Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DIANA E. MURPHY, Chief Judge. This case is about hunting, fishing, and gathering rights in a large territory that the Chippewa Indians ceded to the United States in a 1887 treaty. The area includes the beautiful Minnesota land surrounding Lake Mille Lacs. Although game and fish are not as plentiful there as they once were, the area is highly valued by Indians and other Minnesota people. Many have a love of the woods and lakes of the region, of hunting and fishing, and of harvesting and protecting the natural resources in the area. There is widespread interest in this case within the district, and there are fears about the possible impact of any court decision. The court is respectful of all those before it and of the varying interests in the outcome, but it must be guided in its task of decision by the legal precedents and a fair evaluation of the evidence developed in the record and at trial. The complaint was filed on August 13,1990 by plaintiffs the Mille Lacs Band of Chippewa Indians, a federally recognized Indian tribe, and four enrolled members of the tribe, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley, (collectively the Band) against defendants the State of Minnesota, the Minnesota Department of Natural Resources, and Rod Sando in his official capacity as Commissioner of Natural Resources (collectively the State). Members of the Mille Lacs Band continue to live near Lake Mille Lacs on reservation lands first settled by the Chippewa in 1750 after they defeated the Sioux who had lived there previously. Plaintiffs claim that the State has adopted and enforced natural resource laws and regulations that violate the privilege of hunting, fishing, and gathering guaranteed them by the 1837 treaty. They seek a declaratory judgment that “the privilege of hunting, fishing, and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded ... during the pleasure of the President” continues to exist. Article V, 1837 treaty, 7 Stat. 536 (1837 treaty). They also seek a declaration stating the permissible scope of state regulation of those activities and an injunction prohibiting enforcement of state fish and game laws against members of the Band unless the regulation is within the scope of the declaratory judgment. They do not seek access to private lands or money damages. Jurisdiction is invoked under several statutes: 28 U.S.C. § 1331 (action arises under the Constitution, laws, and treaties of the United States); 28 U.S.C. § 1343(a)(3) and (4) (42 U.S.C. § 1983 action for interference with the exercise of rights under the 1837 treaty, due process rights, and the Supremacy Clause); and 18 U.S.C. § 1362 (action brought by an Indian band with a governing body duly recognized by the Secretary of the Interior arising under the Constitution, laws, and treaties of the United States). The defendants believe that the temporary privilege granted to the Chippewa in 1837 was extinguished by President Zachary Taylor in a 1850 executive order. Even if the privilege still existed after the 1850 executive order, however, any remaining interest was ceded in a 1855 treaty between the Chippewa and the United States when the Chippewa relinquished their right, title or interest in and to any other lands in the territory of Minnesota or elsewhere. The plaintiffs believe that the hunting, fishing, and gathering privilege guaranteed by the 1837 treaty could only be extinguished if the Chippewa made trouble or misbehaved. They believe that this interpretation of the 1837 treaty and their continuous good behavior is supported by the historical record and the case law. They do not believe that any subsequent action by the United States has affected the privilege. Intervenors have joined the litigation on both sides. . Nine counties (the Counties) and six landowners (the Landowners) are defendant-intervenors. The other party to the 1837 treaty, the United States of America, is a plaintiff-intervenor. The procedure for addressing the issues in the case was discussed at an early stage. In March of 1991 the parties agreed that the case should be bifurcated into two phases, and the court adopted their stipulation in an order issued on April 9, 1991. The order specified that the issues for Phase I include whether the 1837 privilege continues to exist, whether it extends to lands now, or previously, in private ownership, and the general nature of any rights guaranteed by the privilege. Phase II was to follow if it were determined that the privilege continues. Resource allocation issues and the validity of particular measures affecting the exercise of the privilege would be decided in Phase II. The management of natural resources and the regulation of their taking are not part of the legal questions presented in Phase I. After a ruling on several motions for summary judgment was issued on May 13, 1994, a three week trial was held on the remaining Phase I issues starting on June 13 and concluding on July 6, 1994. Fourteen witnesses testified at trial, and more than 400 exhibits were received. The largest part of the evidence was presented by eleven expert witnesses who submitted most, but not all, of their direct testimony in advance in the form of written reports. Their testimony was then extensively explored and tested on cross ■ examination. The plaintiffs called six expert witnesses. Dr. Charles C. Cleland, an anthropologist and ethnohistorian, testified about the Chippewa economy; the Chippewa use of natural resources; the Indian treaties of 1837, 1842, 1854, 1855, and 1864; the effort to remove the Chippewa in the 1850’s; and off-reservation hunting, fishing, and gathering after the 1855 treaty. Dr. Thomas A. Lund, a legal historian who specializes in American wildlife law, testified about common law rights in game and fish and what the drafters of the 1837 and 1855 treaties likely intended by the language used in key phrases. Dr. James M. MeClurken, an anthropologist and ethnohistorian specializing in the history and culture of the Chippewa, testified about the ethnohistory of the Mille Lacs Band and its reservation during the late nineteenth and early twentieth centuries, including treaties negotiated during this time. Dr. John D. Nichols, a linguist specializing in the Chippewa language, testified about how key phases in the 1837 and 1855 treaties were likely translated into Chippewa. Dr. Helen H. Tanner, a historian who specializes in the ethnohistory of the Indians of the Great Lakes region, testified about the 1855 treaty negotiations. Dr. Bruce M. White, a historian and anthropologist who specializes in the history of relations between Indians and non-Indians in the Old Northwest, testified about the 1850 executive order and its subsequent suspension. The State called three expert witnesses. Mr. Alan S. Newell, a historian, testified about the 1837 and 1855 treaties and the 1850 executive order. Dr. John C. Massman, a historian specializing in Minnesota history, testified about the settlement and development of Minnesota from 1819 through 1860. Dr. Paul Driben, an anthropologist, testified about the Chippewa culture and historical