178-79; Ex. P-17A, pp. 10-11.)

Interpreters, many of whom were inefficient, were always required during treaty negotiations because the Indians, with only minor

exceptions, did not speak English. Of course, they could not read or write English either and those signing the treaty did so with a

mark and not a signature. (Tr. 180.) In 1838 Schoolcraft commented on the incompetence of interpreters as follows: "The department

is very much in the hands of ignorant and immoral interpreters, who frequently misconceive the point to be interpreted. Could we

raise up a set of educated and moral men for this duty, the department would stand on high grounds." Personal Memoirs, p. 583,

cited in Schmeckier, The Office of Indian Affairs, Its History, Activities and Organization (1927), p. 59.

The Indians referred to the treaty commissioners as "Father" which was a sign of respect. (Tr. 187.) They saw human relations in very

personal terms (Tr. 187), and the term "Father" also signified the Indians' understanding that the treaty commissioners were

authority figures. The Indians expected them to look out for Indian interests, as they were obliged to do as trustees for the Indians.

The 1836 treaty minutes also reveal an important matter which must not be overlooked. Discussions at the large sessions were

concerned with generalities and concepts only. Each band designated its escort to sit down and formulate the actual treaty language

and provisions out of the presence of the Indians. The escorts, with the sole exception of Augustus Hamelin, were all traders with a

substantial pecuniary interest in seeing that the treaty negotiations were consummated. (Ex. P-17A, pp. 13-14; Tr. 183-87.)

Unfortunately, there are no records reflecting the nature of these closed door drafting sessions. Dr. Tanner testified:

. . . but it does appear that the Treaty was actually formulated when the traders got together. There is very little discussion in these

Treaty Minutes, if any, about the actual provisions of the Treaty that was later presented to the Indian people, but there is no record

of what transpired when the group of Indian traders were together in closed session and emerged with 13 articles of a Treaty that was

presented to the Indians to sign.

(Tr. 183-84.)

The language in the Treaty of 1836 is the language of Henry Schoolcaft (Tr. 183, 1367) From an examination of the transcript it can

be determined that he was a subtle, invidious and insidious negotiator who convinced the Indians to trust him in these dealings.

(Ex. P-17.)*

[*Schoolcraft's behavior as a negotiator is also shown in another Michigan treaty . During the negotiations of an 1837 treaty

with the Saginaw Chippewas Schoolcraft met an impasse. The Indians would not sign unless the treaty granted 640 acres to a

doctor who served them during a smallpox epidemic. It did not: they refused to sign and left. Schoolcraft later recalled them and

assured them the proposed version of the treaty contained the provision. They signed on the basis of this representation. It still

did not. History of Saginaw County (1881) p. 157.]

In shaming the reluctant Chippewas, Schoolcraft evidenced his disdain for the Indians' intentions and interests. The Ottawas

declared: "We have decided we don't want to sell our land at all." To this Schoolcraft responded: "Well all right. I will deal with the

Chippewa, and then they will go home with presents, and you will go home with nothing and you will all be ashamed." (Tr. 179.)

Quite simply, he relied upon fraud and duress. (Tr. 493-96.) Judging from the amount of territory which they ceded to the United

States, and the paltry sum which they received in exchange [the price per acre of ceded land happens to coincide with the price

traders charged per quart of whiskey at the time. (Tr. 245.)], it is probable that when the Ottawa and Chippewa Indian Chiefs signed

the Treaty of 1836, they were under the influence of alcohol and did not know what they were doing. Accounts by Henry Schoolcraft

and others indicate that these Indians were no longer rational when the whites made alcohol available to them.

It is the use of ardent spirits, however (an article which is freely supplied), that constitutes their chief bane, converting that which

would otherwise be a season of plenty and good humor, into a gloomy and revolting scene of riot and drunkenness, followed not

infrequency by disease, and sometimes by death. This is not the whole . . . of the evil. The facility with which the Indians part with

their money becomes tile secret motive of their being advised to call on the agents of the Government for their vested funds; and

they thus become dupes of the artful and designing. (D. Ex.252, p.347.) (Emphasis supplied.)

Could ardent spirits be kept from these unfortunate beings, it would be unnecessary ever to remove them.... A considerable number

have joined chat church, and appear to walk orderly, but some of the heathen portion of these bands are much degraded by the

baneful effects of whiskey. They [sic.] American Fur Company, however, and some other respectable traders in that vicinity, have

now determined to deal no more in spirituous liquors themselves, and are disposed to give every aid they can to the Government to

put a stop to this nefarious traffic. (D. Ex.269, p.408.) Sir: I have the honor to report to you that the condition of the Indians at this

sub-agency has been better than during the past year. There have been few instances of intoxication, and a greater disposition to

provide for their families was evinced by many. (D. Ex.269, p.411.)

