464 F.Supp. 1316 (W.D.Wis. 1978), 76-CR-70, United States v. Bouchard

Docket Nº:76-CR-70, 72-C-366, 74-C-313.
Citation:464 F.Supp. 1316
Party Name:UNITED STATES of America, Plaintiff, v. Jerome BOUCHARD, Defendant. UNITED STATES of America, Plaintiff, v. BEN RUBY AND SONS, B. I. Bliss, Brownton State Bank of Minnesota, Brownton, Wisconsin, Chippewa Farm Land Company, Edward J. Conroy, J. S. Crisler, S. B.Davis, Dells Lumber and Shingle Company, Frank A. Froemel, Helen Froemel, Jessie M. Froem
Case Date:September 20, 1978
Court:United States District Courts, 7th Circuit, Western District of Wisconsin

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464 F.Supp. 1316 (W.D.Wis. 1978)

UNITED STATES of America, Plaintiff,


Jerome BOUCHARD, Defendant.

UNITED STATES of America, Plaintiff,


BEN RUBY AND SONS, B. I. Bliss, Brownton State Bank of Minnesota, Brownton, Wisconsin, Chippewa Farm Land Company, Edward J. Conroy, J. S. Crisler, S. B.Davis, Dells Lumber and Shingle Company, Frank A. Froemel, Helen Froemel, Jessie M. Froemel, Judy M. Froemel, Louis Froemel, Mary Froemel, Roger M. Froemel, Vincent Froemel, Roy G. Frogness d/b/a Frog Holl Wood Products, Division of F.V.E., Inc., Harvey D. Gardner, Helene Gatch, Waldo E. Gieseker, Town of Radisson, a Political Body, State of Wisconsin, a Sovereign State, J. A. Pugh, Eyvind C. Quist, Harriette D. Quist, Jump River Electric Cooperative, Inc., Town of Radisson, Trustee for the Radisson and Couderay Boy Scouts of America, Troop 55, Chippewa Council, W. A. Rust, Emma Satek a/k/a Emma L. Satek, William J. Satek a/k/a William Satek, Sawyer County, Wisconsin, Joseph L. Scala, John Schwarz, Arthur E. Soderquist, Douglas Soderquist, Edith Soderquist, Patricia A. Soderquist, State Bank of LaValle, Richard J. Sunderland, Veda H. Sunderland, Stephen J. Szorc, Susie Szorc, Town of Sand Lake, a Political Body, Town of Bass Lake, a Political Body, Roy Grass, Sharon L. Grass, A. H. Hanson, F. G. Hoag a/k/a F. G. Haag, Marth Wade Hopkins a/k/a Martha Ware Hopkin, Interstate Investment Company, John Arpin Lumber Company, Ranson Jones a/k/a Ransom Jones, Kate Townsend Joss, M. H. Bekkedal & Sons, Inc., Jane Prescott Marstow, Thomas E. McDermott, Alexander A. McDonald a/k/a A. A. McDonald, Theresa McVay, John E. Moreland, Josephone Nelson, Anthony S. Nesser, Jr., Anthony S. Nesser, Sr., a/k/a Anthony Nesser, June K. Nesser, Northern Lakes Credit Union, C. M. Olson, Elisa Moan Olson, Owens Illinois Glass Company, Park Falls Lumber Company a/k/a Edward Hines Lumber Company, Tom O. Mason Company, Joseph R. Trepania, Mattie Waters, Lorraine M. Westphal, William Westphal, General Telephone Company of Wisconsin, Defendants.

LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, and Frederick Tribble and Michael Tribble, Individually and on behalf of all persons similarly situated, Plaintiffs,


Lester P. VOIGT, Individually and as Secretary of the Department of Natural Resources, State of Wisconsin, Norman L. Yackel, Individually, as District Attorney for Sawyer County, Wisconsin, and as a representative of the group of all District Attorneys and Assistant District Attorneys in the ceded territory, Larry Miller and Milton Dieckman, Individually, as Conservation Wardens for the Department of Natural Resources, State of Wisconsin, and as representatives of the group of all conservation wardens in the ceded territory, Donald Primley, Individually, as Sheriff for Sawyer County, Wisconsin, and as a representative of the group of all ex officio Conservation Wardens in the ceded territory, their agents, assistants, successors, employees, attorneys and all those acting in consort with them or at their direction, Defendants.

Nos. 76-CR-70, 72-C-366, 74-C-313.

United States District Court, W.D. Wisconsin.

Sept. 20, 1978

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Steven E. Carroll, Lands and Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff United States.

David M. Weiby, Superior, Wis., for defendant Jerome Bouchard.

Robert B. McConnell, Asst. Atty. Gen., State of Wis., Madison, Wis., for defendants State of Wisconsin and Lester Voigt.

M. Scott Cisney and R. E. Sommer, Korth, Rodd, Sommer & Mouw, S. C., Rhinelander, Wis., for defendant Owens Illinois Glass Co.

