United States of America et al., Plaintiffs,
v.
State of Michigan et al., Defendants.
No. M26-73 C.A.
United States District Court, W.D. Michigan, N.D.
May 7, 1979.

Opinion

Preface

FOX, Chief Judge

"No one can deny that the constitution of the United States is the supreme law of the land; and consequently, no act of any state legislature, or of congress, which is repugnant to it, can be of any validity. Now, if an act of a state legislature be repugnant to the constitution of the state, the state court will declare it void; and if such act be repugnant to the constitution the Union, or a law made under that constitution, which is declared to be the supreme law of the land, is it not equally void? And under such circumstances, if this court should shrink, from a discharge of their duty, in giving effect to the supreme law of the land, would they not violate their oath, prove traitors to the constitution, and forfeit all just claim to the public confidence?" Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 571-2, 8 L.Ed. 483 (1832)(McLean, J. concurring) (emphasis supplied).

When matters of great public and constitutional significance involving fundamental duties of the United States come here for resolution, this court assumes an extra duty of care in explaining the reasons for its decision. As always, the court states the factual basis and legal standards on which its conclusion rests so that the appellate court will know the lega grounds for this court's decision. Equally important, however, this court assumes also an affirmative obligation to attempt to educate the public concerning the basic principles underlying our constitutional democracy and the practical application of these principles in our public affairs. See, Oliver v Kalamazoo Bd. of Education, 368 F.Supp. 143 (W.D. Mich. 1973).

Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property rights, and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. (Emphasis supplied.)

The above language, taken from the Northwest Ordinance, first enacted by the Confederated Congress in 1787 and reenacted by the First Congress of the United States at its very first session in 1789, is the backdrop for this action. It will be discussed in detail in the course of this opinion.

Also a backdrop of this case is the history of the American treatment of the Indians. In 1869 President Grant appointed a commission (pursuant to Act of Congress of April 10, 1869) composed of "nine men, representing the influence and philanthropy of six leading States, to visit the different Indian reservations, and to examine all matters appertaining to Indian affairs."' Their report includes the following language:

While it cannot be denied that the government of the United States, in the general terms and temer of its legislation, has evinced a desire to deal generously with the Indians, it must be admitted that the actual treatment they have received has been unjust and iniquitous beyond the power of words to express. Taught by the government that they had rights entitled to respect; when those rights have been assailed by the rapacity of the white man, the arm which should have been raised to protect them has been ever ready to sustain the aggressor. The history of the government connections with the Indians is a shameful record of broken treaties and unfulfilled promises.

The history of the border white man's connection with the Indians is a sickening record of murder, outrage, robbery, and wrongs committed by the former as the rule, and occasional savage outbreaks and unspeakably barbarous deeds of retaliation by the latter as the exception.

The class of hardy men on the frontier who represent the highest type of the energy and enterprise of the American people, and are just and honorable in their sense of moral obligation and their appreciations of the rights of others, have been powerless to prevent these wrongs, and have been too often the innocent sufferers from the Indians' revenge.

That there are many good men on the border is a subject of congratulation, and the files of the Indian Bureau attest that among them are found some of the most earnest remonstrants against the evils we are compelled so strongly to condemn. The testimony of some of the highest military of officers of the United States is on record to the effect that, in our Indian wars, almost without exception, the first aggressions have been made by the white man, and the assertion is supported by every civilian of reputation who has studied the subject.

In addition to the class of robbers and outlaws who find impunity in their nefarious pursuits upon the frontiers, there is a large class of professedly reputable men who use every means in their power to bring on Indian wars, for the sake of the profit to be realized from the presence of troops and the expenditure of government funds in their midst. They proclaim death to the Indians at all times, in words and publications, making no distinction between the innocent and the guilty. They incite the lowest class of men to the perpetuation of the darkest deeds against their victims, and, as judges and jurymen, shield them from the justice due to their crimes. Every crime committed by a white man against an Indian is concealed or palliated; every offense committed by one Indian against a white man is borne on the wings of the post or the telegraph to the remotest comer of the land, clothed with all the horrors which the reality or imagination can throw around it. Against such influences as these the people of the United States need to be warned. The murders, robberies, drunken riots, and outrages perpetuated by Indians in time of peace taking into consideration the relative population of the races on the frontier do not amount to a tithe of the number of like crimes committed by white men in the border settlements and towns. Against the inhuman idea that the Indian is only fit to be exterminated, and the influence of the men who propagate it, the military arm of the government cannot be too strongly guarded.

It is hardly to be wondered at that inexperienced officers, ambitious for distinction, when surrounded by such influences, have been incited to attack Indian bands without adequate cause, and involve the nation in an unjust war. It should, at least, be understood that in the future such blunders should cost the officer his commission, and that such destruction is an infamy. [Footnote to a 1978 Detroit Free Press article by Tom Opre documenting contemporary violence omitted.]

Report of Commission of Citizens (November 23, 1869), cited in Report of Commission of Indian Affairs, 47-48 (1869).

Senator Clay made similar points on the floor of the Senate in 1835. Speaking of the Cherokee Indians of Georgia, he said, as reported in the Congressional Globe for February 4, 1835:

Mr. C. said he wished to turn the attention of the Senate to the nature of the wrongs this people had suffered to the present condition of the Cherokees, whose lands had been guaranteed by the United Sates. He went into the examination with the utmost feelings of sorrow and regret at the miserable state to which these tribes were reduced by the laws of the States. But he would assure the honorable Senators from Georgia he was actuated by no hostile intentions to that State. Georgia was the first that made these encroachments; she originated the plan of invading the Indian rights, and she had carried it far beyond all others. He had not all these various laws before him. It was not necessary to go into details; it was sufficient to notice the results. By the first act Georgia abolished the Government of the Cherokee nation. No nation (said Mr. C.) can exist without a Government of some kind. These people had formed and established a Government in imitation of our own. But it was wholly immaterial what the humble form of that Government might be. Georgia had abolished it. She next proceeded to divide their territories into counties, and distribute them by lotteries among their citizens every head of a family being entitled to the land drawn against his number. She did indeed reserve a small pittance of a few acres for those Indians who wished to remain within her limits, but under circumstances that rendered them worthless. She gave them no rights, no franchise, no single privilege. They were denied the power of testifying in courts of justice. No Indian could be a witness in favor of his fellows.

The present case is not a 14th Amendment case, as defendants advocate. It is an Indian treaty case in which the State asks the court to abrogate the Indians' aboriginal rights which have survived for over 12,000 years and are valid to this day, and which were guaranteed to the Indians by the Treaty of Ghent and the Treaties of 1836 and 1855. This case deals only with the jurisdiction of the Federal government over the Indian and its authority to enter into treaties which bind the states. Const. Art. 6, cl. 2; Art. 1, 8.

Michigan would take the Indians' subsistence and livelihood, their right to fish, and divide it by a modern-day lottery, the Indians being permitted to compete for licenses equally with those who have taken their rights from them.

I. Introduction

On April 9, 1973, the United States of America in its own behalf and in behalf of the Bay Mills Indian Community, initiated this litigation in order to protect the tribe's rights to fish in certain waters of the Great Lakes vested in the tribe by virtue of aboriginal occupation and use, the Treaty of Ghent of 1814, and the Treaty with the Ottawa and Chippewa Nation of 1836. In its complaint, the United States asked that the State be enjoined from interfering with the Indians' treaty confirmed rights to fish in the Great Lakes.

The Bay Mills Indian Community intervened in the action on December 12, 1974, and added certain individual officials of the Michigan Department of Natural Resources as defendants in its complaint. Bay Mills also expanded the scope of the complaint by alleging that it possessed a reserved exclusive fishing right in Whitefish Bay of Lake Superior and a right to fish in the remaining waters of Lake Superior free of state regulation. Accordingly, Bay Mills asked the court for declaratory and injunctive relief to prohibit the State from interfering with these fishing rights, and an affirmative order that the State must exercise its police power to regulate any non-Indian fishing which would be in derogation of these rights. Bay Mills amended its complaint on October 28, 1975, added the Michigan Department of Natural Resources as a defendant, and again expanded the scope of the complaint by alleging a treaty protected, reserved right to fish in all of the area of the Great Lakes ceded to the United States in a treaty signed in 1836. This ceded area covered large portions of Lakes Michigan, Superior, and Huron.

The Sault Ste. Marie tribe of Chippewa Indians, a tribe organized in 1975 under the Indian Reorganization Act, 25 U..S.C. . sect; 476, intervened in this action and filed a complaint against the above-named defendants on December 12, 1975. In its complaint, the tribe alleged a treaty-protected, reserved right to fish in Lake Superior free from state regulation. On June 17, 1976, the Chippewa tribe filed an amended complaint in which it alleged an exclusive right to fish in the waters reserved to the Indians in the Treaty of 1836, and a right to fish in the ceded waters of the Great Lakes free from state regulation.

The United States amended its complaint in June of 1976 to comply with the intervenors' complaints, with minor differences. The United States did not allege that there existed "ceded waters" under the 1836 treaty, but instead alleged that the Indians had an aboriginal right to fish in the waters adjacent to the lands ceded under the 1836 treaty and adjacent to the lands reserved in that treaty. Also, the United States did not ask for a declaratory judgment that the tribes have exclusive fishing rights in all the waters adjacent to land reservations contained in the 1836 treaty, but instead asked the court to determine that the State had no jurisdiction to regulate anyone fishing within the Bay Mills Indian Community reservation, which it alleges included Whitefish Bay. In effect, the United States' complaint excluded the Chippewa tribe's allegation that it has exclusive fishing rights in certain waters of the Great Lakes adjacent to 1836 treaty reservation areas in addition to Whitefish Bay.

The plaintiffs' pleas for relief are grounded in the Supremacy Clause of the United States Constitution, Article 6, Clause 2.

The State of Michigan, in its answer, disputed the interpretation given the Treaty of 1836 by the plaintiffs, questioned the continued existence of the tribes which were signatories to the Treaty, and alleged as defenses: ( I ) that the treaty was a removal treaty, and therefore the Indians intended to relinquish any aboriginal fishing rights they may have held in 1836; (2) a subsequent treaty in 1855 discharged all prior rights under the 1836 treaty; (3) this 1855 treaty was an accord and satisfaction extinguishing all prior rights; (4) the Indians did not have any aboriginal rights over the Great Lakes; (5) Article 13th of the 1836 Treaty which granted the Indians the right to use the fruits of the land until the land is required for settlement acted as a reservation upon a condition subsequent, and that condition having occurred, the use is extinguished; (6) the land reservations made in the 1836 Treaty have expired by the terms of the Treaty; (7) even though there may be a treaty-protected right to fish, the State of Michigan may still regulate this right in the interest of conservation or under other state police powers; (8) the expansion of the Sault Ste. Marie Chippewa reservation may be done only with the consent of the state; (9) the Chippewa Tribe was dissolved by the 1855 Treaty, and the Chippewa tribe from Sault Ste. Marie is not in privity with the original signatories to the treaty.

The State of Michigan set forth a counterclaim in its answer in which it asked the court to declare that the Indians involved in this action are not exempt from state regulation. The Court views this counterclaim as a repetition of the denials and defenses set forth above, however.

The Michigan United Conservation Clubs (MUCC), a sportsman's group, petitioned tints court for permission to intervene in the action. That petition was denied for reasons set forth in an earlier opinion of this court; MUCC has been permitted to act as an amicus curiae, however.

After numerous pretrial motions were disposed of, trial began on February 27, 1978. The Court heard extensive historical evidence and received voluminous documentation meant to provide a basis for interpreting the often ambiguous treaties in issue in this case. Extensive briefs and arguments considered the issue of whether the State of Michigan or the United States alone has the right to regulat fishing by the plaintiff tribes in the Upper Great Lakes.