In The Oxford History of the American People, Morison describes the common practice at treaty signings: "The assent of the Indians

was often merely nominal: federal commissioners bribed important chiefs and, if necessary, got them drunk enough to sign

anything."(At 446.) This practice was not foreign to Michigan treaty negotiations nor to the principals responsible for the 1836

treaty. Lewis Cass, Secretary of War in 1836, negotiated the Treaty of Saginaw in 1819 and supplied 5 barrels of whiskey to Indians

on the day of the signing. F. Dustin, The Saginaw Treaty of 1819, 17 (1919). One of the traders representing the Indians in

Washington in 1836 had engaged in extensive liquor trade with the treaty area Indians, claiming-approximately $16,000 debt for

liquor at the time. (Tr. 1621-23.) This man, Drew, and Rix Robinson, another of the escorts, were identified by Robert Stuart as the

two men who were necessary for the success of the treaty negotiations. (Tr. 142.) In turn, Robert Stuart and Rix Robinson claimed

debts for liquor on their own behalf or on behalf of the American Fur Co. (D. Ex. 312, pp. 40, 48, 50, 55.) It is unlikely the longstanding practice of supplying liquor to Indians stopped abruptly when these traders arrived in Washington, motivated as they were

by the prospect of collecting thousands of dollars of purported debts created over a period of years. Use of liquor was one vehicle of

the peonage they exercised over the Indians.

The convergence of such circumstances makes it reasonable to conclude that fueling the Indians with alcohol provided by traders

was the final weapon Schoolcraft depended upon to effect the government purpose of evicting the Indians from their lands and to

conquer the resistance of will he met when he sought cession of more them scattered parcels. Schoolcraft was, in the words of Dr.

Tanner, prepared to use any means to achieve a treaty. (Tr. 494.) Besides using distortion, extortion and duress, he held out the

carrot of silver and whiskey, relying on traders to supply whiskey during negotiations. The Indians' assent to the treaty was,

accordingly, merely nominal.

The negotiation of this treaty is rent through with deception, manipulation and double dealing. The traders who accompanied the

Indians to Washington were creditors for the Indians and would greatly profit from any provision which set aside money for the

payment of Indian debts. (Tr. 262, 1731-32.) Some of these traders were dishonest. The fact that most of the traders who

accompanied the Indians received money in payment of Indian debts from the treaty indicates that the Indians were improperly

represented at the treaty negotiations, that the treaty does not contain their wishes or represent their best interests, and that much of

the payment received by the Indians for their land was dishonestly and improperly dissipated in the payment of Indian debts. (Tr.

1616-33.) In addition, the traders, and Schoolcraft, struck upon the device of granting their own Indian families reservations in

order to receive compensation of over $48,000. (Treaty of 1836, Article Ninth.) The American Fur Co. was a major creditor to the

Indians of the area; it had a substantial interest in the form of the final treaty; it was in a position to have intimate knowledge of the

treaty negotiations. The daughter of one of the interpreters at the treaty negotiations, John Holliday, wrote frequently, and often

daily, to Ramsay Crooks, the President of the American Fur Co. Her father was also one of the seven partners of that company. The

court takes this as evidence of improper influence over the Indians, and indication that the terms of the Treaty of 1836 do not

necessarily contain the intent or represent the true desires and agreements of the Indians. (Tr. 1333, 134045, 1633-36.)

Henry Schoolcraft led the treaty negotiations even though he had a conflict of interest. In its final form the treaty provided $53,000

to relatives of Henry Schoolcraft in payments of Indian debts. Some of his relatives were traders, a fact which surely influenced him

in his negotiation of the provisions of the treaty. (Tr. 163641.) Further, some of Schoocraft's relatives received payments under

Article Ninth of the Treaty. It provides for payment of monies to half-breeds. Knowledge that the passage of a treaty would greatly

benefit his family was inconsistent with Schoolcraft's involvement in the negotiations. (Tr. 1642-49.)

Later on in this opinion I will deal with the Indians understanding of the treaty in greater depth. It is sufficient to note here that they

apparently were led to believe that they were to receive land, not that they were to cede it away. (Tr. 321-23.) See, Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 553, 8 L. Ed. 483 (1832). It is apparent from the testimony of the witnesses and the documentary

evidence that the Indians of and area were devoted to a way of life which included, and was premised upon, hunting and fishing. It is

inconceivable that they would have given up that way of life and signed a treaty which they understood to make that way of life

impossible. (Tr. 267-75, 831-32.)*

*[The dedication to the Indian way of life is illustrated by the Chippewa and Ottawa reaction upon seeing the land west of the

Osage River to which the government wished the Indian tribes to remove. Once they saw that there were no "sugar bush, " or sap

bearing maple trees, an important part of their life, the Indians refused to consider removal any further. (Tr. 1414, D. Ex. 62, 95. )]