developments at the time of the 1855 treaty. The Landowners called two witnesses. Dr. Donavan L. Hofsommer, a historian with particular expertise in the role of the railroad in western expansion, testified about the expansion of settlers to new territories during the nineteenth century and the manifest destiny idea. Dr. Rod Squires, a geography expert who has studied the history of land ownership, testified about the transfer of land title from the United States to settlers, private companies, and the State during the nineteenth century. Three members of the Mille Lacs Band testified about the special importance of hunting, fishing, and gathering to their way of life. They told about the traditions learned from their parents and grandparents who taught them to hunt, fish, and gather. They also discussed the relationship of these activities to their traditional ceremonies and religion. One of the witnesses, Herman Kegg, testified that he had served sixty days in jail for violating a state fishing regulation. Another witness, Joseph Dunkley, who is also a named plaintiff, testified that he had received a citation for fishing with two lines. Brenda Boyd testified that her father sold furs to pay her mother’s hospital bills, and all three talked about the importance of these activities in supplementing their livelihood. After trial the parties submitted briefs and supplemented proposed findings and conclusions. Now, after having carefully considered the evidence at trial and the legal arguments presented, and based upon its observation of the witnesses and their credibility, the court submits in memorandum form its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. I. The issues to be decided in Phase I are whether the privilege to hunt, fish, and gather wild rice on the 1837 ceded territory continues to exist; whether the privilege extends to private lands; and the general nature of such rights. Interpretation of the 1837 and 1855 treaties and the 1850 executive order is necessary to resolve these issues. The history of a treaty, the negotiations, and the practical construction of it by the parties to it may all be considered when interpreting an Indian treaty. Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 351 (7th Cir.1983), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). The evidence at trial provided relevant historical background, and the Chippewa culture and their early interactions with Europeans are a part of it. The Chippewa survived by hunting, fishing, and gathering, and they also planted crops such as corn and squash. They used essentially all of the plant and animal species in their environment to satisfy their needs. These species provided them with food, clothing, shelter, medicines, building materials, tools, implements, canoes, paints, dyes, and decorative items. All of these materials came from flesh, skin, horn, bone, quills, feathers, shells, stems, fibers, blossoms, seeds, roots, and bark. The Chippewa also used fish and game in spiritual ceremonies. For example, fresh fish are still necessary for funerals and burials. The area around Lake Mille Lacs was an ideal location for the Chippewa way of life because the lake was filled with fish and there were large maple sugar groves and wild rice lakes nearby. The Chippewa had a broad and detailed understanding of their environment and developed efficient methods of gathering natural resources. They also developed social and political systems to allocate the resources. The largest economic and political unit of the Chippewa society was the band, a loose group of intermarried families who cooperated with one another. The average size of a band was 25 families. Each band occupied a specifically defined, but fluid territory. The bands moved around their territories during the year to gather resources. During the summer the families in the Mille Lacs Band gathered with other Chippewa bands on lake shores, forming villages of several hundred people where they fished and hunted, collected wild plants, and planted gardens of corn, beans, and squash. At the end of the summer, they gathered wild rice. During the late fall, the Chippewa harvested spawning species of trout and whitefish which were frozen for winter food. After the fall fishing, each family left its summer village for its hunting territories. The best winter hunting grounds for the Minnesota Chippewa were in the areas between woodlands and prairies where there were many white-tailed deer and elk. Families normally moved quickly to these lands in the late fall and then spent the winter gradually hunting toward the northern summer village sites. At the end of the winter when game became scarce, the Chippewa relied on their stored food, especially wild rice. In early spring, families would go to their maple groves to make maple sugar. In late spring, small groups of families met at areas where they could harvest spring spawning fish, especially sturgeon and suckers. The families then returned to their summer villages. A fundamental principle of the Chippewa economic system was gift giving. No monetary value was assigned to goods and resources. Individuals gained prestige in the society by their generosity. The system encouraged the Chippewa to increase gift giving even when resources decreased. The Chippewa began to encounter Euro-Americans in the seventeenth and eighteenth centuries. The Chippewa supplied them with clothing, housing, canoes, bark, pitch, cordage, skins, goods made from natural resources, and food. The food included deer, moose, whitefish, lake trout, passenger pigeon, turkey, geese, and ducks. In the late seventeenth century, the Chippewa also began to participate in the fur trade with both French and British traders. The Chippewa traded fur for knives, axes, and strike-a-lites made from iron, manufactured clothing, firearms, iron traps, iron and brass kettles, and many other items. “The pre-American history of the Great Lakes fur trade, particularly in the western Great Lakes, was characterized by continuing competition between many small companies and traders.” White Supplemental Report at 20-21. During the 1820’s and 1840’s, however, the American Fur Company was the dominant fur company in the Upper Mississippi region. Fur trading continued in the area after the American Fur Company went into bankruptcy in 1842, but it once again consisted of small companies engaged in intense competition. Fur prices declined after the Panic of 1837, but they recovered by the mid-1850’s. During the mid-1850’s, the quantity of furs handled in St. Paul continued to increase. The Mille Lacs Chippewa participated in the fur trade throughout this period. The fur trade continued to be an important part of their economy, but it was never again as dominant as it had been during the eighteenth century. As the fur trade became less important to the Chippewa in the nineteenth century, the importance of trading wild rice, meat, fish, and other natural resources became more important. During the 1840’s and 1850’s, the lumbermen and miners working in territory ceded by the Indians created a new market for natural resources. Commerce between lumbermen and Chippewa was particularly important in the St. Croix valley, the Rum River area, and Lake Mille Lacs area where the large communities of Chippewa and lumbermen traded their abundant supplies of wild rice and fish with the lumbermen. During the mid-nineteenth century the Chippewa also traded their natural resources and products in St. Paul. The opportunities for trade in natural resources continued to increase for the Mille Lacs Chippewa through' the 1850’s. The actions of the newly created United States toward the Indians were governed by the Northwest Ordinance. The Ordinance was enacted by the Continental Congress in 1787 and re-enacted by the first Congress of the United States. 