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(Cite as: 366 F.Supp.2d 698)


United States District Court,

E.D. Wisconsin.

State of WISCONSIN, Plaintiff,

v.

THE STOCKBRIDGE-MUNSEE COMMUNITY and Robert Chicks, Defendants.

No. 98-C-0871.


Sept. 30, 2004.



United States' amicus brief in support of Indian tribe's position in boundary dispute between State and tribe was not entitled to judicial deference where brief was filed by the United States, not an administrative agency, and it was not interpreting or constructing a statute that the United States administered, and where United States participated in six of the seven relevant diminishment cases decided by the Supreme Court.


Only Congress can divest an Indian reservation of its land and diminish its boundaries.


Diminishment of Indian reservation land will not be lightly inferred; Congress must clearly evince an intent to change boundaries before diminishment will be found.


Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from Indian reservation all unallotted opened lands; language of cession coupled with an unconditional commitment from Congress to compensate the tribe for its opened land creates an almost insurmountable presumption that Congress meant for the tribe's reservation to be diminished.


No particular set of words must be present for the court to find that there has been a diminishment of Indian reservation land; court must give effect to Congress' intent in passing the act at issue.


Contemporary historical context surrounding the passage of the act is a factor to be considered in determining whether Congress meant a diminishment of Indian reservation land; additionally, events that occurred after the act's passage, such as the subsequent treatment of the land in question, can also be considered.


Throughout the inquiry as to whether Congress meant a diminishment of Indian reservation land, any ambiguities are to be resolved in favor of the Indians.


Congress intended to diminish the size of Indian reservation to 18 contiguous sections when it passed Act of 1871, which provided a clear distinction in the manner in which two tribal factions were to be compensated for opened lands; despite the lack of specific cession language in the text of the Act, its purpose, the events and circumstances surrounding the passage of the Act, and the historical context evidenced a widely-held contemporaneous understanding that the reservation was diminished.  Act Fed. 8, 1871, § 7, 16 Stat. 404.


Events and circumstances surrounding the passage of an Act that unequivocally

show a widely-held contemporaneous understanding that Indian reservation would be disestablished may support a finding of disestablishment.



Act of 1906, which made clear that all the land within Indian reservation was subject to fee patents, and that upon allotment and patenting no trust land would remain, disestablished Indian reservation; while Act did not contain specific cession language or other explicit language evidencing the surrender of tribal interests in the reservation, evidence derived from the circumstances surrounding the passage of the Act, including its origins and the tenor of legislative reports, revealed a widely-held contemporaneous understanding that the reservation would be disestablished as a result of the Act.  Act June 21, 1906, § 1 et seq., 34 Stat. 325.

*699 John S Greene, Assistant Attorney General, Wisconsin Department of Justice, Madison, WI, for Plaintiff.


*700 Brian L Pierson, Paul W Stenzel, von Briesen & Roper, Milwaukee, WI, John W Hein, von Briesen & Roper, Milwaukee, WI, Sharon Greene-Gretzinger, Stockbridge-Munsee Community, Bowler, WI, for Defendant.


DECISION AND ORDER

GORENCE, United States Magistrate Judge.


NATURE OF CASE

The plaintiff, State of Wisconsin, filed this action on September 3, 1998, against the defendants, alleging that defendant Stockbridge-Munsee Community Band of Mohican Indians (Tribe) was operating Class III electronic games of chance at the Pine Hills Golf and Supper Club (Pine Hills) which are specifically prohibited by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq.  The complaint also alleges that the State of Wisconsin and the Tribe entered into the Stockbridge-Munsee Community and State of Wisconsin Gaming Compact of 1992 (compact) for the conduct of Class III gaming as required by 25 U.S.C. § 2710(d)(1)(C).  The complaint states that, by its terms, the compact limits the operation of such games of chance to locations "on tribally owned land or land held in trust by the United States on behalf of the tribe, but only on such lands within the exterior boundaries of the tribal reservation."  (Complaint ¶ 13 [quoting Compact, Section XV, Part H (emphasis added) ] ).


The plaintiff asserts in the complaint that the Tribe obtained the Pine Hills property and in December 1995, conveyed it to the United States of America to be held in trust for the benefit of the Tribe pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 465.  Id. ¶¶ 16-17.  The plaintiff maintains that operation of Class III electronic games of chance at the Pine Hills location is not permitted by the express terms of the compact because the land is located outside the boundaries of the Tribe's reservation and because Pine Hills does not meet the requirements of 25 U.S.C. § 2719(b)(1)(A).  Id. ¶¶ 19, 20-21.  In addition to injunctive relief, the complaint sought a declaration of the current boundaries of the reservation.


The State of Wisconsin moved for a preliminary injunction requiring the cessation of Class III gaming activities at Pine Hills. Following a hearing and full briefing on the motion, the court determined that the 1871 Act had diminished the reservation, leaving only the 18 sections reserved from sale as the Tribe's new reservation.  Wisconsin v. Stockbridge-Munsee Community, 67 F.Supp.2d 990 (E.D.Wis.1999).  Because the gaming activity at issue was not located on the 18 sections comprising the reservation, the court granted the preliminary injunction by order dated October 4, 1999.


Apart from the Tribe's ability to operate gaming at Pine Hills, there is another dispute between the State and the Tribe related to the boundary question.  A number of tribal members living in the area in dispute, that is, within the original two-township reservation but outside the territory the State contends comprises the current reservation, are exempt from state income taxation only if they both reside and work on the reservation.  The Tribe brought a counterclaim seeking a declaratory judgment that the 1856 boundaries of the reservation remain intact and an injunction barring the State from imposing income tax on tribal members residing within those borders with respect to income earned on the reservation.  See Defendant's Counterclaim filed on April 28, 2000.


*701 To address this matter, the parties agreed that pending final resolution of the boundary issue, the Tribe will withhold from the wages of affected tribal members--and hold in escrow--an amount equal to state income tax withholding.  The parties further agreed that upon final judicial resolution of the reservation boundaries, the escrowed funds will be released either back to the tribal members, if they are found to reside within the reservation, or will be paid to the State, if the tribal members are found to reside outside the reservation.  The court accepted the parties' stipulation by order dated April 12, 2000.