D. PROVISIONS OF THE TREATY OF 1836.

The precise boundary of the cession was not known in 1836 because most of the land area was uninhabited and had not been

thoroughly explored. At the time of the treaty no one knew the shape of the northwestern side of Lake Michigan. (Tr. 191.) Some

interior areas near Grand and Little Traverse Bays were not surveyed until 1855. (Tr. 191.) In Article First of the Treaty of 1836 the

Indians of the treaty area ceded to the United States the following area:

Beginning at the mouth of the Grand River of Lake Michigan on the north bank thereof, and following up the same to the line called

for, in the first article of the treaty of Chicago of the 29th of August 1821, thence, in a direct line, to the head of Thunder-bay river,

thence with the line established by the treaty of Saginaw of the 24th of September 1819, to the mouth of said river, thence northeast

to the boundary line in Lake Huron between the United States and the British province of Upper Canada, then northwestwardly,

following the said line, as established by the commissioners acting under the treaty of Ghent, through the straits, and river St.

Mary's to a point in Lake Superior north of the mouth of Gitchy Seebing, or Chocolate river, thence south to the mouth of said river

and up its channel to the source thereof, thence in a direct line to the head of the Skonawba river of Green bay, thence down the

south bank of said river to its mouth, thence, in a direct line, through the ship channel into Green bay, to the outer part thereof,

thence south to a point in Lake Michigan west of the north cape, or entrance of Grand river, and thence east to the place of

beginning, at the cape aforesaid, comprehending all the lands and islands, within those limits, not hereinafter reserved.

This area includes the waters of the Great Lakes and the connecting waterway (St. Mary's River) out to the international or state

borders. The area is shown on a map attached as Appendix 1. (7 Stat. 491; Tr. 188-93; Ex. P-129, 129A.) In Articles Second and Third

of the Treaty of 1836 fourteen reservations in common were retained in the following locations: Little Traverse Bay, Grand Traverse

Bay, on or north of the Pere Marquette River, on the Cheboygan River, on Thunder Bay, on the north shore of Lake Michigan

between Point-au-Barbe and the Mille Coquin River, the Beaver Islands, Round Island in the Straits of Mackinac, the Les Cheneaux

Islands and land in the Upper Peninsula adjacent thereto, Sugar Island, at the Little Rapids of the St. Mary's River, a large tract on

Whitefish Bay of Lake Superior and westward in the Upper Peninsula, Grand Island and at the head of Bay Noc. These reservations

are shown on the map attached hereto as Appendix 1. In addition, the reserve at the St. Mary's Rapids retained in the Treaty of 1820

was continued. In accordance with the treaty instructions, the reservations in the original treaty were of unlimited duration (7 Stat.

491; Tr. 14849, 193-99, 24647, 250-51, 610-12; Ex. P-41, 53, 125, 129B; D. Ex. 311.)

Two of the reservations retained by the Indians in the Treaty of 1836 specifically include the fishing grounds in the Great Lakes

adjacent to the land reserve: The reserve on the north shore of Lake Michigan and the reserve on Whitefish Bay of Lake Superior.

These two locations were the only fishing locations where friction had developed between Indians and whites before the Treaty of

1836. (7 Stat. 491; Tr. 236-45; Ex. P-21, 23, 27, 37.)

The reserved area described in Article Third at Whitefish Bay includes within it a portion of the Bay. There is a metes and bounds

description of the land area followed by the words: ". . . including the small islands and fishing grounds in front of this

reservation." Schoolcraft's 1837 map (Ex. P-125) shows a longitudinal line extending out into Whitefish Bay. Dr. Tanner testified:

It is a matter of some interest, I conclude, that there is discernible on this map a line from the mouth of the Tacquimenon [sic.] River

out to the International Border that would encompass the small islands and fishing grounds in front of the reservation that are

referred to in the language of the Treaty. (Tr. 197 )

Q: [By Mr. Greene] So, in summary, then, that line on the Schoolcraft map adjacent to the land reserve at Whitefish Bay goes out into

the water and includes some portion of Whitefish Bay, is that correct? A: [By Dr. Tanner] Yes, it does. (Tr. 198.) As originally

negotiated there was no limitation on the period of time the land reserves might remain Indian lands. (Tr. 199.) Subsequent to the

treaty negotiations in March, 1836, the United States Senate unilaterally added the following language to both Articles Second and

Third:

Article Two, line two, after the word, "tracts" insert the following words, to wit: "for the term of five years from the date of the

ratification of this treaty, and no longer;" unless the United States grant them permission to remain on said lands for a longer

period.

Article Three, after the word "tracts," in the second line, insert the following words, to-wit: "For the term of five years from the date

of the ratification of this treaty, and no longer, unless the United States grant them permission to remain on said lands for a longer

period." (7 Stat. 497.)