1 Stat. 51. The Ordinance states that its articles “shall be considered as articles of compact between the original States and the people and States in the said territory, and forever remain unalterable, unless by common consent.” Id. Article III of the ordinance provides in part: The utmost good faith shall always be observed toward 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. Id. The Northwest Ordinance was not repealed, and its requirement of good faith bound the government in its dealings with all Indians, including the Chippewa. In the 1830’s the government pursued a policy of purchasing lands east of the Mississippi River held by the Indians and removing the Indians to areas west of the Mississippi. This policy was reflected in the 1830 Removal Act authorizing the President to convey lands west of the Mississippi to “such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there.” 4 Stat. 411 (1830). This statute provided that “nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.” Id. The 1830 act contained provisions to pay for abandoned improvements, to provide Indians with support during their move, and to establish settlements on their new lands. Following this statute, subsequent removal treaties normally contained specific language about how the removal would be accomplished. Cleland Report at 39. Despite the statutory language about such “Indians as may choose to exchange the lands”, some people advocated removal regardless of whether Indians consented. President Andrew Jackson vigorously pursued removal and advocated that removal “ought to be persisted in till the object is accomplished, and prosecuted with as much vigor as a just regard to their circumstances will permit, and as fast as their consent can be obtained.” The State of the Union Messages of the Presidents, 1790-1966, (Fred L. Israel, ed. 1966), at 438, Vol. I. Treaties that guaranteed tribal rights to hunt, fish, and gather were not uncommon during the era of removal policy. Before 1837 the United States negotiated several treaties that reserved rights for Indian tribes to hunt, fish, and gather on ceded lands. II. In 1837 the United States decided to negotiate a treaty with the Chippewa to acquire 13,664,871 acres in present day Wisconsin and Minnesota. Funding and authorization was provided by a 1837 general appropriations act that provided $10,000 “[f]or holding treaties with the various tribes of Indians east of the Mississippi river, for the cession of lands held by them respectively, and for their removal west of the Mississippi.” Act of March 3, 1837, 5 Stat. 158 at 161 (Plaintiffs’ Ex. 44). It also stated: For holding treaties with the various tribes east of the Mississippi river, for the cession of lands held by them respectively, and for their removal west of said river; and with the Sioux for the cession of their country lying east of the same river, and for defraying the expenses of a more particular examination of the vacant lands, west of the Mississippi, with a view to ascertain, whether it be sufficient to accommodate the tribes remaining east of said river, seventeen thousand dollars ... Id. at 162. The United States negotiated 12 treaties with Indian tribes in 1837, four of which contained removal provisions. In 1837 Wisconsin Territorial Governor Henry Dodge was chosen to negotiate a treaty with the Chippewa pursuant to the 1837 appropriations act. The land that the United States wanted to acquire was a wilderness with only a few hundred non-Indian residents. The Chippewa had limited contact with American citizens except for the lumbermen, missionaries, and fur traders in the area. 1837 Annual Report of the Commissioner of the Office of Indian Affairs 17 [ARCOIA] (Plaintiffs’ Ex. 56). On May 13, 1837, Commissioner of Indian Affairs Carey A. Harris wrote to Dodge to “communicate to [him] the particular objects of the Government, and its views as to the mode in which they may be accomplished.” Harris to Dodge and Smith, May 13, 1837 (Plaintiffs’ Ex. 46). Harris stated that “it is understood, that this tract is valuable for its pine woods which cover it, but is unfit for cultivation.” Id. He continued: Its acquisition by the U.S. will be beneficial to both parties. To the United States, by opening to its citizens an extensive wood land, important especially from the rapidity with which settlements are multiplying: to the Indians, by giving them an ample consideration in money, provisions, agricultural and mechanical establishments, education, and other means of improvement. Id. The letter did not contain any reference to the removal of the Chippewa, the 1830 Removal Act, or the 1837 appropriations act. Harris did not forward any treaties to use as a precedent, “[tjhere is no treaty, I believe, which will be useful to you as a precedent in forming a conclusion on [the consideration to be paid].” Id. Harris also told Dodge and Smith “to ascertain informally in what manner [the Chippewa] would receive a proposition to admit among them the Ottawas and Chippewas of Michigan, who have manifested a reluctance to go west of the Mississippi, agreeably to the provisions of the late treaty. Id. at 3. From July 20 to July 29,1837, the Chippewa met with Wisconsin Territorial Governor Henry Dodge near Fort Snelling where the Minnesota and Mississippi rivers meet. The Chippewa chiefs and Dodge communicated through interpreters. Verplank Van Antwerp, the treaty secretary and writer of the treaty journal, was of the view that the interpreters were “unfit to act in that capacity.” 