[1] Before the filing of the complaint and continuously during the Course of these proceedings, the State of Michigan and certain individually named state officials have acted in derogation of the vested aboriginal and federal rights of the plaintiff Indian tribes. The conflict between the state and tribal fisherman is notorious; scarcely a day goes by without an article appearing in one or more of the state's major newspapers concerning the controversy. That it is a passionate issue is exemplified by a recent wholly improper attempt to influence this Court through the circulation of petitions amongst sports fishermen which urged that the court rule against the Indians. The circulation of petitions is an action diametrically at odds with the methods of access to the courts mandated by the Federal rules of Civil Procedure. This misguided action gave thousands of people the erroneous impression that constitutional rights are a matter of popular contest. This was a corruption of the concept of the Federal Judicial system. In a democracy, many times people violate Constitutional and Inalienable rights. The United States Courts exist to ensure guaranteed constitutional rights against the TYRANNY OF POPULAR MAJORITIES. Federal Court Judges are, or ought to be, custodians of secured constitutional right.

Before giving my specific findings of fact and conclusions of law, and in the effort to foster public understanding, I present the following more exhaustive statement of the issues and law involved in this case.

The United States, guided by the Nixon administration and acting in its role as trustee for the Indians, filed this action against the State of Michigan to secure Indian rights which it says were reaffirmed by an 1836 Treaty with the Ottawa and Chippewa Indians. In so doing it was merely accepting obligations imposed by the Northwest Ordinance, supra. The Northwest Ordinance not only provided for Michigan's first government but simultaneously set the standard by which the territorial government and the United States would be obliged to deal with the Indians of the Territory.

By this enactment, the Founding Father declared a guardian-ward relationship between the United States and the Michigan Indians. Trained as they were in denominational schools, where their routine assignments included translation of the bible from English to Latin and from Latin to Greek, the Founding Fathers did not hesitate to found this relationship on moral and religious principles, the principles which, generally, they transformed into political principles when they formulated our present government, including them in the Declaration of Independence and the Preamble to the Constitution as well as here in interpreting the treaties and in measuring the transactions between the United States and its wards, the Indians. To do otherwise would be in violation not only of the laws of man but also of the laws of "nature and nature's God," which are, or ought to be the Supreme Law of this land.

Also, before Michigan's statehood, the United States entered into a treaty with Great Britain in which it offered its most solemn word as a nation, in formal treaty, to honor all rights of the Michigan Indians.

ARTICLE THE NINTH

The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all tribes of nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided always, That such tribes or nations shall agree to desist from all hostilities, against the United States of America, their citizens and subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly. And his Britannic majesty engages, on his part, to pu an end immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom he may be at war at the time of such ratification, and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to, in one thousand eight hundred and eleven, previous to such hostilities; Provided always. That such tribes or nations shall agree to desist from all hostilities against his Britannic majesty, and his subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly.

This provision of the Treaty of Ghent, signed on December 24, 1814 (8 Stat. 218), was not mere rhetoric; it was a compromise position secured from Britain, which threatened indefinite continuation of the War of 1812 unless the United States restored the rights of Britain's Indian allies. Both nations pledged to restore to such tribes or nations all the possessions, rights and privileges which they may have enjoyed or been entitled to in 1811, before such hostilities. Both nations assumed the guardianship of the Indians and acknowledged all aboriginal Indian rights to use land, sea and air in the New World, excluding all whites from their territory until and unless the United States had secured the lands from the Indians by valid, just, humane treaties. As guardian, the United States was obliged to acquire the lands and other property not on the best terms it could get for itself, but on the best terms it could get for the Indians. At all times it was required to protect the Indians' interests. In the Treaty of Ghent, Britain effected its duty as guardian of the Indians of the lands it surrendered to the United States by securing a promise from the United States to assume a guardian relationship toward those Indians. The United States agreed to treat these Indians not as a defeated enemy, but as a ward fully possessed of all rights arising by virtue o original occupancy and use of the lands. The United States accepted this obligation in exchange for an identical promise by Great Britain and in order to end the War of 1812. Indians of the Northwest Territory who had allied with Great Britain were possessed of aboriginal rights, vested by virtue of original occupancy and use and International treaty and protected by the obligations of their guardian, the United States.

[2, 3] In our constitutional system of government the states cannot enter into treaties with foreign governments only the federal government can. When acting within its power to deal with foreign governments, the federal government can make treaties which give it authority in areas which otherwise would belong solely to the states. In such cases the state no longer has authority in areas governed by the treaty. Federal control of migratory waterfowl, for instance, derives from a treaty with Great Britain. In this case the federal government has entered into a treaty with Indians, a matter which, like foreign affairs, is within its sole jurisdiction. One question presented here is whether this treaty with the Indians deprives the state of all authority to regulate matters covered by the treaty, specifically Indian fishing in certain waters of the Great Lakes.

From the earliest times the United States has been ambivalent about its assumed role as trustee for the Indians, expressing noble sentiments executed by ignoble actions. During the 18th and 19th centuries the United States typically dealt with the Indians by treaty, as co-sovereign nations. Typically also, the United States secured Indian lands on terms which were little short of conquest and carried out the treaty in such fashion as to complete the vanquishment.

Michigan has staked most of its case on an 1830 Act of Congress called "An Act to provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi," (4 Stat. 411) and referred to as the "Removal Act." ongress did nothing in this Act to lessen the obligation of the Executive toward the Indians. (American Heritage Pictorial History of the Presidents, Vol. I, p. 224 [1968]) The principal authorization of the Act is to make it lawful for the President to offer lands belonging to the United States west of the Mississippi to the Indians who chose to exchange their present lands. Section 7 of the Act indicates that the Act does not contemplate any variation in Indian policy: "Provided, That nothing in this act contained shad be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes."

Of necessity, this court has had an opportunity to review the actions of almost every administration in the history of our country. The removal policy in question began during the Presidency of Thomas Jefferson. Piecemeal removal began during Monroe's administration but slowed down during the administration of John Quincy Adams, who had a humane and paternal attitude toward the Indians. Andrew Jackson ran for office supporting the policy and received authorization from Congress to implement it. During Jackson's term Henry Schoolcraft was appointed to secure from the Indian bands, whose progeny make up the plaintiff tribes, lands which would become the State of Michigan. During Van Buren's presidency, pressure for removal of Indians to lands west of the Mississippi waned. The Indians stayed in Michigan, but were deprived of their rights under the 1836 treaty, and many others, almost as quickly as they were signed. By the time Pierce became President, even many of the eastern states wanted to keep Indians on their ancestoral homes. A new treaty was signed with the Michigan Indians during his administration which gave the Indians permanent reservations (most of which no longer exist) in exchange for releasing the United States from its unfulfilled financial and personal property obligations under earlier treaties.

In an effort to provide a perspective on the RemovalPolicy of the United States, I quote the following accounts of noted historians who the State's own expert testified are authoritative and reliable.(Tr. 1716.)

3. Removal of the Eastern Indians

An American journalist who had spent several years in India, and whose small children had come to love the Indians, came home in 1958. Shortly thereafter he found the boys crying as they watched a TV "Western" because, as one moaned, "They're killing Indians !" Papa had to explain that these were not Indians of India but Red Indians, and that to kill them was part of the American Way of Life.

The only extenuation of American policy toward the natives of North America is that it continued an old-world process of one race or people pushing a weaker one out of an area that it wanted. Almost every European today is a descendant of Asiatic intruders into Europe; almost every North African the descendant or Arab intruders. "The country is a land for cattle," said the children of Reuben to Moses when they saw the land of Gilead, "and thy servants have cattle; wherefore, said they, if we have found grace in thy sight, let this land be given unto thy servants for a possession." In the United States, as elsewhere in the nineteenth century, this process of conquest and expansion took the form of a relatively highly developed civilization pushing out a backward people who could not or would not be absorbed, and who were too few in number and weak in technique long to resist But some of the Indians put up a very good fight.

The problem of United States-Indian relations, which for many years had involved international rivalries, became localized after the Florida treaty was ratified in 1821. "Foreign interference" could no longer be used as an excuse for abusing the Indians. And there was no more need to placate them to prevent their siding with the British, French, or Spanish.

Efforts to maintain Indian reservations within the Eastem states were generally unsuccessful, although a few small ones, such as that of the Abnaki in Oldown, Maine, and the Tuscarora reservation near Niagara Falls, still endure, menaced or sliced away by the bulldozer. Conditions for a reservation's lasting were a partial adoption by Indians of the American Way of Life, and a strong government service to protect them from the white man's trickery and alcohol. But, for fifty years after American independence, the Indians did not wish to conform, many federal agents were political hacks, government trading posts were unable to compete with unauthorized private traders who supplied the Indians with liquor, and frontiersmen everywhere coveted the Indians' land.

Monroe's administration bowed to demands of the West by adopting a removal policy. Plans for concentrating the tribes west of the Mississippi now began to take shape, and piecemeal removal began in the 1820's from the Old Northwest and the lower South, to segments of what had been the domains of the Caddo, the Quapaw, and the Osage. Tribesmen with well-developed farms, especially influential half-breeds, were given the choice of removal, or staying put and becoming American citizens. Those who preferred to leave, exchanged their property for new lands in the West and were promised payment for travel expenses and the value of improvements on their relinquished property. The assent of the Indians was often merely nominal; federal commissioners bribed important chiefs, and, if necessary, got them drunk enough to sign anything. "Persuasion" often took the form of urging the Indians to sell improvements for cash with which to pay off debts to white traders. This removal policy slowed down during the administration of John Quincy Adams, whose attitude toward the Indians was humane and paternal, but picked up momentum and was carried to a successful conclusion (from the white point of view) under Jackson. The President, having negotiated several removal treaties during his military career, knew very well the hardship involved, but regarded this as the only possible way to save the Indians from extinction. They were aced with the irresistible force of a white expansion which the Democrats had no intention of checking.

Soon after Jackson's inauguration, Georgia, Alabama, and Mississippi asserted jurisdiction over Indian reservations, in contemptuous disregard of federal treaties, and even set up county governments to be put in operation as soon as the rightful owners of the soil were expelled. Congress then passed an Indian Removal Act (1830), appropriating half a million dollars for the purpose. The President was authorized to grant lands in the unorganized part of the Louisiana Purchase in exchange for those relinquished in the East, to protect the Indians in their new reservations, to pay expenses of removal and one year's subsistence, and compensate them for improvements on the relinquished land.

The liquidation of Indian reservations in the Old Northwest was largely accomplished between 1829 and 1843. Mixed bands of Shawnee, Delaware, Wyandot, and others were persuaded to accept new reservations west of Missouri. Their numbers were drastically reduced by disease on the journey. Theft by federal officials of what was due to the Indians, and funeral rites for those who died en route, exhausted their resources long before this "trial of tears," [sic] as it was aptly called by later writers sympathetic to the Indians, came to an end. Many groups were unable to make the journey in one season and suffered intensely at improvised winter quarters. A cholera epidemic broke out in 1832; measles took hundreds of lives. Further trials awaited the survivors, especially those who hoped to till the soil; the cost of equipment reduced them to penury or debt long before they could raise a crop or draw upon tribal annuities. Money from the sale of improvements at the old village ordinarily went into the expenses of travel, if it did not stick in the pockets of federal agents.

At one point during these removals, hostilities broke out. Black Hawk, chief of the Sauk and Fox, who had fought on the British side in 1812, tried to retain his anient tribal seat at the mouth of Rock. river, Illinois, opposite Davenport, Iowa. White squatters encroached on the village and enclosed the Indians' cornfields.. After the governor of Illinois had threatened him, Black Hawk agreed that after crossing the Mississippi for his annual winter hunt, he would never return. But his people, threatened by hostile Sioux, ran out of food. Hoping to find a vacant prairie in which to plant a corn crop, Black Hawk recrossed the Mississippi in the spring of [ 1832] with about 1000 members of his tribe. The governor of Illinois, assuming this to be a hostile expedition, called out the militia (Abraham Lincoln commanding a company) and pursued the starving Indians up the Rock river into the Wisconsin wilderness. It was a disgraceful frontier frolic, stained by wanton massacre of Indians, including women and children. The only redeeming feature was the chivalrous consideration of Black Hawk by Lieutenant Jefferson Davis of the regular army, when the captured chief was placed in his charge; forty years later, Davis referred to Black Hawk's rear-guard action at Wisconsin Heights as the most gallant fight he had ever witnessed. Black Hawk subsequently visited the "Great White Father" in Washington and was presented with a sword and a medal by President Jackson. But he lost his tribal lands.