In July, 1836, the Indians were summoned to Mackinac in order to obtain their assent to the Senate's unilateral amendment. (Tr. 202;

Ex. P-57 and 57A.) On July 18, 1836, Henry Schoolcraft wrote a cover letter to Lewis Cass, Secretary of War, over the Indians' assent

to the unilateral Senate amendments. In that letter he said:

Sir I have the honor herein to enclose to you articles of assent to the Senate's amendments of the Treaty of the 28th of March last,

concluded in a general council of the Chippewa and Ottawa chiefs convened at this agency on the 12th, 14th, 15th and 16th instant.

The cession of the reservations at the expiration of five years has been strenuously opposed by a part of the chiefs, but was finally

yielded, on a consideration of the practical operation of the provision contained in the 13th article of the treaty, which seemed to

them indefinitely the right of hunting on the lands ceded, with the other usual privileges of occupancy until the land is required for

settlement. (Ex. P- 18 and P18A, p. 2.)

There was considerable Indian opposition to the insertion of the language adopted by the Senate. (Tr. 204.) However, the Indians

apparently assented to the Senate amendment, because even though the language was in part motivated by those persons wanting to

remove the Indians from Michigan, it appears the Indians' fears were assuaged by Schoolcraft's explanation of Article Thirteenth.

Thus, despite the fact chat tile land reservations might not last indefinitely after the Senate amendment, The right to hunt, fish and

gather The fruits from all The ceded territory (not just the reservations) would last indefinitely. (See Ex. P- 1 8A, p. 2.) In Indian

tradition it is said chat the Indians retained the right to fish and hunt "as long as the sun rose and the waters flowed." (Tr. 1071)

Dr. James A. Clifton, plaintiffs' rebuttal expert on removal treaties, testified that he had read virtually every removal treaty, he had

not recalled seeing the particular language of the Senate amendment ever before. Tr. 2267.) Relying on Schoolcraft's memoirs (State

Ex. 304, p. 538), Clifton testified:

Now his [Schoolcraft's] explanation, as nearly as I can make out what is going on here, is that Senator Hugh White [Chairman of the

Indian Committee in the Senate] for personal political reasons, asserted these alterations in these alterations in these Treaties, and

not for any other reason.... These alterations were inserted in the Treaty, not because of any practical consideration or because of any

need for land in Michigan, but for internal political reasons involving the Senator and President Jackson. (Tr. 2271.)

Two of the nine tracts of land reserved by the Indians in Article Third explicitly include fishing grounds and small islands adjacent

thereto-the reserve on Whitefish Bay and two tracts of land between Point-au-Barbe and the Mille Coquin River on the north shore

of Lake Michigan near the Straits of Mackinac. Dr. Tanner testified that this explicit reference to fishing grounds underscored the

importance of these fishing areas to the Indians. (Tr. 237.)

Regarding the Lake Michigan fishing grounds, there had been a controversy in 1832 resulting from an attempt by the white traders,

Edward Biddle and John Drew, to gain exclusive rights to fish there. (See Ex. P-21 and P-21A; Tr. 238.) The Indians were angry

because Messrs. Biddle and Drew were dealing with a spurious chief and represented to the United States that the Indians would not

object to the grant to them of an exclusive right to fish in this highly prized area. Some fourteen canoes filled with Indians came to

Mackinac to protest. They were angry that Biddle and Drew claimed they had an exclusive right to fish in this area because Nabanoi,

the spurious chief, did not have the authority to confer such a right on anyone:

[T]he Indians were fully aware that the traders were to blame, making the application and trusted that their Great Father would not

allow this to take place. (Ex. P-23, 23A; Tr. 241; see also Ex. P-25, 25A, 27, 27A.)

A similar conflict arose in Whitefish Bay when Messrs. Ashmon and Abbott requested a permit to fish there in 1835. They too were

refused such a permit. (Ex. P-37, 37A.) This incident explains why the fishing grounds at Whitefish Bay were mentioned explicitly

and included within the land reserved there. (Tr. 245.)

Specific fishing grounds were not explicitly mentioned adjacent to the other Articles Second and Third reserves because there were

no similar controversies with traders in these other locations. But the location of all these reserves reflected the Indians' choice or

preference and their dependence on fishing. (Tr. 246.) Dr. Tanner stated:

I think I remarked earlier that all of these reserved areas are adjacent to or have access to very well-recognized fishing grounds, areas

that I have referred to this morning as being reported as good fishing grounds by Strang and Baraga and other people later on in the

19th century. (Tr. 246.)