1837 Treaty Journal at 142 (Plaintiffs’ Ex. 49). A missionary who attended the 1837 treaty stated that “there was also a Chippewa interpreter, Stephen Bonga who was also pious, and did the principle interpreting for that tribe; the government interpreter, a thick-mouthed, stammering Irishman not being able to speak intelligibly in either language.” Alfred Brunson, A Western Pioneer or Incidents of the Life and Times of Rev. Alfred Brunson 83 (1879). The tremendous challenge facing the translators was made clear by the testimony of Dr. Nichols. Although Dr. Nichols is admittedly not a fluent speaker of Chippewa, he is expert in the language and its structure and vocabulary. He testified as to the radically different structures of the Chippewa and English languages which would have made it extremely difficult to translate complex legal terms under the time pressure for immediate translation. Even the best translators would have had difficulty translating some treaty terms because the Chippewa did not have analogous words for many of the concepts developed in the highly complex and refined English legal vocabulary. Dr. Nichols testified how particular phrases were likely translated. His level of expertise was impressive and not undermined by cross examination. The Chippewa had developed a simplified and reduced form of their language to use in trading with Euro-Americans. This pidgin Chippewa was adequate for basic communication and trade, but “is not suitable for the translation of such complex language as that used in treaties.” Nichols Report at 5. More than 1,000 Chippewa attended the negotiations, including chiefs of the Mille Lacs, Sandy Lake, Snake River, Fond du Lac, St. Croix River, Gull Lake, Swan River, and Leech Lake bands. Not all of them were present when the negotiations began on July 20, 1837. Those who were insisted that they would not discuss Dodge’s proposal until all of the Chippewa who lived on the desired land arrived. A Pillager chief, Aishkebugekoshe (Flat Mouth), explained that although he was a chief, he was “not the chief of the whole nation, but only of my people or tribe.” 1837 Treaty Journal at 133. During the negotiations, Dodge explained that the United States wanted to purchase the land to harvest its pine timber: Your Great Father The President of the United States has sent me to see you in Council, to propose to you the purchase of a small part of your country East of the Mississippi River. The country, as I am informed, is not valuable to you for its game, and not suited to the culture of corn, and other Agricultural purposes. Your Great Father wishes to purchase your country on the Chippewa and St. Croix Rivers, for the advantage of its pine timber, with which it is said to abound. 1837 Treaty Journal at 131. Throughout the negotiations, the Chippewa emphasized that they wanted to be able to continue hunting, fishing, and gathering on the lands. Ma-ghe-ga-bo, one of two spokesmen for the Chippewa, stated: I stand here to represent the Chiefs of the different bands of my nation assembled here, & to tell you of their determination, to sell you the lands that you want of them. My Father, Listen to me. Of all the country that we grant you we wish to hold on to a tree where we get our living, & to reserve the streams where we drink the waters that give us life. ... The Chiefs will now show you the tree we want to reserve. This is it (placing an oak sprig upon the Table near the map). It is a different kind of tree from the one you wish to get from us. Every time the leaves fall from it, we will count it as one winter past. 1837 Treaty Journal at 142 (emphasis and footnote in original by Van Antwerp). After Dodge asked for the price of the land, Ma-ghe-ga-bo proposed that they receive a sixty year annuity and “[a]t the end of that time our grand children who will have grown up, can speak to your for themselves.” Id. at 143. He also stated, “If I have rightly understood you, we can remain on the lands and hunt there. We have heretofore got our living on them.” Id. Dodge again asked for the price, but the Chippewa indicated that they would provide an answer the next day after consulting with others. Id. at 144. Before the Chippewa departed, Dodge stated: that your Great Father, never buys land for a term of years. I will agree on the part of the President, that you shall have 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. Id. Dodge also stated that it was his wish, “as well as that of your Great Father in Washington, that [the Sub-agents] shall do you justice.” Id. On July 28,1837, Flat Mouth spoke for the Chippewa. He stated: My Father. 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 this Country____ You know we can not live, deprived of our Lakes and Rivers; There is some game on the lands yet; & for that reason also, we wish to remain upon them, to get a living. Id. at 145. Dodge responded: My Friends. I have listened with great attention, to your Chief, from Leech Lake. 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. Id. at 146. Dodge did not explain the meaning of the phrase “during his pleasure.” During the negotiations of the price Dodge reassured the Chippewa that they would be treated justly by the United States. For example, he stated that “[i]t is my duty in the relation in which I stand to you, to see justice done to you, and so far as it is in my power, I will do it in all things.” Id. at 150. Dodge also referred to the President as the Great Father. The Chippewa understood that the President would treat them as a good father would treat his children, by offering protection and inviting trust. The Chippewa also believed that treaties were a personal commitment between their chiefs and the President, not just between the Americans and the Chippewa. Cleland Report at 48. Removal was not discussed during the treaty negotiations. In fact, both the United States and the Chippewa assumed that the Chippewa would continue to live in the ceded territory. During the negotiations Dodge promised that annuities and services would be provided “in their own country.” Dodge and representatives of twelve Chippewa bands, including the Mille Lacs Band, executed the Treaty with the Chippewa of 1837 on July 29, 1837. 7 Stat. 536. The treaty stated in part: Article 1. The said Chippewa nation cede to the United States all that tract of country included within the following boundaries: ____ Article 2. In consideration of the cession aforesaid, the United States agrees to make the Chippewa nation ... the following payments____ Article 5. The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United States____ When the council closed, Dodge stated, “I will recommend you to your Great Father the President, as a good people, who deserve the confidence and friendship of Our Government.” 1837 Treaty Journal at 146. The 1837 treaty was ratified by Congress. Nichols testified persuasively that the combination of the terms “hunting, fishing, and gathering” would have been unusual, and when joined with another unusual grouping of words, “the lands, the rivers, and the lakes”, would have been unnatural in Chippewa. These English terms were used to represent the concept of living off the land. The Chippewa understood that Article 5 allowed them to continue their hunting, fishing, and gathering way of life. The Chippewa also understood that Euro-Americans would begin to enter the ceded territory, but they did not believe that their arrival would interfere with their hunting, fishing, and gathering activities because of the size of the territory, the purpose of the treaty (access to pine timber), and the abundance of resources. Cleland Report at 47. Moreover, the Chippewa did not understand the phrase “during the pleasure of the President” as a finite limitation on their continued way of life in the ceded territory. A literal interpretation of the phrase “during the pleasure of the President of the United States” would have been “as long as the President was happy” and would not have conveyed a temporal limitation on the activities described earlier