Sokaogon Chippewa Community v. Exxon Corp.

• Decision Date: 20 October 1993
• Docket Number: No. 92-3920,92-3920
• Parties: SOKAOGON CHIPPEWA COMMUNITY, Plaintiff-Appellant, v. EXXON CORPORATION, State of Wisconsin, Forest County, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 219

2 F.3d 219

SOKAOGON CHIPPEWA COMMUNITY, Plaintiff-Appellant, v. EXXON CORPORATION, State of Wisconsin, Forest County, et

al., Defendants-Appellees.

No. 92-3920.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 1993.

Decided Aug. 12, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 20, 1993.

Milton Rosenberg, Madison, WI (argued), Daniel W. Stevens, Esser, Dieterich & Stevens, Menomonee Falls, WI, for plaintiff-appellant.

Charles G. Curtis, Jr., Foley & Lardner, Madison, WI, John D. Niemisto, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, WI (argued), David E. Beckwith, David Lucey, Foley & Lardner, Milwaukee, WI, Lawrence R. Heath, Richard J. Shawl, Office of Corp. Counsel, Rhinelander, WI, Fred W. Kawalski, Office of Corp. Counsel, Antigo, WI, Truman Q. McNulty, Frisch Dudek, Ltd., Milwaukee, WI, Robin Stowe, Office of Corp. Counsel, Antigo, WI, for defendants-appellees.

Before POSNER and FLAUM, Circuit Judges, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

The Sokaogon Chippewa Community, an Indian tribe, brought this suit in 1986 against the United States, Exxon Corporation, the State of Wisconsin, and various political subdivisions of the state, seeking a declaration that the tribe has the right to occupy a tract of 144 square miles in northeastern Wisconsin which contains potentially valuable mineral deposits. The jurisdiction of the federal district court was based on 28 U.S.C. Sec. 1362, which gives the federal courts jurisdiction over suits by Indian tribes arising under treaties or other federal laws; the tribe's claim, as we shall see, is based on a treaty. The district judge dismissed the suit on the ground that the United States was entitled to get out of the case because the statute of limitations had run, and, the United States being an indispensable party, the suit could not proceed against the other defendants in its absence. We reversed in part, agreeing that the United States should be dismissed but not that it was an indispensable party; so the suit could continue against the other defendants. Sokaogon Chippewa Community v. Wisconsin, 879 F.2d 300 (7th Cir.1989). On remand, the district judge dismissed the State of Wisconsin on Eleventh Amendment grounds that the Sokaogon do not contest and granted the remaining defendants' motion for summary judgment. Sokaogon Chippewa Community v. Exxon Corp., 805 F.Supp. 680 (E.D.Wis.1992).

The Sokaogon base their claim on a treaty that the United States signed in 1842 with representatives of the Chippewa (Ojibwa) nation, of which the Sokaogon were and are a part, though they went at the time by a different name. 7 Stat. 591. In the treaty the Chippewa ceded a large amount of land, including the land in question in this case, to the United States, but reserved "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." We may assume (without however deciding, because the issue is in doubt) that the 1842 treaty entitles the Sokaogon to occupy the tract in question unless they surrendered their right of occupancy in a subsequent treaty that the United States signed with the Chippewa in 1854. 10 Stat. 1109. The district judge held that they had, and if he was right--more precisely, if there is no triable issue concerning the effect of the later treaty in eliminating the Sokaogon's right of occupancy--then summary judgment was properly granted for the defendants.

The 1854 treaty was between the United States and two separate Chippewa nations, the Lake Superior Chippewa and the Mississippi Chippewa, but we can confine our attention to the former because the Sokaogon are Lake Superior Chippewas and the land in question in this case had been ceded by the Lake Superior Chippewa in the 1842 treaty. The later treaty designates additional lands ceded to the United States, but most of its provisions are taken up with specifying the consideration for the cessions made by the Chippewa in both treaties. The main consideration specified is of two sorts, annual payments to the tribes in cash and kind (including beaver traps and blacksmiths) and the establishment of several small reservations at specified locations. Some of these reservations are earmarked for particular tribes (called "bands" in the treaty). One of the reservations, however, is "for the La Pointe band, and such other Indians as may see fit to settle with them" (emphasis added), while another, which is to consist of tracts abutting two lakes, Lac du Flambeau and Lac Court Oreilles, is "for the other Wisconsin bands." The treaty does not mention the "Post Lake" bands, two small offshoots of what the treaty elsewhere calls the "Lac Du Flambeau Band" of Wisconsin Chippewas. This is a potentially significant omission because the Post Lake bands are the name by which the Sokaogon tribe was known at the time the treaty was signed.

