Sokaogon Chippewa Community v. Exxon Corp.

• Decision Date: 06 October 1992
• Docket Number: Case No. 86-C-0599.
• Citation: 805 F. Supp. 680
• Parties: SOKAOGON CHIPPEWA COMMUNITY, Plaintiff, v. EXXON CORPORATION, a corporation chartered in the State of New Jersey; State of Wisconsin; Forest County, a political subdivision of the State of Wisconsin; Langlade County, a political subdivision of the State of Wisconsin; Oneida County, a political subdivision of the State of Wisconsin; Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

805 F. Supp. 680

SOKAOGON CHIPPEWA COMMUNITY, Plaintiff, v. EXXON CORPORATION, a corporation chartered in the State of New Jersey; State of Wisconsin; Forest County, a political subdivision of the State of Wisconsin; Langlade County, a political subdivision of the State of Wisconsin; Oneida County, a political subdivision of the State of Wisconsin; Defendants.

Case No. 86-C-0599.

United States District Court, E.D. Wisconsin.

October 6, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Earl A. Charlton, Charlton & Esser, Milwaukee, Wis., Milton Rosenberg, Madison, Wis., for plaintiff.

John D. Niemisto, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendant State of Wis.

Charles G. Curtis, Jr., Foley & Lardner, Madison, Wis., for defendant Exxon Corp.

Robin Stowe, Langlade County Corp. Counsel, Antigo, Wis., for defendant Langlade County.

Fred W. Kawalski, Forest County Corp. Counsel, Crandon, Wis., for defendant Forest County.

Lawrence R. Heath, Oneida County Corp. Counsel, Rhinelander, Wis., for defendant Oneida County.

Elsa Lamelas, Asst. U.S. Atty., Milwaukee, Wis., for defendant U.S.

Patrick M. Brady, Brady & Molinaro, S.C., Wausau, Wis., for Connor Forest Industries, Inc.

DECISION AND ORDER

WARREN, Senior District Judge.

Before the Court are the defendants' motions for summary judgment. Specifically at issue is the plaintiff's right to possess and occupy 12 mile by 12 mile tract of land in Northern Wisconsin ("the subject territory"). Each of the named defendants has legal title to portions of the subject territory, and the plaintiff has petitioned this Court for declaratory relief upholding their rights in the land, which they allege are protected by treaties more than a century old.

I. FACTUAL BACKGROUND

A. CHRONOLOGY

The Sokaogon Chippewa Community ("Sokaogon") is a Native American tribe which has been known in the past as the Sokaogon Band, the Mole Lake Band, the Post Lake Band, the Rice Lake Band, the Pelican Lake Band, the Lake Bands, and the Lost Band. Complaint at ¶ 1. The Sokaogon are descendants of the Lake Superior Chippewa tribes that roamed the Northern Wisconsin area before the settling of Wisconsin occurred in the early to mid-1800's. The members of the tribe currently live on a Federal reservation in Forest County, Wisconsin (the "Mole Lake Reservation"). Complaint at ¶ 1.

In the middle of the nineteenth century, the United States was rapidly expanding its boundaries. Settlers moved westward relentlessly, and the federal government encouraged this expansion through land grants and homesteading. Clearings sprung up on land that had formerly been inhabited only by Native Americans. When the rights of the settlers and Native Americans conflicted, the government responded by pushing the tribes further west, out of the paths of the settlers. This was accomplished by a series of treaties and Congressional and executive orders, through which the Native Americans ceded their rights to the land in exchange for annuities and small reservations. Brown, Bury My Heart at Wounded Knee, Ch. 1.

During this period of expansion, Native Americans already occupying land were deemed as possessing two types of interests in non-reservation land. "Aboriginal title" was the term given to the tribe's right to occupy land claimed by settlers in fee title and was based upon the "actual, exclusive and continuous occupancy" of the land prior to white settlement. United States v. Bouchard ("Bouchard"), 464 F.Supp. 1316, 1347 (W.D.Wis.1978), citing Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955); Strong v. United States, 518 F.2d 556, 207 Ct.Cl. 254 (1975). Aboriginal title was good against any other claims to the land except for those of the United States, which could extinguish Native Americans' title without the payment of compensation normally required by the Fifth Amendment. Bouchard, 464 F.Supp. at 1347; Tee-Hit-Ton, 348 U.S. at 284-85, 75 S.Ct. at 319-20 (aboriginal title is not compensable, since it is a right of occupancy rather than a property right).

