Appeals from the United States District Court for the Western District of Wisconsin. Nos. 72-C-366 and 74-C-313 -- James E. Doyle, Judge.
Cummings, Chief Judge, Weick, Senior Circuit Judge,*fn* and 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).*fn1 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reaching this conclusion, the district judge expressly rejected the State's contention that the usufructuary rights had been revoked by the Executive Order of February 6, 1850 (Removal Order of 1850).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.*fn2
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:
(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."*fn3
The Treaty of 1837, which was signed by a Lac Courte Oreilles chief, among others, embodied these understandings. Article 1 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.*fn4 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 agriculture and other pursuits of civilized life." The fact that whites were selling whiskey to the Indians was seen as another reason for removal.
During the summer of 1847, two Government agents attempted to secure Chippewa agreement to a plan of resettlement. They were unsuccessful. In 1847, the Commissioner of Indian Affairs again suggested that resettlement was desirable. His report did not mention conflicts between the Indians and whites. The LaPointe subagent was more specific. He recorded two incidents of violence between the Chippewas and white settlers. In one, an Indian was acquitted of a murder charge on the ground of self-defense. In the other, the investigating agent concluded that the whites were at fault. The Commissioner wrote:
I fear, that in our accounts of outrages and crime, we have done the Chippewas, if no other tribe, injustice in many cases; for I find on comparing them with almost any civilized community of the same size, for four years, there will be found the smaller aggregate of crime on the part of the savage; and every crime of any magnitude which has been committed may be traced to the influence of the white man.
In his 1848 Report, the Commissioner noted that, although most other Wisconsin tribes had been removed, the Chippewas remained in Wisconsin. The Commissioner stressed the desirability of "civilizing" the Indians by requiring them to settle on smaller grounds where they would have to rely on agriculture. No conflicts between Indians and whites were reported.
The 1849 Report of the Commissioner of Indian Affairs again repeated the reasons for removal stressed in earlier years. Additionally, he referred to white "citizens who suffer annoyance and loss from depredations." The report of the LaPointe subagent for 1849 had specifically addressed this problem and had concluded that the sale of whiskey by the whites to the Indians was causing the most difficulty. The subagent acknowledged that it was possible the Indians were punished for acts they committed whereas whites who committed similar acts went free.
In 1849, the Lake Superior Chippewas petitioned Congress for twenty-four sections of land at "LaCotore" and at "LaPoint." They indicated that they wanted the land for permanent cultivation and permanent homes. Further, in October of that year, the Legislative Assembly of the Minnesota Territory requested the President to remove the Chippewas to another unsettled area.
At the urging of the Commissioner of Indian Affairs and the Secretary of the Interior, the President issued an executive order on February 6, 1850. This Order stated in relevant part:
The privileges granted temporarily to the Chippewa Indians of the Mississippi, by the fifth article of the treaty made with them on the 29th of July 1837 "of hunting, fishing and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded" by the treaty to the United States, and the rights granted to the Chippewa Indians of the Mississippi and Lake Superior by the second article of the treaty with them of October 4th, 1842, of hunting on the territory which they ceded by that treaty, with the other usual privileges of occupancy until required to remove by the President of the United States, are hereby revoked and all of the said Indians remaining on the lands ceded as aforesaid, are required to remove to their unceded lands.
The Indians were surprised and dismayed by the order. Benjamin Armstrong, a trader who lived in Chippewa territory and reported in a book his experiences with the Indians wrote:
No conversation that was held [during the 1842 treaty negotiations] gave the Indians an inkling or caused them to mistrust that they were ceding away their lands, but supposed that they were simply selling the pine and minerals, as they had in the treaty, of 1837, and when they were told in 1849, to move on and thereby abandon their burying grounds -- the dearest thing to an Indian known -- they began to hold councils and to ask each as to how they had understood the treaties, and all understood them the same, that was: that they were never to be disturbed if they behaved themselves.
B. G. Armstrong, Early Life Among the Indians 12 (1892). Armstrong also reported that the Indians' attempts thereafter to learn of any depredations which could have been the cause of removal were unsuccessful. In short, the Indians believed they would not be removed unless they misbehaved and they found no evidence of misbehavior.
This understanding was repeated in a letter written to the white settlers in Minnesota by a Chippewa chief in 1850. He stated that the treaty commissioner had told the Indians in 1842 that they would not be removed for at least 20 years and probably never. The chief indicated that the treaty had been signed on the reliance that it was only the copper on the land that was sought by the United States. A letter written January 21, 1851, from the Secretary of the American Board of Commissioners for Foreign Missions informed the Commissioner of Indian Affairs that the Indians had been told they could remain where they were for an indefinite period, "except so far as they might be required to give place to miners; and the Commissioner said to them: 'You and I shall never see the day when your Great Father will ask you to remove. '" The Secretary indicated that, absent that promise, the treaty would never have been signed. The Secretary's version of the treaty was corroborated by several sources including C. Mendenhall, a miner who wrote to the Commissioner of Indian Affairs on January 6, 1851, W. W. Warren, a farmer who was employed by the Government to teach farming to the Indians, and Indian Agent Henry Gilbert in his 1853 report to the Commissioner of Indian Affairs.
A further effort to effect removal to the western lands was made in 1850 by changing the place for payment of the Chippewas' annuities from LaPointe to Sandy Lake in the Minnesota Territory. The trip resulted in the death of many Indians. The following February 1851, subagent Watrous suggested paying the annuities in early spring and late fall in the Minnesota Territory. He hoped that this would be more effective in inducing the Indians to stay at Sandy Lake. Watrous was subsequently appointed superintendent of removal.
