Full opinion text
OPINION AND ORDER JAMES E. DOYLE, District Judge. These three cases all require a determination of the property interests and hunting and fishing rights of the Chippewa Indians in northern Wisconsin. In varying degree, all involve interpretation of treaties between the Chippewa and the United States in 1837, 1842 and 1854, as well as an executive order issued in 1850. United States v. Bouchard is a criminal proceeding brought pursuant to 18 U.S.C. § 1165. The United States charges that defendant trespassed upon a waterway belonging to the Bad River Tribe and held in trust by the United States, for the purpose of fishing. Defendant contends that the waterway does not belong to the Indians or the United States, but became the property of the State of Wisconsin upon its admission to the Union in 1848. Plaintiff argues that the rights granted to the Chippewa in the 1842 treaty prevented the State’s acquisition of title to the waterway; alternatively, that the 1854 treaty validly granted the Bad River Tribe exclusive use of the waterway at issue. United States v. Ben Ruby and Sons, et al. is a civil action brought by the United States for a declaratory judgment that it holds title in fee to three sections of land for the benefit of the Lac Courte Oreilles Band, and that none of the defendants enjoys any interest in these sections. Each section is a section 16. The 1846 Act of Congress enabling Wisconsin to achieve statehood granted to the prospective State for school purposes every section 16 “not otherwise disposed of.” The United States argues that at the time the State’s title might have vested pursuant to the 1846 Act, the sections 16 at issue had been “otherwise disposed of” by virtue of the Indians’ right to occupy those lands pursuant to the treaties of 1837 and 1842. The State and the other defendants, whose claimed interests depend upon State grants, argue that the Indians’ right to occupy the lands was terminated by a Presidential order in 1850, allowing the lands to pass to the State. The effect of executive action in 1873 finally defining the boundaries of the Lac Courte Oreilles reservation is also in dispute. In Lac Courte Oreilles Band of Lake Superior Chippewa Indians, et al. v. Voigt, et al., the Indians seek a declaratory judgment that they have the right, pursuant to the treaties of 1837 and 1842, to hunt and fish on non-reservation lands in northern Wisconsin free from State regulation. Defendants argue that any such right was extinguished by the executive order in 1850, or by the 1854 treaty. A treaty between the United States and an Indian tribe must “be construed as the Indians would have understood it . . . as disclosed by the practices and customs of the Indians at the time the treaty was negotiated . . . and by the history of the treaty, the negotiations that preceded it, and the practical construction given the treaty by the parties . . . .” United States v. Top Sky, 547 F.2d 486 at 487 (9th Cir. 1976). Accordingly, in an effort to construe the treaties at issue in the appropriate context, I have made extensive findings of fact, as hereinafter set forth under the heading “Facts.” Not all of these findings are relevant to all three cases to which this consolidated opinion is addressed, but each finding is considered relevant to one or more of the three cases. Facts The Chippewa Indians settled in what is now northern Wisconsin and Minnesota during the latter part of the seventeenth century. They lived in small bands throughout the territory, and made their living by hunting, fishing, and harvesting wild rice and maple sap. The Lake Superi- or Tribe lived in the northern part of their territory along the Lake Superior shore; the Mississippi Tribe lived farther south. The Chippewa’s land became a part of the United States with the establishment of the Northwest Territory in 1787. Significant numbers of white people began to settle in the territory, and Wisconsin was established as a separate territory in 1836. During approximately the first half of the nineteenth century, the federal government’s Indian policy was to buy Indian lands where white settlement was advancing, and to remove the Indians to places farther'west. Pursuant to that policy, Wisconsin Territorial Governor Henry Dodge was authorized in 1837 to negotiate a treaty with the Chippewa Indians for the purchase of some of their Wisconsin lands. The appropriations act for the Indian Department, dated March 3, 1837, included $10,000 for “holding treaties with the various tribes of Indians east of the Mississippi River, for the cession of lands held by them and for their removal west of the Mississippi. . . .” On May 13, 1837, the Office of Indian Affairs wrote to Treaty Commissioner Dodge about the government’s purposes in negotiating a treaty. The letter noted that the land was valuable for its pine timber and that a treaty would open the territory for white settlement. The notes of Verplanck Van Antwerp; secretary of the treaty council, indicate that when all of the expected Indian chiefs had arrived at the council grounds in July, 1837, Commissioner Dodge told them that the government wished to buy a portion of their lands, and showed them a map of the desired land. He explained the map thoroughly, and told the Chiefs that the area was barren of game and not good for agriculture, but it “abounded in pine timber, for which their Great Father the President of the United States wished to buy it from them, for the use of his white children. The next day, the Indians replied through their spokesman Ma-ghe-ga-bo. He told Commissioner Dodge the Chiefs wanted to reserve the streams in the area and the maple trees to collect sap, as well as the right to hunt in the lands. He stated that the Indians would like annuities in money and goods for sixty years, saying that at the end of that time, their grandchildren could negotiate for themselves. He also asked for provisions for the half-breeds and traders. He pointed' out 19 Indian villages within the desired land. Finally, all of the chiefs who agreed to selling the land arose, and Ma-ghe-ga-bo said that the Indians agreed to grant the government the land. Commissioner Dodge responded, saying that the “Great Father” never buys land for a term of years, but that he would agree on behalf of the President to grant the Indians the “free use of the rivers, and the privilege of hunting upon the lands you are to sell to the United States during his pleasure. If you sell these lands, you must sell them as all the other nations of Indians have done. On the next day, Aish-ke-bo-gi-ko-she spoke on behalf of the Chiefs, saying: Your children are willing to let you have their lands, but they wish to reserve the privilege of making sugar from the trees, and getting their living from the Lakes and Rivers, as they have done heretofore, and of remaining in [the] country. It is hard to give up the lands. They will remain, and can not be destroyed — but you may cut down the trees, and others will grow up. You know we can not live, deprived of our Lakes and Rivers; There is some game on the lands yet; and for that reason also, we wish to remain upon them, to get a living. Sometimes we scrape of the trees and eat of the bark. The Great Spirit