The four great Indian nations of the Old Southwest, the Chickasaw, Creek, Choctaw, and Cherokee, were Jackson's particular problem. In 1830 the Choctaw of Mississippi signed a treaty providing for their removal within three years. As with others, this migration brought death, suffering, and poverty. In 1832 a treaty was signed with the Creek nation to wind up their large reservation in Alabama. Some members kept individual allotments and faced the cunning of new white neighbors who poured into their reservation before they could leave. Many died on the journey. By 1860 the Creek nation had lost about 40 per cent of its population. The rest settled in the Indian Territory, near the Choctaw. The Chickasaw of Mississippi, a fairly small group, fared better and obtained fairly good prices for their improvements, since their land was desirable for cotton plantations.

These three nations were agricultural and sedentary; some even held Negro slaves. The Cherokee, whose nation spread over northwest Georgia into Alabama and around Chickamauga, Tennessee, were even more advanced, by European standards. It had always been a white grievance against the Indians that they rejected "civilization." The Cherokee, unfortunately for themselves, took the pale-faces at their word. George Gist, a halfbreed whose Indian name was anglicized as Sequoyah, provided the necessary spark. Convinced that literacy was the key to Indian survival, Sequoyah invented a simple form of writing and printing the Cherokee language; Bibles, other books and even a weekly newspaper The Cherokee Phoenix were printed. These Indians welcomed Christian missionaries, built roads, houses, and churches, adopted a constitution for the Cherokee nation and elected a legislature. They became more civilized than the Georgia "crackers" and "hill-billies" who coveted their lands. Nor, for that matter, do the inhabitants of Faulkner's Yoknapatawoha [sic] County appear to be an improvement over the Chickasaw whom they replaced.

The independence of the Cherokee nation had been guaranteed by the United States in a treaty of 1791, but the State of Georgia had been chopping away at their lands for over thirty years, and regarded the treaty as obsolete. Discovery of gold in the Cherokee country in 1828 brought this controversy to a head, and a rough class of whites to the spot. Here was a case of federal supremacy against the state rights, as clear at [sic] that of South Carolina; but President Jackson let Georgia have her own way. His secretary of war, Peggy Eaton's husband, informed the Cherokee that they were mere tenants at will. The federal troops sent by President Adams to protect the Indians were withdrawn, and Major Ethan Allen Hitchcock, sent by the war deartment to investigate frauds against them, made so devastating a report that the department suppressed. Chief Justice Marshall decided, in a test case brought by a missionary (the Reverend Samuel C. Worcester of Vermont), that the laws of Georgia rightly had no force within Cherokee territory. Jackson commented, "John Marshall has made his decision. Now let him enforce it." As Georgia held a lottery to dispose of their lands, and no friends in power appeared to help them, the Cherokee were forced to accept removal. Agents of the Indian administration negotiated a treaty with a small minority of the chiefs in 1835, but most of them refused to attend the negotiations, and few departed within the three-year limit set by the treaty. A protest to President Van Buren, signed by 15,665 Indians, was blandly ignored. So, in 1838, regular troops under General Winfield Scott rounded up the Cherokee and started them on the long trial [sic] to Indian Territory. This journey cost them one-quarter of their number, but the remainder reorganized their national government, prospered, and have retained their language and alphabet to the present day. Several hundred diehards in the Great Smokies, who resisted removal, were eventually given the Qualla reservation in North Carolina.

A similar controversy with the Seminole of Florida ended in war. A tricky treaty of removal, negotiated in 1832 with a few chiefs, was repudiated by the greater portion of the tribe, led by a brave chieftain named Osceola. Secure in the fastness of the Everglades, Osceola baffled the United States army for years, and was only captured by treachery at a truce conference. Many Seminoles were rounded up and sent west, but others kept up the fight until 1842. By that time they had cost the United States some $20 million and 1500 lives. A few thousand remained in the Everglades. Their descendants, known as the Miccosukee Seminoles, are the only occupants of some 200,000 acres of swampland north of the Tamiami trail. They live, like their ancestors, by hunting, fishing, and a little agriculture. Never having made peace with the United States, they are currently threatened by drainage and development projects, and a "progress" which they do not want.

The only Western statesman to denounce these shabby and dishonorable proceedings was Henry Clay. His speech in the Senate on 14 February 1835 is the more praiseworthy because the Indians had no votes, and because his Kentucky constituents cared nothing for them. He quoted the long list of treaties guaranteeing to the Cherokee their lands, and the still longer list of acts of the State of Georgia which violated not only these treaties, but the most elementary principles of justice and decency. He drew tears from the eyes of the senators, but they did nothing for the Cherokee except to expedite their removal.

President Jackson seems to have kept a good conscience about all this, and several friends of the Indians, such as Lewis Cass and Thomas L. McKenney, head of the war department's bureau of Indian affairs, supported removal as the only alternative to extermination. Jackson's rationale of Indian removal appears in his Farewell Address of March 1837: "The states which had so long been retarded in their improvement by the Indian tribes residing in the midst of them are at length relieved from the evil, and this unhappy race the original dwellers in our land are now placed in a situation where we may well hope that they will share in the blessings of civilization." Lewis Cass went the General one better, piously invoking the theory that God intended the earth to be cultivated. Cherokee cultivation evidently did not count.

By the end of Van Buren's presidential term, it was assumed, at least by the Democrats, that the Indian question had been solved. All important Eastern tribes those who, in Jackson's phrase, had "retarded improvement" (i.e. resisted white land grabbers)-had been provided for behind a barrier that ran from Lake Superior through Wisconsin and Iowa Territories, thence along the western boundaries of Misouri and Arkansas to the Red river on the Texas border. Behind this line the tribes were guaranteed possession "as long as grass grows and water runs"; and thence most of them were eventually ousted, when the tide of white settlement lapped around them and slaughtered their game. But, in a sense, the removal policy was justified by the later history of the "five civilized Indian Nations" Creek, Cherokee, Choctaw, Chickasaw, and Seminole in Oklahoma. Removal gave them the necessary respite to recover their morale, and until the Civil War they succeeded in keeping white men out.

Looking backward it is now evident that, in view of the irresistible push of the westward movement, Indian removal was the lesser evil. It had to be, but, the process was carried out with unnecessary hardship to the victims.

In many instances missionaries and other individuals managed to protect the Indians. The Ojibway or Chippewa had a reservation along the Bad river of Wisconsin, which was taken under the protection of the Reverend L. H. Wheeler, a Protestant missionary at La Pointe. When, in 1850, white pioneers began lobbying Congress to remove these Indians west of the Mississippi and acquire their lands, Wheeler visited the proposed site of the resettlement and reported that it would be a deed of mercy to shoot every Ojibway rather than send them there. Congress reconsidered, and in 1854 guaranteed these Indians three small reservations on the south shore of Lake Superior, which they still hold in 1964. Other tribes were not so fortunate. Between 1853 and 1856 the United States negotiated no fewer than fifty-two treaties, mostly with nations in the Mississippi valley or west of the great river, by virtue of which it added 174 million more acres to the public domain.

Remnants of the Six Nations who had been guaranteed possession or reservations in New York State, by treaties concluded as far back as 1784, have been fighting a losing battle. Chief Red Jacket of the Seneca long managed to preserve the integrity of his people intheir reservation, which is now covered by the City of Buffalo. After his death in 1830, a group of New York speculators known as the Ogden Land Company began an intensive drive to get possession of the Seneca reservation. By bribing greedy individuals to act as "chiefs" and sign away land, this company managed to rob the tribe of almost their entire heritage. President Van Buren, to his credit, denounced the subsequent "treaty" as a steal, but it passed the Senate, by the casting vote of Vice President Johnson, the reputed slayer of Tecumseh.

Samuel Eliot Morison, The Oxford History of the American People (1965) at 445-52.

Similarly, the American Heritage Pictorial History of the Presidents (1968). Vol. 1, states:

TRAIL OF TEARS

Although the Indian Removal Act of 1830 simply authorized the President to negotiate for land, Andrew Jackson's "requests" were in fact orders. Resigned to their fate, the Choctaw and Chickasaw began the long journey from the Southeast to Arkansas and Oklahoma. But the Creek, who had disastrously encountered Jackson in 1813 and 1817, knew better than to believe his promise of guaranteed territory west of the Mississippi. Standing their ground in 1832, they extracted a treaty that said "they shall be free to go or stay, as they please." Four years later, their chiefs in chains and guns at their backs, the Creek joined the exodus. In 1832, the Sauk were driven from their Illinois villages and across the Mississippi, leaving possessions and food stores behind. When Chief Black Hawk sent his braves to negotiate with the military, their white flags were ignored. After several skirmishes, the desperate leader tried to lead his starving people back home, but they were stopped at the river. That pathetic series of events, known as the Black Hawk War, cost hundreds of Indian lives. In Georgia, the peaceful Cherokee sought and won from the Supreme Court a favorable decision, to which neither the state officials nor President Jackson paid any attention. Like the other Indian tribes, the Cheroke embarked on a long journey to the West, along a "trail of tears."

During the 20th century these Indians attempted to secure rights previously denied them. During Theodore Roosevelt's presidency, Congress passed a law which permitted them to appear before the Court of Claims to settle the ownership of monies held in trust by the United States at the time of the 1855 Treaty. The Ottawas and Chippewas filed suit, and, in 1907, were able to show that the United States still owed them monies which were to have been paid twenty years after the signing of the original treaty. Ottawa and Chippewa Indians v. United States, 42 Ct.Cl. 240 (1907). In 1946, during the Truman administration, Congres established the Indian Claims Commission. The Bay Mills Indians filed suit and proved that their land had been worth approximately seven times what they were paid in the 1836 treaty. Bay Mills Indians v. United States, 26 I.C.C. 538 (1971), Indian Claims Commission Docket # 18E and 58.

The present action marks the first time during the long history of these Indian peoples that the United States has not been the opposing party in their effort to secure rights granted to them by solemn treaties. The action was initiated by the United States during the Nixon administration, was pressed during the Ford administration, and carried forward during the Carter administration. As the case presently stands, the United States and the plaintiff Indian tribes, the parties to the two treaties here in question, have come to this court agreeing thar their treaties reserved Indian fishing rights in the Upper Great Lakes.

That there are persons within the state whose rights to fish derive from federal (as opposed to state) law has been totally unacceptable to the state and its Department of Natural Resources. The state's position on this fundamental concept was stated by its course in his opening argument:

There is no question but that the State now and always has stood ready to provide fishing privileges to all our citizens, commercial fishing privileges to all our citizens on an equal basis, including Indians or others of whatever race or ethnic background.

(Tr. 1210.) The state obdurately adheres to this position despite the fact that the Supreme Court of the United States long ago rejected the identical contention. In United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Supreme Court reviewed a lower court decision which held, in effect, that the Indians were to be treated just like any other citizen of the State of Washington, notwithstanding their treaty reserved the right to fish at their usual and accustomed sites. The Court first stated the lower court's ruling and then articulated unambiguously its disapproval:

In other words, it was decided [by the lower court] that the Indians acquired no rights but what any inhabitant of the territory or state would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the nation for more.

Id. at 380, 25 S.Ct. at 644. See also Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).

Although the United States before 1836 exercised dominion over the area which was later to become the State of Michigan, it had not as of that time taken steps to extinguish aboriginal title in the Ottawas and Chippewas. The southern portion of the Michigan territory was becoming settled in the early 1800's and there could be no assurance of cloudless title in non-Indian settlers so long as the Indians' aboriginal title to the land remained unextinguished. While the United States had several options available to it in order to accomplish an extinction of Indian title, it chose the most common method of that time and negotiated a treaty of cession with the Ottawa and Chippewa living in the northwestern portion of the lower peninsula and eastern half of the Upper Peninsula of what is now the State of Michigan.