The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes.  Venue is proper under 28 U.S.C. § 1391.  The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D.Wis.).  The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73.1 (E.D. Wis.).


Defendants Stockbridge-Munsee Community and Robert Chicks filed a motion for summary judgment on March 1, 2002.  (Docket # 100).  The motion was almost fully briefed when the death of the plaintiff's expert witness necessitated new briefing.  Thereafter, supplemental expert witnesses were named and a revised briefing schedule was set.  The United States then moved to filed a brief as amicus curiae in support of the defendants' assertion that the boundaries of the two-township reservation remained intact following the implementation of the Act of February 6, 1871, and the Act of June 21, 1906.  The court granted the United States' motion.  The defendants' motion for summary judgment is now ready for resolution and will be addressed herein.


DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Summary Judgment Standard

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."  Fed.R.Civ.P. 56(c);  see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);  Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);  McNeal v. Macht, 763 F.Supp. 1458, 1460-1461 (E.D.Wis.1991).  "Material facts" are those facts that under the applicable substantive law "might affect the outcome of the suit."  See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.  A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."  Id. The burden of showing the needlessness of a trial--(1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law--is upon the movant.  In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party.  See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict.  Anderson, 477 U.S. at 267, 106 S.Ct. 2505;  see also, Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 ("proper" summary judgment motion may *702 be "opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves ...");  Fed.R.Civ.P. 56(e).  "Rule 56(c) mandates the entry of summary judgment, ... upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 (emphasis added).  In granting summary judgment, a " 'court may consider any material that would be admissible at trial,' including properly authenticated and admissible documents or exhibits."  Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir.2001) (quoting Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2000) (additional citations omitted)).


Civil Local Rule 56.2 (E.D.Wis.) sets forth additional requirements for motions for summary judgment.  The court of appeals for this circuit "repeatedly upheld the strict enforcement of the requirements of district court local rules."  See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.1994).


Specifically, Civil L.R. 56.2(b)(1) provides that any response to a motion for summary judgment "must include:"

A specific response to the movant's proposed findings of fact, clearly delineating only those findings to which it is asserted that a genuine issue of material fact exists.  The response must refer to the contested finding by paragraph number and must include specific citations to evidentiary materials in the record which support the claim that a dispute exists.

 Likewise, Civil L.R. 56.2(b)(2) further provides that the movant responding to the opposing party's findings of fact must do so "in accordance with the provisions of subparagraph (b)(1) of this rule."  To the extent a party has not provided evidentiary support for its proposed findings of fact or in opposition to a particular proposed finding of fact, such party has not raised an arguable factual dispute.  See Civil L.R. 56.2.  Moreover, Civil L.R. 56.2(e) provides that the court must conclude that there is no genuine material issue as to any proposed finding of fact to which no response is set out.


Relevant Undisputed Facts  [FN1]

FN1. As a general matter, unless accompanied by citation, the relevant facts are taken from the parties' proposed findings of fact which are not disputed and the court's findings of fact in its Memorandum and Order granting the plaintiff's Motion for Preliminary Injunction filed October 4, 1999.  Citations to sources of quoted excerpts have been included even when those excerpts are undisputed.


   The Parties

Plaintiff State of Wisconsin (State) is a sovereign state of the United States.  Defendant Stockbridge-Munsee Community (Tribe) is a sovereign federally-recognized Indian tribe (62 Fed.Reg. 55,273 [1997] ) with a reservation located in Shawano County, Wisconsin, within the Eastern District of Wisconsin.  Defendant Robert Chicks is President of the Stockbridge-Munsee Mohican Community.  His duties include presiding over the affairs of the Tribe.  The events giving rise to the claim asserted in this action have occurred, and continue to occur, in this judicial district.


Pine Hills

Pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq., the State of Wisconsin and the Stockbridge-Munsee Community entered into a tribal-state compact authorizing the Tribe to conduct Class III gaming, as required by 25 U.S.C. § 2710(d)(1)(C).  Class III *703 gaming is defined by the Indian Gaming Regulatory Act, 25 U.S.C. § 2703(8) to include electronic games of chance such as slot machines.  The state and the Tribe renewed and amended the compact in 1998, but the provisions of relevance to this case were unchanged.


The compact's terms limit the operation of electronic games of chance to locations "on tribally-owned land or land held in trust by the United States on behalf of the Tribe, but only on such lands within the exterior boundaries of the tribal reservation."  (Compact, Section XV, Part H).  Pursuant to the compact, since 1992, the Tribe has operated Class III electronic games of chance at North Star Casino and Bingo (North Star) located within the exterior boundaries of the Tribe's reservation, at W12180A County Road A, Bowler, Wisconsin.


In 1993, the Tribe purchased property known as the Pine Hills Golf and Supper Club (Pine Hills), located at N9498 Big Lake Road, in the Town of Red Springs, Shawano County, Wisconsin.  In December 1995, the Tribe conveyed the property to the United States of America to be held in trust for the benefit of the Tribe pursuant to the Indian Reorganization Act of 1934 (25 U.S.C. § 465). This property lies within Section 2 of the Township of Red Springs.


Pine Hills lies within the boundaries of the two-township reservation set apart for the Tribe by virtue of the Treaty between the Menominee Tribe and the United States (Treaty with the Menominee, February 11, 1856, 11 Stat. 679 [MD 45] )  [FN2], in fulfillment of the obligation to do so contained in the Treaty between the Tribe and the United States in 1856.  (Treaty with the Stockbridges and Munsees, February 5, 1856, 11 Stat. 663 [MD 25-41] ). Pine Hills does not lie within the 18 sections reserved from sale pursuant to the Act of 1871;  nor does it lie within the lands administratively proclaimed to be part of the reservation in 1937 and 1948, or by Congress in the 1972 Act. On August 28, 1998, the Tribe began operating Class III electronic games of chance, namely slot machines, at Pine Hills.