above, made the Earth, and causes it to produce, which enables us to live. Commissioner Dodge replied in part: “I will make known to your Great Father, your request to be permitted to make sugar, on the lands; and you will be allowed, during his pleasure, to hunt and fish on them. It will probably be many years before your Great Father will want all these lands for the use of his White Children.” The treaty proceedings concluded with discussions about annuities and provisions for half-breeds and traders; then Commissioner Dodge had the treaty read to the Indians, and it was signed. Among the Indians signing the 1837 Treaty of St. Peter’s were Chiefs from LaPointe and “Lake Courteoville.” The accounts of what was said, of course, are only of what was understood by the white men. Van Antwerp commented after one particularly clumsy passage in his notes: “This of course is nonsense — but is given literally as rendered by the Intrepeters [sic] who are unfit to act in that capacity. I presume it to mean. . . . ” The Treaty of 1837 states in Article 1 that the Chippewa nation of Indians “cede to the United States all that tract of country” described in the article. The United States agreed to pay annuities in the form of goods and money, to distribute money to half-breeds, and to pay some Indian debts to traders. Article 5 states: “The privilege of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied [sic] to the Indians, during the pleasure of the President of the United States.” The present Lac Courte Oreilles reservation is within the territory ceded by the 1837 treaty. On March 3, 1841, Congress appropriated $5,000 for the expenses of negotiating a treaty to extinguish Indian title to lands in Michigan. At least some of the Indian title to Michigan lands was held by Chippewa bands. In a letter dated July 27, 1842, Robert Stuart, Superintendent of the Michigan Indian Agency wrote to the Secretary of War that since the March, 1841 appropriation it had been learned that the mineral district Congress wished to acquire extended beyond northern Michigan into Wisconsin. He recommended purchase of the Indian territory in northern Wisconsin, as well as Michigan, pointing out that “the main importance of immediately acquiring this territory, is owing to its supposed great mineral productivity. . . . ” Stuart also noted that it would not be necessary to remove the Indians in the ceded area until the land was required for white settlement. On August 1, 1842, Stuart was appointed commissioner to negotiate the treaty with the Chippewa. His instructions from the Office of Indian Affairs stated that he could negotiate for cession of lands west of Michigan, and stressed the importance of gaining the mineral lands as well as the importance to commerce of controlling the south shore of Lake Superior. Although Indians might have to remove from specific mineral lands immediately, the instructions said, general removal from the territory would not take place for a “considerable time.” In his annual report to the Bureau of Indian Affairs dated October 28, 1842, Stuart reported that he had met with the Chippewa at LaPointe and concluded a treaty whereby the Chippewa agreed to sell all of their lands between Lake Superior and the Mississippi. He reported that the mineral district was “extensive and valuable” and that the fisheries along the shore and islands of Lake Superior were plentiful “and must at no distant period become a considerable source of revenue to our citizens. . . . ” He also reported that the Lake Superior tribe had feuded with the Mississippi tribe about annuities under the 1837 treaty; therefore the new treaty arranged for a sharing of annuities under both treaties. In the 1842 treaty, the Chippewa of the Mississippi and Lake Superior ceded to the United States all the country described in the treaty, north of the 1837 cession. Article II states: The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States, and that the laws of the United States shall be continued in force, in respect to their trade and intercourse with the whites, until otherwise ordered by Congress. Articles III and IV pertain to annuities, provisions for half-breeds, and the lands to which the Indians would remove. Article V points out that the land ceded by the 1837 treaty and the 1842 treaty have been understood as belonging in common to both the Lake Superior and Mississippi Chippewa and that the Lake Superior Chippewa had been denied participation in the 1837 treaty annuities. It provides that each tribe will share equally in the annuities under both treaties. Article VI states: “The Indians residing on the Mineral district, shall be subject to removal therefrom at the pleasure of the President of the United States.” The present Bad River reservation is within the territory ceded by the 1842 treaty- The December 5,1842, report on the treaty by the Commissioner of Indian Affairs to the Secretary of War stated that the treaty resulted in acquisition of land, minerals, and command of the south shore of Lake Superior. The report of the Superintendent of the Wisconsin Indians to the Commissioner of Indian Affairs in November, 1843, pointed out that exclusive possession of the Lake Superior shore was commercially important and would be more so as settlements and mineral trade expanded. White settlers began moving into the ceded territory very soon after the treaty was signed. In a letter dated August 1, 1843, the LaPointe sub-agent for Indian Affairs reported to the Wisconsin Territorial Governor that whites had settled on principal rivers and thoroughfares, and were selling whiskey to the Indians. A report to the Secretary of War on November 1, 1843, showed that licenses had been issued for mineral exploration in the ceded area. Copper mining along the southern shore of Lake Superior boomed in the 1840’s and 1850’s. On August 6, 1846, Congress enacted a law to enable Wisconsin to form a constitution and establish a state government. The act provides in Section 3 that the navigable waters of the state would be “common highways, and forever free,” and that the state would be admitted to the Union “on an equal footing with the original States in all respects whatsoever.” Section 7, Part 1 provides that within the public lands lying within the boundaries of the prospective state, section 16 in every township would be granted to the State for the use of schools, except “where such section has been sold or otherwise disposed of.” No part of the sections 16 in Township 39 North, Range 7 West, Township 39 North, Range 8 West, and Township 40 North, Range 8 West, all in the Fourth Principal Meridian, Sawyer County, Wisconsin, had been sold by the United States to anyone at any time through March 1, 1873. They were public lands. Wisconsin was admitted to statehood by Act of Congress in 1848. At least as early as 1846, the Commissioner of Indian Affairs began suggesting in his annual reports that the Chippewa be removed to the land set apart for them west of the Mississippi. In a report dated November 30, 1846, the Commissioner promoted removal, saying that in their then widely dispersed state, little could be done to give the Chippewa “the benefit of the benevolent policy of the government for the improvement