700 F.2d 341 (7th Cir. 1983), 78-2398, Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt

Docket Nº:78-2398, 78-2443 and 79-1014.
Citation:700 F.2d 341
Party Name:LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, et al., Plaintiffs- Appellants, Cross-Appellees, v. Lester P. VOIGT, et al., Defendants-Appellees, Cross-Appellants. UNITED STATES of America, Plaintiff-Cross-Appellee, v. STATE OF WISCONSIN, a sovereign state, and Sawyer County, Wisconsin, Defendants-Cross-Appellants.
Case Date:January 25, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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700 F.2d 341 (7th Cir. 1983)


et al., Plaintiffs- Appellants, Cross-Appellees,


Lester P. VOIGT, et al., Defendants-Appellees, Cross-Appellants.

UNITED STATES of America, Plaintiff-Cross-Appellee,


STATE OF WISCONSIN, a sovereign state, and Sawyer County,

Wisconsin, Defendants-Cross-Appellants.

Nos. 78-2398, 78-2443 and 79-1014.

United States Court of Appeals, Seventh Circuit

January 25, 1983

Argued Sept. 14, 1982.

As Amended on Denial of Rehearing and Rehearing En Banc March 8, 1983.

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[Copyrighted Material Omitted]

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Gene M. Potack, James M. Jannetta, Kathryn L. Tierney, Howard J. Bichler, Wisconsin Judicare, Inc., Wausau, Wis., for plaintiffs-appellants, cross-appellees.

Mary V. Bowman, Asst. Atty. Gen., State of Wis., Dept. of Justice, Madison, Wis., for defendants-appellees, cross-appellants.

Before CUMMINGS, Chief Judge, WEICK, Senior Circuit Judge, [*] and PELL, Circuit Judge.

PELL, Circuit Judge.

The principal case on this consolidated appeal, Lac Courte Oreilles Band v. Voight (LCO) was an action for a declaratory judgment that a band of Lake Superior Chippewa Indians (LCO band) has retained treaty-reserved off-reservation hunting, fishing, trapping and gathering rights, collectively termed "usufructuary rights," in public lands in the northern third of Wisconsin and that such rights preclude State regulation. The defendants in LCO are primarily State officials who are being sued in both their individual and representative capacities. On cross-motions for summary judgment, the district court granted the defendants' motion, reasoning that the Indians' usufructuary rights were released or extinguished by the Treaty of September 30, 1854 (Treaty of 1854). 1 In reaching this conclusion, the district judge expressly rejected the State's contention that the usufructuary rights had been revoked by the Executive Order of February 6, 1850 (Removal Order of 1850).

United States v. Wisconsin & Sawyer County (Ben Ruby), which has been consolidated with LCO for purposes of appeal, similarly involved a determination by the district judge, on cross-motions for summary judgment, that the Removal Order of 1850 was invalid. The State has cross-appealed the district court's holding pertaining to the Removal Order of 1850 in both LCO and Ben Ruby. 2

LCO And beN ruBy were decided by the district court, together with a third Indian rights case that is not involved in this appeal. The cases are reported as United States v. Bouchard, 464 F.Supp. 1316 (W.D.Wis.1978).

The three principal issues presented by LCO and Ben Ruby are:

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(1) what was the nature of the usufructuary rights enjoyed by the LCO band pursuant to the treaties of 1837 and 1842;

(2) whether those rights were extinguished by the Removal Order of 1850; and if not,

(3) whether those rights were released or extinguished by the Treaty of 1854.


Because one of the subsidiary issues in these cases is whether they were appropriate for resolution by summary judgment, a rather detailed recitation of the evidence before the district court is required.

The LCO band was one of many bands of Chippewa Indians who lived in areas of northern Wisconsin, the Upper Peninsula of Michigan, and northeastern Minnesota. Together with several other bands, the LCO band was referred to as "Lake Superior Chippewas." The Chippewa bands subsisted mainly by hunting, fishing, trapping, harvesting wild rice, making maple sugar, and engaging in various gathering activities.

During at least the first half of the nineteenth century, the policy of the federal Government was to buy Indian lands where white settlement was anticipated and to provide for removal of the Indians to lands farther west. This is called the "removal policy."