FN2. MD refers to Master Documents submitted by the parties in support of their summary judgment motions.


   Background History of the Tribe

The Tribe is comprised in large part of descendants of the Mohican Tribe that inhabited a large territory in the Hudson River Valley in the early 17th century.  They encountered Henry Hudson on his exploratory voyage of 1610.  The Mohican Tribe competed with tribes belonging to the Iroquois Federation for control of the Dutch fur trade.  See Brasser, T.J. "Mahican," Handbook of North American Indians, vol. 15, pp. 198-212 (1978);  Dunn, Shirley, Mohicans and Their Land 1609-1730;  Frazier, Patrick, The Mohicans of Stockbridge (1992). In about 1735, a large portion of the Tribe agreed to accept a Christian mission and settled in the village of Stockbridge, Massachusetts on the Housatonic River.


During the Revolutionary War, the Tribe fought on the side of the United States.  After the Revolutionary War, the Tribe, having lost most of its lands at Stockbridge to white settlers, resettled in the Hudson River Valley at the invitation of the Oneida Tribe.  The Tribe traveled to its new home in New York under a safe conduct document issued by General George Washington.


Under pressure from white settlers, the Oneidas and Stockbridges agreed to relocate *704 to Wisconsin.  The Stockbridge-Munsee Indians emigrated from New York to Wisconsin beginning around 1821.  During the removal era (the Removal Act was passed in 1830), the objective of the federal government was to remove Indian tribes to lands in the West beyond the boundaries of white settlements in exchange for their territory in the eastern United States.  See Felix S. Cohen, Handbook of Federal Indian Law at 28, 78 (1982 ed.).


Through a series of treaties made with the Menominee Tribe and the United States, the Stockbridge-Munsee Tribe was provided with a two-township reservation on the eastern shore of Lake Winnebago where the Tribe established the town of Stockbridge.  (Treaty with the Menominee, February 8, 1831, 7 Stat. 342;  Treaty with the Menominee, February 17, 1831, 7 Stat. 346;  Treaty with the Menominee Nation, October 27, 1832, 7 Stat. 405 [MD 1-5] ).  In an 1839 treaty with the United States, the Tribe ceded those lands in exchange for money to explore another location in the West and other benefits.  (Treaty with the Stockbridge and Munsee, September 3, 1839, 7 Stat. 580 [MD 6-7] ).  After white citizens pressured the government to open the Calumet County farmlands for settlement, the government proposed that the Tribe be relocated west of the Mississippi River.  Various statutes and treaties were negotiated and enacted to achieve that result but were never implemented.


An Act of Congress in 1843 disestablished the Tribe and its reservation, leaving the Tribe with no reservation rights.  (Act for the relief of the Stockbridge tribe of Indians in the Territory of Wiskonsan.  March 3, 1843 [MD 9-11] ).  Patents in fee simple were to issue to the tribal members who thereafter would become "citizens of the United States."  Id. Sec. 7 (MD 11).


The Act also provided that members of the Tribe would receive fee simple patents for their lands at the Lake Winnebago reservation and that, following the filing of the Secretary's report, every tribal member would become a citizen of the United States and of the Wisconsin Territory and be subject to the laws of the territory.  The Act further provided that the "jurisdiction of the United States and of said Territory shall be extended over the said township or reservation now held by them, in the same manner as over other parts of said Territory;  and their rights as a tribe or nation, and their power of making or executing their own laws, usages or customs as such tribe, shall cease."  Id. Sec. 7 (MD 11).


The Tribe at this time basically was divided into two opposing camps:  the Citizen party and the Indian party.  The Citizen party favored relinquishing tribal status in return for United States citizenship and receipt of individual parcels of tribal land in fee simple.  The Indian party wanted to preserve the tribal status and culture.  This factional conflict impacted on the Tribe's dealings with the United States.


The Act of 1843 was repealed in 1846.  (Act of August 6, 1846, Ch. 85, 9  Stat. 55 [MD 12-13] ).  The Act of 1846 re-established the Tribe to all of its rights and privileges as though the Act of 1843 had not been passed.  The Act provided for the enrollment of Stockbridge-Munsee tribal members who desired citizenship and further provided that the tribal land be divided into two districts, the Indian District and the Citizen District based on the numbers in these respective parties.  Id. Sec. 2, (MD 12-13).  The lands in the Indian District were to be held in common, while those in the Citizen District were to be divided and allotted to each Indian who became a citizen. Id. Sec. 3, (MD 13).  *705 Upon completion of the division and allotment,  [FN3] patents would be issued and a title in fee simple to the lot of land would vest in the patentee.  Id. The Act further provided that Indians who became citizens would forfeit all rights to receive any portion of the annuity which may at the time or in the future be due the Tribe.  Id. Sec. 2 (MD 13).


FN3. Allotment is a term of art in Indian law which refers to the distribution to individual Indians of property rights to specific parcels of reservation.  Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1015- 1016 (8th Cir.1999) (citing Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 142, 92 S.Ct. 1456, 31 L.Ed.2d 741 [1972] ).  "Indian allotment" refers to land owned by individual Indians and either held in trust by the United States or subject to a statutory restriction on alienation.  See Cohen, Handbook of Federal Indian Law, at 40.  Allotment describes either a parcel of land owned by the United States in trust for an Indian ("trust" allotment) or owned by an Indian subject to a restriction on alienation in favor of the United States. ("restricted fee" allotment).  Id. at 615-616.


In 1848, the Tribe entered into a treaty with the United States.  (Treaty with the Stockbridge Tribe of Indians, November 24, 1848, 9 Stat. 955 [MD 15-24] ).  The treaty stated in relevant part:

The said Stockbridge tribe of Indians renounce all participation in any of the benefits or privileges granted or conferred by the act of Congress entitled "An Act for the relief of the Stockbridge tribe of Indians, in the Territory of Wisconsin," approved March 3, 1843, and relinquish all rights secured by said act;  and they do hereby acknowledge and declare themselves to be under the protection and guardianship of the United States, as other Indian tribes.