of the Indian race.” A change in the disposition of the tribe, and its members’ intellectual, moral and social development could only be brought about, he wrote, by concentrating them “within fixed and reasonable limits,” where “game will soon become scarce, and they will be compelled gradually to resort to agriculture and other pursuits of civilized life. . . . ” Similarly, the Superintendent of Indian Affairs for the Territory of Wisconsin wrote in 1846 that the Chippewa’s “condition as a people” would be improved by removal. And the LaPointe sub-agent reported in 1846 that removal would be a step toward the improvement of the Chippewa. He also reported that numerous whites had settled on the lower Mississippi and were selling whiskey to Indians in that area, causing “depredations upon the property of the settlers, and difficulties between individuals, whites and Indians.” The Commissioner of Indian Affairs took steps during the summer of 1847 to achieve his goal of removal. Two government agents were dispatched to seek Chippewa agreement to a plan of resettlement, but those efforts were unsuccessful. On November 30,1847, the Commissioner of Indian Affairs wrote in his annual report: It would be far better for [the Chippewa] if they were all concentrated in their country west, where they could be almost effectually protected from the pernicious influences now operating to bring down upon them misery and degradation.” The 1847 report if the LaPointe sub-agent records two incidents of violence between the Chippewa and white settlers. In one, the Indian was acquitted of murder on the ground of self defense; in the other, the agent investigated and concluded that the whites were at fault. He concluded generally: I fear, that in our accounts of outrages and crime, we have done the Chippewas, if no other tribe, injustice in many cases; for I find on comparing them with almost any civilized community of the same size, for four years, there will be found the smaller aggregate of crime on the part of the savage; and every crime of any magnitude which has been committed may be traced to the influence of the white man. In the 1848 annual report of the Commissioner of Indian Affairs, he reported generally on progress toward the Bureau’s goal of moving the Indian population to lands west of the Mississippi River. He noted that most Wisconsin Indians had been removed, leaving only the Chippewa who “are remaining by sufferance on lands which, looking only to their own benefit, they should soon be required to remove.” While he does not explain the basis of that recommendation, much of his report deals with the advantages of confining Indian tribes to smaller grounds than they had previously roamed, forcing them to turn to agriculture for subsistence and making it easier for government officials to “civilize” them. He also pointed out that such a policy promotes efficiency, requiring few agents to supervise more concentrated groups of Indians. The LaPointe sub-agent’s 1848 report mentions no conflicts between Indians and whites. In 1849, the Commissioner of Indian Affairs again recommended removal, as well as purchase of the remaining Chippewa lands east of the Mississippi River. The two reasons given were “for tranquility of citizens who suffer annoyance and loss from depredations” and for the “permanent welfare” of the Indians “where, confined within narrow limits, they will be compelled as the game becomes scarce, to give up the chase, and their wild and unsettled mode of life, and to resort to agriculture and other civilized pursuits. In such a situation, too, the Government . . . would have a better opportunity effectively to bring to bear upon them its policy and measures for the civilization of our Indian tribes. ...” A third reason for removal is suggested by the Commissioner’s comment that removal and purchase of the lands east of the Mississippi would effectively accomplish “the great policy of transplanting the Indian tribes from the midst of our white population and within state limits ... to new countries specifically set apart for them.” The report of the LaPointe sub-agent to the Commissioner of Indian Affairs in 1849 notes some “disturbances and outrages” between Indians or between whites and Indians on the St. Croix and Chippewa rivers, and at Fond du Lac and St. Croix Falls. He refers to a separate report on the disturbances, which I have not seen. The sub-agent expressed the opinion that sales of whiskey to the Indians by whites was the cause of most difficulty between the two races, and acknowledges the possible validity of the Indian complaint that when Indians were guilty of acts against whites they were punished, while whites who committed crimes against Indians went free. He concluded that the “propriety of removing those bands ... is becoming every year more and more manifest.” On February 7, 1849, a petition by the Lake Superior Chippewa was introduced in the United States Senate and House of Representatives. The Indians sought from Congress a “donation of 24 sections of land, covering the graves of our fathers, our sugar orchards, and our rice lakes and rivers, at seven different places now occupied by us at villages. . . .” The places listed included “LCotore” and “LaPoint.” The petitioners stated that they sought the land for the purposes suggested, as well as for permanent cultivation and permanent homes, and expressed a fear of being driven north of the British line or west among wandering, “vicious” tribes. On October 11, 1849, the Legislative Assembly of the Minnesota Territory passed a joint resolution requesting the President to remove the Chippewa to an unsettled area “to ensure the security and tranquility of the white settlements in an extensive and valuable district of this Territory.” The Commissioner of Indian Affairs and the Secretary of the Interior recommended a Presidential order of removal in 1850, without stating their reasons, and the President of the United States issued an executive order on February 6,1850, revoking the privileges of occupancy granted to the Indians in the Treaties of 1837 and 1842, and ordering them to remove to Chippewa lands in Minnesota. The order states: The privileges granted temporarily to the Chippewa Indians of the Mississippi, by the fifth article of the treaty made with them on the 29th of July 1837 “of hunting, fishing and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded” by that treaty to the United States, and the rights granted to the Chippewa Indians of the Mississippi and Lake Superior by the second article of the treaty with them of October 4th, 1842, of hunting on the territory which they ceded by that treaty, with the other usual privileges of occupancy until required to remove by the President of the United States, are hereby revoked and all of the said Indians remaining on the lands ceded as aforesaid, are required to remove to their unceded lands. Armstrong reported the Indians’ surprise in his book: No conversation that was held at this time [during the 1842 treaty negotiations] gave the Indians an inkling or caused them to mistrust that they were ceding away their lands, but supposed that they were simply selling the pine and minerals, as they had in the treaty, of 1837, and