Keweenaw Bay Indian Community v. State of Mich.

Decision Date28 February 1991
Docket NumberFile No. M87-278-CA2.
PartiesKEWEENAW BAY INDIAN COMMUNITY, Plaintiff, v. STATE OF MICHIGAN, Defendant.
CourtU.S. District Court — Western District of Michigan

Bruce Richard Greene, Greene, Meyer & McElroy, P.C., Boulder, Colo., Joseph P. O'Leary, Baraga, Mich. and Garfield W. Hood, Circuit Judge, Twelfth Judicial Circuit Court, Houghton, Mich., for plaintiff.

John D. Walter, Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Executive Div., and R. John Wernet, Jr., Asst. Atty. Gen., Lansing, Mich., for defendant.

OPINION OF THE COURT

ROBERT HOLMES BELL, District Judge.

This is an action brought by plaintiff Keweenaw Bay Indian Community (hereinafter "the Tribe"), against defendant State of Michigan (hereinafter "the State"), seeking (1) a declaration regarding the boundaries of the L'Anse Federal Indian Reservation, established pursuant to an 1854 Treaty, and (2) an injunction restraining the State from improperly exercising civil and criminal jurisdiction within those boundaries.

The Keweenaw Bay Indian Reservation was established pursuant to Article 2 of the 1854 Treaty with the Chippewa, 10 Stat. 1109. That article provided, in pertinent part, that:

The United States agree to set apart and withhold from sale, for the use of the Chippewas of Lake Superior, the following-described tracts of land, viz:
1st. For the L'Anse and Vieux De Sert bands, all the unsold lands in the following townships in the State of Michigan: Township fifty-one north range thirty-three west; township fifty-one north range thirty-two west; the east half of township fifty north range thirty-three west; the west half of township fifty north range thirty-two west, and all of township fifty-one north range thirty-one west, lying west of Huron Bay. (Emphasis added.)

The Tribe's complaint asserts that, based upon this language and upon the historical record surrounding the negotiation of the treaty, the boundary of its reservation was intended to follow the exterior lines of the townships and fractional townships described above, irrespective of land title within that area, and that, further, the reservation also includes a portion of the bed and waters of the Keweenaw Bay. The State's answer, on the other hand, contends that the reservation consists only of those lands which had not been sold or otherwise disposed of by the United States prior to the effective date of the treaty and that, further, the reservation does not encompass the bed and waters of the Keweenaw Bay. The State's theory, accordingly, envisions a "checkerboard" reservation.

The record in this proceeding was fully developed during eight days of trial. The Court heard testimony from three expert historians presented by the parties, as well as from officials representing both the Tribe and the State. Over 300 exhibits were introduced, many of which were historical documents dating to the period leading up to and immediately following the negotiation of the 1854 Treaty.

At the close of the Tribe's case in chief, in response to the State's Motion for Directed Verdict, the Court ruled that title to and jurisdiction over the bed and waters of the Keweenaw Bay had passed to the State of Michigan, upon its admission to statehood, prior to the creation of the reservation. (V Tr. 636; Order dated January 4, 1989). The boundary of the reservation, accordingly, does not encompass the Bay. The remaining issue to be decided is whether the boundary of the reservation follows the exterior lines of townships and fractional townships described in the treaty, as is urged by the Tribe or whether the boundary must instead be drawn so as to exclude those lands that had been sold or otherwise disposed of by the United States prior to the effective date of the treaty, as is urged by the State.

For the reasons set forth below, the Court adopts the construction of the treaty urged by the Tribe and, accordingly, finds that the boundary of the Keweenaw Bay Indian Reservation follows the exterior lines of the townships and fractional townships described in the 1854 Treaty, irrespective of land title within those townships.

Any attempt to place this matter in its proper perspective necessitates a rather lengthy historical narrative of the events surrounding the treaty because, as this Court has concluded, an accurate historical account surrounding the making and implementation of the treaty gives meaning to the ambiguity in the critical treaty language.