 Id. Art. I (MD 15-16).  The Tribe again agreed to "sell and relinquish" its lands on the east side of Lake Winnebago.  Id. Art. III (MD 16).  In consideration for this "cession and relinquishment," the government agreed to make certain monetary payments.  Id. Art. V (MD 16).  The Tribe was permitted to remain upon the lands for one year after the ratification of the agreement and agreed to "remove to the country set apart for them, or such other west of the Mississippi River as they may be able to secure."  Id. Art. VII (MD 17).


A majority of the Tribe, however, did not want to relocate but preferred a new location in Wisconsin.  Other tribal members desired to sever their tribal relations and to receive patents for the lots of land which they occupied.  The intra-tribal conflict between the Citizen party and the Indian party continued.


The Treaty of 1856

In the early 1850s, a new Indian policy emerged which was based on the idea that Indians could be taught the skills of civilization on reservations within their home territory.  George Manypenny, Commissioner of Indian Affairs from 1853 to 1857, along with Charles Mix, Chief Clerk of the Indian Office, were the chief architects of the reservation policy.


The main objectives of the new policy were to concentrate Indians by reducing their land bases through land cessions which would encourage agriculture and discourage native subsistence practices and to settle Indians on reservations as a means to both protect them through the use of strong external boundaries and to more efficiently provide services at the same time.  In addition, the Indians would learn the benefit of private property and labor by allotting land to each family in severalty.  After a period of time, this land would be patented to the family in fee simple.  In a letter to Francis Huebschmann, the Superintendent of the Northern Superintendency, Commissioner Manypenny*706 instructed the superintendent to negotiate a treaty with the Stockbridge-Munsee with the goal, if possible, to unite and settle those Indians together.


In 1852, Commissioner Manypenny wrote a letter to John Quinney and Ziba Peter, members of the Stockbridge-Munsee Tribe, stating that the only reason he would recommend the negotiation of a new treaty to begin with would be "to bring together and unite in harmony as one people, at some suitable location, all members of the Stockbridge and Munsee tribes, wherever situated."  (Report of Charles E. Cleland, "The History of the Stockbridge and Munsee Reservation in the Context of Federal Indian Policy," June 1, 2001 [Cleland Report] at 35 [quoting April 28, 1852, letter of Commissioner Manypenny to John Quinney and Ziba Peter] ).


Two treaties established the Tribe's 1856 reservation.  On February 5, 1856, the Tribe and the United States entered into a treaty which provided that a tract of land of not more than two townships be set aside for the Tribe near the southern boundary of the Menominee Reservation.  (Treaty with the Stockbridge and Munsee, February 5, 1856, 11 Stat. 663 [MD 25-41] ).


In order to fulfill the promise of the first treaty, on February 11, 1856, the Menominee Indian Tribe and the United States entered into a treaty.  In that treaty, the Menominee Tribe ceded and relinquished to the United States a tract of land, "not to exceed two townships in extent ... for the purpose of locating thereon the Stockbridge and Munsee Indians, and such others of the New York Indians as the United States may desire to remove to the said location within two years after the ratification hereof."  (Treaty With the Menominee, February 11, 1856, 11 Stat. 679, Art. 1 [MD 45-46] ).


Under the treaty with the Stockbridge-Munsee Tribe, the United States agreed to give the Tribe "a tract of land ... near the southern boundary of the Menominee reservation."  (Treaty with the Stockbridge and Munsee, February 5, 1856, Art. II [MD 27] ).  The tract was to be sufficient "to provide for each head of a family and others lots of land of eighty and forty acres."  Id. The treaty included that "every such lot ... contain at least one half of arable land."  Id. It also required that "sufficient land shall be reserved for the rising generation."  Id. Art. III (MD 28).  In return, the Tribe agreed to "cede and relinquish to the United States" all their remaining right and title to lands in the town of Stockbridge, Wisconsin and lands in Minnesota set aside for them by the amendment to the 1848 treaty.  Id. Art. I (MD 27).


The preamble of the treaty recounted the lengthy history of dealings between the Tribe and the United States and the internal problems and conflicts within the Tribe.  Id. Preamble, ¶¶ 1-7 (MD 26).  The treaty acknowledged that a majority of the Stockbridge and Munsee Tribe were adverse to removing to Minnesota and preferred a new location in Wisconsin "to resume agricultural pursuits, and gradually to prepare for citizenship."  Id. ¶ 8 (MD 26).  It was also recognized, however, that a number of other tribal members desired to sever their tribal relations and to receive patents for the lots of land which they occupied at the time. Id. The final paragraph stated:

Whereas the United States are willing to exercise the same liberal policy as heretofore, and for the purpose of relieving these Indians from the complicated difficulties, by which they are surrounded, and to establish comfortably together all such Stockbridges and Munsee--wherever they may be now located, in Wisconsin, in the State of New York, or *707 west of the Mississippi--as were included in the treaty of September third, one thousand eight hundred and thirty nine, and desire to remain for the present under the paternal care of the United States government;  and for the purpose of enabling such individuals of said tribes as are now qualified and desirous to manage their own affairs, to exercise the rights and to perform the duties of the citizen, these articles of agreement have been entered into.

 Id. ¶ 9 (MD 27).


The 1856 treaty provided that, after the lands set aside for the Tribe were selected, the United States would have the lands surveyed and allotted "among the individuals and families of their tribes."  Id. Art. 3 (MD 27).  The treaty further provided that each head of a family was entitled to eighty acres of land and if the family consisted of more than four members and if thought expedient by the council of the Stockbridge and Munsee, an additional eighty acres could be allotted to him or her.  Id. Art. 3 (MD 28).  Each single male person above eighteen years of age was entitled to eighty acres and each female person above age eighteen "not belonging to any family," and any orphan child was entitled to forty acres and "sufficient land shall be reserved for the rising generation."  Id.