[4,5] Central tothe plaintiffs' contentions and rooted in United States v. Winans, supra, is the concept that under the treaty the Indians were the grantors of a significant land cession and the United States was the grantee. As in any land transaction (not just those involving the Indians), the grant extends only to those interests and rights specifically conveyed and to none others. When the Indians granted to the United States their ownership in the land and waters of the Great Lakes described in Article First of the 1836 treaty, they retained all those rights not specifically conveyed. Among the retained rights was their aboriginal right to continue to fish in the ceded waters of the Great Lakes.

[6, 7] A misunderstanding quickly arises if the transaction between the United States and the Indians is thought of as the ordinary land transaction where the seller conveys all of his rights in the property he sees. Under this interpretation, it would be necessary for the Indians to be able to show that the United States granted them the right to fish. The transaction is better understood if the focus is upon the concept of "reservation." The Indians gave up some rights, reserving all those not specifically conveyed. In a Washington treaty, for instance, the Indians explicitly reserved a right to fish at "all usual and accustomed places." They then conveyed their land, without conveying to the United States the right to exclude the Indians from the land adjoining the places where they fished. The owners who purchased the land adjoining these fishing places did not have the right to exclude Indians from the land because the Indians implicitly reserved a right to cross it, there being no other way to exercise their fishing right. The white owners only had the right to exclude non-Indian trespassers. Likewise, certain Western Indian tribes explicitly reserved land for agricultural purposes, the treaty not specifically conveying all the water of adjacent rivers to the United States. The tribes reserved whatever water they needed to make use of their land. White settlers with similarly arid lands were not provided for by the treaties, and were not entitled to any water used by the Indians. The reservation was implied from the fact that the Indians could not otherwise use their lands for agriculture. The Michigan Indians here claim that they never granted their right to fish to the United States, but reserved it so that they could continue to exercise their way of life while living in Michigan, a right they reserved under the treaty. They are not obliged to show that the United States granted them the right to fish, but only that they reserved it. They need not show that they explicitly reserved it.

[8, 9] Of course, not every treaty of cession leaves the Indian grantors with reserved fishing rights. In order for the right to exist in the first instance, it must be shown that the Indians were in fact using the resource, i.e., that they exercised this right, subsumed within their larger, aboriginal right to their land and water. Thus, the factual predicate for the reserved fishing right is the documented historic, ethno-historic, anthropologic and archaeologic evidence proving that commercial and subsistence fishing was of significance to the Indians during treaty times. Plaintiffs' testimony at trial overwhelmingly established this factual predicate. Having established these facts, the reserved right to fish arises by implication. Thus, the Indians impliedly reserved the right to subsistence and commercial fishing because of this resource's importance to the Indian community at and before the time they entered into the treaty.

[10] In addition to the implied right to fish, plaintiffs also rely on explicit language in the treaty in support of their claims. Article XIII provides that:

The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is required for settlement.

7 Stat. 495. This language constitutes an explicit reservation of a right broad enough to include the takingof fish from the Great Lakes for subsistence and commercial purposes.

Because the language of the treaties is general, vague and ambiguous, the issues before this court involve not only the treaties themselves but also the history of their negotiation and the entire history of the Michigan Indians. This is the way the case has been tried by the parties. The plaintiffs submitted evidence that, in this northern region of the present United States, where agriculture has always been difficult but fish have been in abundance, Indians have relied upon fishing as basic to their livelihood since 10,000 years before Christ. They submitted evidence that the Indians adopted gin nets from their eastern cousins shortly after the bird of Christ, and used them productively for centuries, even though, as defendants said, white men could not get a catch from such nets unless made of much finer materials. The plaintiffs presented experts who testified that the Michigan Indians grew to depend upon the fisheries to secure European goods and that their earliest participation in the European market economy rested upon their expertise at fishing. It is this sort of evidence which this court had to evaluate in order to determine whether the Ottawas and Chippewas so depended upon subsistence and commercial fishing at the time they signed the treaty of 1836 that they could not have knowingly signed away their right to fish.

The lands ceded by the treaty of 1836 were less explored than many regions of the far west. More desirable lands in Michigan had been secured by prior treaties.*

[*The Treaty of Saginaw of 1819, 7 Stat. 203 (1819), secured the area around the thumb of the lower peninsula. The negotiation of that treaty is not only typical of treaty negotiations, but also reveals how General Lewis Cass, Secretary of War in 1836, dealt with the Indians in 1819, when he was a commissioner. When General Cass was leaving for the negotiations in which he planned to "procure a cession of that valuable territory, " he realized he had a very ifficult assignment because the Indians had not received the annuity they had been promised in an 1807 Treaty. Treaty of Nov. 17, 1807 (7 Stat. 105.) Accordingly, he secured a personal bank loan for the amount of the "annuity" (which was in fact a grant) so that he might have silver to place before the Indians during the negotiation. As Cass put it, he got the money so that he would "be able to comply with past engagements before I call upon the Indians lo perform others. " F. Dustin, The Saginaw Treaty of 1819, 8 (1919). He displayed the silver during the negotiations and gave it to the Indians only after they signed the new treaty. Thus, the consideration from the first treaty served to secure not only the first treaty, but the second also.

Although Cass had made extensive preparations to ensure that the Indians would be there when he arrived, few Indians had come. He sent out runners to gather missing chiefs and tribal leaders, but did not wait for them to arrive. He began negotiations at once. S. Gross. Indians, Jack and Pines, 1962, at p. 17 Cass' actions were an aggressive pursuit of his objective of acquiring "that valuable land. " The Indians were primitive and uncivilized, but they knew what they wanted, and they did not want to move out of Michigan beyond the Mississippi. They wanted to stay on d their hunting grounds.

The Chief. O-Ge-maw-ke-to. addressed Cass' proposal of cession as follows: "You do not know our wishes. Our people wonder what has brought you so far from your homes. Your young men have invited us to come and light the council fire. We are hereto smoke the pipe of peace, but not to sell our lands. Our American Father Wants them. Our English Father treats us better. He has never asked for them Your people trespass upon our hunting grounds. You flock to our shores. Our waters grow warm; our land melts like a cake of ice. Our possessions grow smaller and smaller. The warm wave of the white man rolls in upon us and melts us away Our women reproach us. Our children want homes.

Shall we sell from under them the spot where they spread their blankets? We have not called you here. We smoke with you the pipe of peace. "' History of Saginaw County, 151 (1881).

The account of Cass' speech reads as follows: "To this the Commissioner replied with earnestness, reproving the speaker for arrogant assumption, that their Great Father at Washington had just closed a war in which he had whipped their Father, the English king, and the Indians too; that their lands were forfeited in fact by the rules of war, but that he did not purpose to take them without rendering back an equivalent, notwithstanding their late acts of hostility; that their women and children should have secured to them ample tribal reserves on which they could live, unmolested by their white neighbors, where they could spread their blankets and be aided and instructed in agriculture. " History of Saginaw County, 151 (l88l).

This humiliation was in fact contrary to the provisions of the Treaty of Ghent with Great Britain ending the War of 1812. Under that treaty the Indians regained in full the rights which Cass, impelled by the zest of his heroism, declares do not exist. After this initial session, negotiations continued in the presence of Cass' soldiers and 60 other whites, until a treaty was signed in ceremony for which Cass supplied 5 barrels of whiskey. Saginaw Treaty of 1819, 17 (1919).

To meet the resistance brought about by the Indians' desire to retain their hunting grounds, Cass assured them they could continue to hunt in the forests. S. Gross, supra, at 17. By this deception and by granting them the silver vested under the earlier treaty, Cass induced the Indians to believe, mistakenly, that they had won a victory and could retain their lands and their earlier treaty rights.

It is reported that in other negotiations Cass told Ohio Indians he would take a cession of their lands from Michigan Indians if the Ohio Indians did not sell. He brought the Michigan Indians to Ohio for the negotiations. (Tr. 493.)]

The lands of Upper Michigan were bpassed by settlers who sought agricultural lands further west. Only a few thousand Indians, organized into bands, inhabited the entire area along with a few traders and military men. These Indians used the land and water, seasonally migrating over the land to secure the resources of the area.

In the 1830's some of the Indians wanted to acquire annuities like their Potawatomie brothers and realized that the United States would give such payments in exchange for land. One group indicated that it would cede Drummond Island in Lake Huron; chiefs of questionable authority offered to cede lands belonging to other Indians in order to get an annuity. Even these groups had so little understanding of American property law that they expected to continue using the land as before even after a cession.

Lewis Cass, Secretary of War, and Henry Schoolcraft, Indian Agent in Michigan, were not interested in such proposals. They ordered representatives of all area Indian bands to Washington, escorted by traders chosen because of their known influence over the Indians and who were rewarded by the terms of the subsequent treaty. Away from their forest homes for over four months, many for the first time in their lives, unable to engage in their ordinary pursuits, housed in buildings and transported over streets, the Indians signed a treaty written by white traders, explained to them by white interpreters and fostered by men who had supplied them with firewater for years. They were then permitted to return to their homes.*

[*Similar coercion was effected in different fashion in treaty negotiations with the Osages: On the 8th of November, 1808, Peter Chouteau, the United States' agent for the Osages, arrived at Fort Clark. On the 10th he assembled the Chiefs and warriors of the Great and Little Osages in council and proceeded to state to them the substance of a treaty, which, he said, Governor Lewis had deputed him to offer the Osages, and to execute with them. Having briefly explained to them the purport of the treaty, he addressed the to this effect, in my hearing, and very nearly in the following words: "You have heard this treaty explained to you. Those who now come forward and sign it, shall be considered friends of the United States and treated accordingly. Those who refuse to come forward and sign it shall be considered enemies of the United States, and treated accordingly. " The Osages replied in substance, "that if their great American father wanted a part of their land he must have it, that he was strong and powerful, they were poor and pitiful, what could they do? He had demanded their land and thought proper to offer them something in return for It. They had no choice, they must either sign the treaty or be declared enemies of the United States. " George C. Silbey, factor at Fon Osage, cited in Schmeckebier, the Office of Indian Affairs, Its History, Activities, and Organization (1927), pp. 59-60.]

Before and during its negotiation and by the language of the treaty, they were assured that they could continue to use the land when they resumed to their homes, as before. Had they felt anxious about their fishing grounds before the negotiations, those fears were allayed: areas sought by whites were granted exclusively to the Indians, and no mention was made that the treaty might take any other fishing rights away.

By the terms of the treaty monies granted to the Indians for their land were assigned to traders to pay for Indian debts, and Henry Schoolcraft negotiated over $50,000 for his relatives. The Indians got their annuities, certain services, reservations at their traditional fishing grounds and a promise of land in the West.

But, the white men were not through with the Indians. The Senate ratified the treaty with an amendment limiting the terms of the reservations to five years or longer, as the United States might permit. This put the Indians on notice that things had not gone as they had understood them. But, Schoolcraft allayed their fears by assuring them they could continue to use all of their lands as before, leading them to understand that this use would go on without limit. Satisfied, the Indians signed the pact.

The United States did not pay all of the annuities promised; took the most important of the fishing grounds to build a canal and permitted settlers to come into the territory to such an extent that the Indians feared they would lose their reservations and there would be no land left for them. The United States wanted to secure clear title over Indian lands so that they could be sold to settlers and to concentrate the Indians in fewer locations on less land. These motivations led to a new treaty in 1855. In that treaty, signed in Detroit, the United States granted the Indians reservations and assumed specific obligations to provide services and benefits in exchange for a release from the prior treaty financial and personal property obligations it had not fulfilled. The reservations were again placed near traditional fishing grounds. In a separate treaty, the United States offered compensation for the fishing grounds granted in perpetuity and which it had destroyed at Sault Ste. Marie.

After the 1855 treaty, the United States dealt with the treaty Indians on a local basis, no longer pretending that there was an Ottawa and Chippewa Nation. More recently, it recognized the Bay Mills tribe under the Indian Reorganization Act as an Indian tribe entitled to the benefits of prior Indian treaties. Most recently, it did the same for the Sault Ste. Marie band of Chippewa Indians.

