State of Wis. v. Baker, 76-C-359.
| Decision Date | 23 October 1981 |
| Docket Number | No. 76-C-359.,76-C-359. |
| Citation | 524 F. Supp. 726 |
| Parties | STATE OF WISCONSIN, Plaintiff, v. Odric BAKER, individually and as Chairman, Lac Courte Oreilles Tribal Governing Board; Pete Larson, individually and as Vice Chairman, Lac Courte Oreilles Tribal Governing Board; Margaret Diamond, individually and as Secretary-Treasurer, Lac Courte Oreilles Tribal Governing Board; Charles Diamond, individually and as a member, Lac Courte Oreilles Tribal Governing Board; Theresa Williams, individually and as a member, Lac Courte Oreilles Tribal Governing Board; Rick St. Germaine, individually and as a member, Lac Courte Oreilles Tribal Governing Board; and Their Agents, Employees, and Subordinates, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
John D. Niemisto, Asst. Atty. Gen., State of Wis., Madison, Wis., for plaintiff.
Larry B. Leventhal, Minneapolis, Minn., for defendants.
Gene M. Potack, Wisconsin Judicare, Inc., Wausau, Wis., for intervenor.
1. The Lac Courte Oreilles ("LCO") reservation was authorized by Art. 2 of the Treaty of September 30, 1854 ("1854 treaty"), and was described as "a tract of land, equal in extent to three townships."
2. Other portions of the same treaty defined and authorized reservations for other bands by metes and bounds descriptions.
3. Parties to the 1854 treaty included the United States and two groups of Chippewa bands, the Chippewa of Lake Superior and the Chippewa of the Mississippi.
4. The LCO band, of which defendants are members and officers, belongs to the group known as Chippewa of Lake Superior.
5. A group or band of Chippewa identified as the LCO band was represented in the signing of the 1854 treaty and had its principal village in the vicinity of the current LCO reservation.
6. Selections of territory for a reservation were made by United States agents and representatives of the LCO band in 1859 and 1865.
7. Descriptions of the 1859 and 1865 selections were by reference to United States Public Lands Surveys (USPLS) plats of the townships involved. The USPLS surveys embody a rectangular system.
8. A fractional section is a unit of description under the USPLS system, and is a section containing appreciably less than 640 acres, usually as a result of an invasion by a meandered body of water or by other land which cannot properly be disposed of as part of that section.
9. The Indian agents assisting the LCO representatives in their land selections, and probably many of the LCO representatives, understood that selection of all of a fractional section for the reservation would convey to the tribe less than 640 acres of dry land, the specific amount of dry land being the acreage indicated for the particular section on the USPLS plat.
10. On August 2, 1869, United States Agent Colonel John W. Knight was sent a copy of instructions by the Commissioner of Indian Affairs to be utilized in the selection of a permanent reservation to be in as compact a form as practicable and to contain the full amount of 69,120 acres.
11. On September 30, 1869, Agent Knight stated his actions in obedience to these instructions and described in explicit terms by reference to the USPLS plats and the outboundaries of the reservation recently selected by the "Chiefs in Council" of the LCO band.
12. The reservation boundaries described by Agent Knight in his September 30, 1869, letter intersected navigable meandered lakes, including Lac Courte Oreilles and Grindstone Lake, and encompassed all interior navigable waterways.
13. Indian Agent S. N. Clark was responsible for assisting and supervising the final selection of reservation lands under instructions to him dated December 18, 1872 from the Commissioner of Indian Affairs. Those instructions indicated to Agent Clark that he was to consider the 1859 list of selections, the 1865 list of selections, and the 1869 boundaries reported by Agent Knight. Agent Clark, in addition, was told to obtain the view of the Indians and to conform the reservation to those views as nearly as possible.
14. Agent Clark was instructed to deduct from the reservation approximately 1,500 acres of state swampland, identified specifically by list, and section 16 of each township. Areas not included on the 1873 selection list were not intended to be included in the LCO reservation.
15. The intent of the parties developing the 1873 list was that all elements of the list, including the statements of "Area," be included in the definition of the reservation.
16. The selection list transmitted by Agent Clark on February 17, 1873, was the result of those December 18, 1872, instructions.
17. The LCO reservation was not defined or established in final form until March 1, 1873, at which time the Secretary of Interior approved the land selection list transmitted by Agent Clark.
