Mole Lake Band v. United States, 45162 (II).

• Decision Date: 07 February 1949
• Docket Number: No. 45162 (II).,45162 (II).
• Citation: 82 F. Supp. 342,113 Ct. Cl. 16
• Parties: MOLE LAKE BAND et al. v. UNITED STATES et al.
• Court: U.S. Claims Court

82 F. Supp. 342

113 Ct. Cl. 16

MOLE LAKE BAND et al. v. UNITED STATES et al.

No. 45162 (II).

United States Court of Claims.

February 7, 1949.

Jay H. Hoag, of Duluth, Minn. (Verne R. Edwards, of Superior, Wis., G. Arthur Johnson, of Ashland, Wis., and Clarence G. Lindquist, of Duluth, Minn., on the brief), for plaintiffs.

Clifford R. Stearns, of Washington, D. C., and A. Devitt Vanech, Asst. Atty. Gen., for defendants.

Before JONES, Chief Judge, and MADDEN, HOWELL, WHITAKER and LITTLETON, Judges.

MADDEN, Judge.

On August 30, 1935, Congress authorized the Chippewa Indians of Wisconsin to sue the United States in this court. Act Aug. 30, 1935, 49 Stat. 1049. On April 1, 1940, the Indians filed a petition, No. 45162, which included all their claims. On February 1, 1945, by leave of the court, they separated out of their original case the subject matter of this case, by filing a separate amended petition No. 45162(II). As shown by the amended petition and by statements of record in the trial of this separate case, the only bands of the Chippewas of Wisconsin which are interested in this case are the Lac du Flambeau band and the Bad River, otherwise known as the La Pointe, band. The object of the suit is to recover for timber asserted to have been wrongfully taken by third persons from nine sections of land, three on the Lac du Flambeau Reservation and six on the Bad River Reservation, in the State of Wisconsin. The nine sections are those which are numbered 16 in the townships which make up the reservations. The sections numbered 16 are the so-called school land sections.

From time immemorial the Chippewa Indians lived in Wisconsin and Minnesota. In 1837 by treaty, July 29, 1837, 7 Stat. 536, they ceded to the the United States a large tract in Wisconsin, but reserved the right to occupy it at the pleasure of the President of the United States. In 1842, by treaty, May 20, 1842, 7 Stat. 591, the Chippewa Indians of the Mississippi and Lake Superior in the territory of Wisconsin ceded to the United States all their remaining land in Wisconsin, but reserving the right of occupancy until required by the President to remove.

Wisconsin was admitted to the Union as a State in 1848, Act May 29, 1848, 9 Stat. 233. The act of admission provided that section 16 in every township of the United States public lands in Wisconsin should unless otherwise disposed of by the United States, be granted to the State for school purposes.

On September 30, 1854, 10 Stat. 1109, a treaty was made between the United States and the Chippewa Indians of Lake Superior and the Mississippi whereby the several bands of the Indians were given separate reservations in Wisconsin, which reservations lay within the areas always occupied by them. The descriptions of the reservation lands in the treaty by their exterior boundaries included, of course, the sections numbered 16 of the townships within the reservations. That gave rise to a question as to whether the United States had not already granted these sections to the State of Wisconsin as school sections, in the Act of 1848, admitting Wisconsin as a State. This question was not answered finally until 1918, when the Supreme Court of the United States held that the act admitting Wisconsin as a State did not immediately grant the sections numbered 16 to the State, but only agreed to do so after they had been surveyed, and then only if they had not been otherwise disposed of. Since they were not surveyed until 1864 and later, and since, in 1854, the United States had by its treaty granted the sections to the various bands of the Chippewas as reservations, the court held that there was no effective grant to the State and the sections belonged to the Indians. United States v. J. S. Stearns Lumber Company, 245 U.S. 436, 38 S.Ct. 137, 62 L.Ed. 381.

In their petition in this case the Indians claim that they did not receive the sections numbered 16, but by statements of counsel that claim has been abandoned. The only claim which they press is the claim for timber taken by third persons from the sections numbered 16, which we shall call the school land sections, and for timber wastefully cut or sawed. Although the Red Cliff band is named in the amended petition, it became apparent in the trial of the case that there is no section numbered 16 in the Red Cliff Reservation, hence no claim is pressed for that band.

The theory of the plaintiffs' case is that the United States was the guardian of the property of the Indians, and did not exercise the care which, as guardian, it should have exercised to prevent, or recover compensation for, the spoliation of the Indians' property by trespassers. The confusion which persisted for so long as to whether the Indians or the State of Wisconsin owned the sections is involved in the case because, the plaintiffs claim, the State sold some of the land to persons who removed timber from it.

Under our rule the issue in this case at this stage is only as to whether the United States is liable to the plaintiffs. If we conclude that it is liable, further hearings must be held to determine the extent of the liability and the amount of the judgment. To determine whether there is liability we must ascertain (1) whether there was spoliation and (2) if there was, whether the United States failed to act diligently to prevent it or to recover compensation for it. A guardian is not an insurer of the ward's...