FINDINGS OF FACT

The Keweenaw Bay is located on the southern shore of Lake Superior in Michigan's Upper Peninsula. From the earliest records there existed a band of Lake Superior Chippewa Indians near the mouth of the Bay, on an east-west transportation corridor used by the Indians and later by fur traders. The Indians subsisted before the coming of European society, consistent with their traditional lifestyle, which included annual rounds of hunting and trapping in the Winter and fishing in the Spring, Summer and Fall. The Lake Superior Chippewas' lifestyle was first impacted by contact with the French, followed by the English and finally by the Americans. Euro-American contacts exposed the Chippewa, inter alia, to Christianity, a new kind of market economy, greed and avarice for their lands, intoxicants, disease, and a new style of dress and abode. These contacts, of course, did not supplant their culture.

In 1832, the American Fur Company licensed a trading post at Keweenaw Bay. The population in the area at that time consisted of 140 people, of whom 112 were Indian and 28 were Metis (part French and part Indian). Ex. P-6. The year 1833 brought Methodist missionaries to the east side of Keweenaw Bay and in 1842, Catholic missionaries to the west side of the Bay. These missions rather quickly built permanent churches, schools and houses for the Indians. The mission movement brought with it a "civilizing" of the Indians, whereby their clothes, behavior and vocations changed. I Tr. 99. Missionaries urged the Indians to dress like white men, decried the liquor trade of the fur traders, and promoted agricultural subsistence. This increased activity around the Bay resulted in larger numbers of Indians settling in the missions' vicinities, so that, by 1843, there were by census 337 persons living there, of whom 304 were Indians and 33 were mixed bloods or Metis. Ex. P-12; I Tr. 133.

The 1832 expedition of Henry Schoolcraft, followed by Douglas Houghton's famous exploration of the western Upper Peninsula, outlined the immense mineral reserves of the Western Range and the Keweenaw Peninsula, which were all held at that time by the Indians, pursuant to their unextinguished aboriginal title. Not surprisingly, these rich mineral deposits evoked considerable interest from land speculators, miners, and the federal government.

The United States Congress appropriated money on March 3, 1841, to defray expenses of entering into a treaty with the Chippewa for the extinguishment of their title within the State of Michigan where the mineral deposits were found. The Treaty with the Chippewa, 7 Stat. 591, was subsequently negotiated on October 4, 1842, under which the Indians conveyed to the United States their aboriginal title to the entire western half of Michigan's Upper Peninsula, including the Keweenaw Bay area, and to all of northern Wisconsin. Although Article III of the treaty provided for the eventual removal of the Indians to an area to the west occupied by the Mississippi Chippewa, it was thought that such removal would not take place for a considerable time in the future. Ex. P-7. In Article II, the Indians stipulated for the right to hunt in the ceded territory, together "with the other usual privileges of occupancy, until required to remove by the President of the United States...." Article VI provided that the Indians would be subject to removal from the mineral district at the pleasure of the President. It was contemplated that this limited removal from the mineral areas, if it occurred, would not move the Indians out of the remainder of their cession area. Article IV provided for the payment of annuities and the furnishing of goods and services to the Indians, including blacksmiths and carpenter shops, and schools. Notwithstanding the cession of title, the United States' laws with respect to trade and intercourse with non-Indians were to remain in effect in the ceded territory.

The events at Keweenaw Bay following the signing of the 1842 Treaty were significant. In accord with the treaty, farmers and blacksmiths were provided to the L'Anse band, along with funding to the mission boards in order to provide schools for the Indians. Although the treaty did not provide for land reservations, by all accounts the Indians were advised, and they so understood, that their lifestyle would be essentially unchanged after the treaty because the government only sought their minerals. Notwithstanding these assurances, the Indians, who did not want to remove, were very apprehensive about that potential. Of course, the threat of removal at that time seemed remote because the Indians were not living within the two important mineral districts in the area. The Indians' comfort was short-lived, however, due to the commencement of land surveying in 1845, which meant that legal descriptions could be made and land could be sold. To the Indians, land sales meant that their removal was likely and imminent.

On February 6, 1850, the President issued a removal order, pursuant to the 1842 Treaty. I Tr. 159. However, that order was subsequently withdrawn in August, 1851, and the Indians were never actually required to remove. II Tr. 164. Nevertheless, according to Henry C. Gilbert, the Michigan Indian agent who negotiated the subsequent 1854 treaty, removal was "the great terror of their the Indians' lives and I hazard nothing in saying they will sooner submit to extermination than comply with it." Ex. P-25; II Tr. 166.

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