in the sentence. Nichols Report at 8. “A restrictive phrase would have contradicted the strength of the probable translation of ‘guaranteed’ as baataar yaakonigaade ‘it is firmly fixed in place by law, by council.’” Id. As the defendants point out, negotiations between the Chippewa and a missionary who wanted to five among them demonstrate that the Chippewa understood that a privilege could last for a finite amount of time. That particular agreement limited the missionary’s residence on their lands to four years. See Ayer to Green, Oct. 31, 1838 at 2-4 (State’s Ex. 17). This is not evidence, however, that the Chippewa understood the Euro-Ameriean meaning of “at the pleasure of the President.” The concept of “four years” is much simpler to understand than the Euro-American meaning of the phrase “at the pleasure of the President.” Even people fluent in twentieth century English used in the United States might not understand the legal meaning of “at the pleasure of the President.” The conclusion that the literal meaning of the English phrase was not understood by the Chippewa is strengthened by the lack of discussion of the subject. The Chippewa who had persistently demanded to continue their way of life during the treaty negotiations certainly would have objected to Dodge if the literal meaning of the phrase had been conveyed. The understanding of the Chippewa would also have formed by Dodge’s assurances that the President would always treat them justly and would protect their rights. An August 17, 1837 letter from missionary William Boutwell to Reverend Greene is contemporary evidence that the Chippewa did not understand the English meaning of “during the pleasure of the President of the United States”: You may think me presumptuous, but I am much mistaken if our Govt, are not involved in trouble with the Chipys before 5 years should they attempt to remove them. For Gov. Dodge the Commissioner I entertain the highest respect—but the Inds. have no idea of leaving their country while they live—they know nothing of the duration of a mans pleasure. Boutwell to Greene, Aug. 17, 1837 at 2 (Plaintiffs’ Ex. 54). Neither Dodge nor the Chippewa intended or understood that any provision of the 1837 treaty was to provide for removal from the ceded territory. If removal had been intended, then it would have been a topic of discussion during the treaty council, and the treaty would have included provisions for moving the Chippewa similar to those in other treaties with removal clauses. If removal had been a goal of the United States, then the Commissioner of Indian Affairs would have discussed this objective in his instruction letter. He would also have forwarded copies of treaties with removal provisions instead of explaining that no prior treaty would be useful to Dodge. If removal were part of the 1837 treaty, then Dodge would have mentioned it in his report to Commissioner Harris. Dodge to Harris, Aug. 7, 1837 at 5 (Plaintiffs’ Ex. 55). Although some missionaries who lived in the ceded territory feared that the Chippewa might be removed, their correspondence reflects only their understanding of the situation. Just because they feared the Chippewa could be removed, does not mean that the Chippewa understood the 1837 treaty to authorize their removal. The Chippewa may well have worried about future removal after they signed the 1837 treaty, but evidence of such worries is not evidence that the 1837 treaty provided for their removal. Considering the general removal policy of the government at the time, it would have been surprising if Indians had not worried about removal even if they believed that the government did not have any authority to remove them so long as they did not make trouble. Government correspondence after the treaty was signed indicates that the United States believed that it did not provide for removal and that removal would be very difficult for the Chippewa. In 1839, the Chippewa sub-agent, Daniel Bushnell, wrote to Governor Dodge that the Chippewa should not be removed to lands west of the Mississippi River because they would then be closer to the Sioux and would have to change their way of life. Bushnell to Dodge, Feb. 13, 1839 (Plaintiffs’ Ex. 169). In 1840 Bushnell wrote in a report that the resources supporting the Chippewa were gradually declining and that they would have to be moved when the resources failed. 1840 ARCOLA 339 (Plaintiffs’ Ex. 172) (Extract of Report of D.P. Bushnell, sub-agent at La Pointe). He suggested that further negotiations would be necessary when removal became necessary: The manner of its accomplishment is a subject of great importance to their future well-being. They having insisted on the entire exclusion of their brethren to the east[sic] and north from any of the benefits arising from the country sold, it would be an act of injustice to attempt to throw them back upon those bands. The feeling engendered in the latter by this act, would cause them to resist the attempt, it is believed, as an infringement of their rights. It is also doubted if they could be peaceably removed beyond the Mississippi. Id. In 1841 James Doty, the new Wisconsin Territorial Governor, wrote to Secretary of War John Spencer that he had: sent word to the Chippewa residing in Wiskonsan [sic] that it was probable the President would propose to them to remove to the west side of the Mississippi, above the Falls of St. Anthony, and desired them to take the subject into consideration and let me know whether they would entertain such a proposition and agree to settle down as agriculturists. Doty to Spencer, Nov. 17, 1841 at 2 (Plaintiffs’ Ex. 61). Doty also stated that the Chippewa “are willing to treat [sic] with the U.S. for a cession of their country and to remove to the west side of the Mississippi” and recommended “the adoption of measures to obtain the removal of those Indians.” Id. Doty’s statements indicate that a new treaty with a removal provision would be necessary and are further support that the Chippewa did not agree to removal in the 1837 treaty. His statement that the Chippewa were willing to discuss removal in 1841 was based on a letter from Lyman Warren, a La Pointe trader. Warren to Doty, Oct. 2, 1841 (Plaintiffs’ Ex. 62). Warren’s statement is not a reliable indicator that the Chippewa were willing to remove, however; he was motivated to encourage a treaty so that he would receive payments as he did under the 1837 treaty. 