when they were told in 1849, to move on and thereby abandon their burying grounds — the dearest thing to an Indian known — they began to hold councils and to ask each as to how they had understood the treaties, and all understood them the same, that was: that they were never to be disturbed if they behaved themselves. Messengers were sent out to all the different bands in every part of their country to get the understandings of all the people, and to inquire if any depredations had been committed by any of their young men, or what could be the reason for this sudden order to move. This was kept up for a year, but no reason could be assigned by the Indians for the removal order. Early Life Among the Indians, supra at 12. Armstrong’s report that the Indians learned of no depredations which could have been the reason for removal is confirmed by a letter from the Chippewa Indian Chiefs to the Commissioner of Indian Affairs on November 6,1851, in which they stated in part: It is true, our Father that some of our countrymen have had trouble with the whites; but this is not true of us who live on the Lake. We have never shed the blood of the Whites, nor killed their cattle; nor done them injury; and we are not in their way. And why is [it] that we now hear this order to remove? We do not understand it. On June 30, 1850, Chippewa Chief Hole-in-the-day wrote a letter to the white people which was published in a Minnesota paper. He said the Indians were told by the treaty commissioner in 1842 that they would not be removed for at least 20 years, and probably never. The commissioner had also said that the Great Father had no need of the land but wanted only the copper on it, the Chief continued. “It was on the strength of this promise, and nothing else, that our chiefs signed the treaty,” he concluded. Similarly, in a letter to the Commissioner of Indian Affairs dated January 21, 1851, the Secretary of the American Board of Commissioners for Foreign Missions wrote that during the 1842 treaty negotiations: The Indians were told that they could remain where they were for an indefinite period, except so far as they might be required to give place to miners; and the Commissioner said to them. “You and I shall never see the day when your Great Father will ask you to remove.” Had it not been for this assurance, it is presumed, the treaty would never have been consummated. The Secretary added that he could foresee no danger of an “unpleasant collision” with white settlers if the Indians were allowed to remain. This version of the treaty is also corroborated by C. Mendenhall, a miner who wrote a letter to the Commissioner of Indian Affairs on January 6,1851. He said that he was present at the 1842 treaty council, and that the treaty commissioner told the Indians there that they would be permitted to occupy their lands as long as they behaved well. The commissioner illustrated the point by saying, Mendenhall reported, “the purchase he wished to make was like buying a pack of furs of one of them, paying for it, then handing it back, for the Indians own use.” Mendenhall added that he was aware of only one minor depredation of whites by Indians three years earlier when a group of Indians had killed a pair of oxen. He said the miners considered the Indians an advantage, not a nuisance. W. W. Warren, a farmer who was employed by the government to teach farming to the Indians, wrote to Indian Superintendent Alexander Ramsey on January 21, 1851, saying he had recently visited a number of Indian villages and attended councils about the removal order with the chiefs. He reported great dissatisfaction with the removal order among the Chippewa. The Indians had understood the treaty commissioners to say that the government was interested only in copper, not their lands, and they they would not be removed during the term of their annuity, and probably never. “It was under this verbal understanding and only this, that the treaty was signed by the Chippeway’fsic] Chiefs,” he concluded. Finally, Indian Agent Henry Gilbert wrote in his 1853 report to the Commissioner of Indian Affairs that the removal order had caused great fear and distrust among the Chippewa and was impeding efforts to help them. He explained: The Indians informed me that when the [1842] treaty was made the Commissioner assured them that the clause providing for their removal was only inserted as a mere matter of form — that a compliance with it would never be urged or insisted upon by the Government and that their annuity would always be paid regularly at LaPointe. The Interpreter Mr. Johnson who officiated on that occasion was present with me and corroborated their statement. I saw several other persons who were present at that time and they all concur in saying that without that assurance the Indians would never have signed the Treaty. The memory of an Indian is very tenacious. He treasures up everything that is said by a Government officer and regards his statements and verbal assurances as equally binding upon the Government as the formal stipulation of a Treaty. In an effort to achieve the removal to western lands, the place for payment of the Chippewa’s annuities was changed from LaPointe to Sandy Lake in the Minnesota Territory in late fall, 1850. The trip caused great hardship to the Indians; many died while waiting for the payments at Sandy Lake, or while returning to their homes afterward.-- In a letter dated February 28, 1851, Indian Sub-agent Watrous wrote to Minnesota Territorial Governor Ramsey suggesting a plan of making annuity payments in early spring and late fall, in the hopes of inducing the Indians to stay at Sandy Lake rather than returning to their ceded lands in Wisconsin. Watrous was subsequently appointed superintendent of removal; Reverend William Boutwell was appointed assistant superintendent of removal. On August 25,1851, Indian Commissioner Lea of the Office of Indian Affairs sent a telegram to Superintendent Watrous, stating: “Suspend action with reference to the removal of Lake Superior Chippewas for further orders.” On September 5, 1851, Commissioner Lea confirmed that the suspension had been ordered by the Secretary of the Interior until the President could decide whether the Indians would be permitted to remain on their lands, and that he had sent a telegram so informing Superintendent Watrous. On September 18, 1851, Assistant Superintendent Boutwell wrote to Governor Ramsey, reporting on his efforts to gather the Chippewa at LaPointe and to begin their removal to Minnesota. He detailed a number of problems encountered, including Indian insistence that they had a right to remain on the ceded territory, but reported that a compromise was achieved whereby the annuity would be paid at Fond du Lac, that the Indians would be fed for one year and aided in building and establishing agriculture, and that the agent would recommend that a delegation of Chiefs be given permission to visit Washington, D. C. Boutwell noted that he had received a telegraphic dispatch on September 3 ordering him to suspend removal. However, he comments: “The purport of this order remains a secret, and as the Indians are ready to go I shall start them.” Agent Watrous submitted his annual report, dated September 20,1851, to