The treaty further provided that after the allotments were made, the persons entitled to the land could take immediate possession and certificates would be issued guaranteeing and securing their possession and an ultimate title to the land.  Id. The treaty stated that such certificates would not be assignable and would contain a clause expressly prohibiting the sale or transfer of the land by the holder.  Id. Under the treaty, the United States would hold the land in trust for ten years for the holders of the land.  Id. After ten years, with the consent of the Stockbridge and Munsee council, patents for the land would be issued.  Id. The purpose of the treaty was to "advance the welfare and improvement" of the Indians and to that end, the treaty provided that the President of the United States, with the advice and consent of the Senate, may "adopt such policy in the management of their affairs," as in his judgment may be most beneficial to the Stockbridge-Munsee Indians, "or Congress may, hereafter, make such provision by law, as experience shall prove to be necessary."  Id. Art. X (MD 29).


There is no surplus-land provision in the Stockbridge-Munsee Treaty of 1856.  Such a provision was used in some other treaties in the Manypenny era when the United States wanted to set up a temporary reservation for a tribe believed to be on the verge of protecting its own interests.  In the case of such a reservation, after the tribe had selected allotments, the remaining land was returned to the government land office for public sale.  (Cleland Report at 37-38;  James W. Oberly, "The Stockbridge-Munsee Reservation, 1856-2001," May 2001 [Oberly Report] at 16).


Two townships which were formerly part of the Menominee Reservation comprised the 1856 Stockbridge-Munsee Reservation.  A township contains 36 sections each of which is one mile square.  Thus, the 1856 reservation contained a total of 72 sections.  The two townships, now known as the towns of Bartelme and Red Springs, are located on Ranges 13 and 14 East, Township 28 North, Shawano County, Wisconsin, the 4th Prime Meridian.  Although the February 5, 1856, treaty with the Stockbridge and Munsee Tribe guaranteed the Tribe a new reservation, it was also intended to further the goal of gradually making the tribal members independent of government control and protection.


*708 After the Tribe relocated to its new reservation, tribal members selected 80- and 40-acre allotments pursuant to the 1856 Treaty.  The land within the townships was unfit for farming as it contained poor, sandy soil and a very short growing season.  The land was also densely forested with pine and hardwoods.  In the years immediately following 1856, Stockbridge-Munsee tribal members struggled to survive as crops failed due to cold weather or insects. By 1860, many tribal members were starving.


In 1865, United States government officials took the view that the land granted to the Tribe was not subject to the usual grant of the sixteenth section of each township made by the United States to a new state entering the Union.  Normally, on the date of admission to the Union, the United States granted the sixteenth section from the public domain lands to each State for the support of public education.


The allotments and patenting were eventually carried out.  However, it was not until 1910 and three congressional enactments later--in 1871, 1893, and 1906-- that all lots on the reservation were patented in fee simple and in severalty to individuals.


The 1871 Act

During the 1860s, there was widespread dissatisfaction with the quality of the soil on the reservation.  The new reservation with its "cold and barren sand hills" proved unfit for agriculture.  (Annual Report of United States Indian Agency, Green Bay, Wisconsin dated September 23, 1966 [MD 54] ).  In this report, the agency stated that approximately 152 tribal members currently resided on the reservation and that because of the "forbidding character of their country," they could not realize a meager subsistence without occasional supplies from the government.  Id. The report noted that these circumstances "bred discontent" among tribal members who desired "a remodeling of their treaty stipulations, believing that any change must be an improvement upon their present condition."  Id.


In a letter to Congress signed by John Hendricks, sachem, and eighty-three others dated January 6, 1863, members of the Tribe expressed their dissatisfaction with the poor quality of the land and their belief that the land provided for them as a result of the 1856 treaty was not the one promised, "nor the one for which the treaty was signed."  (Appendix to Defendants' Brief in Opposition to Motion for Preliminary Injunction at 229). The tribal members stated that the soil was sand and the location too far north to allow adequate time for crops to mature.  They noted that the presence and type of timber on the land "would do for a lumbering community but not for us, who are just emerging from the Indian state, to become an agricultural people."  Id. It was widely believed by the Indians and government officials alike that the Stockbridge reservation was "totally worthless-except for its pine timber."  (Cleland Report at 57).


The Office of Indian Affairs (OIA), precursor of the modem Bureau of Indian Affairs (BIA), refused to allow individual tribal members to log their selections because the selections were not legally confirmed as allotments. The OIA also opposed logging on the ground that it had a demoralizing effect on Indians.  Unable to log, tribal members had no viable means of earning a living and became impoverished.  The OIA also opposed simply selling the timber without the land due to the prior abuses of lumber contractors who had cleared more area than their contracts had allowed.


Because the land on the 1856 reservation had never been formally allotted to individual tribal members as called for under *709 the Treaty, the OIA viewed the timber as held in common by the Tribe.  Ownership in common prevented individuals from even clearing timber for a homestead, much less lumbering for cash.  With no means of income and stagnancy in clearing land for homesteads, tribal members suffered poverty, hunger, misery and despair through the 1860s.


The internal dissension within the Tribe also continued.  Jeremiah Slingerland and Darius Charles, Stockbridge-Munsee tribal members, emerged as the leaders of the Tribe.  They maintained a veil of legitimacy through fraudulent elections and represented themselves to the outside world as tribal delegates.


During the 1850s and 1860s, the Wisconsin market for merchantable lumber remained strong and Wisconsin's lumber companies sought new sources of timber from the Stockbridge-Munsee and Menominee Reservations.  Congressman Philetus Sawyer represented the district where the Stockbridge-Munsee Reservation was located. [FN4]  Congressman Sawyer was also president of the First National Bank of Oshkosh and proprietor of P. Sawyer and Sons Lumber Mills.


FN4. Philetus Sawyer, a Republican, served in the United States House of Representatives from 1865 to 1875.  He served in the United States Senate from 1881 to 1893.


By the late 1860s, the forests of Shawano County had been logged up to the lands of the Stockbridge-Munsee and Menominee Indians.  Stockbridge-Munsee tribal members estimated in 1870 that the reservation held 150 million board feet of pine timber.  Congressman Sawyer did not support selling the rights to stumpage only because such a plan would lead to abuse.  Loggers would cut more that they would be entitled to unless the land was subdivided, appraised and sold to individual buyers who presumably would more jealously protect their land.