The record discloses, therefore, that the United States was willing to give the Indians exclusive fishing rights in both locations

where the Indians were aware that the white men were likely to fish competitively. The United States made no provision to secure the

Indians' fishing rights in any other areas, even though it was aware that white men wanted the right to fish and it was represented by

traders who were parties to the original conflicts over fishing rights. It is likely that this negotiation gave the Indians the

impression, and was intended by the United States to give them the impression, that the United States did not seek the fishing

rights of the Indians. The United States was apparently unconcerned about whether it acquired these rights from the Indians.*

[*In addition, it should be noted that the granting language of the treaty is quite limited: "The Ottawa and Chippewa nations of

Indians cede to the United States all the tract of country within the following boundaries: ...." (Emphasis supplied.) Notably

absent are the words such as "all their right, tide, and interest." Cf. Treaty of August 3, 1795, with the Wyandots, Delawares,

Shawanoes, Ottawas, Chippewas, Potawatimes (sic), Miamis, Eel River, Weea's, Kickapoos, Piankashaws, and Kaskaskias, 7 Stat. 49

(cede and relinquish forever, all their claims to the lands); Treaty of May 31, 1796 with the Seven Nations of Canada, 7 Stat. 55

(cede, release and quit claim . . . forever, all the claim, right or tide . . .): Treaty of November 17, 1807, with the Ottaway, Chippeway,

Wyandotte, and Pottawatamie (sic) Nations, 7 Stat. 105 (agree to cede, and forever quit claim . . . all right, title, and interest which

said nations now have, or claim, or ever had, Treaty of September 8, 1823, with the Florida Tribes, 7 Stat. 224 (do cede and

relinquish all claim or title which they may have . . .); Treaty of June 2, 1825, with the Great and little Osage Tribes, 7 Stat. 240 (do

cede and relinquish to the United States, all their right, tittle, interest, and claim, to lands . . . ); Treaty of October 23, 1826, with the

Miami Tribe, 7 Stat. 300 (cede to the United States all their claim to the land).

The United States knew how to put specific language limiting rights of hunting and fishing into an Indian treaty when it wished to

secure such rights from the Indians. An example is found in the language of the Treaty with the Winnebago, signed September 15,

1832 (7 Stat. 370; Ex. P-187, Article XI):

In order to prevent misapprehensions that might disturb peace and friendship between the parties to this treaty, it is expressly

understood that no band or party of Winnebagoes shall reside, plant, fish, or hunt after the first of June next, on any portion of the

country herein ceded to the United States. (Tr. 2238.)

[16] The willingness of the United States to give exclusive fishing rights in the areas prized by the Indians and the apparent lack of

any concern about Indian fishing rights in other areas destroys any inference which might otherwise be derived from the fact that

the area of concession included water area. It is most likely that, recognizing the Indians' dependence upon fishing, as noted above,

the United States intended that the Indians rely upon their right to fish to provide for themselves while in Michigan.

Turning to Article Fourth, it provides for the payment of annuities to the Indians for a twenty-year period. It also provides for

education, books, teachers and schoolhouses for the Indians for a like period. Money was provided to purchase tools, equipment,

medicine, the services of a physician and tobacco. Of particular importance is the language in Article Fourth providing for ". . . one

hundred barrels of salt, and five hundred fish barrels, annually, for twenty years." Dr. Tanner testified that the government provided

barrels and salt so the Indians could participate in the commercial marketing of fish:

The Indians are packing fish into barrels and salting them down, because they're transported in barrels. (Tr. 253.)

Article Fourth also provided $150,000 to the Indians, but only after they assented to the Senate's unilateral amendment limiting the

land reserves to five years ". . . and no longer, unless the United States grant them permission to remain on said lands for a longer

period." (Tr. 255.)

Article Fifth provided for the payment of the Indians' debts to traders. This, of course, ". . . is probably one of the principal interests

the trading people have in the Treaty process." (Tr. 256.)

Article Sixth provided for payments to the half-breed relatives of the Ottawa and Chippewa (Tr. 257-58.) The Indians had much

concern for their half-breed relations and thought of them as part of their family. (Tr. 258.)

Article Seventh provided, inter alia, for blacksmith shops to be maintained for the Indians. This was of particular importance to

them because the blacksmiths could make and repair metal goods used by the Indians to catch fish. These goods included metal

hooks, ice cutters and other fishing implements. (Tr. 260.)

Article Eighth deals with the subject of removal and will be treated in a separate section of this opinion.

Article Ninth provided for land and monies to be given to certain individuals such as Leonard Slater, John Drew, Edward Biddle,

John Holiday (sic) and Henry Levake, to mention a few. Many of these persons who were singled out for special gifts under the

treaty were traders who escorted the Indians to Washington, D.C. and represented the Indians at the closed door sessions when the

treaty articles were actually written. (Tr. 262.)

Article Tenth provided for the payment of monies to the Chiefs. This was a common practice in treaty negotiations. Further, the

Indians, as a part of their culture and traditions, expected to exchange gifts after an important agreement like a treaty was negotiated.

(Tr. 263.)

Article Eleventh provided for small annuities to two aged and infirm, but highly respected, old chiefs. (Tr. 263.)

In Article Twelfth the United States agreed to pay the expenses the Indians incurred traveling from their homes to Washington (and

back) in order to participate in the treaty making process.