Governor Ramsey, in which he stated that the removal commenced in May had met “many adverse interests, and counter currents to contend against,” but that the entire removal had been accomplished with just the exception of a few small bands. He added that the muster rolls will show when completed that 3000 Chippewa had been removed, while 900 remained on the ceded lands. Finally, Watrous mentions: Reasonable apprehensions may be entertained of those that have removed returning to their old homes, and that the citizens of Wisconsin and Michigan will again be annoyed by their depredations and plunder. To guard against this, a military post located at the head of Lake Superior, or a treaty (as before alluded to) is believed indispensable. Superintendent Ramsey reported Watrous’s observations to the Commissioner of Indian Affairs in an annual report dated November 27, 1851. Chippewa Chief Buffalo wrote a letter to the Commissioner of Indian Affairs dated November 6, 1851, outlining the Indians’ view of the 1850-51 removal efforts. He complained that the 1850 winter annuity payments at Sandy Lake were late and provisions were poor, causing hardship and death among the Indians both at Sandy Lake and on the difficult trip home. He also complained of a removal to Fond du Lac during the summer of 1851 where the Indians again found poor provisions, and returned again to their homes. He asked that all future payments be made at LaPointe. On December 15, 1851, Agent Watrous wrote to Superintendent Ramsey, saying “As active operations have now ceased in the removal of the Chippewas, I deem it proper to make a general statement, embodying the expense from the time the removal commenced, its results, and termination.” He stated that the enrolling agent showed a roll of 1100 removed Indians and that others were “daily coming in.” He added that if the policy of paying annuities only to those who leave their lands were continued, he would predict that 1500 to 1600 more would remove of their own accord. The Indians were greatly dissatisfied and disgusted with the provisions given them during the winter of 1851, however, and a group of Chiefs and braves left on April 5, 1852, with Benjamin Armstrong to go to Washington to see their “great Father.” Chief Buffalo dictated a memorial to President Fillmore on June 12, 1852. In it, he again explained his understanding that the treaty annuities were always to be paid at LaPointe, and that “if we were good men, that we should not only be permitted to remain on our lands for fifty, but for one hundred years to come, and these were the words of your Commissioner.” He further stated that the Chippewa had been peaceable to white men, and had not been in their way. He beseeched the President to order his agents to comply with the treaty of 1842, as the Indians understood it. Armstrong reported that the delegation did meet with the President and explained their grievances about the removal. He said that President Fillmore told the delegation that he would countermand the removal order and that payments would be made at LaPointe as before. The President gave Chief Buffalo a written instrument explaining the promises he had made, and the delegation returned home. There is no current record of the President’s contravention of the removal order that I am aware of. The Indians left Washington for their homes in late June, 1852. Armstrong reported that the annuities for 1852 were paid at LaPointe, in mid-October. During that assembly for the payments, the President’s letter was explained to the Indians and Chief Buffalo told them there was yet one more treaty to be made with the President, “and he hoped in making it they would be more careful and wise than they had heretofore been and reserve a part of their land for themselves and their children.” Early Life Among the Indians, supra at 32. In his October 26, 1852, report to the Commissioner of Indian Affairs, however, Superintendent Ramsey said that the Chippewa had been told that there would be no further payment of annuities upon ceded lands, and that a rigid adherence to paying annuities only to those who remove was the best way of accomplishing a removal which had met substantial resistance. Armstrong reported that the 1853 and 1854 annuity payments were also made at LaPointe. The LaPointe location of the 1853 annuity payments is corroborated by the December 14, 1853, report of Indian Agent Henry Gilbert. Gilbert’s report stated that he met with the Indians several times, learning that the “great terror of their lives” was the removal order, and that they would probably “sooner submit to extermination than comply with it.” Gilbert also reported that the Indians and the whites in the area were living peacefully and harmoniously with one another. In the annual report of the Office of Indian Affairs dated November 25, 1854, the Commissioner stated that a few small bands of Lake Superior Chippewas “still occupy their former locations on lands ceded by the treaties of 1837 and 1842. It has not, thus far, been found necessary or practicable to remove them.” The Commissioner also stated that “it may be necessary to permit them all [the Chippewas] to remain, in order to acquire a cession of the large tract of country they still own east of the Mississippi, which, on account of its great mineral resources, it is an object of material importance to obtain. They would require but small reservations; and thus permanently settled, the efforts made for their improvement will be rendered more effectual.” The Commissioner’s suggestion of establishing reservations for the Chippewa was consistent with a change in federal Indian policy in the 1850’s, from one of removing Indians to western lands to one of setting aside small reservations for their permanent homes. Additionally, the reservation idea appeared to be acceptable to the white citizens of Wisconsin. On February 27, 1854, the Wisconsin legislature sent a memorial to the President and Congress, stating: “MEMORIAL to the President and Congress of the United States, relative to the Chippewa Indians of Lake Superior. “To His Excellency the President of the United States, and to the Senate and House of Representatives in Congress assembled: “The Memorial of the Legislature of the State of Wisconsin respectfully represents: “That the inhabitants of the counties of La Pointe and Douglass have nearly unanimously signed a petition showing to your memorialists, that the Chippewa Indians in the region of Lake Superior are a peaceable, quiet, and inoffensive people, rapidly improving in the arts and sciences; that they acquire their living by hunting, fishing, manufacturing maple sugar, and agricultural pursuits; that many of them have intermarried with the white inhabitants, and are becoming generally anxious to become educated and adopt the habits of the ‘white man.’ “Your memorialists would therefore pray His Excellency, the President of the United States, to rescind the orders heretofore given for the removal of said Indians, and that such orders may be given in the premises, as shall secure the payment to said Indians, of their annuities at La Pointe, in La Pointe county on Lake Superior, that being the most feasible point therefor. “And your memorialists also pray that the Senate and House of Representatives in Congress assembled will pass such laws as may be requisite to carry into effect such design and orders; and to encourage the permanent settlement of those Indians as shall adopt the habits of the citizens of the United States. “And your memorialists firmly believing that justice and humanity require that such action should be had in the premises, will ever pray, etc. “Approved, February 27, 1854.” In a letter dated August 11, 1854, the Indian Affairs Commissioner directed Agent Gilbert to attempt to reach a treaty with the Chippewa to extinguish their title to lands in Minnesota and Wisconsin. The letter authorized Gilbert to reserve 748,000 acres for the permanent homes of the Indians in areas which did not include mineral lands and were out of the path of white settlement. Armstrong wrote that when the Indians were notified that the government wished to make another treaty with them at the time of the 1854 annuity payments, the Indians met and discussed what they would require as the price of ceding their western lands to the government. They decided, Armstrong said, “that no one would sign a treaty that did not give them reservations at different points of the country that would suit their convenience, that should afterwards be considered their bona fide home.” Armstrong’s statement is corroborated by the report of Commissioner Gilbert, dated October 17, 1854, in which he stated: We found that the points most strenuously insisted upon by them were first the privilege of remaining in the country where they reside and next the appropriation of land for their future homes. Without yielding these points it was idle for us to talk about a treaty. We therefore agreed to the selection of lands for them in territory heretofore ceded. During the treaty negotiations, Armstrong reported that Chief Buffalo requested that Armstrong be the interpreter, expressing an opinion that interpreters at other treaty negotiations had made mistakes. Armstrong recorded Chief Buffalo saying, in part: We do not want to be deceived any more as we have in the past. We now understand that we are selling our lands as well as the timber and that the whole, with the exception of what we shall reserve, goes to the great father forever. Early Life Among the Indians, supra at 38. The Treaty of LaPointe, concluded September 30, 1854, provided that the Chippewa ceded to the United States described land west of Lake Superior. In Article 2, the United States agreed “to set apart and withhold from sale, for the use of the Chippewas of Lake Superior, the following described tracts of land . . . .” A specific area is then described by boundaries for the LaPointe, L’Anse and Viux De Sert Bands. The area reserved for the LaPointe band is the present Bad River reservation. For the other Wisconsin bands, a tract of land “lying about Lac De Flambeau” and a tract “on Lac Court Oreilles, each equal in extent to three townships, the boundaries of which shall be hereafter agreed upon or fixed under the direction of the President,” were promised^. Article 3 of the treaty reserved Presidential discretion to exchange the lands if the reservations were on mineral lands and to make changes in the boundaries of the tracts as “necessary to prevent interference with any vested rights.” Other articles of the treaty set forth terms of annuity payments, provisions for half-breeds and traders, and a prohibition on spiritous liquors. On October 17, 1854, Agent Gilbert reported to the Indian Affairs Commissioner that he had concluded a treaty with the Chippewa at LaPointe on September 30. He reported: We found that the points most strenuously insisted upon by them were first the privilege of remaining in the country where they reside and next the appropriation of land for their future homes. Without yielding these points it was idle for us to talk about a .treaty. We there-' fore agreed to the selection of lands for them in the territory ceded. He described the Bad River reservation as the major Wisconsin reserve, saying it was on land “well adapted for agricultural purposes,” except for about one-third of the area “lying on the Lake Shore [which] is swamp and valueless, except as it gives-them access to the Lake for fishing purposes.” He estimated the total reservation acreage under the treaty at 486,000 acres. The valueless swampland Gilbert referred to is described differently by an historian who studied the 1854 treaty: “Known as the Kakagan Sloughs, it consisted of twelve square miles of wild rice fields alive with fish and nesting waterfowl.” E. J. Danziger Jr. “They Would Not be Moved,” Minnesota History 179 (Spring, 1973). In a letter to the Office of Indian Affairs dated November 10, 1854, Gilbert attempted to estimate the area of the land ceded by the 1854 treaty. He described the western boundary as nearly a straight line about 155 miles in length, the northern boundary as about 135 miles long, and the eastern boundary as nearly connecting the northern and western boundaries, “thus giving us a tract of country nearly triangular.” A small portion of the territory was not included in the triangle, he added, and he estimated the total area at 7,160,000 acres. Armstrong reported in his book that Agent Gilbert discussed the 1854 treaty with the Indians again during the 1855 annuity payments assembly. At that time Gilbert assured them that no white man could live on the reservations or go upon them to take timber, minerals, or anything else, without the permission of the Indians. Although the government continued to encourage the Indians to devote their efforts to agriculture, many continued to roam beyond reservation boundaries throughout the ceded area, hunting, fishing and gathering wild rice. The 1869 Report of the Commissioner of Indian Affairs noted that the Chippewa were living on their reservations only in the winter, and Danziger found that it was not until 1892 that the Commissioner of Indian Affairs could “state assuredly that a majority of the Chippewa of Lake Superior were permanent reservation residents.” E. J. Danziger, supra at 182. A survey of the land in the vicinity of Lac Courte Oreilles was made for the United States government in 1855, and accepted by the Surveyor General on February 20, 1856. In 1859, a special agent was appointed by the Office of Indian Affairs to confer with the Lac Courte Oreilles chiefs to select a tract “equal in extent to three townships” guaranteed them by the 1854 treaty. The letter of instruction stated that the band would be found in the vicinity of the Menomonee and Red Cedar Rivers where they had sojourned from “the reservation provided for them at Lac Courte Oreille,” and that the selection should be made from nine townships which had been reserved from sale and settlement for that purpose. A list of selected lands prepared by the agent was transmitted from the Department of Interior to the General Land Office on October 20, 1859; and the Commissioner of the Land Office subsequently directed an Eau Claire Agency to enter the selections upon the land office books and plats. The selected lands included all of Townships 39 and 40, Range 8; Township 39, Range 7, except sections 22-27 and 34-36; sections 4-9 and 16-18 