Peter J. Sferrazza and John M. Wiley, Wisconsin Judicare, Inc., Wausau, Wis., for plaintiff Lac Courte Oreilles Band of Lake Superior Chippewa Indians.


JAMES E. DOYLE, District Judge.

These three cases all require a determination of the property interests and hunting and fishing rights of the Chippewa Indians in northern Wisconsin. In varying degree, all involve interpretation of treaties between the Chippewa and the United States in 1837, 1842 and 1854, as well as an executive order issued in 1850.

United States v. Bouchard is a criminal proceeding brought pursuant to 18 U.S.C. s 1165. The United States charges that defendant trespassed upon a waterway belonging to the Bad River Tribe and held in trust by the United States, for the purpose of fishing. Defendant contends that the waterway does not belong to the Indians or the United States, but became the property of the State of Wisconsin upon its admission to the Union in 1848. Plaintiff argues that the rights granted to the Chippewa in the 1842 treaty prevented the State's acquisition of title to the waterway; alternatively, that the 1854 treaty validly granted the Bad River Tribe exclusive use of the waterway at issue.

United States v. Ben Ruby and Sons, et al. is a civil action brought by the United States for a declaratory judgment that it holds title in fee to three sections of land for the benefit of the Lac Courte Oreilles Band, and that none of the defendants enjoys any interest in these sections. Each section is a section 16. The 1846 Act of Congress enabling Wisconsin to achieve statehood granted to the prospective State for school purposes every section 16 "not otherwise disposed of." The United States argues that at the time the State's title might have vested pursuant to the 1846 Act, the sections 16 at issue had been "otherwise disposed of" by virtue of the Indians' right to occupy those lands pursuant to the treaties of 1837 and 1842. The State and the other defendants, whose claimed interests depend upon State grants, argue that the Indians' right to occupy the lands was terminated by a Presidential order in 1850, allowing the lands to pass to the State. The effect of executive action in 1873 finally defining the boundaries of the Lac Courte Oreilles reservation is also in dispute.

In Lac Courte Oreilles Band of Lake Superior Chippewa Indians, et al. v. Voigt, et

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al., the Indians seek a declaratory judgment that they have the right, pursuant to the treaties of 1837 and 1842, to hunt and fish on non-reservation lands in northern Wisconsin free from State regulation. Defendants argue that any such right was extinguished by the executive order in 1850, or by the 1854 treaty.

A treaty between the United States and an Indian tribe must "be construed as the Indians would have understood it . . . as disclosed by the practices and customs of the Indians at the time the treaty was negotiated . . . and by the history of the treaty, the negotiations that preceded it, and the practical construction given the treaty by the parties . . . ." United States v. Top Sky, 547 F.2d 486 at 487 (9th Cir. 1976). Accordingly, in an effort to construe the treaties at issue in the appropriate context, I have made extensive findings of fact, as hereinafter set forth under the heading "Facts." Not all of these findings are relevant to all three cases to which this consolidated opinion is addressed, but each finding is considered relevant to one or more of the three cases.


The Chippewa Indians settled in what is now northern Wisconsin and Minnesota during the latter part of the seventeenth century. They lived in small bands throughout the territory, and made their living by hunting, fishing, and harvesting wild rice and maple sap. The Lake Superior Tribe lived in the northern part of their territory along the Lake Superior shore; the Mississippi Tribe lived farther south. The Chippewa's land became a part of the United States with the establishment of the Northwest Territory in 1787. Significant numbers of white people began to settle in the territory, and Wisconsin was established as a separate territory in 1836.

During approximately the first half of the nineteenth century, the federal government's Indian policy was to buy Indian lands where white settlement was advancing, and to remove the Indians to places farther west. Pursuant to that policy, Wisconsin Territorial Governor Henry Dodge was authorized in 1837 to negotiate a treaty with the Chippewa Indians for the purchase of some of their Wisconsin lands. The appropriations act for the Indian Department, dated March 3, 1837, included $10,000 for "holding treaties with the various tribes of Indians east of the Mississippi River, for the cession of lands held by them . . . and for their removal west of the Mississippi. . . ." On May 13, 1837, the Office of Indian Affairs wrote to Treaty Commissioner Dodge about the government's purposes in negotiating a treaty. The letter noted that the land was valuable for its pine timber and that a treaty would open the territory for white settlement.

The notes of Verplanck Van Antwerp, secretary of the treaty council, indicate that when all of the expected Indian chiefs had arrived at the council grounds in July, 1837, Commissioner Dodge told them that the government wished to buy a portion of their lands, and showed them a map of the desired land. He explained the map thoroughly, and told the Chiefs that the area was barren of game and not good for agriculture, but it "abounded in pine timber, for which their Great Father the President of the United States wished to buy it from them, for the use of his white children. . . ."

The next day, the Indians replied through their spokesman Ma-ghe-ga-bo. He told Commissioner Dodge the Chiefs wanted to reserve the streams in the area and the maple trees to collect sap, as well as the right to hunt in the lands. He stated that the Indians would like annuities in money and goods for...

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