[11] When a court is called upon to construe an Indian treaty, the Supreme Court has mandated that it employ the following principles which flow from the guardian-ward relationship of the United States to the Indians: The treaty must be construed as the Indians would have understood it; doubtful expressions must be resolved in favor of the Indians, and treaties must be construed liberally in favor of the Indians. Generally, these principles are laid down so that Indian tribes, usually numbering little more than a few thousand, are not wholly disadvantaged y the strength and resources of the United States. In this case every justification ever given in support of these principles is satisfied. The treaty was imposed by subtle, invidious and incidious [sic] negotiators who sought only signatures without regard for whether they were a product of free consent; the treaties binding the Indians were written in English, although the Indians knew no English and their language arose out of a hunting and fishing tradition without a concept of property; interpreters could only describe general outlines of the agreement; details were left to the good faith of the drafters; the final version of the treaty was drafted behind closed doors by Henry Schoolcraft and the traders who escorted the Indians to Washington; these men had conflicts of interest and each was rewarded handsomely by the treaty, altogether receiving over a quarter of a million dollars.

[12] From the history of the negotiations of the 1836 and 1855 treaties, evidence of the sort of use the Indians made of the Great Lakes fisheries at the time of the 1836 Treaty, and bound as I am to construe the treaties as they would have been understood by the Indians, I am compelled to conclude that the Ottawa and Chippewa Indians, and the plaintiff tribes as their successors, reserved an aboriginal right to fish in the waters of the Great Lakes ceded by the Treaty of 1836, which right they may exercise without regulation by the State of Michigan.

Specific findings of fact and conclusions of law are contained in a following section of this opinion.

Insofar as any motion has been of significance, it has been ruled upon at the appropriate time. Certain insubstantial motions remain and will be dealt with summarily.

[13] The State has before the court a motion to require the joinder of all necessary and indispensable parties. It argued that this order was necessary to bring into the action all Indians claiming fishing rights as descendants of the signatories to the 1836 Treaty. The court recognizes the position that the State fids itself in is difficult. However, a substantially similar argument was advanced by the State in support of its second motion for partial summary judgment. In that motion, the State asked that the court bring into the action all individuals who may possess any individual fishing rights as a result of the dissolution of the tribal organizations by the Treaty of 1855. The court denied that motion, and indicated that the present parties were sufficient to enable the court to pass on Phase I issues before it.

[14] The individual defendants have petitioned this court for the right to a jury trial. Because this action involves prospective injunctive relief sought by plaintiffs, and because plaintiffs have not presented any evidence of tortious conduct by any of the named individual defendants, there is no basis for requiring a jury trial, and defendants' motion is denied.

[15] The State's motion for a three-judge court is likewise easily disposed of.*

[*Because this action commenced before the repeal of 28 U.S.C. sect; 2281 on August 12, 1976, that statute and interpretative case law applies to this motion. See, Pub.L. 94-381, 7.]

The sole basis upon which plaintiffs have prosecuted this action is that the Indians possess an aboriginal fishing right which has been confirmed by treaty with the United States. Under the United States Constitution, Article VI, clause 2, a treaty made under the authority of the United States becomes the supreme law of the land. Consequently, because a treaty provision maintains the same status as a federal statute, the State cannot regulate what federal law preempts. This is the foundation of plaintiffs' allegation that the State of Michigan may not regulate federally protected fishing rights. Obviously, the plaintiffs are relying upon the Supremacy Clause of the Constitution to support their claim. The Supreme Court of the United States has indicated that a three-judge court is not necessary where the action is based on the Supremacy Clause.*

[*Swift v. Wickham, 382 U.S. 111, 122, 124-2, 86 S.Ct. 258, 15 LEd.2d 194 (1965); see also, Moe v. Confederated Salish and Kootenia Tribes, 425 U.S. 463, 481 n. 17, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976).]

Further, any relief plaintiffs request is also premised on that constitutional ground. For these reasons, the State's motion is denied.

The State has indicated that several motions to compel discovery have not been ruled upon. To the contrary, the court ruled in an Order of July 30, 1976 that these motions were moot and need not be decided.

I have not considered plaintiffs' Exhibits P- 1, P-2 or P-3 in my deliberations in this matter or in this opinion.

(1) Jurisdiction is vested in this Court by virtue of: (a) 28 U.S.C. sect; 1345, in that the United States brings this action on its own behalf and on behalf of the Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians, federally recognized Indian tribes, in connection with its administration of Indian affairs and in fulfillment of its fiduciary duties; (b) 28 U.S.C. sect; 1331, in that the matter in controversy involves the fishing rights of the plaintiff tribes, which in both instances have a value in excess of $10,000, exclusive of interests and costs, which are claimed to exist and to be secured under the Constitution, laws and treaties of the United States; and (c) 28 U.S.C. sect; 1362, in that this action is brought by Indian tribes with governing bodies duly recognized by the Secretary of the Interior alleging violations of their rights under the Constitution, laws and treaties of the United States.

(2) Each of the plaintiffs has standing to maintain the claims asserted in this action.

(3) An actual controversy exists between each of the plaintiffs on the one hand and the defendants on the other, as to the meaning of the treaties at issue herein and the existence of any tribal right to fish in the Michigan waters of the Great Lakes under those treaties.

(4) A declaratory judgment is properly sought pursuant to 28 U.S.C. sect; 2201 nd 2202, and this court may grant such relief.

(5) Venue is properly laid in this court under 28 U.S.C. sect; 1391(b) in that all defendants reside within the Western District of Michigan.

(6) This trial has been limited to the issues identified for separate trial by this Court in its Order of July 30, 1976, which are: (a) Whether the Indians reserved or retained fishing rights in the Great Lakes waters purportedly ceded by them under the Treaty of 1836 (7 Stat. 491); (b) If the Indians reserved rights to fish in those waters, were those rights abrogated in whole or in part by the Treaty of 1855 (11 Stat. 621); and (c) Assuming those reserved fishing rights were not abrogated, does the State possess any jurisdiction to regulate the exercise of those rights by treaty tribe members?

The United States of America is a party plaintiff which brought this suit in its own behalf and in behalf of plaintiff-intervenor Bay Mills Indian Community and Sault Ste. Marie Tribe of Chippewa Indians pursuant to its federal trust responsibility toward those tribes.

The Sault Ste. Marie Tribe of Chippewa Indians is a present-day tribal entity which, with respect to the matters which are the subject of this litigation, is a political successor in interest to the Indians who were party to the Treaty of 1836. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government. This tribe is organized pursuant to Section 16 of the Indian Reorganization Act, 25 U.S.C. 476. Its membership is determined in accordance with its Constitution and By Laws, and the membership criteria require proof that the member is an Indian of the treaty area. (Tr. 1127-29; Ex. P-120.)

The Bay Mills Indian Community is a present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to the Indians who were party to the Treaty of 1836. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal governmen on the Bay Mills Reservation. This tribe is organized pursuant to the Indian Reorganization Act, 25 U.S.C. 476. Its membership is determined in accordance with its Constitution and By-Laws and the membership criteria require proof that the member is an Indian of the treaty area. (Tr. 1059-62; Ex. P-119.)

Defendants in this cause are the State of Michigan, its Natural Resources Commission, and certain officials of the Michigan Department of Natural Resources. The State of Michigan exercises regulatory power over the Great Lakes fishery within its borders. This power is exercised by and through defendant Natural Resources Commission, which is the state administrative agency with responsibility for regulating the Great Lakes fishery.

Defendant Howard Tanner is the Director of the Department of Natural Resources. As such he is the chief executive officer of the Department, with overall responsibility for administering the state's fisheries program and enforcing state fishing laws and regulations. John Scott is the Chief of the Fisheries Division of the Department, and as such is responsible for the administration of the state's fisheries program. Louis Gray is the Acting Chief of the Law Enforcement Division of the Department, and as such is responsible for the enforcement of state fishing laws and regulations.*

[*The Department of Natural Resources officers were sued in their official capacities. Names of the current holders of the positions have been substituted for those named in the Amended Complaint. See Fed R. Civ. P. 25(d)(1).]

Together those officials are responsible for administering and enforcing the statutes, regulations, orders and policies governing the Great Lakes fishery which are challenged by plaintiffs in this case.

Plaintiffs' expert witness Helen Hornbeck Tanner is an ethnohistorian who has studied American Indian tribes for approximately thirty years, and who has concentrated for the last sixteen years on the study of Indian tribes of the Upper Great Lakes. She has testified a an expert witness in other cases involving issues of Indian culture and history. Her training and experience have been concentrated in analyzing and interpreting the history, culture and lifestyle of Upper Great Lakes Indian tribes. (Tr. 53-56, 66-74; Ex. P- 130.)

Plaintiffs' expert witness Charles E. Cleland is an anthropologist specializing in archaeology and ethnozoology. he has spent the majority of his professional career in personally investigating and analyzing Upper Great Lakes Indian tribes and their relationship to the animal species found in that area in historical and prehistoric times. (Tr. 658-92; Ex. P- 141.)

Plaintiffs' expert witness James A. Clifton is an anthropologist and ethnohistorian who has specialized in the study of Indian tribes' responses to changes in their aboriginal culture brought about by European contact and dominance. He has spent more than half of his professional career in the particular study of Indian tribes of the Upper Great Lakes and the Ohio valley, including the removal policy and its implementation in that area. Further, he has extensive experience in the analysis of Algonquian personal names as written by Europeans and Americans in order to determine the pronunciation and identity of the named persons. The testimony showed that from his early training at the University of Chicago he did not follow the traditional subject matter breakdowns of American higher education but prepared to engage in the broad, reliable cultural investigations which were especially helpful to this court. The defendants' effort to impeach him for lack of compartmentalized academic certifications was comparable to an effort to disqualify Thomas Edison as an expert on electricity. (Tr. 2058-2109; Ex. P-177.)

Defendants' expert witness Phillip P. Mason is an historian and archivist whose academic training and research have concentrated on American social and economic history. The witness is not, by either training or experience, thoroughly familiar with the culture of the Upper Great Lakes Indins. His familiarity with the facts in this case rests primarily upon his work in editing the papers of Henry Schoolcraft and upon examination of documents since being retained by defendants. The limited perspective of his experience and his academic discipline, limited as they are to written accounts of the matters in issue here, prevented him from enlightening the court as to the total circumstances of the treaties. (Tr. 1214-25, 1237-47, 1252-55, D. Ex. 291.)

Defendants' witness Asa T. Wright is a fisheries biologist who has been employed by defendants in that capacity for most of his professional career. He has no educational background or experience in either history or anthropology, nor has he been trained in the research or analysis of historic documents. This lack of training, background and familiarity permitted him to offer opinions from his field of expertise which are at odds with the facts. (Tr. 1844-53, 1859-63, D. Ex. 313.)

The oral testimony of the tribal witnesses educated in the history and customs of their people by tribal elders is found to be reasonable and credible factual data regarding certain relevant aspects of Indian life at and after treaty times. (Tr. 130-32, 776-77, 1066-70, 1095-98, 1105-06, 1113-15, 1129-33.)

IV. Findings of Fact

A. THE INDIANS OF THE TREATY AREA.

While the term "Ottawa and Chippewa Nations" is used in the treaty and by this court in its opinion, the term is a non-Indian term used to describe Indian peoples of a similar culture, and was not used by the Indians themselves in describing their political organization. The primary unit of political and economic organization was the band, which was frequently associated with a village. Political authority was weak; decisions were usually reached by consensus, and persons became "chiefs" for ad hoc purposes based upon skill. From both a political and Indian cultural perspective, there was no such thing as an Ottawa-Chippewa tribe or nation. (Tr. 100-02, 596, 772-76, 779-81.)