1842 Treaty, Schedule of claims, items 23, 33, and 48 at 545 (Plaintiffs’ Ex. 65); see also 1837 treaty. The court finds that the Chippewa did not consent to removal in the 1837 treaty and that the Chippewa did not understand that the treaty gave the President unfettered discretion to extinguish their privilege. III. In 1841 Congress appropriated money for the expenses of treaty negotiations with Indian tribes for the purpose of extinguishing all of their title to lands in Michigan. Act of March 3, 1841, see. 2, 5 Stat. 417, 419. In 1842 Robert Stuart was appointed to negotiate a treaty with the Chippewa, the only Indians still holding lands in Michigan. Commissioner of Indian Affairs T. Hartley Crawford told Stuart to purchase the land in the upper peninsula of Michigan and to expand the purchase to lands south of Lake Superior in present day Wisconsin. Crawford to Stuart, Aug. 1, 1842 at 1 (Plaintiffs’ Ex. 64). Crawford also told Stuart that the treaty should contain a provision for the eventual removal of the Chippewa from the territory, but stated that it “is not likely that it will be necessary for them to remove for a considerable time.” Id. at 6-7. The Chippewa were very upset when Stuart raised the issue of removal during the treaty negotiations. They initially refused to sign the treaty, but Stuart persuaded them to agree to the treaty by promising them that it would be a long time until they were removed and they could remain on their lands for an indefinite time. After the treaty was executed, Chief Martin from Lac Courte Oreilles stated: But I and my brother Chiefs refused to touch the pen, unless our half breed relations were provided for, and we should be permitted to remain on the land as long as we behaved well and are peaceable with our grand father & his white children____ [W]hen I touched the pen it was on consideration that my relations were provided for, and that we should remain on the land, as long as we are peaceable. We have no objection to the white man’s working mines, & the timber and making farms, but we reserve the birch bar & cedar, for canoes, the rice and the sugar tree and the priviledge [sic] of hunting without being disturbed by the whites. Brunson to Doty, Jan. 6, 1843 at 60 (Plaintiffs’ Ex. 67). The 1842 Treaty states in part: Article II. 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. Article VI. The Indians residing on the Mineral district shall be subject to removal therefrom at the pleasure of the President of the United States. Although the Mille Lacs Band did not inhabit the lands ceded in the 1842 Treaty, three representatives of the Band signed it. Implementation of the removal provision was discussed in 1842, but Stuart told Crawford that removing the Chippewa soon “was not in conformity with the spirit of the treaty.” S.Doc. No. 403, 29th Cong., 1st Sess. 3, (1846) (Plaintiffs’ Ex. 76). In 1844 Crawford opposed removal under the 1842 treaty: the presence of the Chippewas will not interfere, for some time to come, with the mining operations of our citizens who may choose to engage in them. When it is found to do so, we can act; for the present, I would advise no step that could be tortured into harshness towards these poor people____ Id. In 1846 Commissioner of Indian Affairs William Medill reported to the Senate that the government had not yet taken any action to implement the 1842 treaty removal provisions and that “in 1843 [Stuart], and in 1844 [Crawford], entertained doubts as to the expediency at that time of enforcing the power conferred by the treaty respecting removal”. Id. Medill also asserted that the Chippewa would become civilized more quickly if the United States purchased their unceded lands east of the Mississippi and removed them to their lands to the west. 1846 ARCOIA 9 (Plaintiffs’ Ex. 77). James Hays, the sub-agent at La Pointe, suggested that a new treaty be negotiated to purchase the lands east of the Mississippi that the Chippewa still owned and to provide for their removal. Id. at 46-47. Isaac Verplank was appointed treaty commissioner for the negotiations. In a June 4, 1847 letter to him, Medill explained that the United States wanted to acquire a tract of land as a new home for the Winnebago, a tract of land as a new home for the Menominees, and the remaining lands east of the Mississippi still owned by the Chippewa. Medill to Verplank and Mix, June 4, 1847 at 1-2 (Plaintiffs’ Ex. 78). Medill also explained that Verplank should obtain the consent of the Chippewa to move west. Id. at 2. He explained that the removal objective was a response to wrongful conduct by non-Indians: [The Chippewa] are widely scattered and lead a roving and unsettled life and obtain subsistence principally by fishing and hunting. The government can exercise but little, if any, supervision over them, and they are consequently accessible to whiskey sellers and other unprincipled men who exercise an evil influence over them, and by whom they are fleeced of their means, as well those acquired by themselves as those they receive from the government. Id. at 10. Medill further stated that: A large proportion of [the Chippewa] east of the Mississippi yet remain by suffrage on lands ceded to the U. States by former treaties particularly those of July 29th 1837 and October 4th 1842____ These Indians are liable to be removed at any time to the lands yet unceded, and the progress of white population in Wisconsin will soon render this necessary. Id. at 10. This statement overlooked the fact that the .1837 treaty did not contain a removal provision and was in conflict with the assurances given by Stuart during the 1842 treaty negotiations. Medill also appears to have somewhat overstated the urgency of obtaining land for settlement. Although white settlement of the Minnesota portion of the 1837 territory had increased from 286 people in 1846 to 892 in 1850, the huge area was still relatively sparsely settled, and there was little agricultural settlement. White Report at 2:7-8. An appraiser hired by the United States to prepare a report for the Indian Claims Commission on the value of the 1837 cession area concluded that in 1850 it “remained as an uncharted wilderness area.” Cleland Report at 92; see also, Squires Report at 17. A settlement boom in the 1850’s later rapidly increased the white population to 6,664 by 1860, but settlement was still slight because of the large land area. Squires Report at 17; Massmann Report at 50. Medill also explained to Verplank: so far as I am aware, it has been the impression that all the unceded lands of the Chippewa of Lake Superior and the Upper Mississippi as well as those east as those west of that river were the common property of the whole, but as you are aware, it has recently been represented that this is not the case, and that different bands claim the exclusive title to different portions of it. Medill to Verplank and Mix, June 4, 1847 at 13 (Plaintiffs’ Ex. 78). He instructed Verplank that he should avoid this issue if possible: it is very desirable, however that no question of this kind be raised as it is a leading object with the department to consider the Chippewas and to have them think themselves one united people, with possessions and interest in common, especially for the future. And should you succeed in effecting a treaty with them, it should as far as possible be made clearly and unequivocally to express this meaning and intention. Id, at 13-14. Verplank and Henry Rice conducted the negotiations. Rice was a member of one of the successors to the American Fur Company, the Upper Mississippi Outfit, and he had helped the agent for the Winnebago choose the location of their new home in Minnesota. His presence at the treaty negotiations was necessary because he was very influential with several chiefs and “no treaty could be made while he was in the country against his wishes.” Verplank to