Article Thirteenth, an extremely important section of the treaty, provides:

The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is

required for settlement.

Dr. Tanner testified that "the usual privileges of occupancy can be interpreted to mean living in the way that Indian people have

always been in the habit of living." (Tr. 264)

I think that this particular type of a provision was of considerable importance to Indian people. It usually winds up a treaty and is

given as kind of assurance to them that they can continue to live in the manner that they have been accustomed to, and have no fear

that their life will be disrupted.

(Tr. 265.) Further, Dr. Tanner testified that the term "usual privileges of occupancy" includes the use of all natural resources for

economic and ceremonial purposes and for travel. (Tr. 265.) It includes hunting, fishing, gathering berries, collecting grains,

gathering rush for mats and the like. (Tr. 266.) Dr. Clifton's testimony corroborates Dr. Tanner's on the meaning of the term "usual

privileges of occupancy." The Indians could ". . . make use of natural resources as they were accustomed to doing or had been

doing." (Tr. 2278.)

Article Thirteenth was extremely important to the Indians for several reasons. (Tr. 274; see also Ex. P-44, 44A.) First, as previously

stated, it was explained to the Indians to mean that their usual way of life would not change after the treaty was consummated:

[Article Thirteenth] was to indicate and reassure Indian people that they could continue living the way they had been living.(Tr.

278.)

Second, the Indians were very reluctant to cede all of their land and water. Some wanted to convey only small parcels to the United

States. However, the United States wanted an extensive cession, and got what it wanted by use of "any means." In a letter dated

February 27, 1837, from Schoolcraft to his superior in Washington, the Indians' reluctance to enter into a large cession is discussed.

(D. Ex. 32 and 32A.) The United States wanted to extinguish as much Indian title as possible. Treaty negotiations were time

consuming and costly. The United States knew that the price they would pay for cessions in the future would be increasing over

time. Article Thirteenth, therefore, was used to persuade the Indians to cede much of their Michigan land and waters on the theory

that so long as the Indians were allowed to use all of the natural resources of the land and water, a large cession would not adversely

affect them. (Tr. 270.)

Furthermore, Schoolcraft stated (State Ex. 32A) that not only did he explain that Article Thirteenth would allow the Indians to

continue to use all of the land and water resources of the ceded area, but that since much of the ceded land was uninviting to

agriculturalists, it would not be settled and the Indians could use the resources of this land indefinitely. Several months earlier, in

July 1836, Schoolcraft wrote a cover letter to Lewis Cass over the Indians' assent to the unilateral Senate amendment limiting their

land reserves to five years unless the United States allowed them to remain longer and said that the reasons the Indians agreed to

this change was because of:

. . . the practical operation of the provision contained in the 13th article of the treaty, which seemed to them indefinitely the right of

hunting on the lands ceded, with the other usual privileges of occupancy until the land is required for settlement. (Ex. P-18A, p. 2;

emphasis supplied.) See also Tr. 275.

Dr. Clifton testified concerning the Indians' understanding of the term "until the land is required for settlement" and how that

concept might have been explained to them.*

[*Dr. Clifton has a background in the field of descriptive linguistics and is familiar with languages spoken by the Ottawa,

Chippewa and Potawatomi.]

He said:

I would emphasize that that specifies not a date, not a season of the year, but a condition which is coming. And it is coming-it came

gradually, obviously, over the course of a long, a large number of years. And it is very ambiguous as to any idea by terminal point

when that condition might end.

There will also be probably some land that is not occupied and not used and unsettled. (Tr. 2278-79.)

With regard to the use of the term "indefinitely," which Schoolcraft used to explain to the Indians how long their usual privileges of

occupancy might last, Dr. Clifton testified:

Now I don't know that there is any such phrasing as "indefinitely" in either o these dialects of the language that the people spoke. I

doubt that there is anything like it, just as we would not anticipate to find much other correspondence between the vocabulary of

English and the vocabulary of this language. The languages were constructed on very different principles, so I wouldn't think that

the Chippewa-the interpreter would be able to reach for in his head and get an equivalent.... He might wind up saying something like

"a very, very, very long time, many winters, or many, many seasons," or something to this effect, conveying the idea that it was a

long period of time. (Tr. 2283.)

Even though Article Thirteenth reserved the right in the Indians to hunt, fish, gather fruits of the land and use all land and water

resources, it also contains words of limitation-". . . until the land is required for settlement." Dr. Tanner testified this meant to the

Indians that they could use all ceded land unless particular parcels were occupied by non-Indian settlers:

Q: [By Mr. Greene] Well, now when might-assuming for the moment that the language of Article Thirteenth would have some impact

on the Indians in terms of their right to continue to use certain lands, when do you suppose that impact would occur? How does this

Article Thirteenth- how is it going to limit, if at all, the activities of the Indians?