of Township 38, Range 8; and detached tracts in Township 40, Range 6 and 7. In the document setting forth the selections, the Lac Courte Oreilles headmen • agreed “to use all our authority and influence to induce our people to abandon the lands sold or ceded to the United States by us and our fathers, and to rest with us upon the lands selected by us and described within our reservation and homes.” That selection proved to be unsatisfactory, however, as indicated by a letter to the Secretary of the Interior on February 6, 1865. The writer, Indian Commissioner W. P. Dole, stated that it was difficult for the Indians to define the limits of their reservation because of a number of detached tracts of land. Dole recommended that lands adjacent to the compact portion of the reservation be withdrawn from sale in order to allow the Indians to select lands from that area in compensation for relinquishing the detached tracts of land. The order to withhold the lands from market followed on April 4, 1865. Trouble with uncertain reservation boundaries continued in 1868. Indian Agent Asaph Whittlesey reported to the Commissioner of Indian Affairs that because of disagreements about the location of boundary lines, the Chiefs of the Lac Courte Oreilles were involved in disputes about whether white men were trespassing on the reservation. On December 18, 1872, Indian Agent Clark was instructed by the Commissioner of Indian Affairs to adjust the Lac Courte Oreilles reservation selections to make the reservation as compact as possible. He was specifically instructed “to omit Section 16 of each township from the original reserve as well as from the additional list of February 6, 1865. These sections are claimed by the State as school lands and it [is] thought best to avoid controversy in regard to them.” On February 17, 1873, Agent Clark presented the list of selected lands to the Acting Commissioner of Indian Affairs. The list was subsequently submitted by the Commissioner to the Secretary of the Interior, who approved it on March 1, 1873. The list indicates that a total of 69,136.41 acres were withdrawn for the reservation. It also indicates that no sections 16 were selected for the reservation. There are 23,040 acres in a township; 69,120 acres in three townships. On February 4, 1873, the Secretary of Interior wrote in a letter (addressee unknown) that he was of the opinion that sections 16 in the Lac Courte Oreilles reservation belonged to the State. The Lac Courte Oreilles Tract Book kept at the Great Lakes Indian Agency has an “Allotment Roll” of land owned by individual members of the tribe. None of the lands listed there as belonging to individual tribe members is in a section 16. A number of maps of the reservation made by federal government agencies exclude sections 16 from the reservation lands. The State of Wisconsin issued a patent to Section 16 in Township 39 North, Range 8 West to C. C. Putnam on June 7, 1875. On November 11, 1882, it issued a patent to C. C. Putnam for part of the lands in Section 16 in Township 39 North, Range 7 West. A patent to part of Section 16, Township 39 North, Range 7 West was issued by the state to A. B. McDonnell on August 24, 1883. George B. Burrows received a patent to part of Section 16 in Township 39 North, Range 7 West on January 23, 1885. A patent to part of Section 16, Township 39 North, Range 7 West was given on March 6, 1885, to a private person whose name I cannot read. Herman Greve received a patent to part of Section 16, Township 39 North, Range 7 West on December 11,1884. On June 21, 1937, the United States purchased land in Section 16, Township 40 North, Range 8 West from Johanna and Karl Treziok; the warranty deed was filed on June 28, 1937, in Sawyer County. On December 17, 1936, the United States purchased land from the Chippewa Valley Construction Co. Land in Section 16, Township 39 North, Range 7 West was included in the purchase. And on January 8, 1936, the United States bought land in Section 16, Township 40 North, Range 8 West from J. T. and Harriette Woon. With respect to certain parts of Section 16 in Township 40 North, Range 8 West, and certain parts of Section 16 in Township 39 North, Range 7 West, the record does not disclose whether the state has issued patents or has retained its asserted title. The Bad River and Lac Courte Oreilles Bands are part of the Lake Superior Tribe of Chippewa. United States v. Bouchard, 76-CR-70 This is a criminal proceeding pursuant to 18 U.S.C. § 1165. In the amended information, the United States charges that defendant, without lawful authority and permission, willfully and knowingly went upon land known as the Kagagon Slough, a navigable waterway within the boundaries of the Bad River Indian Reservation, for the purpose of fishing, in violation of 18 U.S.C. § 1165. The amended information charges that by virtue of treaties between the United States and the Lake Superior Tribe of the Chippewa Indians signed in 1842 and 1854, the Kagagon Slough is land belonging to an Indian tribe, held in trust by the United States. Section 1165 states: § 1165. HUNTING, TRAPPING, OR FISHING ON INDIAN LAND Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited. Thus, the amended information rests upon that part of § 1165 which reads as follows: “Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any ... Indian tribe . . . and . . . [is] held by the United States in trust . . ., for the purpose of . fishing thereon . . .” Defendant has moved to dismiss the amended information, citing four reasons: (1) water is not “land” within the meaning of the statute; (2) the slough does not belong to an Indian tribe and is not held in trust by the United States; (3) the Indians do not have an exclusive right to fish in the slough; and (4) § 1165 is unconstitutional and void because the right to regulate fishing is a power reserved to the state by the Tenth Amendment to the Constitution. Because I hold, below, that the amended information must be dismissed on the ground that the slough does not belong to an Indian tribe and is not held in trust by the United States, I will not consider contentions three and four. Defendant’s first contention is that the amended information alleges that defendant was in a boat on a waterway, and that a waterway is not “land” as defined in § 1165. Pointing out that penal statutes should be strictly construed, defendant urges “a common sense interpretation” of the word “land.” I conclude that when “land” is used in the context of § 1165, common sense indicates that it refers to broad areas of earth and water. Congressional intent reflected by the language of the Act is to prevent trespass upon Indian lands for the purposes of fishing, hunting or trapping. Fishing can only be done in water, of course; a person fishing from a boat is trespassing in the same sense as a person fishing from the shore. This common sense interpretation of “land” is corroborated by the technical definition of land in Black’s Law Dictionary, 1019 (4th Ed., 1951), which includes all things of a permanent and substantial nature such as water. See also United States v. Pollman, 364 F.Supp. 995 (D.Mont.1973), in which the court held that the term “land” in § 1165 clearly and unambiguously includes