18. The 1873 list describes the reservation by township, range, section, acreage, and, at times, by quarter and quarter-quarter section and government lot numbers.
19. The 1873 list defines the reservation by reference to the rectangular system of the USPLS.
20. Interpretation of the 1873 list requires reference to original USPLS plats of the townships from which the reservation was selected.
21. Selection of the contents of the 1873 list, and probably earlier lists, was made by consultation of LCO representatives and federal Indian agents; the parties had before them USPLS plats of the relevant townships during such consultation and selection.
22. After the first selection of reservation territory in 1859, LCO representatives and their agents had selected additional tracts of land equaling approximately 12 sections, or 7,680 acres of land.
23. The Indian agents were instructed, and the agents and LCO representatives intended, that fractional sections be noted, and tracts of land carefully selected, so that the tribe would have the maximum amount of dry land authorized for the reservation, consisting of about 69,114 acres.
24. The 1873 list defines the contents of the LCO reservation and is the primary document to be construed.
25. Although the reservation was defined and established by the 1873 selection list, the boundaries of the reservation were not marked until 1876.
26. Henry Esperson of LaCrosse, Wisconsin, had been hired to survey allotments on the Bad River and LCO reservations in 1875 and 1876 and was hired additionally in 1876 to survey, run, and mark the "outboundaries" of the LCO reservation.
27. The instructions and information given and known to Esperson for the 1876 survey of the reservation outboundaries included: the 1873 selection list; the USPLS township plats to which the list is referenced; the field notes of the original township surveys; Esperson's June 23, 1876, contract to survey the outboundaries; the Act of Congress of May 29, 1872, referred to in that contract; and the official United States Land Office surveying instructions, printed in 1871, and entitled "A Manual of Instructions to Regulate the Field Operations of Deputy Surveyors."
28. The contract to survey the outer boundaries of the LCO reservation required Esperson to survey in exact accordance with requirements of the 1871 "printed Manual of Surveying Instructions."
29. Esperson undertook a retracement and not a new resurvey. He identified existing monuments and distances. The official 1871 United States Land Office printed Manual of Instructions did not require Esperson's retracement survey to calculate and return distances across the meandered lakes.
30. Esperson's field notes of his survey of the outboundaries indicate that he dropped a survey line at each meandered lake he encountered; that he usually found existing meander posts at those points; and that he set meander posts at such points when he found no existing posts.
31. Esperson did not return distances across any of the meandered lakes on the boundaries of the reservation; he did return distances for every other portion of his survey, including unmeandered bodies of water.
32. Esperson made no notation that he was excluding from the surveyed reservation the entirety of each meandered lake he encountered in setting the outboundaries. He made no notation that with respect to each meandered lake he encountered, he was including some portion within the surveyed reservation. He made no notation whether he was including within the reservation those interior meandered lakes which he did not encounter.
33. Meandered lakes on the exterior boundaries of the reservation under the Esperson survey included those subsequently known as: Lac Courte Oreilles, Little Lac Courte Oreilles, Grindstone Lake, Spring Lake, Little Round Lake, Squaw Lake, Chief Lake, Pokegama Lake, Cranberry Lake, and James Lake (Plaintiff's Exhibits 10-B and 10-C; Defendants' Exhibit 61). Meandered lakes within the "outboundaries" under the Esperson survey included Blueberry, Devil's, Ashegon, Gurno, Indian, Christner, Scott, Two Boys, and Moonshine Lakes, and portions of the Chippewa River which had also been meandered as a lake.
34. The LCO band controlled all access to Blueberry, Indian, Gurno, Christner, Scott, Two Boys, and Moonshine Lakes when the reservation was established, by virtue of ownership of all surrounding land. The band did not control all access to lakes lying on the exterior boundaries of the reservation.
35. On the 1876 official map of the LCO reservation, approved by the Commissioner of Public Lands and based on the field notes prepared by Esperson, appear both a dotted line and a shaded line passing through the section lines contained in Grindstone Lake and Lac Courte Oreilles. The 1876 map also uses an identical shaded line to designate the excluded Section 16 school lands.
36. The Chippewa Flowage, also known as Lake Chippewa, is an artificially enlarged, navigable lake, formed in the 1920's by the impoundment of the waters of the Chippewa River.
37. Of the original...
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