Four different but related tribes of Indian have been associated with the area later included within the State of Michigan the Ottawa, Chippewa (or Ojibway), Potawatomi and Wyandot (or Huron). (Tr. 93.) The Ottawa, Chippewa and Potawatomi had an early tradition of closeness and referred to themselves as the Three Fires. (Tr.93.) The Ottawa and Chippewa share a common language. According to Chippewa tradition, they were located originally in the valley of the St. Lawrence River and migrated westward to the northern peninsula of Michigan somewhere near the year 1500. Some Chippewa bands moved farther west to Wisconsin. (Tr. 93) The Ottawas, which means "traders," were historically identified with Manitoulin Island in Lake Huron, which is a part of Canada. (Tr.94.) The Ottawas too advanced westward and settled in the lower peninsula of Michigan with concentrations near the Straits of Mackinac. (Tr. 94.) The Wyandots lived in the area of present day Detroit since at least the early 1700's. The Potawatomis of Michigan have been identified with the southern por tion of the state.

Of the four tribes discussed, only the Ottawa and Chippewa were signatories of the Treaty of 1836. (Tr. 96.) The names of the bands and their locations are as follows: In the Upper Peninsula, there was a band on Lake Superior opposite Grand Island which bore that name (Tr. 97); the eastern end of Whitefish Bay was the home of the Tahquamenon Bay band (Tr. 97); closer to Sault Ste. Marie, but still in Whitefish Bay, was the Waishkee Bay band (Tr.123); the Sault Ste. Marie band was located in and around the city of the same name (Tr. 97); there was a Garden River band whose members spent much time in Canada and on Sugar Island located in the St. Mary's River (Tr. 98). Also near the St. Mary's River in Lake Huron was the Drummond Island band. (7 Stat. 495.) On the northern shore of Lake Michigan there was a band at the Les Cheneaux Islands (Tr. 98); there were bands at Big and Little Bay de Noc (Tr. 98); at the Beaver Islands (Tr. 98); at Little and Grand Traverse Bays (Tr. 98); and on Lke Huron there were bands at St. Ignace, Thunder Bay and Cheboygan. (Tr. 98.) The southern portion of the ceded area was the home of the grand River bands (Tr. 98). Included among these bands were beneficiaries of the Treaty of Ghent, which ended the War of 1812. (Tr. 1060-61, 1064, 1128, 1179.)

The bands located within the area of cession were Ottawa, Chippewa and a mixture of both. (Tr. 98.) Henry Schoolcraft described the Indians of the Treaty area as "intercalated," a mineralogical [sic] term to describe stratified layers of rock. (Tr. 99.) In other words, there were some distinct Ottawa groups, some distinct Chippewa groups and some groups consisting of both. (Tr.99.) It was not possible before 1836 to draw a precise line on a map showing distinct areas occupied exclusively by either Ottawa or Chippewa. (Tr. 100.) The Ottawa and Chippewa lived at peace together in their intercalated relationship. (Tr.94-100, 177, Ex. P-17.)

The first significant American contact with the Indians of the treaty area probably began in 1820 with the Cass expedition. (Tr. 105.) Lewis Cass led an expedition into the northern portion of the Lower Peninsula and the Upper Peninsula of Michigan at a time before its exploration by any other Americans. (Tr. 105.) Before the Americans, the Indians of the treaty area had contact with the French, beginning in the middle seventeenth century, followed by the British. (Tr. 106.)

The life style of the Ottawa and Chippewa during the period leading up to the 1836 Treaty was cyclical in nature. Springtime activity was devoted to the making of maple sugar. Sometimes the sugar was their only source of food during the harsh months of February and March. (Tr. 111.) In early May, the spring fishing season started and some agricultural activities were conducted, depending upon the location of a band. (Tr. 111.) The 140-day growing season line extends across Michigan at a point south of Traverse City. Thus, Indians north of that line were engaged in very limited agricultural pursuits. (Tr. 111.)

Canoe making was another springtime activity because this was the best time of the year for removing the bark from birch trees. (Tr. 111.) In the summer, food gathering occurred. In August, those crops available were harvested and shortly thereafter were gathered. (Tr. 112.)

In the fall, there was another significant fishing season and substantial time was devoted to this activity. (Tr. 112) Before departing for winter hunting stations, supplies were procured from traders which were often advanced against the furs the Indians expected to trap. (Tr. 112.) The Indians dealt with traders on the basis of barter. (Tr. 112.) They traded furs and fish for supplies the traders carried. (Tr. 112- 13.) It was not until after the 1836 Treaty with its provisions for annuities that the Indians had cash available to use for obtaining supplies. (Tr. 113.)

Indians were traders, of course, even before European contact. (Tr. 106.) As previously stated, the word "Ottawa" means "trader." One of the principal trade centers in the treaty area was at the Straits of Mackinac. (Tr. 106.) Early trade routes extended from Montreal down to the Gulf of Mexico and were dependent upon the Great Lakes and the Mississippi River for transportation. (Tr. 107.) After European contact, trading by the Indians continued and expanded because the Indians were then able to obtain manufactured goods like iron kettles, hooks, axes, hatchets, needles, awls and firearms. (Tr. 109.)

B. ROLE OF FISHING IN THE LIFESTYLE OF THE INDIANS OF THE TREATY AREA.

The prehistoric and historic record of the Upper Great Lakes shows a long evolutionary sequence extending back at least 12,000 years during which fishing in the Great Lakes has been of increasing importance to the Indian people of the treaty area. The nature of the fishery resource has helped to shape the Indian culture of this area. Ecologically, the Upper Great Lakes area is a transitional area between the pine forest to the north and the hardwood forest to the south. It was low in many natural resources including mammals. (Tr. 697-98.) The Great Lakes contained a productive fishery, however, which was characterized by Rostlund in his authoritative monograph on the aboriginal fisheries of North America as the "Inland Shore Fishing Complex." This fishery (shown on the map, Ex. P- 143) lies generally north at a line demarcating 140 frost-free days. As prehistoric Indian culture evolved after the retreat of the glaciers, the Indians south of that line turned increasingly to agriculture as the main subsistence activity, while those north of the line turned increasingly to fishing. Though fish did not occur in the Great Lakes in the abundance that characterized other aboriginal fisheries, the fish did concentrate in relatively small areas in the spring and fall, primarily to spawn. This bi-modal cycle with its periods of concentration allowed the Indians to utilize the fishery resource. (Tr. 699-703.)

The earliest Indians of northern Michigan were big game hunters. The first evidence of Indian fishing in the Upper Great Lakes occurs in Late Archaic Period with archaeological sites dated between 2000 and 1000 B.C. Although the Indians of this period were primarily hunters, they began coming to the shores of the Great Lakes in the spring, when spring spawners such as sturgeon were gathered, and took fish by hook, gorge and spear. (Tr. 728-30.)

Even before this time, however, a new fishing technology was being developed and applied on the Atlantic coast which would eventually alter drastically the subsistence and lifestyle of the Indians of the Upper Great Lakes. Fishing nets originated on the Atlantic coast around 6000 B.C. and began spreading slowly westward through the process of cultural diffusion. By 2500 B.C. nets were in use on the Lower Great Lakes. From there they spread to the Upper Great Lakes, where they appeared during the Middle Woodland Period at around the time of the birth of Christ. (Tr. 744-45.) As with the earlier fishing techniques, which remained in use, nets were first applied to the spring fisery. However, during the Late Woodland Period (which immediately preceded European contact), the primary fishery shifted the spring to the fall, when species such as lake trout and whitefish were taken. With this major change the fishery continued to become more important and more productive. (Tr. 739-40)

The introduction of nets and the shift of the fall fishery led to the development of the Late Woodland Period settlement pattern which was encountered by the first Europeans to enter the Upper Great Lakes. In the spring the Indians would gather in large fishing villages of around 200 persons, where they would remain until the onset of winter. In winter the village would break up into small family groups which would disperse inland to hunt. When spring came the cycle would be renewed. The warm weather fishing villages were located on the shores of the Upper Great Lakes throughout the treaty area in locations with convenient access to productive fishing grounds. (Tr. 121-23, 236-38, 733-43, 760-63, 825-30.)

By the time of first European contact around 1650 A.D. fishing had come to be of enormous importance to the Upper Great Lakes Indians. All traditional fishing methods were still in use, but the most productive was gill netting from canoes. The Indians caught both spring-and fall-spawning species, including sturgeon, suckers, pike, whitefish and lake trout. (Tr. 130, 758-60.) Fish was a very crucial item in the Indian diet, comprising about 65% of the usable meat consumed in the warm months. (Tr. 768-71.) British and French settlements in the same area show significantly less dependence upon fish in the European diet. (Tr. 769-71.) At first contact, as in earlier and later times, fishing was the key to understanding the subsistence and settlement patterns of the Upper Great Lakes Indians.

A written record of the Indians of the treaty area began with the arrival of Europeans, though of course this record was not kept by the Indians, but by the newcomers encountering a strange culture. Nevertheless, these European and later, American observers amply documented the continued extreme importance of fishing to the Indians. Throughout the period from first contact to the 1830's, missionaries, explorers, traders, and military and governmental officials wrote of the Indian gill net fishery in the Great Lakes and of its importance to the Indian inhabitants. For example, the Frenchman Joutel wrote this detailed description of Indian gill netting at the Straits of Mackinac in 1687 (Tr. 784-85):

They are very skillful at fishing and the fishing is very good in those parts. There are fish of various kinds which they catch with nets, made with a very good mesh; and although they only make them of ordinary sewing thread, they will nevertheless stop fish weighing over ten pounds. They go as far as a league out into the lake to spread their nets, and to enable them to find them again, they leave marks, namely, certain pieces of cedar wood which they call "aquantiquants," which serve the same purpose as buoys or anchors. They have nets as long as 200 fathoms and about 2 feet deep. At the lower part of those nets they fasten stones to make them go to the bottom, and on the upper pan they put pieces of cedar wood which the French people who were then at this place called floats. Such nets are spread in the water, like snares among crops, the fish being caught as they pass, like partridge and quails in snares. The nets are sometimes spread in a depth of more than 30 fathoms, and when bad weather comes, they are in danger of being lost.

Cadillac in 1695 described the same fishery as a "daily manna, which never fails." (Tr. 785.) Many similar accounts were placed on the record. (Tr. 105-08, 154, 113-20, 782-89, 791-94.) These historic and ethnographic materials were summarized by Rostlund in his authoritative work in this fashion (Tr. 796):

[A] gill net fishery par excellence in native North America was found in this region of great interior lakes inhabited by the whitefish family; and it may be added that this great food resource could nt have been adequately exploited had the gill net been unknown. * * * [A]s fisherman those people . . . were second to none in the aboriginal North America.

Long before European contact, the Indians of the Upper Great Lakes had participated in a far-flung trade and exchange network which extended at least as far south as the Gulf of Mexico. (Tr. 106-07; Ex. P-142) This was not, however, a proper commercial network, because commercial activity requires a market economy based upon a system of exchange using understood equivalents, and such a market economy was absent from the Upper Great Lakes in aboriginal times. The Europeans brought with them their market economy, and with it an opportunity for the Indians to participate in an entirely new aspect of the fishery a commercial fishery. (Tr. 797-99.) From that time onward, the commercial fishery as well as the subsistence fishery was important to the Indians. As is also indicated by the Indians' adoption of nets, the Indians' participation in commercial fishing as soon as this opportunity presented itself, reveals that the Indians' participation in the Great Lakes fishery was never static, but evolved as new opportunities became available.

As early as the middle of the 18th century Indians were participating in a commercial fishery by trading fish to the French at Michilimackinac. (Ex. P-8, 9.) Before the 19th century, however, the main Indian commercial activity was in the fur trade. The fur trade was on the wane in the early 19th century. By that time the Indians had become dependent upon manufactured trade goods and needed to continue their participation in the market economy. The naturally turned to fish as a commodity which could produce a surplus for trade. (Tr. 124, 799-801) In the 1830's the fur companies began to turn to fish as well. Foremost among them was the American Fur Co., which operated a fishing enterprise on Lake Superior from 1835 through the early 1840's. Its principal fishing operations were west of the treaty area, but it did operate fishin stations at Whitefish Point and Grand Island. (State Ex. 309) The American Fur Co. and its rivals developed a market for Upper Great Lakes fish and provided a ready outlet for the purchase of Indian fish and employment of Indian fishermen. (Tr. 153-55, 437-43, 801-07.) The fishermen for the American Fur Co. were largely Indians, who were the major producers of fish in Northern Lake Michigan, Northern Lake Huron, and Lake Superior for the entire first half of the nineteenth century. (Tr. 281, 803-05, 807-09, 970, 973, 1559.) Indian names do not appear in the employee roles of the American Fur Co., however, probably because Indians fished as subcontractors. (Tr. 1781-82.)