waterways. The remainder of this opinion is directed to defendant’s second contention, namely, that the bed of the navigable waterway upon which defendant was allegedly fishing became the State’s property upon its admission to statehood in 1848 and remains the State’s property today, and thus is not “land that belongs to any , . . Indian Tribe” and “held by the United States' in trust.” The defendant contends that the treaty of 1842 resulted in the United States’ ownership of the navigable waterway at issue; that the United States held that waterway in trust for the future State; that when the territory of Wisconsin became a State in 1848 title to the waterway became vested in the State as trustee for the public; and that any purported grant of navigable waterways to the Chippewa in 1854 by the United States was without authority and a nullity. Plaintiff responds with two contentions: first, that the Chippewa retained beneficial ownership of the land ceded to the United States by the treaty of 1842 and thus the State did not take title to the waterway at issue upon statehood; second, that even if the State did acquire title to the waterway at issue, the United States had sufficient treaty authority to grant exclusive use of the waterway to the Chippewa in 1854. Wisconsin entered the Union “on an equal footing with the original States,” and the original States possessed “. . . the absolute right to all their navigable waters and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.” Martin v. Waddell, 41 U.S. (16 Ped.) 366, at 410, 10 L.Ed. 997 (1842). Assuming that the Chippewa ceded all their rights in the navigable waterways within the boundaries of the ceded area to the United States by the 1842 treaty, it is well settled that the government’s title to the beds of navigable waterways was held in trust for the future State, and upon statehood passed to Wisconsin in trust for the public. Borax, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935); Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913); Shively v. Bowlby, 152 U.S. 1 at 49, 14 S.Ct. 548, 38 L.Ed. 331 (1894). This principle was explained in United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926). The United States had brought suit to clear title to the bed of a lake which had been a navigable body of water in an Indian reservation. After the reservation was terminated and the lands around the lake sold to various settlers, the lake was drained. The issue was whether the bed of the lake belonged to the state or the federal government. The court held (270 U.S. at 54-55, 46 S.Ct. at 198-199): It is settled law in this country that lands underlying navigable waters within a state belong to the state in its sovereign capacity . . . subject to the qualification that where the United States, after acquiring a territory and before the creation of the state, has granted rights in such lands . . . such rights are not cut off by the subsequent creation of the state, but remain unimpaired, and the rights which otherwise would pass to the state in virtue of its admission into the Union are restricted or qualified accordingly. . . . The state of Minnesota was admitted to the Union in 1858 . . and under the constitutional principle of equality among the several states, the title to the bed of Mud Lake then passed to the state, if the lake was navigable, and if the bed had not already been disposed of by the United States. The “disposal” of a navigable waterway which prevents a state from obtaining fee simple title to the water and the land beneath it may either be a transfer of legal ownership, such as the fee simple title given to the Indians in Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), or a transfer of beneficial ownership. In United States v. Finch, 548 F.2d 822, at 827 (9th Cir. 1976), for example, the court held: The United States either transferred beneficial ownership of the bed to the Crow Tribe by the treaties of 1851 and 1868 or retained ownership of the bed as public lands, which passed to the State of Montana upon its admission to the Union. To determine whether beneficial ownership of the lands has been transferred, the Finch court examined the treaties to determine whether they had reserved the riverbed for the exclusive use of the tribe. A similar inquiry into the exclusivity of the Indians’ use was made in Montana Power Co. v. Rochester, 127 F.2d 189 (9th Cir. 1942), and United States v. Pollman, 364 F.Supp. 995 (D.Mont.1973). The propriety of this inquiry is indicated by the Supreme Court’s analysis of the relevant treaty in Holt, supra. In determining that the treaty did not constitute a disposal of the waterbed to the Indians, the court placed considerable reliance upon the fact that there was no attempted exclusion of non-Indians from the navigable waters, but that the Indians’ right was held only in common with the right of white settlers to use the waters. Additionally, an inquiry into exclusivity of use is consistent with the general principle that the federal government cannot hold the same property simultaneously in trust for two conflicting purposes. See also Bennett County, South Dakota v. United States, 394 F.2d 8 (8th Cir. 1968), in which land set aside for exclusive use of the Indian tribe was held not to be “public land” upon which the state could build a highway. Accordingly, I must examine the 1842 treaty to determine whether the Chippewa reserved for themselves exclusive use of the navigable waterways in the ceded area. There is no specific statement in the 1842 treaty about the Indians’ rights in or to the navigable waterways which were within the boundaries of the subject area of the treaty. Based upon language in Holt State Bank, defendant argues that in the absence of a clear indication that the title to the waters was placed in the Indians, such an inference should not be made. In Holt, the court stated that “disposals [of navigable waters] by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” 270 U.S. at 55,46 S.Ct. at 199. However, the Holt standard is drawn from Shively, supra, a case involving a grant of property rights to a private person, and the standard is incompatible with long established and well recognized rules of construction for Indian treaties. In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), a rule of liberal construction in favor of the Indians was established with this comment (31 U.S. at 582): The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction. And in Choctaw Nation v. United States, 119 U.S. 1, at 28, 7 S.Ct. 75, 90, 30 L.Ed. 306 (1886), the court said: The recognized relation between the parties to this controversy, therefore, is that between a superior and an inferior, whereby the latter is placed under the care and control of the former, and which, while it authorizes the adoption on the part of the United States of such policy as their own public interests may dictate, recognizes, on the other hand, such an interpretation of their acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection. The parties are not on an equal footing, and that inequality is to be made good by the superior justice which looks only to the substance of the right, without regard to technical rules framed under a system of munici