In comparison, "treaty-recognized title" meant that Congress had recognized the Native Americans' right to occupy the land as a legally protectible interest, which could be extinguished only by payment of compensation. Lac Courte Oreilles Band v. Voigt (LCO I), 700 F.2d 341, 352 (7th Cir.1983), citing United States v. Sioux Nation, 448 U.S. 371, 415 n. 29, 100 S.Ct. 2716, 2740 n. 29, 65 L.Ed.2d 844 (1980). In the early to mid-19th century, much of this country's expansion was accomplished through treaties in which Native Americans ceded land to which they had aboriginal title in exchange for treaty-recognized title to smaller portions of that land. Wilkinson, To Feel The Summer In The Spring: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 Wis.L.Rev. 375, 385.

One such treaty was the Treaty of the Chippewa, signed in 1842 ("the 1842 Treaty"), in which Native Americans conveyed a vast tract of land in Northern Wisconsin and the Upper Peninsula of Michigan to the United States. This area began to attract white settlers in the mid-1800's, as rich mineral deposits had recently been discovered both on and underneath the land. Keller, An Economic History of Indian Treaties in the Great Lakes Region, American Indian Journal, February 1978, 2, 16. The 1842 Treaty was intended to facilitate the settlement of this land and encourage mineral development. Due to its underlying purpose, the 1842 Treaty was commonly called "the Miners' Treaty." Exxon, App. at 298.

The treaty effectively extinguished any aboriginal title or treaty-recognized title the Lake Superior Chippewa had formerly held over the land. However, the Chippewa retained their "usual privileges of occupancy" until they were "required to remove by the President of the United States."¹ Article VI of the 1842 Treaty provides that "the Indians residing on the Mineral district shall be subject to removal therefrom at the pleasure of the President of the United States."² Nevertheless, the government did not anticipate a rapid settlement of the area or a need for early removal and both the Chippewa and the Indian agents³ in the area probably believed that the usual privileges of occupancy could be exercised without interference for generations to follow. United States v. Bouchard, 464 F.Supp. at 1327. The Post Lake Band, designated as the "Lake Bands" by the 1842 Treaty, accepted these terms through Chief Ke-che-Wabishashi, or Chief Martin.

The Post Lake Band had used the land ceded under the 1842 Treaty for hunting, fishing, trapping, harvesting wild rice, and collecting maple sugar. Exxon, App. at 1387. They knew that there were copper deposits under the ground, and there is evidence that some earlier tribes had mined the copper near Lake Superior before the eighteenth century. Exxon, App. at 503-29, 536-39. However, there is no indication that the Chippewa had ever mined the land, although they did occasionally collect surface copper and may have used it for religious purposes. Exxon, App. at 441.

Apparently, the Chippewa understood that their rights to live, hunt and fish upon the land did not override the United States' rights to the minerals underneath. One of the objectives of the 1842 Treaty was to reserve the mineral wealth of Wisconsin and Michigan for the government. Witnesses to the treaty negotiations have confirmed the government's records that the Chippewa were informed that the "principal benefit your great Father expects from your lands at present is, the removal of the minerals which are said to be on them; and not that the whites intend to settle on them at present." Exxon, App. at 1141, 1007. Many of the tribes with representatives at the negotiations for the 1842 Treaty indicated that the purpose of the treaty was to convey mineral rights to the government. Exxon's Proposed Findings of Fact, ¶¶ 43-54. Nevertheless, the Chippewa were assured that they would be able to use the land for an indefinite period of time until mining commenced or until white settlers came on to the lands. Exxon, App. at 938, 948, 961, 982, 1007-08. Moreover, they were told that they could remain on the land even after whites had settled there if they were "not in the way of the whites, and lived on terms of friendship with them." Exxon, App. at 938.

Development in the ceded territory occurred at an unforeseeable pace and it soon became clear that the Chippewa would not be able to exercise their rights on the land without disturbing the white settlers. In 1850, President Zachary Taylor sought to revoke the Chippewa's privileges of occupancy and attempted to remove them from the ceded territory completely through the Presidential Removal Order of 1850. He intended to relocate them in Minnesota, west of the Mississippi and far from the proposed paths of westward settlers.

In an effort to enforce the Removal Order and lure the Lake Superior bands west of the Mississippi, the Indian Office announced that the annuities due under the 1842 Treaty would be paid on October 15, 1850 in Sandy Lake, Minnesota, rather than at La Pointe in Wisconsin. Although the Chippewa did not wish to leave their homelands, many made the arduous journey to Minnesota to collect supplies. Unfortunately, the Indian agent was delayed in St. Louis and did not arrive in Minnesota until late November. In the meantime, many Native Americans had perished from malnutrition and disease. When the supplies were finally distributed on December 3, the waterways used by the Chippewa were frozen and the tribes were forced to walk all the way back to their camps in Wisconsin. This bitter experience strengthened their resolve to stay in Wisconsin. Danziger, They Would Not Be Moved, Minnesota History, Spring 1973, 175, 177-78 (Exxon App. at 283-284).

The plight of the Chippewa garnered national attention, and both...