The last paragraph states that the treaty has been signed by two U.S. commissioners and "the undersigned chiefs and headmen of the Chippewas of Lake Superior and the Mississippi." (There are also signatures by interpreters and witnesses.) The signatures (actually x's) of the Indians are grouped under the names of different bands--the La Pointe Band, the L'Anse Band, and so forth. Two of the bands listed in the signature section are the "Lac Court Oreille Band" and the "Lac Du Flambeau Band." Among the signatures grouped under the latter heading are "Me-gee-see" and "Ne-gig," the respective heads of the two Post Lake bands.

The defendants argue that the government's promise to create, abutting lakes Flambeau and Court Oreilles, a reservation "for the other Wisconsin bands" was in fact a promise to create separate reservations for the Lac du Flambeau and Lac Court Oreilles tribes; that the Post Lake bands were a part of the Lac du Flambeau tribe and therefore entitled to reside in the reservation created for that tribe; but that if the Post Lake bands wanted to live in a different reservation they could always go to live in the one for the La Pointe tribe, since that reservation was expressly "for the La Pointe band, and such other Indians as may see fit to settle with them." At the time there were no more than about 200 Post Lake Indians (today there are about 1300 Sokaogon Indians), and it would have been odd to create a separate reservation for so small a community.

The reservations specified in the treaty were in fact created, and the land at issue in this case does not fall within the boundaries of any of them. The Post Lake bands signified their acceptance of the treaty not only by the signatures of their chiefs but also by accepting the annuities which the government paid them, as promised in the treaty, along with the other Chippewa tribes. The Post Lake bands did not, however, actually move to any of the reservations created by the 1854 treaty. They wanted their own reservation and kept asking the U.S. government to establish one for them and meanwhile they continued to live where they had lived before the treaty was signed--namely, on the tract in dispute in this case. Not until the 1930s did the government finally create a reservation for the Sokaogon (as they were now known), and even after the creation of this reservation many Sokaogon continued to reside in their traditional area. They do not argue that this continued residence establishes a right of occupancy that is good against Exxon and the other landowners who claim title to portions of the contested tract through grants by the United States. They argue that either they were not parties to the 1854 treaty and therefore can continue to assert their rights under the 1842 treaty or that, if they were parties, the 1854 treaty does not mean what it says.

They point out that that treaty does not even mention the Post Lake bands and that the published memoir of a white man who attended the council of the Lake Superior Chippewas held the following year, when the first annual payment called for by the treaty was delivered, states that at the council Chief Me-ge-see told the Commissioner of Indian Affairs (George Manypenny) that his band "was unprovided for, and without any right of location upon any of the reservations," and that in response "the commissioner directed [Me-gee-see] to come to his office after council." An oral tradition of the Sokaogon holds that beginning in 1854 Commissioner Manypenny and his successors repeatedly promised the Post Lake bands their own reservation; but there is no documentation of this tradition, which is at best embroidered (too many ransoms, shipwrecks, lost and stolen maps, and deathbed revelations to be plausible) and at worst fictitious. Manypenny was not involved in the negotiations for the treaty and did not sign it, although these facts are not in themselves conclusive; he might still have made a promise, though with what authority is unclear. Beginning in 1860 various white Indian traders repeatedly petitioned the Commissioner of Indian Affairs on behalf of the Post Lake bands to establish a separate reservation for the bands, and some of these petitions state that the reservation had been "promised" to the bands, which the plaintiff construes as evidence either that the Post Lake bands were never parties to the 1854 treaty or that the government failed to fulfill a treaty obligation to create a separate reservation for them. No government document so much as hints at any such promise, however, and several government documents state that the Post Lake bands are not entitled to their own reservation but must remove to one of the reservations created by the 1854 treaty. Because northeastern Wisconsin was sparsely populated, the government decided not to use force against the Post Lake bands. But it never acknowledged their right either to remain where they were living or to have a reservation created specially...