In the late 1860s, Congressman Sawyer began his effort to gain access to the timber on the Stockbridge-Munsee Reservation otherwise forbidden due to its federally-protected status as land held for the benefit of the Indians. Various ideas arose, including selling the timber at auction with a minimum price per thousand board feet or selling it at a minimum cost per acre. However, certain areas within the reservation contained no pine and therefore would not sell.  A checkerboard effect would defeat the idea of selling the entire reserve so that a new home could be found for the Tribe in a place with better agricultural land.  Congressman Sawyer worked together with Mr. Slingerland and Mr. Charles to meet their objectives of disenfranchising their political enemies, the Citizen party, while at the same time moving the Tribe to better agricultural land.


By the late 1860s, the Indian and Citizen factions each put forth their own solution to the problems on the reservation.  The Indian party plan favored relocating where better land was available in Kansas, North Dakota or among the Oneida in Green Bay. The Citizen party favored a plan to generate income by cutting and marketing the pine timber that flourished on the reservation.  Both options had major obstacles.  There was little other land available since the Oneida refused to give up any of their land.  Cutting timber for cash was against long-standing policy of the OIA.


The Tribe continued to make repeated complaints to Congress about the conditions on the reservation, including a petition submitted in November 1866 to the Commissioner of Indian Affairs signed by members of both tribal factions.  The petition recounted that the Tribe had "continued from year to year, to set forth their *710 grievances and complaints, praying their Great Father for relief, and a new country furnished in some more hospitable climate."  (Petition of November 19, 1866, at 1 [MD 56] ).  Having failed in their earlier efforts, the tribal members "repeat the urgency of their matters, by respectfully praying you our Great Father to grants us a new Treaty, whereby we can be delivered from our present troubles" and "be brought into a more congenial country."  Id.


The Commissioner obliged the Tribe's request for a new treaty and a draft treaty was negotiated and signed by tribal representatives and federal officials in February 1867.  (Draft Treaty with the Stockbridges and Munsees in Wisconsin, February 15, 1867 [MD 70-76] ). By its express language, the Tribe was to "cede and relinquish to the United States" all the rights, title and interest held by the Tribe, individually or collectively, in the two townships.  Id. Art. I (MD 71).  The treaty also called for a new reservation for those who aligned themselves with the Indian party.  Id. Art. IV (MD 72).  Those who did not so align themselves would receive a cash payment and become citizens of the United States.  Id. Art. III (MD 71-72). This treaty was contingent upon acquiring land for a new reservation from the Oneida Indians.


The draft 1867 treaty recognized that the Tribe had a total of 392 members, 244 of whom (57%) were Citizens, and 168 of whom were Indians (43%). It provided for allotments of "at least 80 acres" of land for each male, and "at least 40 acres" for each female.  Id. Art. IV (MD 72).  The treaty would have accomplished two principal aims:  1) it would have facilitated the breakup of the Tribe, allowing the Citizens to "cash out" their interest in the tribal estate and attain citizenship, thereby terminating their status as ward Indians;  and 2) it would have established the remaining Indian party members on a new reservation to be purchased, it was hoped, from the Oneidas.  Had the draft treaty been ratified it would have ended the reservation.  The reservation would have been sold.  The Senate did not ratify the treaty.


Efforts to secure a new treaty continued, and some time during the first three months of 1868, Indian party leaders and their lobbyist, Morgan Martin, had the idea of ceding one and one-half townships and retaining the south half of Red Springs for the Indian party.  A draft treaty that same year included these precise terms.  The treaty, however, was never submitted to either the Tribe or the Senate for approval.


In the two years between the draft treaty of 1868 and the introduction in March 1870 of the bill that would become the Act of 1871, the Indian party leaders--Mr.  Charles and Mr. Slingerland--visited Washington to advance the goal of selling the reservation and disenfranchising the "Old Citizens."  At this time, there were essentially three convergent forces:  1) the Indian party, 2) the Citizen party and 3) the lumber interests.


In a letter addressed to the House and the Senate dated February 1, 1870, approximately 20 individuals, representing themselves as "parties to the treaty of 1856," urged Congress to approve the 1867 treaty, with an amendment allowing the Citizens to opt for land "in lieu of money."  (Letter of February 1, 1870, at 3 [MD 108] ).  Six weeks later, in a letter to the Chairman of the Senate Committee on Indian Affairs, the Indian party leaders--Mr.  Charles and Mr. Slingerland--urged passage of Senate Bill 610 which was to become the Act of 1871.  After recounting the failed effort to ratify the 1867 treaty, the March 1870 letter continued:

*711 The Tribe however, being, still anxious to accomplish the desired change have appointed the undersigned Delegates to represent their wishes, and to devise a plan by which they may realize the value of their timbered lands, and at some future day obtain a more favorable location.  Some members of the Tribe are also desirous of severing themselves from the Tribe and withdraw their share of the common property.  Under these circumstances, your Memorialists have prepared with care the Bill presented to the Senate, and now under consideration, S. 610.  Its provisions if, carried into effect will, we think, bring about all that the treaty of 1867 was designed to accomplish, viz, the final settlement of our affairs, and that too without any charge to the government.

 (Letter of March 16, 1870, at 2 [MD 118-119] ).


On March 2, 1870, Senator Timothy Howe of Wisconsin introduced S.610 concerning the Stockbridge-Munsee Indians.  The bill passed the Senate but died in the House of Representatives.  Senator Howe reintroduced S.610 on December 13, 1870.  The bill passed the Senate and came to the House on January 13, 1871.