A: [By Dr. Tanner] Well, I think from taking the statements that we have, that are translations from the Indian people themselves, it

would be until the lands were occupied, until there appeared to be some population pressure that would indicate a need for that land.

And all in all, I would say that some significant population density would have to be achieved throughout the ceded area before it

would become apparent to Indian people that their lands were needed or they were required for use by any other people.

Indian people, as you know, are accommodating people, and if their life was not interfered with, they would probably not undertake

to make an objection. I think that the only general statement that I could make, Mr. Greene, is the one that I have made, that there

would have to be some apparent density population for the need to use the land before there was any requirement to take up the

land. (Tr. 275-76.)

Dr. Clifton's testimony on this subject was similar to Dr. Tanner's. He stated:

They would see-the Chippewa-I will say this on general term-all of the Indians in the Great Lakes area saw land, and what was ever on

the land, or streams, what was ever in the streams, that were not occupied and used by someone else, as open to their use.

And this is a very ancient way of thinking, not easily and quickly changed by any such document as this. (Tr. 2285.)

Article Thirteenth was paraphrased in a variety of ways before the treaty was negotiated, always in the context of hunting or

occupying the land:

"the right to hunt and live on the tract, until it is required," Henry Schoolcraft, September 23, 1835 (Ex. P-41).

"a defined right of hunting on the lands sold," Henry Schoolcraft, November 3, 1835 (D. Ex. 12).

"a full right to hunt on the ceded lands, as long as they are unoccupied," William Johnston (Ex. P43), and John Clitz (Ex. P44), both

on November 17, 1835.

"the privilege of hunting upon the land, and of residing upon it, until it is surveyed and sold by the government," Agreement of the

Ottawa and Chippewa chiefs to cede lands, December 29, 1835 (D. Ex. 290).

"the usual privileges of residing and hunting on the lands sold till they are wanted," Henry Schoolcraft, treaty minutes, March 15,

1836 (Ex. P-17).

After the treaty was signed, Henry Schoolcraft paraphrased and explained the provision in similar fashion: "the right to live on and

occupy any portion of the lands until it is actually required for settlement," Memoirs. . . March 28, 1836 (D. Ex. 304, p. 534); "I

employed the term 'settlement' in its ordinary meaning to denote the act or state of being settled," letter of February 27, 1837 (D. Ex.

32; Tr. 266). "While [the lands] remain the property of the United States," letter of February 27, 1837 (D. Ex. 33); "the conditional

usufructuary right," Report for 1837 (Ex. P-62, p. 3).

The phrase "until the land is needed for settlement" is ambiguous as to the term of Indian occupation. It was explained to the

Indians as indicating a very, very, very long time in the future. (Tr. 2278-84; D. Ex. 32.) Many of the Indians of the treaty region

lacked any experience base with which to understand even the "ordinary meaning" of settlement invoked by Schoolcraft. (Tr. 2417.)

In using this phrase and explaining it as they did, the treaty negotiators placed any understanding of the term of Indian occupancy

beyond the comprehension of the Indians, whose sense of time was significantly different from that of white Europeans. The Indians

lived in a "continuous present." The assurances given the Indians that settlement would not take place for a "very long time," an

"indefinite time," and other phrases equally beyond the comprehension of the Indians, were successful in conveying an extended

period of time to the extent that they placed the time of the ultimate devolution (if any) of the land, a condition sought by the

United States, beyond the time frame within which the Indians could understand human affairs. Since they lived in a continuous

present, any such time period related to events beyond their continuous present, which, to them, would never occur. I find this to be

a fact. Accordingly, the Indians understood that they would go on hunting and fishing for as long as any Indians lived in Michigan.

(Tr. 51-68, 535-7, 542-58, 2281-94, 2482-89.) According to the Indian understanding, Michigan Indians could hunt and fish "as

long as the sun rose and the waters flowed."

The United States only intended to impose a time limitation upon Indian usufructuary rights with regard to Indian use of

unreserved ceded land. The United States intended to provide for settlement, an occurrence which it always expressed as happening

upon the land. Article Thirteenth was designed to regulate peaceably the potential conflict between the Indians and settlers in land

use. (Tr. 269-70, 274.) In the minds and comprehension of the Indians, so long as any Indians resided in Michigan, their aboriginal

fishing rights would be continuing and undiminished in vitality, whatever might happen to their use of unreserved land. (Tr. 27678.)

The Indians were incapable of understanding sale or cession of lands as understood by white Americans. They understood the treaty

as a gift exchange. They would secure benefits from the United States in return for some interests in land. From the Indians' only

understanding of land use, stewardship, they conceived of their gift as some particular use of the products of land, for they could

not conceive of giving everything on the land. Here it is not possible to determine what particular use or uses they thought were

granted to the United States because of the limited treaty minutes and the very general treaty language. In other treaties such general

language hid the fact that the United States had asked the Indians for only their tops of pine trees, giving the Indians in that

negotiation the impression that the oaks remained theirs. Here we do not know what the United States told the Indians they wanted.