On August 24, 1851, Indian Commissioner Lea of the Office of Indian Affairs advised Watrous by telegram to "Suspend action with reference to the removal of Lake Superior Chippewas for further orders." On September 5, 1851, Lea confirmed that the suspension had been ordered by the Secretary of the Interior, pending the President's decision as to whether the Indians would be permitted to remain on their lands.
Also in September 1851, Assistant Superintendent Boutwell reported to the Minnesota Territorial Governor concerning the problems encountered in trying to effect removal of the Chippewas. Boutwell reported that a compromise had been achieved concerning the place for payment of annuities and indicated that, despite the telegram suspending removal operations, "as the Indians are ready to go I shall start them."
On September 20, 1851, Watrous reported to the Territorial Governor that 900 Chippewas remained on the ceded lands. He expressed apprehension that those who had been removed would return. These observations were reported to the Commissioner of Indian Affairs in Superintendent Ramsey's annual report dated November 27, 1851.
In the meantime, Chippewa Chief Buffalo had written the Commissioner on November 6, 1851, complaining about the hardship caused by the removal attempts and particularly the designation of where the annuities were paid. He requested that all future payments be made at LaPointe.
The Indians were dissatisfied with the provisions given them during the winter of 1851. On April 5, 1852, a group of Chiefs went to Washington to see the President. They were accompanied by Benjamin Armstrong who subsequently reported much that transpired. According to Armstrong, on June 12, 1852, Chief Buffalo dictated a memorial to President Fillmore. He again expressed his understandings that treaty annuities were to be paid at LaPointe and that the Indians were to be permitted to remain on their lands for "one hundred years to come." The Chief beseeched the President and his agents to honor the Treaty of 1842 as the Indians understood it. President Fillmore told the delegation that he would countermand the Removal Order of 1850 and that annuity payments would henceforth be made at LaPointe. He gave Chief Buffalo a written instrument explaining these promises. The delegation returned home. There is apparently no current record of the President's explicit contravention of the removal order.
There is some inconsistency in reports as to what transpired thereafter. Armstrong reported that the annuities for 1852 were paid at LaPointe, that the President's letter was explained to Chief Buffalo and that the Chief also stated that there was yet one more treaty to be made with the President, "and that he hoped in making it they would be more careful and wise than they had heretofore been and reserve a part of their land for themselves and their children." Armstrong, supra, at 32.
In his October, 1852 report, however, Superintendent Ramsey reported that the Chippewas had been told there would be no further payment of annuities upon ceded land. Ramsey stated that limiting annuities to those Indians who had removed was the best way to further the removal goal.
Armstrong's report that the 1853 and 1854 annuity payments were made at LaPointe was corroborated by a report of Indian Agent Henry Gilbert. Gilbert reported that the Indians would "sooner submit to extermination than comply with [the Removal Order]." Further, he reported that the whites and Indians were living harmoniously.
In the annual report of the Office of Indian Affairs dated November 24, 1854, the Commissioner noted that some bands of Lake Superior Chippewa were still living on the lands ceded by the treaties of 1837 and 1842. He stated: "It has not, thus far, been found necessary or practicable to remove them." He observed that:
It may be necessary to permit them all [the Chippewas] to remain, in order to acquire a cession of the large tract of country they still own east of the Mississippi, which, on account of its great mineral resources, it is an object of material importance to obtain. They would require but small reservations; and thus permanently settled, the efforts made for their improvement will be rendered more effectual.
The reservation idea was apparently acceptable to the white settlers of Wisconsin. In February, 1854, of that year the Wisconsin legislature sent a memorial to the President and Congress. This memorial noted that the "Chippewa Indians in the region of Lake Superior are a peaceable, quiet, and inoffensive people, rapidly improving in the arts and sciences; that they acquire their living by hunting, fishing, manufacturing maple sugar, and agricultural pursuits." The memorial requested the President to rescind the prior Removal Order and to guarantee the payment of annuities to the Indians at LaPointe. The memorial also requested laws to "encourage the permanent settlement of those Indians as shall adopt the habits of the citizens of the United States."
In a letter dated August 11, 1854, the Indian Affairs Commissioner directed agent Gilbert to attempt to reach a treaty with the Chippewas, extinguishing their title to lands in Minnesota and Wisconsin. Gilbert was authorized to reserve 748,000 acres for permanent homes of the Indians in areas which did not include mineral lands and which were out of the path of white settlement.
The Indians requested Armstrong to be the interpreter, expressing their conclusion that interpreters at other treaty negotiations had made mistakes. Armstrong recorded Chief Buffalo as saying, in part:
We do not want to be deceived any more as we have in the past. We now understand that we are selling our lands as well as the timber and that the whole, with the exception of what we shall reserve, goes to the great father forever.
The Treaty of LaPointe was concluded September 30, 1854. It provided that the Lake Superior Chippewas living in Minnesota ceded their territory to the United States. These Minnesota bands were granted usufructuary rights on the ceded land pursuant to Article 11. Article 2 specified that the United States agreed to withhold from sale, for the use of the Chippewas, certain described tracts of land. One was set aside for the LCO band. The treaty provided that the boundaries would thereafter be fixed under the direction of the President. Other Articles of the treaty provided for annuity payments, provisions for half-breeds and traders, the provision of various hunting devices and ammunition to the Indians, a ban on spirituous liquors, and a promise that the Indians would not be removed from the homes permanently set apart for them.
Even after the reservation boundaries were settled, many Chippewa Indians continued to roam throughout the ceded area, engaging in their traditional pursuits.
II. STANDARD OF REVIEW ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
A preliminary issue raised by the parties involves the proper scope of review by this court when a case has been decided on cross-motions for summary judgment. The defendants urge essentially that the lower court proceeding be viewed as a bench trial involving documentary evidence. They assert that the district judge was empowered to decide questions turning on factual inferences, that at least "some deference" must be ...