The evidence firmly establishes that the Indians of the treaty area were heavily engaged in commercial fishing at the time of the Treaty of 1836, both as employees and as independent fishermen. The Blois Gazeteer of 1840 described one type of Indian participation in the commercial fishery (Tr. 804):

At Mackinac, St. Mary's Strait, and Lake Superior, the fishermen are composed of French, Indians, and Mestizoes or halfbreeds. They are generally employed by capitalists and in Lake Superior by the American Fur Company, furnished with necessary outfits, and paid in such goods as their necessities may require.

Grace Lee Nute, in her article on the American Fur Co., which was relied on by the experts on both sides, also indicates that the American Fur Co. engaged Indian fishermen (State Ex. 309, P. 489), and a contract between an Indian fisherman and the company for fishing at Whitefish Point in 1837 was also introduced. (State Ex. 226.) Indians also barrelled their own fish and sold them to traders (State Ex. 50), and traders contracted with intermediaries like Charles Butterfield to purchase fish from Indians. (Ex. P-176.) Indian commercial fishing is evidenced in the treaty itself as well; under the sixth provision of Article Fourth, the Indians were to receive 100 barrels of salt and 500 fish barrels annually for twenty years.

Subsistence fishing continued to be tremendously important to the Indians of the treaty area in the 1830's. The introduction of the market economy, the fur trade and the dependence of the Indians on trade goods did not alter the subsistence dependence of the Indians on the fishery; to the contrary, as Fitting reported in his "Patterns of Acculturation at the Straits of Mackinac," those factors actually increased and amplified the importance of fishing. (Tr. 766- 67.) Fish remained the staple of the Indian diet. This factor was stressed by Lewis Cass, who in 1820 wrote that for the Indians of the treaty area fish "constitute a considerable part of the food of all the Indians upon this extensive frontier. Deprived of this means of support, they must absolutely perish." (Tr. P-20 and 20A.)

In 1836 the settlement pattern of the Indians was the same as it had been for centuries, since the introduction of nets: in the warm months the Indians were concentrated in large fishing villages, and in the winter the villages broke up into family groups who went inland to hunt and trap. The Indians were living on the shores of the Great Lakes throughout the treaty area adjacent to the productive fishing grounds. (Tr. 97-100, 121-23, 236-38, 760 760-68, 825-30.) This settlement pattern is shown in the Treaty of 1836 itself in the location of the reservations and of the chiefs listed in the schedule plemental to Article Tenth. It is also shown in Henry Schoolcraft's 1837 map and census (Ex. P- 125; State Ex. 311) and in similar exhibits. (State Ex. 63, 284.)

Despite this settlement pattern and the concentration of fishing in the areas of settlement, Indian fishing was not confined to these areas. Indians of the treaty area, before and during treaty times, traveled extensively, and to the most remote areas of the Great Lakes. (Tr. 127-29, 753-54). They had various sizes of canoes, adapted to different purposes, and used these in their travels. (Tr. 469-71.)

In sum, in 1836, fishing in the waters of the Great Lakes for both subsistence and commercialpurposes was extremely important to the Indians of the treaty area. (Tr. 559, 807,1762-3, 1773, 1785, 1788-89, 1792-99, 1801, 1886.) Dr. Cleland described the Indian fishery in 1836 as a "vitally important resource for the survival of those people, and upon the advent of a commercial system, a means by which they made their principal living during a very difficult era" and as "the primary cornerstone of their cultural being." (Tr. 831.)

Fishing remained enormously important to the Indians of the treaty area up to the Treaty of 1855. This is amply documented by a variety of sources, from the Momlan leader Strang of Beaver Island to the official reports by Indian agents. (Tr. 120-21, 156-63, 165-75, 808-09.) Store ledgers of local traders and merchants indicate that Indians were obtaining cash credits for barrels of fish on both a large and small scale. (Ex.P-166, 167, 168, 169, 170, 171, 172, 173, 174, 175.) A particularly fertile source for such evidence is the annual reports of the Commissioner of Indian Affairs to Congress, which include reports of local agents, subagents and the like. In the report for 1842, for instance, the Indian school at St. Ignace complains of poor attendance "caused by frequent absence of families from home, pursuing their calling as fishermen." (State Ex. 269, No. 36.) The report for 1844 states that an increased demand for fish has improved the economic position of Indian fishermen. (Ex. P-66.) In 1848 the Indians of the subagency at Sault Ste. Marie sold at least 1200 barrels of fish. (Ex. P-72.) In 1852 Rev. Pitezel reported to the Commissioner (Ex. P-75):

One means of their subsistence must be, from the nature of things, fishing. Lake Superior abounds with the finest fish. As long as they reside about the lake, this occupation must be to them what the farm is to the farmer, or the trade to the mechanic.

Similar statements occur in other reports of the period. (Ex. P-67, 69,70, 71,73, 77, 79.) In 1855 fishing in the Great Lakes remained the primary Indian subsistence activity and was perhaps an even more important commercial activity than at earlier times. (Tr. 169-70, 824-25, 831-32.)

Fishing remained an important activity of the Indians of the treaty area throughout the remainder of the 19th century. The Mackinac Agency reported to the Commissioner of Indian Affairs in 1861: "Those bands residing near the Great Lakes still depend, to a great extent, on fishing for a livelihood." (Ex. P-98, p. 5) In 1860 the first year in which Indians were counted the census for northern Michigan showed that Indians and half-breeds dominated the commercial fishery. (Tr. 809-14; Ex. P-156.) Indian participation remained high and actually increased slightly by the 1880 census. (Tr. 815-18; Ex. P-157, 158.) Smith and Snell's survey of commercial fishing in the Great Lakes in 1885 also showed heavy Indian participation in the fishery of the northern Upper Great Lakes. (Tr. 818-23; Ex. P-4.)

Indian involvement in the Great Lakes fishery has continued through this century to the present day. The Bay Mills Indian Community is a fishing community whose members have always fished for subsistence and commercial purposes. As one member, Don Parish, put it: "[F]ishing was our way of life, it was our livelihood, and fishing is our living, so we just had to fish." (Tr. 1116.) Other tribal witnesses expressed similar sentiments. (Tr. 1064-66, 1075-79, 1094-1102, 1129-37,1160-64, 1184-86.) Indian fishermen still live in the same areas and fish on the same fishing grounds as did their ancestors for centuries past. (Tr. 1064-66, 1070-74, 1075-79, 1094-1102, 1113-16, 1138-39, 1161-62, 1171-73; Ex.P129E, 135, 135A, 136, 136A, 136B, 136C, 136D.) Indian fishing of today is remarkably like Indian fishing in 1836, and not much different from Indian fishing two millennia before that.

C. NEGOTIATION OF THE TREATY OF 1836.

When the United States negotiated treaties with the Indians of the Territory of Michigan, it was bound by certain responsibilities imposed by previous Treaties and Laws. The first of these is the Northwes Ordinance, discussed above. Additionally, the United States undertook certain obligations towards the Indians, and restored all aboriginal rights, through the treaty which ended the War of 1812 with Great Britain, the Treaty of Ghent, signed on December 24, 1814 (8 Stat. 218). This Treaty was referred to by Henry Clay, Senator from Kentucky, in a speech before the Senate on a Resolution concerning Cherokee Indians in Georgia:

He alluded to the negotiations between Great Britain and the United States, for the termination of the late war. The hinge on which the negotiation turned, he had a distinct recollection, was the claim brought forward by the British negotiators on behalf of the Indians, and which they held as a sine qua non to the conclusion of a treaty of peace that the Indians, her allies, should have a permanent boundary assigned them, and that neither party should be at liberty to purchase the lands they set apart. But the American commissioners would not listen to the proposition so much as to refer it to their Government, informing the British commissioners that, if they did so, they were sure it would meet with the most prompt rejection. They stated that the Indians lived under their own customs, and not the laws of the United States, and that they were placed under the protection of the United States alone, whether they were subjects or otherwise. The correspondence finally terminated in a proposition to which the American commissioners assented, that the United States should do their best endeavors to restore peace with the Indians with which they were at war, and restore to them all the rights and privileges they enjoyed prior to the commencement of hostilities. And he declared it to be his belief that, if the Indian rights bad not been thus declared, there would have been a prolongation of the war.

The Congressional Globe, February 3, 1835, at 195. It should be noted that Henry Clay was a negotiator and signatory of the Treaty of Ghent for the United States.*

[*The above comment on the negotiations on the Treaty of Ghent was placed in historical perspective by Samuel Eliot Morison in The Oxford History of the American People (1965) at 397-98:

To the astonishment and distress of the American peace commissioners...their opposite numbers were instructed to admit neither impressment nor neutral rights as even subjects of discussion. The United States must abandon all claims to the Newfoundland fisheries, the northeastern boundary must be revised to provide a direct British road between St. John, N.B., and Quebec; and the northwest boundary must also be rectified to give Canada access to the Upper Mississippi. Finally, the old project of an Indian satellite state north of the Ohio river was revived. Adams, an experienced diplomat, expected the negotiations to terminate on this point, and prepared to go home. Henry Clay, untrained in diplomacy but an expert poker player, was confident the British would recede, as they did . On 16 September, the British commissioners were instructed to drop the Indian project.]

A treaty can be analogized to a special kind of contract and, like all contracts, the motivations of the parties can, and often do, differ substantially. There were two principal parties to the treaty the United States and the Indians but each party represented a collection of individual interests. (Tr. 132.)

Some Indians in the treaty area were interested in obtaining annuities like their neighbors the Potawatomis. (Tr. 133.) Others wanted to protect their special, customary fishing grounds from non-Indain fishermen. (Tr. 133.) Still others, in particular the Indians in the Upper Peninsula wanted to secure blacksmith services to make and repair metal equipment, especially implements used for fishing. (Tr. 133)

Representatives of the United States also had differing motivations for treating with the Indians. Henry Schoolcraft, principal negotiator for the United States, was concerned about national security and wanted to secure the Upper Peninsula against British encroachment. (Tr. 134, 163-65.) As a mineralogist, Schoolcraft believed there were valuable mineral deposits in the area, such as salt and coal, and he wanted to be sure there would be no impediments to the government's exploitation of these minerals if rumors of their existence later proved accurate. (Tr. 134.) Traders, who played a major role in the treaty process, were owed large sums by the Indians and a treaty was the best way to be certain these debts were paid. (Tr. 136.) There was also significant pressure for statehood in the early 1830's. Early Michigan leaders, like Lewis Cass and Senator Lucius Lyons, wanted to attract settlers to the area and in order that there be available land, the Indians' title had to be extinguished. (Tr. 135, 1305.) Michigan territory in the early 1830's was not experiencing the same settlement rate as in Ohio, Indiana and Illinois. (Tr. 1294.) Reasons included the large Indian population in Michigan and settlers' fears of confrontation with them; a lack of roads to allow settlement of the interior; harsh weather conditions, and the like. (Tr. 1294.)

The dominant motive appears to have been to cheat the Indians out of their lands and reduce their holdings to the reservations. Thereby the Indians would be deprived of their natural habit of roaming the range of the lands on their summer and winter migrations. Thereby the Indians would be deprived of their lands before they realized their eventual value. The figure received for the land 12 1/2-13 cents per acre indicates that the Indians were cheated out of their land. (Tr. 210, 227, 275, 2134-36, 2380-84.)

By 1836, much of the Indians' aboriginal title to Michigan land had already been extinguished through various treaties. In 1807 the United States obtained the land around Detroit under the Treaty of Detroit. (Tr. 1295.) The United States acquired land in southwestern Michigan (below the Grand River) under the 1822 Treaty of Chicago. Under the Treaty with the Saginaw Chippewas in 1819, the United States acquired land in the eastern side of the Lowr Peninsula up to Thunder Bay on Lake Huron. (Tr. 1295-96.)