Upon giving of their gift Indians would understand that the United States received the Indian's land to care for it. Such a view was

expressed by the Chief Pabanmitabi of L'Arbe Croche when discussing the right of the United States to cut wood on Indian land

under the terms of the Treaty of Greenville: "If any wood is cut upon our land hereafter, we should be paid for it, and we authorize

you to take care of our land." (Ex. P-30)

In the 1836 treaty, the Ottawa and Chippewa understood that they could continue to use the land to the extent necessary to continue

to live their former lives. The Indians were accustomed to accommodating settlers on their land, and the treaty obligation to

accommodate them was seen as consistent with the Indians' continuing to live their lives of hunting and fishing as before. The

Indians did not understand that they would have to accommodate in the exercise of their fishing right because of the concessions

given them during the negotiation. (Tr. 51-58, 535-37, 54244, 556-58, 2281-94, 2482-89.)

[17] The 1836 Treaty did not describe the Indians' reserved fishing right as a reservation of use upon a condition subsequent, nor

did the Indians have any comprehension of such a legal estate. United States v. Shoshone Tribe, 304 U.S. I I I, 116, 58 S.Ct. 794, 82

L.Ed. 1213 (1938); Whitefoot v. United States, 293 F.2d 658, 667, n. 15, 155 Ct.CI. 127 (1961), cert. denied, 369 U.S. 818, 82 S.Ct.

629, 7 L.Ed.2d 784 (1962).

E. THE "REMOVAL POLICY"AND THE 1836 TREATY

The concept of removal, causing the migration of Indians from eastern sections of the country to the territory west of the

Mississippi, has been traced by historians to Thomas Jefferson, in approximately 1803. Based on previous commitments by the

federal government to assist the original colonies to extinguish Indian title within their boundaries, Jefferson as President felt

obligated to some affirmative action. His effort resulted in a draft proposal to amend the Constitution creating an Indian territory in

the West and Uncially establishing removal as a national policy. The amendment never went beyond the draft stage and although

removal did not become officially authorized until the passage of the Removal Act of 1830s (4 Stat. 411), it was an item for treaty

negotiation where circumstances demanded. CTr. 212024.) In addition to pressure from expanding white settlement, other stated

rationalizations for removal were the need to separate Indians from the evil influences of white society and also for purposes of

national security in case of war. (Tr. 2133-38.) Such policy reasons for removal varied according to the region of the country

involved. Population pressures were an important reason, i.e., settlers coming into an uninhabited or sparsely inhabited area and

beginning to farm the land. (Tr. 212X-29.) In the southern states, the Indian societies were powerful, adept at picking up white men's

civilized ways and therefore constituted a threat to the whites living in the area who wished to exploit the Indians and their land.

Removal was seized upon as the means to rid white settlements of these advanced Indian societies. (Tr. 2128-30.)

In the Northwest Territories, the fact that some of the Indians had previously allied themselves with the British meant that removal

of these Indians from the borders would make the border with Canada more secure militarily for the United States. (Tr. 2132-34.)

Land speculation was also a factor in fueling both the removal of Indians and the subsequent population growth of a ceded area. One

form of this speculation involved the United States buying land cheaply from the Indians, and then selling it at a substantially

greater price to white settlers and speculators in order to finance treaty provisions, and to raise general funds. (Tr. 2134-36.) The true

motive for the majority of whites was economic gain through exploitation of the Indian. (Tr. 2137-41.)

Although removal was to be a voluntary act on the part of the Indians, both before and after the Removal Act, there were instances of

forced removal. Andrew Jackson, President from 1829 through 1837, made requests which were actually orders and was responsible

for a forced removal involving the Cherokee and Creek. (Tr. 2138-43.) Jackson went so far as to defy a decision of the United States

Supreme Court, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). (Tr. 2151-52.) The Removal Act of 1830s specifically

provided that removal was to be allowed for "such tribes or nations of Indians as may choose to exchange the lands where they now

reside and remove there" ("there" being territory belonging to the United States west of the Mississippi River). (Emphasis

supplied.) There was opposition to the passage of the Removal Act and by 1838 the removal pressure eased substantially. However,,

some removals did take place during the early 1840s. (Tr. 2153, 2372-73, 2449; D. Ex. 310). Not every treaty negotiated with eastern

tribes in the 1830s obligated the tribe to remove; in fact, most of the treaties of that decade did not do so. Pressure for removal

varied considerably depending upon a tribe's location. Generally, removal pressure was strongest in the south east and weakest in

northern Michigan and Wisconsin. (Tr. 227-28, 504-06, 2128-32, 2143, 2159-62, 2273-74.)

For analytic purposes the treaties of the 1830s may be classified in three broad categories, depending upon the degree to which they

do or do not call for removal of the Indians involved:

(a) Land base

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