Medill, July 10,1847 at 2 (Plaintiffs’ Ex. 129). The treaty negotiations did not result in an agreement about removal or the cession of any lands east of the Mississippi. Verplank to Medill, Sept. 10, 1847 (Plaintiffs’ Ex. 79). Verplank was also unable to maintain the fiction of a single Chippewa nation. The 1847 treaty did cede the lands west of the Mississippi that the government wanted for the Winnebago, but only on the condition that the Chippewa of the Mississippi would receive $63,000 of the annuity compensation and the Lake Superior Chippewa only $17,000, based on the rationale that it was the Mississippi Chippewa who actually had used the land to be ceded. Cleland Report at 80. Annuity payments for land ceded under the 1837 and 1842 treaties had been paid to the Mississippi Chippewa and Lake Superior Chippewa on a per capita basis regardless of which tribes actually used the land. Cleland Report at 80-81. As a result, the Lake Superior Chippewa felt cheated by the new arrangement. Id. Although the United States classified the Mille Lacs Band as a part of the Mississippi Chippewa, and the Band could have benefited from the split annuity approach, a Mille Lacs chief, Naqwanabe, led opposition to the treaty and refused to sign it. Cleland Report at 81-82. This did not prevent the treaty from being concluded, but the position taken by the Mille Lacs Band during the 1847 treaty negotiations led to less cordial relations between it, the other Mississippi Bands, and the United States. Cleland Report at 82. IV. Commissioner Medill in his 1847 and 1848 annual reports continued to advocate purchase of the lands owned by the Chippewa east of the Mississippi and their removal. 1847 ARCOIA 8-9 (Plaintiffs’ Ex. 80); 1848 ARCOIA 388 (Plaintiffs’ Ex. 81). The 1847 report also included a report from sub-agent Hays that a St. Croix Indian had killed a white man, but had been acquitted for self-defense. He also reported an altercation between members of the Wisconsin River and Pelican Lake bands and several whites who had sold them liquor. He states: This is the first instance of an Indian raising his hand against a white man on Lake Superior, which has ever come within my knowledge; but it is no more than I expect under the circumstances. If men will pursue this [liquor] traffic, they must look for such results, and have not right to complain or receive sympathy. The Chippewas as individuals, and as a nation, are well disposed, and will continue to be so as long as the cupidity and heartlessness of the whiskey dealer will permit. 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. 1847 ARCOLA 92-93 (Plaintiffs’ Ex. 80). In September of 1847, Wisconsin Territorial Governor Henry Dodge wrote to Commissioner Medill recommending removal of the Chippewa to the west of the Mississippi in response to complaints of his citizens that the “Sioux and other Indians” had been committing depredations.” Dodge to Medill, Sept. 7, 1847 (State’s Ex. 2 at n. 74). Despite the stated positions of Medill and Dodge, Medill did not try again to negotiate a treaty to obtain removal or for the cession of Chippewa lands east of the Mississippi. The Chippewa, their missionaries, and local citizens opposed removal, arguing that the land was not needed for settlement. For example, in August 1848 missionary Sherman Hall wrote from La Pointer I feel certain that this region is not to be settled very extensively at present. There is too much good land in a better climate unoccupied, which will attract farmers before these barren regions. We have a healthy climate and some tolerable soil, but neither are particularly inviting to farmers. The mining excitement has in a great measure subsided, and most who have engaged in the business have found it a more serious and expensive business operation to dig copper, than they anticipated. There may be valuable mines in the country, but they do not exist everywhere, as was for a time supposed. I see no particular motive therefore to call a great number of settlers to this region at present. Why then should the Indians be required to remove? Nevertheless they may be. Hall to Treat, Aug. 12,1848 at 4 (emphasis in original) (Plaintiffs’ Ex. 181). In the fall of 1848, several representatives of the Lake Superior Chippewa went to Washington, D.C. to argue against removal. They spoke to President James Polk, Congress, the Secretary of War, and the Commissioner of Indian Affairs. Congressional Globe, 30th Cong., 2d Sess. 536 (1849) (Plaintiffs’ Ex. 182). Iowa Senator Augustus Dodge stated, “everywhere their mission was approved by all who became acquainted with them, and everywhere they excited the best sympathies of the human heart.” Id. On February 7, 1849, the Lake Superior Chippewa presented a petition to Congress arguing that they should not be removed: We do not ... wish to be driven north of the British line, nor West among the wandering and vicious tribes which infest the plains and mountains stretching from the Mississippi to the Pacific. One or the other of these events will be certain to ensue unless our prayer be granted by the great council of this nation. Either would be fatal to us, and we should never cease to regret that our white brothers had dealt so hardly by us. Petition of the Chief of the Chippewa Tribe of Indians on Lake Superior for a Grant of Lands, etc., Feb. 7, 1849 (State’s Ex. 6 at n. 19). In September 1849, Alexander Ramsey, the new Governor of the Minnesota Territory, began to argue that the Chippewa should be removed. He argued “[m]uch complaint is made by the settlers about Sauk Rapids, Swan River [etc.] as to the demoralizing effects of the privilege given the Chippewas, in the Treaty of 1837, to hunt and fish upon the lands ceded by said Treaty.” White Report at 4:5. Ramsey’s argument was not supported by records of complaints that the Chippewa had committed depredations. In a June 27, 1849 letter to Ramsey, Commissioner of Indian Affairs Medill listed seven depredation claims filed by settlers. Medill to Ramsey, June 27, 1849 (Plaintiffs’ Ex. 185). Only one of the seven claims was asserted against a Chippewa. Id. That claim alleged that a Chippewa had killed a colt. Id. The remaining claims were against the Winnebago. Id. Only a few weeks later, James Fletcher, the agent for the Winnebago and the Mississippi bands of Chippewa, contradicted Ramsey in his annual report: Chippewas of the Mississippi—These bands contain a population of about eleven hundred, and have their villages at Gull lake, Sandy lake, Mille Lac, and Rabbit lake. Respecting the former character of these Indians I know but little; but since they have been under my charge, for the year past, I have found them peaceable, temperate, and industrious. Cleland Report at 96. Daniel Stanchfield, a Rum River valley lumberman, agreed that the Chippewa were well behaved and wrote that they “have been found more true and honorable than most white men with whom I came in contact on the frontier.” D. Stanch-field, History of Pioneer Lumbering on the Upper Mississippi and its Tributaries, Minnesota Historical Society, vol. 9, at 332 (1901) (Plaintiffs’ Ex. 32). Minnesota politicians, including