Senate Bill 610 appears to have been the product of negotiations between Representative Sawyer and the Stockbridge-Munsee tribal delegates, Mr. Charles and Mr. Slingerland.  The bill contained provisions for public access to the vast timber holdings, as well as the Indian party's political agenda of expelling its Citizen party enemies from the Tribe.  Mr. Charles and Mr. Slingerland worked with Morgan Martin, a lobbyist and lawyer, to secure the passage of a bill that would disenfranchise the Citizen party.  In early 1871, when rumors of the law circulated on the reservation, the Indian agent assigned to the reservation, Agent W.T. Richardson, wrote to his superiors in Washington, D.C., for a copy of the bill.  Agent Richardson appears to have been ignorant of the pending legislation or the passage of the bill.


Senate Bill 610 was referred to the Committee on Indian Affairs which approved it and returned it to the full House.  The bill came up for a final reading in the House on January 18, 1871.  The full House floor debate on S.610 showed interest in three particular areas:  1) the consent of the Stockbridge-Munsee Tribe;  2) the role of Congress in selling land outside the public domain;  and 3) the manner in which the land was to be sold.


There was no discussion in the House debate showing that members of the House intended to diminish the size of the Stockbridge-Munsee Reservation.  In the House floor debate, members of Congress stated that the Stockbridge-Munsee Tribe had consented to the sale of their lands under the 1871 Act and that Congress had not independently assumed authority to sell the lands:

Mr. Lawrence:  Can the Government by treaty vest the title to the public lands in Indians?

Mr. Armstrong:  I have no doubt of it.

Mr. Lawrence:  Can the Senate, then, vest the title of all the public lands of the United States?

Mr. Armstrong:  So long as the Government of the United States in its political capacity recognizes the Indian tribes and treats with them as independent Powers, so long are we bound by our contracts with them and we cannot repudiate them.

Mr. Hawley:  If these are not public lands, by what authority does Congress assume to dispose of them?

Mr. Armstrong:  Congress does not assume authority to sell these lands except by consent of the Indians.  They ask *712 that these lands may be sold.  The bill provides that the lands shall not be sold for less than their appraised value.  If open to settlement, men would come as preemptors and take up the lands at $1.25 per acre.  They are worth more, and ought to realize to these Indians their full value.

 (Congressional Globe, 41st Congress, 3rd Session, January 18, 1871, at 588 [MD 130] ).


Senate Bill 610 passed the House on January 18, 1871, and passed the Senate the next day.  After Congress approved the bill, it was sent on to the President who asked the Secretary of Interior for his views on the bill. Secretary Columbus Delano answered that, while he could not recommend withholding approval, some of the bill's provisions were not in full accord with the views of the Department of Interior.  President Grant did not sign the bill and it became law by operation of law on February 6, 1871.  (An Act for the Relief of the Stockbridge and Munsee Tribe of Indians, in the State of Wisconsin, February 6, 1871, 16 Stat. 404 [MD 131-134] ).  The legislative history surrounding passage of the Act is limited.


The 1871 Act provided for the appraisal and sale at auction, in 80-acre lots, of 54 out of the 72 sections comprising the reservation.  The Act stated that "the two townships of land, situated in the county of Shawana, and State of Wisconsin, set apart for the use of the Stockbridge and Munsee tribe of Indians shall be advertised for sale ... and shall be offered at public auction ... to the highest bidder in lots not exceeding eighty acres each, but shall not be sold for less than the appraised value thereof," except for eighteen contiguous sections of land. [FN5]  Id. Secs. 1-2 (MD 131-132).  The Act authorized the Secretary of the Interior to reserve from sale lands "not exceeding eighteen contiguous sections, embracing such as are now actually occupied and improved, and are best adapted to agricultural purposes, subject to allotment to members of the Indian party of said tribe."  Id. Sec. 2 (MD 132).


FN5. In 1871, Congress ended treaty making with Indian tribes.  See Cohen at 643 (citing Appropriations Act of March 3, 1871, ch. 120, 16 Stat. 544, 566 [codified at 25 U.S.C. § 71] ).


The Act further provided that all of the lands remaining unsold after one year were to be again advertised and offered at public auction "at not less then the minimum of one dollar and twenty-five cents per acre" and "thereafter shall be subject to private entry at the later price."  Id. In all cases, the land was to be sold "for cash only."  Id. If the lands continued to remain unsold, the government was to credit the Tribe at "sixty cents per acre." Id. Sec. 4 (MD 132).


The proceeds from the sale were to be divided between the Citizen and Indian parties.  Proceeds belonging to the Citizen party were to be divided equally among them per capita and paid out to the heads of families and adult members. The sum belonging to the Indian party was to be credited to it "on the books of the treasurer of the United States," and the interest applied to the support of schools, the purchase of agricultural implements or paid in such other manner as the President may direct.  Id. Sec. 5 (MD 133).  However, part of the proceeds due the Indian party, "on request of the sachem and councillors" of the Tribe, could be used for "securing a new location for said tribe," and in aiding them to establish themselves in their new home.  Id.


The Act provided for the preparation of two rolls, one to be denominated the Indian roll and the other to be denominated the Citizen roll, for the "purpose of determining the persons who are members of *713 said tribes and the future relation of each to the government of the United States."  Id. Sec. 6 (MD 133).  The Citizen roll would be composed of those "persons of full age, and their families, as signify their desire to separate their relations with said tribe, and to become citizens of the United States."  Id. After the payment of proceeds to members of the Citizen party, there was to be "a full surrender and relinquishment" of all their claims as members of the Tribe and they and their descendants would be admitted to "all the rights and privileges of citizens of the United States."  Id.


The Indian roll would contain the names of all persons of full age and their families as desire "to retain their tribal character and continue under the care and guardianship of the United States."  Id. After the rolls had been made and returned, the Indian party would be known as the "Stockbridges tribe of Indians" and "may be located upon lands reserved" from sale or "such other reservation as may be procured for them, with the assent of the council of said tribe."  Id. Sec. 7 (MD 133).