In 1837, Wisconsin Territorial Governor Henry Dodge was authorized to negotiate a treaty with the Chippewas for the purchase of land in northern Wisconsin, just south of the Lake Superior basin. On March 3, 1837, Congress appropriated $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." 5 Stat. 158, 161. On May 13, 1837, the Office of Indian Affairs wrote Treaty Commissioner Dodge concerning the Government's purposes in seeking a treaty at that time. The letter indicated that the land was valuable for its pine timber and that acquisition by the United States would open the territory for white settlement.

A treaty council was held. According to the notes of Verplanck Van Antwerp, secretary of the council, Commissioner Dodge told the assembled Indian chiefs in July 1837 that the Government wished to buy a portion of their land that was barren of game and not suited for agriculture. Dodge described the land sought as "abound[ing] 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 Indians responded that they wanted to be able to continue their gathering and hunting activities on the lands, that they wished annuities for sixty years, after which their grandchildren could negotiate for themselves, and that they desired provisions for the half-breeds and traders. Governor Dodge pointed out to the Indians that the "Great Father" never buys lands for a term of years, but that he would agree on behalf of the President to grant the Indians the "free use of the rivers, and the privilege of hunting upon the lands you are to sell to the United States during his pleasure."

The following day the Indians reiterated, through their spokesman Aish-ke-bo-gi-ko-she, that they wished to reserve the privilege of using the land for gathering, hunting, and fishing activities. They said that they could not live, deprived of these means of sustenance. Commissioner Dodge replied, in part: "I will make known to your Great Father, your request to be permitted to make sugar, on the lands; and you will be allowed, during his pleasure, to hunt and fish on them. It will probably be many years before your Great Father will want all these lands for the use of his White Children." 3

The Treaty of 1837, which was signed by a Lac Courte Oreilles chief, among others, embodied these understandings. Article 1

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of that Treaty states that the Chippewas "cede to the United States all that tract of country" described in the article. The United States agreed to pay annuities to the Indians, to distribute money to the half-breeds, and to pay some Indian debts. Article 5 of the Treaty states:

The privilege of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied [sic] to the Indians during the pleasure of the President of the United States.

In 1841, Congress appropriated $5,000 for the expenses of negotiating a treaty to extinguish Indian title to lands in Michigan, a portion of which was held by the Chippewa bands. In July 1842, Robert Stuart, Superintendent of the Michigan Indian Agency wrote to the Secretary of War. He stated that, subsequent to the 1841 appropriation, it had been learned that the mineral district Congress wished to acquire extended beyond northern Michigan into Wisconsin. He recommended purchase of the Wisconsin as well as the Michigan land, stating that "the main importance of immediately acquiring this territory, is owing to its supposed great mineral productivity." He noted that it would not be necessary to remove the Indians from the land until the land was required for white settlement. A month later, Stuart was appointed commissioner to negotiate the proposed treaty with the Chippewas. His instructions stressed the importance of gaining the mineral lands and acquiring control over the south shore of Lake Superior. He was told that general removal of the Indians from the territory would not occur for "considerable time."

Stuart reported the outcome of his negotiations with the Chippewas in an annual report to the Bureau of Indian Affairs dated October 28, 1841. He noted the importance of the mineral deposits on the land and indicated that the concluded treaty had arranged a sharing of annuities between the Lake Superior tribes and the Mississippi tribes. This sharing was necessary to end a feud that had developed between the tribes after the 1837 treaty.

The 1842 treaty included a cession of land north of that ceded in 1837. 4 Article II of the Treaty of 1842 stated:

The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States, and that the laws of the United States shall be continued in force, in respect to their trade and intercourse with the whites, until otherwise ordered by Congress.

The December 5, 1842, report on the treaty by the Commissioner of Indian Affairs to the Secretary of War stressed the importance of acquiring the minerals and of commanding the south shore of Lake Superior. A report by the Superintendent of the Wisconsin Indians to the Commissioner of Indian Affairs the following year noted that exclusive possession of the Lake Superior shore would be commercially important, especially as settlements and mineral trade expanded.

Copper mining along the south shore of Lake Superior, as well as white settlement on the ceded areas, increased greatly following the Treaty. As early as 1846, the Commissioner of Indian Affairs again suggested that the Chippewas be removed to land set apart for them west of the Mississippi. The reports of the period indicate that the Commissioner envisioned "improvement of the Indian race" by decreasing their reliance on traditional activities such as hunting and fishing and by compelling them to "resort to...

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