In the fall of 1835, a small group of Indians (primarily Ottawas) made their way to Washington, D.C., to talk to government officials about a treaty. (Tr. 136.) The arrival of this group of chiefs with limited authority provided Schoolcraft with occasion to emulate Cass in the negotiation of the Treaty of Saginaw. Having found out about this group, Schoolcraft hastily departed for Washington, D.C., as well. (Tr. 139.) The United States seized upon these events as an opportunity to purchase lands from all the Indians of the area, and quickly expanded the scope of the purchase to include all of the area of Michigan eventually ceded in the Treaty of 1836. (Tr. 135-36, 606-07, 1315-26). Schoolcraft aggressively sought other chiefs in order to seize another tract of "that very valuable land." In early 1836, a larger delegation of Indians was escorted to Washington, D.C. in order to negotiate a treaty. (Tr. 139.) Most of the escorts were traders from throughout the area of cession. (Tr. 139.) The escorts were arranged for, in most instances, by Schoolcraft and other government officials. (Tr. 139.) Documents support the notion that the presence of traders was essential if the United States was to accomplish a cession of Indian lands. (Tr. 140; Ex. P-46 and 46A.) Some traders, such as Robert Stuart, John Drew and Edward Biddle, were associated with the American Fur Co. (Tr. 141-42.)

Dr. Helen Hornbeck Tanner, plaintiffs' principal ethnohistoric witness, testified that:

Fur traders were widely used as mediators in effecting Indian treaties and were usually present, and in some cases, beneficiaries of the Treaty. Their personal contacts with the Indian people were important, in one way, and their influence over them appears to have been considerable. (Tr. 142.)*

[*Defendants' Exhibit 3/2 contains a detailed list of the claims traders submitted for payment under the treaty. For example, Edward Biddle received more than $45,000 (Ex. 312, Claim No. 63, Tr. 1621. Rix Robinson, Robert Stuart, John Holiday, John Hulbert and Henry Levake received, in toto, approximately $57,000 as claimants under the treaty. (Ex. 312, Tr. 1625-33.) Altogether, claimants or creditors received $220,954.57 under the treaty. (Ex P-321, Tr. 1633.) All these persons played a major role in the treaty process, including accompanying various bands to Washington, D.C. Most of these persons were listed at the end of the treaty signifying their attendance and participation in the negotiation process. Perhaps the most prominent figure in the treaty process was Henry Schoolcraft. His family members received approximately $53,000 under the treaty as creditors to the Indians. (Ex. P-132; Tr. 1636-42)]

In the spring of 1836, the process of selecting Indian representatives and transporting them to Washington began. The selection of the traders who accompanied the Indian was initiated and controlled largely by the United States, acting through Henry Schoolcraft and his agents. Schoolcraft sent for his relatives, Waishkee and his son Waw-be-geeg, to represent some of the Upper Peninsula bands. (Tr. 142.) At this same time, a power of sale was being circulated amongst the Indians for their signatures (marks) to be affixed. This power of safe (Ex. P-47 and 47A) was sent to Washington and arrived while the treaty negotiations were taking place. (Tr. 143.) Indian delegates came from Muskegon, Grand River, Michilimackinac, Sault Ste. Marie, L'Arbre Croche and Grand Traverse. One group from Grand River did not come under trader escort and a trader was summoned to attend the negotiations. While in Washington the Indian delegates were placed in charge of Rix Robinson, Robert Stuart, John Drew, H. A. Lavake, William Lasley, George Moran, Lewis Moran, Augustus Hamelin, and Leonard Slater. All were traders except Hamelin, an educated half-breed, and Slater, a missionary. (Tr. 96, 13948, 14547, 177-79, 1326-30, 133447; Ex. P-15, 46, 47.) The United States paid all of the expenses incurred by the Indians in order to trasport them to Washington (Tr. 147), including providing them with clothes and other gifts.. Once in Washington, the Indians were housed and fed at the expense of the government.

Lewis Cass was the Secretary of War in President Jackson's administration, and, being a military man, he knew full well that "Andrew Jackson's 'requests' were in fact orders," when it came to Indian matters. (American Heritage Pictorial History of the Presidents, Vol. 1, p. 224 [1968]). This attitude was in turn conveyed to Henry Schoolcraft in a letter authorizing him to treat with the Indians. (Ex. P-53.) Cass' instructions directed Schoolcraft to obtain a cession of Indian land, in part to facilitate the advancement of non-Indian settlers. He was told not to allow individual reservations but if reservations were provided for, the Indians should hold them in common until later ceded to the United States. (Tr. 149.) Other instructions required him to determine that the Indian representatives were genuine and authorized to cede land and to obtain as large a cession as possible. No claims for debts were to be settled in the treaty itself unless the Indians insisted upon it. Annuities of twenty years duration were to be provided. (Tr. 148-50, 134549; Ex. P-53, D. Ex. 16.)

Schoolcraft made an opening statement to the assembled group in which he explained why the treaty was to be negotiated with both the Ottawa and Chippewa rather than negotiating two separate treaties. Schoolcraft stated the President of the United States believed the Ottawa and Chippewa to be "brother tribes." Article First of the treaty refers to "the Ottawa and Chippewa nations of Indians." However, the Indians did not think of themselves as "nations" nor were they organized politically at the tribal level. (Tr. 773.) The term "nation" was coined by non-Indians to facilitate treating with the Indians. (Tr. 101.) Treaties, after all, were used to memorialize agreements between foreign countries. The analogue was applied to agreements between the United States and Indian until 1871 when it was outlawed by Congress. (25 U.S.C. 71) The Indians usually referred to themselves as "the People." (Tr. 101.)

The treaty minutes also reflect that some Ottawa bands from the Lower Peninsula did not want to sell their land while the Indians in the Upper Peninsula were more willing to sell. (Tr. 178.) The treaty commissioners tried to use the Chippewa's willingness to sell to shame the Ottawas into agreeing to a cession. (Tr. 178-79; Ex. P-17A, pp. 10-11.)

Interpreters, many of whom were inefficient, were always required during treaty negotiations because the Indians, with only minor exceptions, did not speak English. Of course, they could not read or write English either and those signing the treaty did so with a mark and not a signature. (Tr. 180.) In 1838 Schoolcraft commented on the incompetence of interpreters as follows: "The department is very much in the hands of ignorant and immoral interpreters, who frequently misconceive the point to be interpreted. Could we raise up a set of educated and moral men for this duty, the department would stand on high grounds." Personal Memoirs, p. 583, cited in Schmeckier, The Office of Indian Affairs, Its History, Activities and Organization (1927), p. 59.

The Indians referred to the treaty commissioners as "Father" which was a sign of respect. (Tr. 187.) They saw human relations in very personal terms (Tr. 187), and the term "Father" also signified the Indians' understanding that the treaty commissioners were authority figures. The Indians expected them to look out for Indian interests, as they were obliged to do as trustees for the Indians.

The 1836 treaty minutes also reveal an important matter which must not be overlooked. Discussions at the large sessions were concerned with generalities and concepts only. Each band designated its escort to sit down and formulate the actual treaty language and provisions out of the presence of the Indians. The escorts, with the sole exception of Augustus Hamelin, were all traders with a substantial pecuniaryinterest in seeing that the treaty negotiations were consummated. (Ex. P-17A, pp. 13-14; Tr. 183-87.) Unfortunately, there are no records reflecting the nature of these closed door drafting sessions. Dr. Tanner testified:

. . . but it does appear that the Treaty was actually formulated when the traders got together. There is very little discussion in these Treaty Minutes, if any, about the actual provisions of the Treaty that was later presented to the Indian people, but there is no record of what transpired when the group of Indian traders were together in closed session and emerged with 13 articles of a Treaty that was presented to the Indians to sign.

(Tr. 183-84.)

The language in the Treaty of 1836 is the language of Henry Schoolcaft (Tr. 183, 1367) From an examination of the transcript it can be determined that he was a subtle, invidious and insidious negotiator who convinced the Indians to trust him in these dealings. (Ex. P-17.)*

[*Schoolcraft's behavior as a negotiator is also shown in another Michigan treaty . During the negotiations of an 1837 treaty with the Saginaw Chippewas Schoolcraft met an impasse. The Indians would not sign unless the treaty granted 640 acres to a doctor who served them during a smallpox epidemic. It did not: they refused to sign and left. Schoolcraft later recalled them and assured them the proposed version of the treaty contained the provision. They signed on the basis of this representation. It still did not. History of Saginaw County (1881) p. 157.]

In shaming the reluctant Chippewas, Schoolcraft evidenced his disdain for the Indians' intentions and interests. The Ottawas declared: "We have decided we don't want to sell our land at all." To this Schoolcraft responded: "Well all right. I will deal with the Chippewa, and then they will go home with presents, and you will go home with nothing and you will all be ashamed." (Tr. 179.) Quite simply, he relied upon fraud and duress. (Tr. 493-96.) Judging from the amount of territory which they ceded to the United States, and the paltry sum which they received in exchange [the price per acre of ceded land happens to coincide with the price traders charged per quart of whiskey at the time. (Tr. 245.)], it is probable that when the Ottawa and Chippewa Indian Chiefs signed the Treaty of 1836, they were under the influence of alcohol and did not know what they were doing. Accounts by Henry Schoolcraft and others indicate that these Indians were no longer rational when the whites made alcohol available to them.

It is the use of ardent spirits, however (an article which is freely supplied), that constitutes their chief bane, converting that which would otherwise be a season of plenty and good humor, into a gloomy and revolting scene of riot and drunkenness, followed not infrequency by disease, and sometimes by death. This is not the whole . . . of the evil. The facility with which the Indians part with their money becomes tile secret motive of their being advised to call on the agents of the Government for their vested funds; and they thus become dupes of the artful and designing. (D. Ex.252, p.347.) (Emphasis supplied.)

Could ardent spirits be kept from these unfortunate beings, it would be unnecessary ever to remove them.... A considerable number have joined chat church, and appear to walk orderly, but some of the heathen portion of these bands are much degraded by the baneful effects of whiskey. They [sic.] American Fur Company, however, and some other respectable traders in that vicinity, have now determined to deal no more in spirituous liquors themselves, and are disposed to give every aid they can to the Government to put a stop to this nefarious traffic. (D. Ex.269, p.408.) Sir: I have the honor to report to you that the condition of the Indians at this sub-agency has been better than during the past year. There have been few instances of intoxication, and a greater disposition to provide for their families was evinced by many. (D. Ex.269, p.411.)

In The Oxford History of the American People, Morison describes the common practice at treaty signings: "The assent of the Indians was often merely nominal: federal commissioners bribed important chiefs and, if necessary, got them drunk enough to sign anything."(At 446.) This practice was not foreign to Michigan treaty negotiations nor to the principals responsible for the 1836 treaty. Lewis Cass, Secretary of War in 1836, negotiated the Treaty of Saginaw in 1819 and supplied 5 barrels of whiskey to Indians on the day of the signing. F. Dustin, The Saginaw Treaty of 1819, 17 (1919). One of the traders representing the Indians in Washington in 1836 had engaged in extensive liquor trade with the treaty area Indians, claiming-approximately $16,000 debt for liquor at the time. (Tr. 1621-23.) This man, Drew, and Rix Robinson, another of the escorts, were identified by Robert Stuart as the two men who were necessary for the success of the treaty negotiations. (Tr. 142.) In turn, Robert Stuart and Rix Robinson claimed debts for liquor on their own behalf or on behalf of the American Fur Co. (D. Ex. 312, pp. 40, 48, 50, 55.) It is unlikely the long-standing practice of supplying liquor to Indians stopped abruptly when these traders arrived in Washington, motivated as they were by the prospect of collecting thousands of dollars of purported debts created over a period of years. Use of liquor was one vehicle of the peonage they exercised over the Indians.

The convergence of such