The Act further provided that "after a suitable and permanent reservation shall be obtained and accepted by the tribe either at their present home or elsewhere," it was to be surveyed and subdivided under the direction of the Secretary of the Interior, and a "just and fair allotment" made by the council of the Tribe "among the individuals and families composing said tribe."  Id. Sec. 8 (MD 133-134).  The Act specified the amount of land to be provided to adult tribal members and further provided that if a member of the Tribe died without heirs capable of inheriting, "the land shall revert to and become the common property of said tribe."  Id. Sec. 8 (MD 134).  A certified copy of the allotments made was to be returned to the Commissioner of Indian Affairs within one year after the reservation was made and accepted by the Tribe. Thereafter, the title of the lands "shall be held by the United States in trust for individuals and their heirs to whom the same were allotted."  Id. Sec. 9 (MD 134).


The 1871 Act made no mention of the Tribe "ceding or relinquishing its reservation" or otherwise making a present and complete surrender of all of its interest in the lands to be sold.  The Act did not restore the Tribe's land to the public domain.  The 1871 Act resulted in the sale of land as well as timber.


After the bill became law, Congressman Sawyer sent the bill to Jeremiah Slingerland along with a letter requesting that Mr. Slingerland obtain the sanction of the Tribe.  As far as it is known, no general council was ever held to obtain the Tribe's concurrence to the Act of 1871.


A large portion of the Stockbridge-Munsee Tribe signed a petition objecting to the 1871 Act. The petition to President Ulysses S. Grant stated that the law was the work of one faction of the Tribe and was not agreed by many others since it violated the terms of the 1856 Treaty.  The sachem and councilors of the Citizen party wrote to President Grant, reminding him that the 1856 Treaty guaranteed land to the Tribe.  They also objected to the Act of 1871 and requested the President's help in avoiding the bill's consequences.


The petition of the Indian party sanctioning the Act contained 60 names;  the petition of the Citizen party contained 54 names.  Some names appeared on both.  The Citizen party claimed that the Indian party had fraudulently entered Citizen party names on the Indian party petition.


On January 8, 1872, an auction was held at the Menasha Land Office as called for under the Act. Various tracts of land in the 54 sections were sold, though much of the *714 land remained unsold.  One year later, the land was open for cash entry at $1.25 per acre.  In 1874, per section 4 of the Act, Congress appropriated $7,081.80 for the remaining 11,803 acres that remained unsold after the auction and cash entry.  (MD 177).  On May 4, 1871, the newspaper, Oshkosh Northwestern, wrote that the Act of 1871 was a law that enabled the Tribe to sell their timber.


There is no executive order declaring a diminishment of the Stockbridge-Munsee Indian Reservation.  The General Land Office records of the Menasha Land Office show that the agency viewed the 54 sections as "Stockbridge-Munsee Lands" for sale until June of 1874.  In follow up legislation in 1874, Congress did not address the Stockbridge-Munsee Reservation boundary.


When it passed the Act of 1871, Congress understood the problems of poverty, disease and unrest on the reservation.  The legislation was a good-faith effort by Congress to alleviate the poverty among the tribal members and Congress understood that the legislation originated within the Tribe.


In passing the Act of 1871, Congress did not expect that settlers would purchase the sold lands--either at the initial auction or after the lands had been logged.  Congress was led to believe that the lands were expected to be purchased by timber interests, but Congress did not reject the possibility that the land might be purchased by homesteaders and allowed for that possibility. See MD 130.  There is no indication in the record that Congress' purpose in selling the 54 sections was to encourage non-Indians to settle in the midst of tribal members in order to promote interaction between the races or encourage the Indians to adopt white ways.  Rather, as the Tribe has asserted, Congress intended and expected that the lands would pass into the hands of the lumber industry for logging.  As Dr. Oberly stated:  "The interest of Congress was not to promote the rapid settlement of farmer-homesteaders, but rather to maximize revenue to the Tribe for selling the pinelands."  (Oberly Report at 31).


The Tribe received substantially more for its lands through the 1871 Act-- $169,000--than it would have received under the 1867 draft treaty.  The 1867 draft treaty would have yielded only $43,175 (34,540 acres, the equivalent of 54 sections, at the rate of $1.25 per acre).


Not all recognized land cessions have used the word "cede" or a form thereof, for example, "cession."  A number of treaties conveying lands did not use such language.  A congressional report of 1952 treated the Act of 1871 as a cession by the tribe of 54 sections of an original area of two townships, or 72 sections.  The 1871 Act "provided for cession of the two townships ... except eighteen sections.  The ceded lands were to be sold."  (Report with Respect to the House Resolution Authorizing the Committee on Interior and Insular Affairs to Conduct an Investigation of the Bureau of Indian Affairs dated December 15, 1953, at 990 [MD 810] ).


Between 1869 and 1877, President Ulysses S. Grant and his Commissioner of Indian Affairs, Eli Parker, developed a policy toward Indians that continued to the turn of the twentieth century and beyond.  Dubbed the Peace Policy, President Grant and Commissioner Parker hoped to place Indians on reservations where they could be taught the methods of modern agriculture and be economically independent.


Implementation of the 1871 Act

After passage of the Act, the Tribe informed the Secretary of the Interior that it had chosen to remain in Wisconsin and *715 that it had selected as its "permanent home" the 18 contiguous sections in the southeastern portion of the two townships that it had previously designated as the lands to be reserved from the sale of its reservation--specifically, the south half of sections 13, 14, 15, and the east half of sections 19, 30 and 31, together with sections 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35, and 36.  (Letter of February 21, 1872, from Darius Charles and Jeremiah Slingerland at 4 [MD 159] ). [FN6]


FN6. The location of those 18 contiguous sections is depicted on Exhibits 304 [MD 1049] and 304L.


On August 4, 1871, the Secretary of the Interior, acting pursuant to the Act of 1871, reserved from sale the 18 contiguous sections.  (Report of the Acting Commissioner of Indian Affairs to the Green Bay agent dated September 21, 1871, [MD 153];  see also, Letter dated October 27, 1900, from W.A. Jones, Commissioner of Indian Affairs [MD 370] ).  Three-fourths of the land within the 1856 reservation was sold pursuant to the Act of 1871, with a portion of the proceeds going to members of the Citizens party who were to relinquish their tribal membership.