Ramsey, advocated removal of the Wisconsin Chippewa to Minnesota because they wanted to obtain more of the economic benefits generated by having a large number of Indians residing in their territory. If the Wisconsin Chippewa were removed to Minnesota, then Minnesota traders would be more likely to benefit from the annuity payments made to the Indians, Minnesota businesses would be able to compete for the lucrative business of supplying and transporting annuity goods, and Minnesota would receive money from Indian agencies for their operations and for schools, farms, and blacksmith establishments. Cleland Report at 93-95. The conclusion that Ramsey’s primary motivation for advocating removal of the Chippewa to Minnesota was economic is supported by his decision not to advocate removal of the Winnebago from Minnesota when they were the subject of far more depredation complaints. White Report at 4:2-5. On October 11, 1849, the Minnesota territorial legislature approved a resolution “to ensure the security and tranquility of the white settlements in an expansive and valuable district of this territory, the Chippewa Indians should be removed from all lands within the Territory to which the Indian Title has been extinguished, and [ ] the privileges given to them by Article Five [of the 1837 treaty] and Article Second of the [1842 Treaty] should be revoked.” Ramsey to Ewing, enclosing Joint Resolution of Territorial Assembly, Nov. 7, 1849 (Plaintiffs’ Ex. 86). All of the land ceded in the 1842 territory was located in Michigan and Wisconsin. Henry Rice put it clearly in a confidential December 1, 1849 letter to Ramsey which demonstrates the economic motivation behind this removal effort: The Chippewas of Lake Superior in 1842 sold all of their country south of that lake. Their Agency is on a barren island in the lake, and out of their own Country. They should be removed from the ceded lands. They should receive their annuities on the Mississippi River, say at or near Sandy Lake, at which place an agency for the whole tribe should be established. This would better accommodate the whole tribe and Minnesota would reap the benefit whereas now their annuities pass via Detroit and not one dollar do our inhabitants get altho’ we are subject to all the annoyance given by those Indians. Rice to Ramsey, Dec. 1, 1849 at 2-3 (Plaintiffs’ Ex. 87). In December of 1849 and January of 1850, Ramsey and Rice were in Washington, D.C. urging the President to issue a removal order. The 1849 report prepared by Commissioner of Indian Affairs Brown continued to advance Medill’s position that many Chippewa remained on ceded lands by sufferance and would have to remove whenever required by the President. 1849 ARCOIA 943-44 (Plaintiffs’ Ex. 84). He added “longer residence [of the Chippewa on the ceded lands] is incompatible with the tranquility and interest of our citizens, who suffer annoyance and loss from their depredation”, but he did not provide any descriptions of depredations by the Chippewa. Id. On February 6, 1850, President Zachary Taylor issued the following executive order: 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 ... are hereby revoked; and all of the said Indians remaining on the land ceded aforesaid, are required to remove to their unceded lands. Executive order, Feb. 6, 1850 (Plaintiffs’ Ex. 191). Commissioner Brown sent the order to Ramsey on the same day. The only explanation for the order given in the accompanying letter was that “[t]he policy of the measure here referred to is announced in my late annual report, and its execution during the present year has been determined on.” Brown to Ramsey, Feb. 6, 1850 at 1 (Plaintiffs’ Ex. 88) The letter also stated that Ramsey should choose a new location for the La Pointe agency and suggested that it be somewhere on the Mississippi. Id. at 2. Neither the instructions sent from Commissioner Brown to Ramsey nor those sent from Ramsey to the agents who would oversee the removal discussed any implementation measures to revoke hunting, fishing, and gathering rights. Id.; Ramsey to Liver-more, March 4,1850 (Plaintiffs’ Ex. 194). In fact, when sub-agent Livermore responded to Ramsey’s instructions, he assumed that the Chippewa would return to their ceded lands after removal to hunt and fish: “Let five thousand Indians be crowded into the small Territory they call their own, and they will subsist as long as they are fed by Government, after which, they would starve or flee back to their old haunts.” Livermore to Ramsey, March 26,1850 (Plaintiffs’ Ex. 199). The executive order was not necessary to provide land for settlement in 1850 as indicated in a Feb. 25,1850 letter from S. Hall to Rev. S.B. Treat, a missionary: It is thought by some that the Indians will not be required to remove from this immediate vicinity immediately, as there are no inhabitants who urge their removal. The land is not wanted for settlement. Most of those here would prefer that they remain on account of the fish and fur trade. Hall to Treat, Feb. 25, 1850 at 3 (Plaintiffs’ Ex. 90). The white population of the Minnesota Territory was 6,038, but only 892 of them lived in the 1837 ceded territory. See infra at 800-801. The Chippewa opposed removal because they did not want to leave their homes, burial grounds, and territories where they hunted, fished, and gathered. They also opposed removal because the new territory chosen by the government was occupied by other bands who had not agreed to receive them. Liver-more to Ramsey, March 26, 1850 (Plaintiffs’ Ex. 199). Both Indians and non-Indians believed that the new lands were insufficient to support the number of Chippewa who would be removed and those already living there. Id.; C. Beaulieu to Borup, April 25, 1850 (Plaintiffs’ Ex. 203). The Chippewa believed that the executive order was not authorized by either the 1837 or 1842 treaties and that it violated the assurances given by Stuart during the 1842 negotiations. See, e.g., Eds., Minnesota Chronicle and Register, March 9, 1850 (Plaintiffs’ Ex. 196); Eds., Minnesota Pioneer, March 20, 1850 (Plaintiffs’ Ex. 198); Letter from Livermore to Brown, April 10, 1850 (Plaintiffs’ Ex. 68); A Chippewa Address, Swan River, June 30, 1851 at 2 (Plaintiffs’ Ex. 72); Buffalo, et al. to Lea, Nov. 6, 1851 (Plaintiffs’ Ex. 73). They continued to believe that they could be removed only if they misbehaved. Mendenhall to Lea, Jan. 6, 1851 at 5-6 (Plaintiffs’ Ex. 69). Missionaries and local citizens confirmed this understanding, and government officials conveyed it to their superiors. For example, a January 21, 1851 letter from the Secretary of the American Board of Commissioners for Foreign Missions to the Commissioner of Indian Affairs stated: It was the declared wish of Government when the treaty of 1842 was made, to obtain the control of the mineral lands, in the possession of the Ojibwas, and not to purchase their territory for agricultural purposes. 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 Commissioners 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. [no end quotation given] Treat to Lea, Jan. 21, 1851 at 2 (Plaintiffs’ Ex. 70). This understanding